Kerala High Court
Mohammad Enamul Haque @ Bishu Sheikh ... vs Central Bureau Of Investigation on 5 December, 2018
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 5TH DAY OF DECEMBER 2018/14TH AGRAHAYANA, 1940
Crl.MC.No.7372 of 2018
ORDER IN CRMP 134/2018 IN RC 1(A)/2018/CBI/ACB/COCHIN of
SPECIAL COURT (SPE/CBI), THIRUVANANTHAPURAM DATED 12-09-2018
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PETITIONER/ACCUSED No.2 :-
MOHAMMAD ENAMUL HAQUE @ BISHU SHEIKH (NAME GIVEN
BY THE CBI), AGED 41 YEARS,
S/O.HAJI ABDUL HUSSAIN, FLAT NO.3 B,
TOWER 1 HERITAGE SRIJAN PARK, 72 A,
TILJALA ROAD, NEAR DON BOSCO SCHOOL,
GOBINDA KHATICK ROAD, BENIA PUKUR,
KOLKATA, WEST BENGAL.
BY ADVS.SRI.B.RAMAN PILLAI (SR.)
SRI.E.VIJIN KARTHIK
SRI.M.SUNILKUMAR
SRI.R.ANIL
SRI.SUJESH MENON V.B.
SRI.T.ANIL KUMAR
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.THOMAS SABU VADAKEKUT
RESPONDENT/COMPLAINANT :-
CENTRAL BUREAU OF INVESTIGATION,
ACB, COCHIN, REPRESENTED BY
THE STANDING COUNSEL, CBI,
HIGH COURT OF KERALA, ERNAKULAM,
KOCHI - 682 031.
BY SRI.SASTHAMANGALAM S. AJITHKUMAR, SC FOR CBI
SRI.K M NATARAJ, ASST.SOLICITOR GENERAL
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
05.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.7372/2018
-: 2 :-
O R D E R
The petitioner herein is the 2nd accused in a crime of the Central Bureau of Investigation (for short, 'the CBI), Kochi registered as RC 1(A)/2018/CBI/ACB/ Cochin. The 1st accused in the crime is a BSF Commandant. A huge amount of ₹50 lakhs was seized from the possession of the 1st accused in suspicious circumstances by a CBI official. On the basis of the said seizure and arrest, the present crime was registered. On the basis of the statements given by the 1st accused, the petitioner herein was arraigned as 2nd accused, on the allegation that the huge amount seized from the possession of the 1st accused was in fact paid as bribe by this petitioner. Thus the petitioner is said to be the person, who paid illegal gratification to the 1st accused, who is a public servant. During the investigation process, the CBI froze 26 bank accounts of the petitioner, including his personal and business accounts. Annexure-D report submitted by the CBI official contains the details of Crl.MC.No.7372/2018 -: 3 :- the bank accounts of the two accused frozen by the CBI. Finding it difficult to carry on his daily transactions, the petitioner approached the Special Court (SPE-CBI) Thiruvananthapuram, with Crl.MP 101/2018 for a direction to de- freeze some of the accounts. When the said application came up for consideration, the learned Public Prosecutor representing the CBI endorsed no objection, and accordingly, the learned trial Judge passed orders on 7.7.2018 defreezing three bank accounts of the petitioner. Later, the CBI submitted a report in court containing a request to freeze those accounts again. The said request was filed as Crl.M.P. 134/2018. The CBI sought orders freezing those accounts again on the ground that the bank accounts including the three accounts de-frozen by orders of the court will have to be subjected to forensic auditing as part of investigation. After hearing both sides, the learned trial Judge allowed the said application on 12.9.2018, and accordingly those three accounts were again frozen. Aggrieved by the said Crl.MC.No.7372/2018 -: 4 :- order, the petitioner has come up before this Court under Section 482 Cr.P.C. His prayer is to set aside the impugned order of the trial court, and also to allow him to operate all the 26 accounts, including the three accounts covered by the impugned order.
2. The learned Senior Counsel appearing for the petitioner and also the learned Additional Solicitor General of India representing the CBI were heard in detail on the issue. On a perusal of the objection filed by the CBI in the court below, and also the petition in Crl.M.P.134/2018, I find that the CBI made the application before the court below on the ground that all the accounts of the petitioner will have to be subjected to forensic auditing. No doubt, a bank account can be subjected to auditing or forensic auditing even without being frozen.
