Andhra Pradesh High Court - Amravati
Bayyarapu Suresh Babu vs The State Of Andhra Pradesh on 21 December, 2021
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
1
CMR, J.
Crl.P.No.185 of 2021
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
Criminal Petition No.185 of 2021
ORDER:
Assailing the order, dated 19.03.2020, of the learned Special Judge for SPE & ACB Cases-cum-Additional Metropolitan Sessions Judge, Vijayawada, passed in Crl.M.P.No.88 of 2020 in Crime No.07/RCA-ACB-CIU-2017, whereby he has dismissed the petition filed under Sections 451 and 457 Cr.P.C., the present Criminal Petition is filed.
2. Facts germane for disposal of this Criminal Petition may briefly be stated as follows:
(a) The petitioner is an employee, working as Additional Director in the office of the Commissioner of Industries, Vijayawada, in Andhra Pradesh. On the allegation that the petitioner has been in possession of assets acquired by him in his name and in the name of his family members, relatives and close associates, which are disproportionate to his known source of income, the Anti-Corruption Bureau police registered a case against him under Section 13(2) r/w.13(1)(d) of the Prevention of Corruption Act, 1988, (for short, the "P.C. Act"). On the same day i.e. on 05.06.2017, the ACB police have searched his house and other premises and seized certain property. At that time, they found Bank passbook of Axis Bank in the name of the petitioner. So, during the course of investigation, the police of ACB addressed letters to all Banks where the petitioner is holding a bank account directing them not to allow the 2 CMR, J.Crl.P.No.185 of 2021
petitioner to operate the said bank accounts. In other words, his bank accounts have been freezed by the police. Similarly, the bank account of the petitioner in Axis Bank of Vijayawada Branch was also seized. A sum of Rs.3,21,288/- was available in the said bank account of the petitioner.
(b) Thereafter, the police of ACB filed a petition in the trial Court for attachment of his properties and obtained an ad-interim order of attachment of his properties on 19.06.2018 in Crl.M.P.No.886 of 2018. As the petitioner has been working in the above position from the year 1987, the check period relating to the said offence of acquiring assets disproportionate to his known source of income is stated to be from 15.10.1987 to 05.06.2017 i.e. from the date of his appointment as an employee in the Industries Department till the date when the case was registered against him and searches were made including freezing of his bank accounts. Therefore, the amount that was lying in the Axis Bank to a tune of Rs.3,21,288/- as on 05.06.2017 is also taken by the ACB police as an asset relating to the said crime and seized the same. Subsequently, in response to the notice and reminders issued by the ACB police, it appears that the petitioner has filed a statement in the month of January, 2020 explaining the source of his income to acquire the properties, which are found in his name. In the said explanation, he has pleaded that the said account in the Axis Bank is relating to his salary account and the sum of Rs.3,21,288/- available in the said account of the Axis Bank is 3 CMR, J.
Crl.P.No.185 of 2021his salary amount relating to the month of May, 2017 which was deposited on 01.06.2017.
(c) Therefore, he has filed a petition under Sections 451 and 457 Cr.P.C. before the trial Court seeking direction to the ACB police to allow him to withdraw the said amount of Rs.3,21,288/- from his salary account. In a way, he has claimed for return of the said amount, which is construed to be a property under law.
3. The said petition came to be dismissed by the impugned order. The learned Judge dismissed the said petition primarily on the ground that the check period is from 15.10.1987 to 05.06.2017 and as the said money that is available in his account in the Axis Bank got direct nexus to the offence of acquiring properties disproportionate to his known source of income that the same cannot be allowed to be withdrawn. However, the learned Judge allowed the petitioner to operate the said bank account to withdraw the money that was deposited in his salary account after 05.06.2017.
4. Aggrieved thereby, the present Criminal Petition has been filed assailing the legality and validity of the impugned order.
5. Counter-affidavit has been filed by the 1st respondent on behalf of the ACB. It is stated that the petitioner has acquired assets disproportionate to his known source of income in his name and in the name of his family members, relatives and associates. Therefore, after registering a crime to that effect i.e. 4 CMR, J.
Crl.P.No.185 of 2021on 05.06.2017, searches were made under Section 165 Cr.P.C. in his house and other places and in the said process, the bank accounts of the petitioner including his bank account in 2nd respondent Axis Bank were seized by directing the Branch Managers of the said banks not to allow the petitioner to operate the said accounts as the check period relating to the said offence is from 15.10.1987 to 05.06.2017. It is stated that the total assets of the petitioner is worth of Rs.2,99,18,586/- and his total income during the said period was Rs.1,36,72,509/-, whereas his expenditure is Rs.92,74,293/-. Therefore, his savings are only Rs.43,98,216/-. However, the petitioner had acquired assets to a tune of Rs.2,55,20,370/- which are obviously disproportionate assets to his known source of income and these properties are acquired by him during the period of his service in Industries Department.
