Bangalore District Court
U/S 105© & (D) Of Cr.P.C. Both ... vs Has Amassed More Than 200 Crores Of Rs. By ... on 6 August, 2016
IN THE COURT OF THE LXI ADDL. CITY CIVIL,
SESSIONS JUDGE: BENGALURU CITY.
Dated this the 6th day of August, 2016
-: PRESENT :-
SRI. NINGAPPA P.KOPARDE, B.A.,LL.B.(Spl.)
LXI Addl.City Civil & Sessions Judge
Criminal Revision Petition No. 481/2015
Revision Petitioner/ Sri. Krishnamurthy C.M,
Accused. S/o Mayappa,
Aged about 53 years,
Occ: Business,
R/at No.242, Pattalamma
Layout, Kadagodi,
Bengaluru 560 066.
(By Sri. H.S. Chandramouli
& Associates, Advocates)
.Vs.
Respondent/Compla State by
inant : Mahadevapura Police Station,
(C.C.B),
Bengaluru.
(By Public Prosecutor)
ORDER
The Revision Petitioner/accused No.1 herein filed this revision petition U/s.397(1) r/w 399 of Cr.P.C. praying for setting aside the 2 order passed by the learned I ACMM, Bangalore in C.C.No. 20121/2013 dtd: 24.06.2015.
2. The facts leading to the revision petition are as under:
On the basis of the complaint of one Sri. Boralingaiah i.e. respondent No.2 dated 1.9.2013 the respondent police registered the case against the accused in Crime No.593/2013 and after completion of the investigation, the respondent No.1 Mahadevapura police (C.C.B.) submitted charge sheet against the accused for the offences punishable under Sections 420, 120-B r/w Section 34 of IPC and Section 3, 4, 5 of Prize Chits and Money Circulations Scheme (Banning) Act, 1978 and Section 76, 79 of Chits Funds Act, 1982, alleging that prior to 2011, the accused No.1 and other accused persons with an intention to cheat general public had commenced Sri. Maruthi Finance, Sri. Maruthi Tools and Travels and Sri. Maruthi Chit funds at No.18, Sri. Krishna Sadana, Basavannanagar Road Cross of Hoodi village and collected money from public, assuring that they would yield high returns and further falsely claiming that they had obtained requisite permission from the Government. During the month of November 2011, the accused continued to commit the offences narrated therein in the above at their residence. They also instigated agents to secure 3 more deposits in lieu of good commission or prizes and accordingly collected deposits through the agents and thereby cheated public at large to an extent of more than 1,20,00,000/- and from the money earned unlawfully and illegally they purchased various movable and immovable properties.
3. After filing of the charge sheet, cognizance of the offences were taken by the Learned Magistrate. On 6.1.2015 the informant i.e. respondent No.2 filed an application u/s 105 © & (D) of Cr.P.C. through public prosecutor. Subsequently, the petitioner filed objections to the petition and additional objection on 28.4.2015. The Learned Magistrate by an order dated 24.6.2015 passed the impugned order allowing the application filed by respondent No.2 through Public Prosecutor.