3. As regards the power of the court to interfere in the process of investigation, there cannot be any doubt or dispute. It is well settled that investigation is the exclusive domain of the investigating agency, where the courts will not in Crl.MC.No.7372/2018 -: 5 :- normal circumstances interfere or intrude into. I need not refer to the various decisions cited at the Bar, because it is the settled position. It is also settled that in exceptional circumstances where, the court finds illegalities in the process of investigation, or illegal arbitrariness in the discharge of functions as part of investigation, the courts cannot be a mute onlooker, and the courts will have to interfere under Article 226 of the Constitution of India, or under Section 482 Cr.P.C. Regarding this settled position also, nobody can have any doubt or dispute.
4. The petitioner is said to be the person, who paid bribe or illegal gratification to the 1st accused, and he is not the person, who accepted the bribe. The CBI has frozen 26 accounts of the petitioner under Section 102 Cr.P.C. As regards the powers of the investigating agency to freeze bank accounts under Section 102 Cr.P.C also, there cannot be any doubt or dispute. But the subject of dispute has always been as to when and in what circumstances, such powers can Crl.MC.No.7372/2018 -: 6 :- be exercised by the investigating agency. Section 102 Cr.P.C authorises any Police Officer or any investigating agency to 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. The Section itself makes it clear that when the Police Officer or the investigating agency proceeds to seize any property under Section 102 Cr.P.C, the officer must have a reasonable suspicion or belief that the said property is involved in the commission of any crime, or that he must have some reason to suspect or believe that there is some nexus between the property and the alleged commission of crime. No doubt, the bank accounts of the 1st accused, who allegedly accepted bribe, will definitely come within the purview of Section 102 Cr.P.C., because the amount deposited by him may include the amount received by him as bribe.
5. But the circumstance and position of the 2 nd accused cannot be equivated to that of the 1st accused. Crl.MC.No.7372/2018 -: 7 :- He is not the person who accepted bribe. As far as the 2nd accused is concerned, the scope of investigation must be whether he had paid any amount to the 1st accused at any time for any illegal purpose, or whether he had withdrawn any substantial amount from any of his bank accounts on or immediately prior to the date on which huge amount was seized from the possession of the 1st accused. Regarding this material aspect, the CBI report is not specific. Even an accused in a criminal case has rights under the law, including legal rights and fundamental rights. Just because a person is an accused, such rights cannot be denied or defeated by high-handed arbitrariness in investigation, or by investigative excess. When such instances are brought to the notice of the court, the court will have to interfere appropriately. Here, is an instance where, all the bank accounts of a person are frozen by the CBI. He is not just an individual. He is a business man too. Whether his business is illegal, or whether he has committed any economic offence is not the concern at this stage. This is a Crl.MC.No.7372/2018 -: 8 :- crime involving the offence under Sections 7 and 13(2) read with Section 13(1)(a) and 13(1)(d) of the Prevention of Corruption Act, 1988 (for short, 'the PC Act'). If the petitioner has committed any economic offence, or if he is suspected to have committed any offence in connection with his business or smuggling activities, it is for the appropriate authority to interfere, and take necessary action. As part of investigation in this crime registered under the PC Act, the CBI cannot help the other agencies, or create evidence for the other agencies. The concern of the CBI in this crime must be to collect evidence to prove the offence alleged in this crime as to whether the 1st accused had accepted any illegal gratification or undue advantage from anybody, including the petitioner herein at any time. It is not known, why all the bank accounts of the petitioner should be subjected to forensic audit for proving such essential elements of the offence under the PC Act. If at all the CBI wants such an audit, let it be done or completed within a reasonable time.
Crl.MC.No.7372/2018-: 9 :-
6. In State of Maharashtra v. Tapas D. Neogy [1999 SCC (Cri) 1352], the Hon'ble Supreme Court has explained the scope of the powers of an investigating agency under Section 102 Cr.P.C. In paragraph 12 of the judgment, the Hon'ble Supreme Court held thus :-
"12. Having considered the divergent views taken by different High Courts with regard to the power of seizure under Section 102 of the Code of Criminal Procedure, and whether the bank account can be held to be "property" within the meaning of the said Section 102(1), we see no justification to give any narrow interpretation to the provisions of the criminal Procedure Code. It is well known that corruption in public offices has become so rampant that it has become difficult to cope up with the same. Then again the time consumed by the courts in concluding the trials is another factor which should be borne in mind in interpreting the provisions of Section 102 of the Criminal Procedure Code and the underlying object engrafted therein, inasmuch as if there can be no order of seizure of the bank account of the accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of the illegal gratification, could be withdrawn by the accused and the courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the Crl.MC.No.7372/2018 -: 10 :- accused as a public officer. We are, therefore, persuaded to take the view that the bank account of the accused or any of his relations is "property" within the meaning of Section 102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into. The contrary view expressed by the Karnataka, Gauhati and Allahabad High Courts, does not represent the correct law. It may also be seen that under the Prevention of Corruption Act, 1988, in the matter of imposition of fine under sub-section (2) of Section 13, the legislatures have provided that the courts in fixing the amount of fine shall take into consideration the amount or the value of the property which the accused person has obtained by committing the offence or where the conviction is for an offence referred to in clause (e) of sub- section (1) of Section 13, the pecuniary resources or property for which the accused person is unable to account satisfactorily. The interpretation given by us in respect of the power of seizure under Section 102 of the Criminal Procedure Code is in accordance with the intention of the legislature engrafted in Section 16 of the Prevention of Corruption Act referred to above. In the aforesaid premises, we have no hesitation to come to the conclusion that the High Court of Bombay committed error in holding Crl.MC.No.7372/2018 -: 11 :- that the police officer could not have seized the bank account or could not have issued any direction to the bank officer, prohibiting the account of the accused from being operated upon. Though we have laid down the law, but so far as the present case is concerned, the order impugned has already been given effect to and the accused has been operating his account, and so, we do not interfere with the same."