6. It is further stated that the petitioner was kept under suspension in the year 2017 and again he was reinstated on 18.09.2019. A notice was served on the petitioner/accused officer on 09.07.2019 furnishing all the relevant material and documents to him relating to his disproportionate assets and requested him to offer his explanation within 15 days from the date of receipt of the said notice. However, he submitted his explanation after two reminders only on 21.12.2020 and the said explanation is under consideration and investigation in this case is still pending. It is denied that the petitioner is in dire necessity of money to meet his family expenses, medical 5 CMR, J.
Crl.P.No.185 of 2021expenses and other expenses and as such, it is essential to withdraw the said sum of Rs.3,21,288/- which is lying in his account in the Axis Bank, Vijayawada, as pleaded by the petitioner. It is stated that as on date of filing the petition under Sections 451 and 457 Cr.P.C. that he was already reinstated into service and that he is drawing full salary and as such, the said plea of the petitioner that he has been in dire necessity of money to meet his family expenses, medical expenses and other expenses is absolutely false. It is finally pleaded that as the said money of Rs.3,21,288/- is pertaining to the check period from 15.10.1987 to 05.06.2017 that the said money is relating to the crime that is involved in this case and as such, the same cannot be allowed to be withdrawn by the petitioner and it is required to calculate his total income to ascertain whether the properties that are acquired by him in his name, in the name of his family members, relatives and associates are disproportionate to his known source of income or not during the investigation which is pending. Therefore, it is prayed to dismiss the Criminal Petition.
7. The 2nd respondent Axis Bank, Vijayawada, filed counter- affidavit stating that the said bank is unnecessarily arrayed as a party to the Criminal Petition and that the 2nd respondent in his capacity as a Banker only obeyed the orders of the ACB, Vijayawada. It is stated that the petitioner is maintaining account with the said Bank and after receiving the orders from the ACB that the same are obeyed and complied with. It is 6 CMR, J.
Crl.P.No.185 of 2021informed to the Bank that the said property was attached as per the order passed by the Court.
8. Heard learned counsel for the petitioner and learned Standing Counsel-cum-Special Public Prosecutor for ACB for 1st respondent.
9. Learned counsel for the petitioner would submit that admittedly the account in question in the Axis Bank in the name of the petitioner is his salary account and as such that the said amount of Rs.3,21,288/- available in the said bank as on the date of registration of the crime and searches made on 05.06.2017 is his salary deposited for the month of May, 2017 and it has nothing to do with the alleged offence. He would further submit that the petitioner is in dire necessity of money to meet his family expenses, medical expenses and other expenses and as such, he requires the said money to meet the said expenses. He would further submit that the petitioner has already submitted his explanation to the ACB pursuant to the notice given to him after registration of the case and he has accounted for the said money available in his account in the Axis Bank. He would also submit that the petitioner is also ready to account for the same even subsequently and also during the course of trial. Therefore, he would submit that the impugned order of the trial Court in dismissing the petition for withdrawal of the said money available in his account is unsustainable under law and thereby prayed to allow the 7 CMR, J.
Crl.P.No.185 of 2021Criminal Petition and to set aside the impugned order and allow the petitioner to withdraw the said money.
10. Per contra, learned Standing Counsel-cum-Special Public Prosecutor for ACB appearing for the 1st respondent contends that the check period relating to the said offence is from 15.10.1987 till 05.06.2017 and as such, the money that is available in his account as on the date of registration of crime on 05.06.2017 and as on the date of conducting searches in his house and other places have direct nexus to the crime involved in this case and as such, the money in his bank account cannot be allowed to be withdrawn as it is required to calculate the net income of the petitioner to find out the total assets acquired by him in his name, in the name of his family members, relatives and associates to ascertain whether the said assets are acquired by him are disproportionate to his known source of income or not while filing the charge-sheet after completion of investigation. She would submit that as investigation is pending, the same cannot be allowed to be withdrawn by the petitioner and if he is allowed to withdraw the same, it would affect the investigating process and valuable evidence will not be available to the ACB. The learned Standing Counsel-cum- Special Public Prosecutor for ACB reiterated the other contentions raised in the counter-affidavit as detailed supra. Therefore, while strongly supporting the impugned order, learned Standing Counsel-cum-Special Public Prosecutor for ACB would pray for dismissal of the Criminal Petition. 8
CMR, J.