4. Being aggrieved by the impugned order dated 24.6.2015 passed by Learned I A.C.M.M., Bengaluru, the Revision petitioner herein has come up with this appeal challenging its propriety and correctness, on the following grounds:
The impugned order passed by the learned Magistrate is contrary to law, facts and materials on record. Hence, the same is liable to be set aside. The reasons assigned by the Learned 4 Magistrate while passing the impugned order is unsustainable. So there is a substantial miscarriage of justice. That the respondent no.2 herein is only an informant. The respondent No.1 the Mahadevapura police after completion of investigation, filed the charge sheet. As such the respondent No2. has no locus-standi to file any application. The Learned prosecutor has acted detrimental to the interest of the justice. It is incumbent on the part of the prosecution to represent the State and not any individual party. As such, the respondent No.2 has filed an application u/s 301 Cr.P.C. to assist the prosecution which is allowed by the Learned Magistrate by an order dated 17.12.2014. In the back drop of the same the Learned Prosecutor ought not to have encouraged respondent No.2 in filing the application in question. The Learned Magistrate has misled to the provisions of Chapter 7(a) of Cr.P.C. The Learned Magistrate ought to have noticed that application of Section 105(C) & (D) of Cr.P.C. is not of general characteristic but it is to be applied seldom under special circumstances. So, the said provision has no application to the offences alleged under I.P.C. or any other general law except the one touching the subject stated in the above section. The procedure adopted by Learned Magistrate and approach of the prosecuting agency is not only unjust, illegal 5 but also gross violation of principles of Criminal justice system. The allegations made in the application in issue are bald, vague and same are denied as false. None of the respondents have produced even an iota of material to substantiate that properties sought to be seized were earned out of alleged crime. Under such circumstances, the Learned Magistrate has committed manifest error in passing the impugned order mechanically. The learned magistrate by his order dated 21.3.2013 allowed the application filed u/s 451 C.P.C. and he entrusted certain seized properties to the interim custody of the accused, after hearing both prosecution as well as counsel for the accused. It is surprise that the very same Learned Magistrate allowed the application filed by the complainant u/s 105© & (D) of Cr.P.C. Both applications go parallel to each other which reflects none application of judicial mind resulting in interference with investigation. The Learned Magistrate while passing the order under the impression that application has been filed by prosecution. In fact, it is filed by the complainant who has no locus-standi to participate in the enquiry or trial. On the aforesaid reasons, it is prayed to allow the revision petition by setting aside the impugned order dated 24.6.2015. 6
5. L.C.R. called for, in response to the notice the respondent No.1 represented by Learned Public prosecutor and respondent No.2 appearaed through his counsel and they supported the order passed by the court below and submitted that the interference by this court in the findings given by the court below is not required.
6. Heard both sides and perused the materials placed on record.
7. The following points arise for my consideration are:
1. Whether the impugned order passed by the court requires any interference by this court?
2. What order?
8. My findings on the above points are as under :
Point No.1 : In the affirmative.
Point No.2: As per final order, for the following :
REASONS
9. Point No.1 : It is the case of the prosecution that the accused cheated several persons and induced the public at large for about 3500 members of the chit business. He amassed with money out of chit business and from the said money he purchased several immovable and moveable properties in and around Bengaluru in the name of himself, his wife and his daughter. The respondent No.2 in his objection to the petition submitted that Mahadevapura 7 police station partly investigate the case and after the case was transferred to C.C.B. police who took over the investigation and thereafter they seized moveable and immoveable properties, documents through mahazars and subjected the same to P.F. But at the same time, the Investigating Officer did not attach the above said properties and the I.O. colluding with the accused has not attached the same properties. It is further contended that the accused has amassed more than 200 crores of Rs. by cheating 3500 chit members, out of such money he purchased more than 8 immoveable properties as well as moveable properties. But the said properties are not attached and without attaching these properties after making auction or sale without the permission of the trial Court, the chit members will not get the investments back. Mere, the filing of criminal case will not serve the purpose to get any sort of relief. The Learned Magistrate has allowed the application filed by the respondent No.1 vide its order dated 24.6.2015 considering the interest of poor people and public at large. Therefore, the revision preferred by the petitioner against the said impugned order is to be dismissed in the interest of justice.
