Chattisgarh High Court
Uday Singha vs State Of Chhattisgarh on 13 December, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (Cr.) No.976 of 2022
Uday Singha, S/o Ajay Kumar Singha, aged about 28 years, R/o
Subar Nator, Bankura, Salbedi (West Bengal)
---- Petitioner
Versus
1. State of Chhattisgarh, Through the Secretary, Home Department,
Mantralaya, Mahanadi Bhawan, Atal Nagar, Bawa Raipur, District
Raipur (C.G.)
2. Superintendent of Police, Bilaspur, District Bilaspur (C.G.)
3. Station House Officer, Police Station Seepat, District Bilaspur (C.G.)
4. Branch Manager, State Bank of India, S.M.E. Branch, Bilaspur, District
Bilaspur (C.G.)
---- Respondents
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For Petitioner: Mr. Sushobhit Singh, Advocate.
For Respondents No.1 to 3 / State: -
Mr. Anmol Sharma, Panel Lawyer, on advance copy.
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Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Rakesh Mohan Pandey, JJ.
Order On Board (13/12/2022) Sanjay K. Agrawal, J.
1. This petition is directed against the order Annexure P-1 by which the petitioner's savings bank account has been freezed on a complaint made by one Jai Prakash Agrawal, Proprietor of Mining Industries Private Limited, Bilaspur, on 29-1-2022, whereas the first information report (FIR) against him was registered on 10-2-2022 which is unsustainable and bad in view of the provisions contained in Section 102 of the CrPC.
2. Mr. Sushobhit Singh, learned counsel appearing for the petitioner, would submit that without registration of FIR, savings bank account of 2 the petitioner has been freezed which runs contrary to the decision rendered by the Madras High Court in the matter of Mrs. B. Kavitha v. The Inspector of Police and another1.
3. On the other hand, Mr. Anmol Sharma, learned Panel Lawyer appearing for the State / respondents No.1 to 3, would submit that bank account is a property within the meaning of Section 102 of the CrPC, therefore, remedy of the petitioner would be to file application under Section 457 of the CrPC.
4. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.
5. In order to decide the dispute between the parties, it would be appropriate to notice the provisions contained in Section 102 of the CrPC, which states as under:-
"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:
1 Crl.O.P.No.14824 of 2019, decided on 11-6-2019 3 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 section 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale."
6. A careful perusal of the provisions contained in sub-section (1) of Section 102 of the CrPC would show that the police officer in course of investigation can seize any property under Section 102 of the CrPC, which is the property alleged or suspected to have been stolen or is the object of crime under the investigation or has direct link with commission of offence for which the police officer is investigating into. Similarly, 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.
7. Their Lordships of the Supreme Court in the matter of State of Maharashtra v. Tapas D. Neogy2 resolving the dispute, have held that the bank account of the accused or any of his relation constitutes 'property' within the meaning of Section 102 of the CrPC and police officer in course of investigation can seize the operation of said account if such assets have direct link with the commission of offence for which the police officer is investigating into. 2 (1999) 7 SCC 685 4
8. Furthermore, in the matter of M.T. Enrica Lexie and another v. Doramma and others3, their Lordships of the Supreme Court have clearly held that the property not suspected of commission of the offence which is being investigated into by the police officer cannot be seized. Under Section 102 of the CrPC, the police officer can seize such property, which is covered by Section 102(1) of the CrPC and no other.
9. The principle of law laid down by the Supreme Court in Tapas D. Neogy's case (supra) has been followed with approval in the matter of Teesta Atul Setalvad v. State of Gujarat4 and it has been held that any property includes any bank account creating suspicion about commission of an offence. It was further held that investigating officer in course of investigation has power to seize or prohibit operation of bank account of any person which may be found under circumstances creating suspicion of commission of any offence. Their Lordships pertinently held that Section 102 of the CrPC does not contemplate the issuance of any such notice, and for the purpose of investigation, no notice to the suspect can be expected under the law. It was observed as under:-
"49. The arguments impugning the freezing of the accounts under Section 102 CrPC without notice to the petitioners are to be noted for rejection for the simple reason that the Section 102 does not contemplate issuance of any such notice, and for the purpose of investigation, no notice to the suspect can be expected under the law. Section 102 CrPC is an important step towards investigation and in view of settled legal position that accused cannot have any say in investigation, notice to the suspect is out of question. The intention of the investigating agency is not required to be revealed to the suspect at that crucial stage, else, a message of alert 3 2012 Cri.L.J. 2845 4 (2018) 2 SCC 372 5 would be received by the suspect creating a huge room for manipulation and or destruction of evidence."
10. In that view of the matter, it is quite vivid that bank account of an accused constitutes property within the meaning of Section 102 of the CrPC and the police officer during investigation can freeze the operation of the said account, if such asset has direct link with the commission of offence for which the police officer is investigation into. As such, the investigating officer is entitled to freeze the operation of the bank accounts in accordance with Section 102(1) of the CrPC as held by the Supreme Court in Tapas D. Neogy's case (supra).
11. At this stage, it would be appropriate to notice the argument of learned State counsel that the application under Section 457 of the CrPC would be maintainable.
12. Section 457 of the CrPC empowers the Magistrate to give delivery of the said property to the person entitled to possession subject to certain conditions mentioned therein and whenever the seizure of the property by the police is reported to a Magistrate, the Magistrate is empowered under Section 457 of the CrPC to give delivery of the said property to the person entitled to possession. As such, since bank account of the accused is the property under Section 102(1) of the CrPC, therefore, application under Section 457 of the CrPC for defreezing the bank account would be maintainable.
13. The Orissa High Court in the matter of M.S. Jaggi v. Subaschandra Mohapatra5, while dealing with similar issue has clearly held that the seizure of the property whether reported by the police or any other person, the Magistrate will have the jurisdiction under Section 457 of the CrPC, and observed as under in para 7: -
5 1977 Cri.L.J. 1902 6 "7. From the aforesaid discussion, the following conclusions arise :-
(1) Whenever the seizure of the property by the police is reported to a Magistrate, his jurisdiction to act further under Section 457 accrues. Such report may be made either by a police officer or by any other person interested.
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14. As such, for defreezing the bank account, application for defreezing the bank account under Section 457 of the CrPC is maintainable.
15. In that view of the matter, the writ petition is disposed of with liberty to the petitioner to avail the remedy available to him under Section 457 of the CrPC by filing an application for defreezing his bank account. Needless to say if the application is filed under Section 457 of CrPC, same would be decided expeditiously, keeping in view that the savings bank account of the petitioner has been freezed, preferably within a period of fifteen days from the date of filing of the application by the petitioner.
16. It is made clear that this Court has not expressed any opinion on the merits of the matter and all the arguments raised herein on merits would be kept open to be raised before the Court where the application under Section 457 of the CrPC would be filed.
17. No order as to cost(s).
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Soma