In Teesta Atul Setalvad and Ors. v. The State of Gujarat and Ors. [2018 CriLJ 1610] also the Hon'ble Supreme Court has explained the scope of the powers of the investigating agency under Section 102 Cr.P.C. for seizing properties, or even for freezing bank accounts. No doubt, it is well settled that bank accounts of an accused also will come within the purview of Section 102 Cr.P.C. But, when the investigating agency proceeds to freeze any bank account of an accused, there must be some reason to believe that this account, or the money therein has some nexus with the alleged commission of offence. This is explained by the Hon'ble Supreme Court in Tapas D. Neogy's case.
Crl.MC.No.7372/2018-: 12 :-
7. Now, the question is whether the bank accounts of the petitioner will have any nexus, or whether the investigating agency can have any reason to believe or suspect that his bank accounts will have any nexus with the commission of crime alleged against the 1st accused. As already stated, it cannot be the concern of the CBI now, whether the accused has committed any economic offence. If the CBI has reason to believe or suspect that the petitioner has committed any such offence, it will have to be reported to the concerned authority, and the concerned authority will have to step in for necessary action under the existing laws. Every investigating agency is governed by the laws of the land, including the Code of Criminal Procedure. No agency can arbitrarily freeze bank accounts under Section 102 Cr.P.C., or keep the accounts frozen indefinitely, because it will have the ultimate effect of denying the Constitutional or legal rights of the account holder. Such a step can be resorted to by the investigating agencies only if it is found absolutely necessary. Just because, a person is said to have Crl.MC.No.7372/2018 -: 13 :- paid bribe to an accused, his bank accounts cannot be mechanically or arbitrarily frozen. Arbitrariness in investigation, or investigative excess, cannot be, in any circumstance, condoned by the courts. Here is a case where, the CBI reported no objection when the petitioner sought orders de-freezing three of his accounts. What the CBI has frozen is not one or two or three accounts of the petitioner, but 26 accounts, leaving no account be operated by him for his daily affairs and transactions. This will have to be said to be high-handed arbitrariness, and also an investigative excess. Whether the petitioner's transactions as a business man involves any illegality will have to be monitored and inspected appropriately by the appropriate agencies, and necessary action will have to be taken against him. That cannot be the concern or area of action in a prosecution brought under the provisions of the PC Act.
8. As already observed, it is really doubtful, how the bank account of the 2nd accused, who allegedly paid bribe to the public servant, will come within the Crl.MC.No.7372/2018 -: 14 :- purview of Section 102 Cr.P.C. Just because the 2nd accused once paid some amount to the public servant as bribe, all his bank accounts cannot be frozen arbitrarily by the CBI. It is not known, why the accounts of the petitioner should be subjected to forensic audit. If at all any auditing or forensic auditing is required, it will have to be done and completed within a reasonable time. The accounts cannot be kept indefinitely frozen, thereby denying the precious rights of the accused as a citizen of India.
9. As regards the three accounts in question, I find that those accounts were once allowed to be operated, when the CBI endorsed 'no objection', and the court, with the consent of the CBI, de-froze those accounts. When forensic auditing is possible, even without freezing an account, the petitioner can very well be permitted to operate those three accounts. In the particular circumstances of the case, I feel it absolutely necessary to interfere under Section 482 Cr.P.C. atleast as regards the three accounts covered Crl.MC.No.7372/2018 -: 15 :- by the impugned order. As regards the other 23 accounts, the CBI will have to complete the process of forensic auditing, if at all required, within a reasonable time, and if it is not completed within a reasonable time, the petitioner can approach the court.