Crl.P.No.185 of 2021
11. The learned Standing Counsel-cum-Special Public Prosecutor for ACB also would contend that the order passed under Sections 451 and 457 Cr.P.C. is not an interlocutory order to attract the bar for preferring revision under Section 397(2) Cr.P.C. and a revision under Section 397(1) Cr.P.C. lies against the said order. Therefore, when specific remedy is available to the petitioner by way of filing a revision under Section 397(1) Cr.P.C., the petitioner cannot invoke the inherent powers of this Court under Section 482 Cr.P.C. Therefore, she would submit that this Criminal Petition under Section 482 Cr.P.C. is not maintainable under law and that the Criminal Petition deserves to be dismissed even on that ground also.
12. The undisputed facts in this case are that the petitioner is an employee working as Additional Director in the office of the Commissioner of Industries, Vijayawada. A preliminary enquiry was held by the ACB to find out whether he has acquired assets which are disproportionate to his known source of income. After collecting prima facie evidence, a case under Section 13(2) r/w.Sec.13(1)(d) of the P.C.Act was registered against him on 05.06.2017. Searches were conducted in his houses and other places on the same day i.e. on 05.06.2017. A bank passbook was found during the course of the said raids, in the name of the petitioner showing that he is holding an account in the 2nd respondent Axis Bank. Therefore, the Branch Manager of the said Axis Bank was directed not to allow the petitioner to operate the said account. A sum of Rs.3,21,288/- was available 9 CMR, J.
Crl.P.No.185 of 2021in the said account in the name of the petitioner as on 05.06.2017.
13. Now, it is relevant to note that the petitioner joined service in Industries Department in the year 1987. Therefore, the check period relating to the said offence is stated to be from 15.10.1987 to 05.06.2017. So, it is the specific version of the ACB that the income relating to the petitioner and the assets acquired by him during the said period from 15.10.1987 to 05.06.2017 is required to be ascertained and as such, the check period relating to the said offence is from 15.10.1987 to 05.06.2017. So, it is the version of the ACB that the said sum of Rs.3,21,288/-which is available in the bank account of the petitioner had direct nexus to the crime involved in this case. Therefore, the police are constrained to direct the bank officials under Section 102 Cr.P.C. not to allow the petitioner to operate the said account.
14. Now, it is well-settled law that even the money available in the bank account is also to be construed as a property and the Investigation Officer can seize the same if it is involved in commission of the offence. The legal position in this regard is not an undecided question of law and the same has been well- settled by the Apex Court. Earlier there used to be a divergent views of various High Courts whether money available in the account of the accused in the bank can be construed as a property or not for the purpose of invoking Section 102 Cr.P.C. by the Investigating Officer. Some High Courts held that it 10 CMR, J.
Crl.P.No.185 of 2021cannot be construed as property and some High Courts held that the money available in the bank can also be construed as property. In view of the said divergent views, the Apex Court in the case of State of Maharashtra v. Tapas D. Neogy1 authoritatively held as follows:
"We are, therefore, persuaded to take the view that the bank account of the accused or any of his relation 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 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 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."
Thus, the Apex Court has settled the law in this regard and held that the money available in the bank account is also a property within the meaning of Section 102 Cr.P.C. and the same can be 1 (1999) 7 SCC 685 = Laws (SC) 1999 9 149 11 CMR, J.
Crl.P.No.185 of 2021freezed by the police officer or direct the bank not to allow the accused to operate the said account.
15. Therefore, in view of the aforesaid law laid down by the Apex Court, it is within the competence of the ACB police to direct the bank officials not to allow the petitioner to operate the said account. In other words, they are entitled to freeze the bank account when the said money has direct link with the crime involved in the case. It also amounts to seizure of the property under law. In common parlance such an act is called freezing the account and in legal parlance it would be called as seizing the property. Nonetheless, it would have the same effect. Whether it is freezing or seizing the property, it is one and the same.
16. Therefore, when the money that is available in the said bank account of the petitioner in the Axis Bank as on 05.06.2017 is pertaining to the check period i.e. from 15.10.1987 to 05.06.2017 i.e. as on the date of registration of the crime and conducting searches, undoubtedly, the said money would have direct link relating to the crime involved in the present case. So, it is essential to preserve it for the purpose of calculating the net income of the petitioner to ascertain whether the petitioner has acquired assets disproportionate to his known source of income during the said period or not, during the course of investigation, which is still pending. Not only for the said purpose, in the event at the culmination of the investigation, if it is found that the petitioner acquired assets 12 CMR, J.