10. Without adverting to the facts of the case, let us consider whether the Magistrate was empowered to pass such impugned 8 order u/s 105© & (D) Cr.P.C. In my opinion, the order passed by the lower court is erroneous and the Learned Magistrate was not empower to pass the impugned order u/s 105© & (D) of Cr.P.C. In this regard, I think it is just and proper to refer the citation relied upon by the Learned counsel for the petitioner reported in (2010) 2 Supreme Court cases (Cri) 1070, in case of State of Madhya Pradesh Vs. Balaram Mihani and others, wherein the Hon'ble Apex Court has clearly held " in applicability of Chapter VII (A) to local offences or properties earned their from -- Held said provisions are not ordinary law of land and are applicable only to offences which have International ramifications - They impose stringent measures for attachment and perpetual of properties earned by offences, by way of reciprocal arrangements made in contracting countries - Provisions there under are supplemental to special provisions contained in Ss. 166-A and 166-B and have nothing to do with investigation into offences in general - In the instant case, the offences alleged are local and even properties were not shown to the connected with crimes mentioned in Statement of Objects and Reasons of Amending Act 40/1993 which had inserted chapters VII-A - Further no connection was established between alleged crime 9 and properties - Hence, impugned order quashing forfeiture proceedings of such properties calls for no interference. "
It is further held that " Where language of the statute is extremely general and not clear, contexual background has to be taken into consideration for arriving at clear interpretation."
11. When we come to the applications has also the order passed by the trial Court it becomes clear that it is only and only in respect of local offences, such as the offence u/s 420 and 120-B IPC and Sec. 3, 4 and 5 of Price Chits and Money Circulation Scheme Banning Act, 1978 and Sec. 76, 79 Chit Fund Act, 1982. Which offences are local offences as contemplated in the respective provisions. Even the properties are not shown to be collected with crimes mentioned in the objects and reasons of amending Act 40 of 1993, there is a clear cut reference that the Government of India had signed an agreement with a Government of United Kingdom of Great Britan and Northern Irland for extending assistance in the investigation and prosecution of Crime and tracing restraint 10 and confiscation of proceeds of crime (including Crimes involving currency transfer) and Terrorist funds, with a view to check the terrorist activities in India and the United Kingdom and the Statement further goes on to provide the three objectives viz.;
a) The transfer of persons between the contracting States including persons in custody for the purpose of assisting in investigation or giving evidence in proceedings.
b) Attachment and forfeiture of properties obtained or derived from commission of an offence that may have been or has been committed in other country and
c) Enforcement of attachment and forfeiture orders issued by Court in other country.
12. As per the observation of Hon'ble Supreme Court such properties are not clearly included in Section 105(C) Though the language of Section 105(C) (1) is extremely general , its being placed in Chapter VII(A) cannot be lost site of. Again othere is a clear cut reference in (2) thereof to the contracting State, the definition of which is to be found in Section 105-A
(a). It is therefore, clear that the property envisaged in Sec. 105-C (1) cannot be an ordinary property earned out of 11 ordinary offences committed in India. Where the language is extremely general and not clear, the contextual background has to be taken into consideration for arriving at clear interpretation. When the Sub-Sec. is read in entirety, it is clear that it makes reference to a person who is in contracting state. Therefore, even that reference, will not bring any provision within the scope of general law.
13. From my above discussion, it becomes clear that Section 105 © & (D) of Cr.P.c. are not applicable to present case on hand and the learned Magistrate was not empowered to pass order for attachment of seized moveable and immoveable properties as per Section 105 (C) & (D) of Cr.P.C. Therefore, the order passed by the court below is erroneous and interference of this court in the findings of trial Court is warranted. As such, the impugned order passed by the court below is liable to be set-aside. Thus, I answer point No.1 in affirmatively.
14. POINT NO.3: In view of my findings to point No.1 in affirmative, I proceed to pass the following:- 12
ORDER The Revision Petition filed by the petitioner U/s.397 of Cr.P.C. is hereby allowed.
The order passed by the Court below dtd:
24/06/2015 in C.C.No.20121/2013 is set aside.
Send back the LCR to the Trial Court with a copy of this Order, forthwith.
(Dictated to the Judgment Writer, transcript there of is corrected and then pronounced by me in the open court on this the 6th day of August, 2016).
(Sri. N. P. Koparde), LXI Addl. City Civil & Sessions Judge, Bengaluru City.