In the result, this petition is allowed in part, permitting the petitioner to operate the three bank accounts covered by the impugned order. Accordingly, the impugned order will stand set aside under Section 482 Cr.P.C., and the three bank accounts will stand de-frozen, subject to the powers of the CBI to examine the accounts. As regards the other 23 accounts, it is made clear that if auditing or examination is not done within a reasonable time (reasonably within two months from this date), the petitioner can approach the court again for necessary orders.
Sd/-
P.UBAID JUDGE ma/Jvt/6.12.2018 Crl.MC.No.7372/2018 -: 16 :- APPENDIX PETITIONER'S ANNEXURES :-
ANNEXURE A THE TRUE COPY OF THE FIRST INFORMATION ALONG WITH THE FIR DATED 31.3.2018.
ANNEXURE A1 THE TRUE COPY OF THE REPORT DATED 12.2.2018.
ANNEXURE A2 THE TRUE COPY OF REPORT BEFORE COURT BY THE INVESTIGATING OFFICER DATED 14.2.2018.
ANNEXURE B THE TRUE COPY OF THE LETTER WITH THE ENDORSEMENT MADE BY THE MANAGER OF ICICI, BANK, DATED 12.3.2018.
ANNEXURE B1 THE TRUE COPY OF THE LETTER DATED 12.3.2018 ISSUED TO THE SAME BRANCH STATING THE VERY SAME REASON AS IN ANNEXURE B. ANNEXURE B2 THE TRUE COPY OF THE LETTER DATED 14.5.2018 WITH THE ENDORSEMENT DATED 15.5.2018.
ANNEXURE B3 THE TRUE COPY OF THE LETTER DATED 14.5.2018 WITH THE ENDORSEMENT OF THE BRANCH MANAGER DATED 15.5.2018.
ANNEXURE B4 THE TRUE COPY OF THE REPLY LETTER 15.5.2018 OF AXIS BANK.
ANNEXURE B5 THE TRUE COPY OF THE LETTER DATED MAY 15, 2018 ISSUED BY THE AXIS BANK, PARK CIRCUS BRANCH, KOLKARA TO JESMIN TRADING COMPANY IN REPLY TO THE LETTER DATED 14.5.2018, OF RASHEEDA BIBI, SHOWING THE REASON FOR FREEZING A/C NO.916020015318152 WITH THAT BRANCH AS DIRECTED BY THE CBI.
ANNEXURE C THE TRUE COPY OF THE ORDER OF THE COURT BELOW THAT THE FREEZING OF THE 3 ACCOUNTS MENTIONED IN THE MEMO IS LIFTED UNTIL FURTHER ORDERS, DATED 7.7.2018.
ANNEXURE D THE TRUE COPY OF THE REPORT FILED BY THE INVESTIGATING OFFICER ABOUT THE FREEZING OF BANK ACCOUNTS.
Crl.MC.No.7372/2018-: 17 :- ANNEXURE E THE ATTESTED TRUE COPIES OF THE EIGHT CHALANS. SERIES ANNEXURE F THE TRUE COPY OF THE COMPUTER PRINT OUT OF THE 5 SERIES CHALANS, CERTIFIED AS THE TRUE COPIES BY THE CHARTERED ACCOUNTANT.
ANNEXURE G THE TRUE COPY OF CHALAN DATED 14.12.2017 FOR REMITTANCE OF RS.40,00000 TOWARDS ADVANCE TAX, ATTESTED BY THE CHARTERED ACCOUNTANT. ANNEXURE G1 THE TRUE COPY OF THE TRUE COMPUTER PRINTOUT OF 26 AS PUBLISHED BY THE INCOME TAX DEPARTMENT ATTESTED BY THE CHARTERED ACCOUNTANT WHICH REVEAL THE ABOVE REMITTANCE OF RS.4,000000 AND REMITTANCE OF RS.10,00000(TEN LAKHS) ON 14.9.2017, TOWARDS ADVANCE TAX BY THE PETITIONERS.
ANNEXURE H THE CERTIFIED COPY OF THE ORDER IN CRL.M.P.134/2018 FILED BY THE INVESTIGATING INSPECTOR OF THE CBI, DATED 12.9.2018. ANNEXURE I THE TRUE COPY OF THE CHART SHOWING THE DETAILS OF THE 26 BANK ACCOUNTS.
ANNEXURE J THE TRUE COPY OF THE INCOME TAX RETURN FOR THE ACCOUNTING YEAR 2015-2016 (ASSESSMENT YEAR 2016-2017).
ANNEXURE K THE TRUE COPY OF THE INCOME TAX RETURN FOR THE ACCOUNTING YEAR 2016-2017 (ASSESSMENT YEAR 2017-2018).
RESPONDENT'S ANNEXURES :- NIL
//TRUE COPY//
P.A. TO JUDGE