Gauhati High Court
Prabhat Kalita vs The State Bank Of India And 3 Ors on 15 December, 2020
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
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GAHC010203022018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6324/2018
PRABHAT KALITA
S/O- LT SIRAM KALITA, R/O- VILL- BOHOTIAGAON, TARAJAN, BAPUJI
NAGAR, P.O. R.R.L, P.S. JORHAT, DIST- JORHAT (ASSAM)
VERSUS
THE STATE BANK OF INDIA AND 3 ORS.
REP. BY THE CHIEF GENERAL MANAGER, LOCAL HEAD OFFICE, DISPUR,
GHY, KAMRUP (M), ASSAM
2:BRANCH MANAGER
KATAIKIPUKHURI BRANCH
P.O. R.R.L
DIST- JORHAT
ASSAM
PIN- 785001
3:SUPERINTENDENT OF POLICE
JORHAT
OFFICE OF SUPERINTENDENT OF POLICE
JORHAT
4:OFFICER-IN-CHARGE
JORHAT P.S.
DIST- JORHAT
ASSA
Advocate for the Petitioner : MR. M BISWAS
Advocate for the Respondent : GA, ASSAM
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BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
ORDER
15-12-2020 Heard Shri M. Biswas, learned counsel for the petitioner who is aggrieved by the action of the respondent authorities in directing his banker namely the State Bank of India to freeze his personal SBI account.
The case of the petitioner is that certain funds were allotted for development purpose to an organization namely the Sadharan Jati Development Council, Assam of which the petitioner was the Chairman. Alleging misuse and defalcation, an F.I.R. was lodged in the Jorhat Police Station on the basis of a communication dated 10.11.2016 issued by the Deputy Commissioner, Jorhat. Simultaneously, an enquiry was also conducted which culminated in a report.
It is the case of the petitioner that as per the F.I.R., the allegation against the petitioner was defalcation of an amount of Rs. 5,00,000/-( Rupees Five Lakh) which was issued in the name of the petitioner for which the Jorhat P.S. Case No. 2452/2016 was registered under Section 409/419/420/34 of the Indian Penal Code. The same was followed by freezing of the Savings Bank Account of the petitioner which he maintained with the Kataki Pukhuri Branch of the State Bank of India in the District of Jorhat.
Shri Biswas, the learned counsel for the petitioner has submitted that his present challenge is not on the merits of the allegation but on the freezing of the bank account. Though the allegation as a whole has been denied in its entirety, the primary thrust in this writ petition is gross violation of the procedure laid down in the Cr.P.C which has been laid down in Section 102.
By drawing the attention of this Court to the second affidavit dated 11.11.2020 by the Deputy Superintendent of Police (HQ), Jorhat in the form of an additional affidavit, Shri Biswas, the learned counsel submits that there is a clear admission in the said affidavit that the procedure laid down in Section 102 of the Cr.P.C. have not been followed.
Page No.# 3/5 Ms. M.D. Bora, the learned State Counsel, however submits that the materials would show the involvement of the petitioner and the freezing of the account has been done in the interest of public.
As regards the allegation made by the petitioner of not following Section 102 of the Cr.P.C., the State Counsel has fairly submitted that she will go by the pleaded case as has been done in the additional affidavit dated 11.11.2020.
Section 102 of the Cr.P.C. is with regard to power of the Police Officer to seize certain property.
For ready reference, the said Section is quoted herein below :-
"102. Power of police officer to seize certain property.
1. Any police officer, may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.
2. Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.
3. Every police officer acting under sub- section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court [ or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation], he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.
Provided that where the property seized under sub- section (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale."
Page No.# 4/5 A bare perusal of the said provision of law would show that the following are the mandatory requirements before making any seizure-
1. There has to be a suspicion that the property is either stolen or connected in commission of any offence.
2. If the seizure is by any Subordinate Officer to the Officer- in-Charge of a Police Station, he shall forthwith report the seizure to the Officer.
3. The Officer is required to report forthwith the seizure to the Magistrate having jurisdiction and if the property cannot be transported may kept in his custody.
4. The property in question may be given to a person on execution of a bond if the property seized is subject to speedy and natural decay and if the person entitled to the possession is not available and the value of the property is less than Rs. 500/- (Rupees Five Hundred), the same can be sold by auctioned under the orders of the Superintendent of the Police. The Hon'ble Supreme Court in the case of Teesta Atul Setalvad vs. State of Gujarat reported in (2018) 2 SCC 372 have laid down as follows:
"17. In the present case, FIR has been registered at least against three private appellants, naming them as accused. CJP Trust has not been named as an accused in the FIR. But the investigation thus far, according to the respondents, reveals that Teesta Atul Setalvad and Javed Anand are actively associated with the said Trusts and have carried out transactions which may be found under circumstances suspicious of the commission of the alleged offence. That is still a matter of investigation. For the present, the Investigating Officer is of the view that there are certain circumstances emerging from the transactions done from these bank accounts which create suspicion of the commission of an offence. It is on that belief he has exercised his discretion to issue directions to seize the bank accounts pertaining to CJP Trust.
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18. As regards the procedure for issuing instructions to freeze the bank accounts, it is noticed that the same has been followed by giving intimation to the concerned Magistrate on 21st November, 2014 as required in terms of Section 102 of the Code. There is nothing in Section 102 which mandates giving of prior notice to the account holder before the seizure of his bank account. The Magistrate after noticing that the principle stated by the Division Bench of the Bombay High Court in the case of Dr. Shashikant D."
In the instant case, admittedly the aforesaid procedures were not followed. At the same time, the Court would not brush aside the contention made on behalf of the State that the action was done in the interest of public and public money is involved in this case.
In view of the above and by balancing the equities, this Court holds that the action of freezing the bank account of the petitioner bearing account no. 1039341971 in the Kataki Pukhuri Branch, Jorhat is illegal and the freezing order is directed to be revoked forthwith. However, the aforesaid direction is subject to the condition that the petitioner would furnish a bond of an equal amount of Rs. 5,00,000/-(Rupees Five Lakhs) in favour of the Deputy Commissioner, Jorhat. The moment the bond is submitted, the authorities would take immediate steps to defreeze the bank account.
It is also directed that the petitioner would render all cooperation in the investigation.
Writ petition is accordingly disposed of.
JUDGE Comparing Assistant