Crl.P.No.185 of 2021disproportionate to his known source of income, the trial Court has to deal with the said money according to law in the final adjudication of the case after the trial is concluded, as held by the Apex Court in the above judgment in the case of State of Maharashtra v. Tapas D. Neogy1. So, even for the said purpose, the said amount of money in his bank account is to be preserved as it is.
17. It may be noted here that even though the crime was registered in the year 2017, the petitioner has submitted his explanation pursuant to the notice given by the Investigating Officer after two reminders, only in the month of January, 2020. Because of his delayed explanation, it is stated that the investigation is still pending. Therefore, after considering his explanation and his net income and the assets acquired by him, the police has to finally come to a conclusion in the process of investigation as to what extent the assets acquired by him during the said period are disproportionate to his known source of income, in his name and in the name of his family members, relatives and associates etc. Therefore, as the investigation is still pending, the said amount is to be preserved in the bank till conclusion of the investigation. The plea taken by the petitioner that as it is his salary account and that the said money is pertaining to his salary and that he require the same for the purpose of meeting his family expenses, medical expenses and other expenses, cannot be a valid plea to permit him to withdraw the money. In this context, it is relevant to note, as rightly 13 CMR, J.
Crl.P.No.185 of 2021contended by the learned Standing Counsel-cum-Special Public Prosecutor for ACB, the petitioner was reinstated into service in the year 2019 and he has been drawing his full salary. This Criminal Petition has been filed in the year 2020, after his reinstatement. Therefore, when he is drawing his full salary, it cannot be said that he has been in dire necessity of money to meet his family expenses, medical expenses and other expenses and that he requires the said money of Rs.3,21,288/- available in the bank account. There is no merit in the said contention and he cannot be allowed to operate the said account to withdraw the money on the said ground, which is not found to be meritorious.
18. Therefore, in the said facts and circumstances of the case, this Court does not find any legal infirmity or illegality in the impugned order passed by the trial Court, as the check period is from 15.10.1987 to 05.06.2017 and as the said money is required to calculate to find out the net income etc. of the petitioner, as rightly held by the learned trial Judge, the petitioner cannot be permitted to withdraw the said money.
19. In this context, it is apt to consider the observation of the Apex Court in the case of Tapas D. Neogy1. It is held at para.12 of the said judgment as follows:
"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 14 CMR, J.Crl.P.No.185 of 2021
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 accused as a public officer. We are, therefore, persuaded to take the view that the bank account of the accused or any of his relation 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."
20. In the facts and circumstances of the case, as per the aforesaid observation of the Apex Court, the police officer is very much justified in seizing the said account or prohibiting the operation of the said account.
21. As regards the maintainability of the Criminal Petition under Section 482 Cr.P.C. is concerned, it is already noticed supra from the dictum laid down in the judgment of the Apex Court cited supra, that money lying in the bank account of the accused can be construed as a property for the purpose of Section 102 Cr.P.C. and that the same can be seized by the police officer. Therefore, as the investigating officer in this case seized the said money in the bank account of the petitioner, the accused, who intends to have interim custody of the said property can claim the same by way of filing a petition to that effect under Sections 451 or 457 Cr.P.C. as the case may before the concerned trial Court. Accordingly, he has filed the present petition under Sections 451 and 457 Cr.P.C. to permit him to operate his bank account and withdraw the said money that was seized by the police.
15
CMR, J.
Crl.P.No.185 of 2021
22. Now, the crucial question that arises for consideration is, whether a remedy is available to the petitioner to challenge the said order passed under Section 451 Cr.P.C., under the provisions of Cr.P.C. or not to ascertain whether a criminal petition under Section 482 Cr.P.C. invoking the inherent powers of this Court to challenge the said order is maintainable or not. It is well settled that inherent powers of this Court under Section 482 Cr.P.C. can be invoked only when there is no specific remedy available to the petitioner to challenge a particular order. Admittedly, no appeal lies against an order passed under Sections 451 and 457 Cr.P.C. Right of appeal is not provided against the said order in the scheme of Cr.P.C. Therefore, as per settled law, when no right of appeal is provided, then the parties have to challenge the said order in the revisional Court by way of filing a revision under Section 397(1) Cr.P.C. Now, the next question that arises for consideration is, whether an order passed under Sections 451 and 457 Cr.P.C. is a final order or an interlocutory order. This examination is required as clause (2) of Section 397 Cr.P.C. bars a revision against an interlocutory order. Now, it is well-settled law that an order passed under Sections 451 and 457 Cr.P.C. is not an interlocutory order and it is a final order so far as claiming the said property is concerned and as such, revision under Section 397(1) Cr.P.C. lies against the said order. The legal position in this regard is not res integra and it has been well settled. 16
CMR, J.
Crl.P.No.185 of 2021
23. This Court, way back in the year 1981, in the case of Bharat Heavy Electricals Ltd. v. State 2, while dealing with an order passed under Section 451 Cr.P.C., held at para.15 as follows:
"I do not agree with the learned counsel for the respondent that it is an interlocutory order and no revision lies under Section 397(2) Cr.P.C. The order in question substantially affects the rights of the parties. If so, it cannot be considered to be an interlocutory order."
24. In arriving at the said conclusion, this Court relied on the ratio laid down by the Apex Court in Amar Nath v. State of Haryana3.
25. Considering the aforesaid judgment of this Court in Bharat Heavy Electricals Ltd2, and several other judgments of various High Courts, the Madras High Court in the case of S.V.Chandran v. State4 held at para.5 as follows:
".....since, as far as, return of properties is concerned, there is a final determination of right of the party and such determination cannot be construed as one of the interlocutory in nature."
26. Further held at para. 8 of the said judgment as follows:
"Therefore, in the light of the decision of the Supreme Court in Madhu Limaye's case (1978 Cri LJ 165) (supra), it can be held that this kind of order is final between the parties deciding their entitlement to the property in question finally at that stage. Therefore such an order is necessarily subject to revision by the Court and revision against the same is competent before a Court of Session. The view which I have taken has a support from Bharat 2 1981 CriLJ 1529 3 1977 Cri.L.J. 1891 4 Order dated 17.12.2018 in Crl.R.C.No.1217 of 2018 of Madras High Court.17
CMR, J.Crl.P.No.185 of 2021
Heavy Electricals Ltd. (1981 Cri LJ 1529 (A.P.) and Ishar Singh v. The State of Punjab (1974 Cri LJ 231)."
27. Further held at para.10 of the said judgment as follows:
"For the above said reasons, this Court is more inclined to accept the decision of various High Courts which held that the revision is maintainable against the order passed under Section 451 of Cr.P.C as the same is not interlocutory in nature, but such order determines the constitutional rights of the petitioner for return of properties or for disposing of properties. Therefore, the revision case shall be disposed of on its merits, by holding that the revision is maintainable."
28. Now, when once it is established that a revision lies against the order passed under Section 451 Cr.P.C. and that a remedy to challenge the said order is available, it is relevant to note that inherent powers of this Court under Section 482 Cr.P.C. cannot be invoked to challenge the said order ignoring the remedy available under Section 397(1) Cr.P.C.
29. The judgment of the Apex Court relied on by the learned counsel for the petitioner in the case of Prabhu Chawla v. State of Rajasthan5 to canvass a proposition of law that despite the remedy available under Section 397(1) Cr.P.C., that inherent powers of this Court under Section 482 Cr.P.C. can be invoked, is not applicable to the present facts of this case. That was a case where it is held that when the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice, interference of the High Court is absolutely necessary, then 5 2016 (2) ALD (Crl.) 882 (SC) 18 CMR, J.
Crl.P.No.185 of 2021nothing contained in Section 397(2) Cr.P.C. can limit or affect the exercise of the inherent power by the High Court.
30. So, as per the said dictum laid down in the aforesaid judgment, it is only when it is found that the impugned order brings about a situation which is an abuse of process of the Court and for the purpose of securing the ends of justice in the said circumstances, that interference of High Court is absolutely necessary, then notwithstanding the fact that the revision lies against the said order, the High Court can entertain a petition under Section 482 Cr.P.C. This is not a case arising out of such an exceptional circumstance, as the impugned order does not bring about a situation which is an abuse of process of the Court.
31. Even as per the general principles of law, when a specific provision is made, easy resort to inherent power, is not right, except under compelling circumstances. As already noticed supra, this case is not falling within any such exceptional circumstance or compelling circumstances, so as to entertain a petition under Section 482 Cr.P.C. despite the fact that a revision lies against the said order.
32. The judgments of the other High Courts relied on by the learned counsel for the petitioner of Kerala High Court in the case of Joshy v. the State6 and the Telangana High Court in 6 1986 Cri.L.J.263 19 CMR, J.
Crl.P.No.185 of 2021the case of Maloth Vinod v. State of Telangana7, are of no avail to the petitioner, in view of the judgment of this Court in Bharat Heavy Electricals Ltd2.
33. Therefore, the present Criminal Petition is devoid of merits both on fact and law. The impugned order of the learned trial Judge is perfectly sustainable under law and it warrants no interference in this Criminal Petition.
34. In fine, the Criminal Petition is dismissed.
Consequently, miscellaneous applications, pending if any, shall also stand closed.
________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date:21.12.2021.
cs 7 2021 (1) ALD (Crl.) 101 (TS)