Bombay High Court
Gulam Sarvar S/O. Farukh Khan vs State Of Maharashtra Thr. Police ... on 5 February, 2018
Author: S.B. Shukre
Bench: S.B. Shukre
J-cwp1132.17.odt 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION No.1132 OF 2017
Gulam Sarvar s/o. Farukh Khan,
Aged about 42 years,
Occupation : Service,
R/o. Majidpur, Gangazari,
Tah. And Distt. Gondia. : PETITIONER
...VERSUS...
1. State of Maharashtra,
Through Police Station Officer,
Goregaon, Tah. Goregaon,
Distt. Gondia.
2. Tahsildar, Goregaon, Tah. Goregaon,
Distt. Gondia.
3. Bank of Maharashtra,
Through its Branch Manager,
At Goregaon, Tah. & Distt. Gondia. : RESPONDENTS
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Shri M.R. Joharapurkar, Advocate for the Petitioner.
Ms. R.V. Kalia, Addl. Public Prosecutor for the Respondent Nos.1 and 2.
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CORAM : S.B. SHUKRE, J.
th
DATE : 5
FEBRUARY, 2018.
ORAL JUDGMENT :
1. Heard.
2. Rule. Rule made returnable forthwith.
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3. Heard finally by consent.
4. Learned counsel for the petitioner submits that the petitioner has not filed any petition before this Court or before the Hon'ble Supreme Court claiming same relief as is claimed in the present petition. Learned A.P.P. for the respondent Nos.1 and 2 also could not show to me any such petition having been filed previously by the petitioner. Statement is, therefore, accepted.
5. This petition questions legality and correctness of the two orders, one passed by the Judicial Magistrate, First Class, Court No.5, Gondia, on 18.2.2017 and the other passed by the Sessions Judge, Gondia on 1st August, 2017 in Criminal Revision No.19/2017. By these orders, application filed by the petitioner directing release of the seized bank account, SB Account No.20190042781, Bank of Maharashtra, Branch Goregaon, Distt. Bhandara has been rejected. The petitioner claims that this is his salary account and it is not disputed by the prosecution.
6. It is seen from the record that the account of the petitioner, detailed earlier, was seized by the Investigating Officer in Crime No.63/2016 registered for offences punishable under Sections 3 and 7 of the Essential Commodities Act, 1955 read with Section 406 of the Indian Penal Code against the petitioner and other persons. The allegations against the petitioner and the other persons in this crime are that the ::: Uploaded on - 07/02/2018 ::: Downloaded on - 09/02/2018 01:37:04 ::: J-cwp1132.17.odt 3/8 petitioner being a godown keeper of the godown at Goregaon where foodgrains to be distributed under the public distribution system stood stored, in collusion with some other persons, misappropriated the foodgrains totaling 1786.99 quintals with a view to causing wrongful loss to the Government and wrongful gain to himself and others. The amount of misappropriated foodgrains is alleged to be of about Rs.45,00,000/-.
7. During the course of investigation, the Investigating Officer discovered two accounts of the petitioner, the account involved in this petition and one more account. The Investigating Officer thought that amounts deposited in this account may have been the proceeds of the crime registered against this applicant and others and so he invoked his power under Section 102 of the Code of Criminal Procedure Code and directed the bank authority to freeze the account. The Branch Manager of Bank of Maharashtra, Goregaon Branch complied with the direction and froze the account, which in law amounted to seizure of the account in terms of Section 102 of the Code of the Criminal Procedure. The fact of seizure of the account, however, was not intimated to the petitioner either by the Investigating Officer or by the Branch Manager. The petitioner learnt about the same when he could not operate the account and had to visit the branch in order to ascertain the reason when he was told by the Branch Manager that his aforestated account was under ::: Uploaded on - 07/02/2018 ::: Downloaded on - 09/02/2018 01:37:04 ::: J-cwp1132.17.odt 4/8
seizure for the purposes of investigation of the Crime No.63/2016.
8. The seized account being salary account of the petitioner made the petitioner face a lot of difficulties and, therefore, he moved an application (Page 24) at Exh.1, being Misc. Criminal Application No.494/2016 seeking release of the said bank account. Learned Magistrate, however, rejected the application. The matter was carried in revision before the Sessions Court where also, the petitioner met with same fate as he did before the learned Magistrate. The learned Sessions Judge rejected the criminal revision application filed by the petitioner. These orders passed on 18.2.2017 and 1 st August, 2017 by the Courts of Judicial Magistrate, First Class and Sessions Court are under challenge in the present petition.
9. With the assistance of learned Additional Public Prosecutor, I have gone through the statement of account, which is forming part of a proposed charge-sheet, a copy of which has been made available for my perusal by the learned Addl. Public Prosecutor. It is submitted by the learned A.P.P. that the investigation is complete and as soon as approval of the higher authority is received, charge-sheet would be filed against this applicant and others. She also submits that now nothing more is to be investigated. This would mean that practically investigation is over and only a formal approval for filing of the charge-sheet is awaited.
10. Perusal of the statement of the account of the petitioner with ::: Uploaded on - 07/02/2018 ::: Downloaded on - 09/02/2018 01:37:04 ::: J-cwp1132.17.odt 5/8 Goregaon Branch, Bank of Maharashtra, which has been seized in the present case, discloses that there were only three credit entries in the months of June and July 2016. The period of alleged misappropriation is of only two months i.e. June 2016 and July 2016, as submitted by the learned A.P.P. These three entries, on their face, disclose at this stage that the amounts of Rs.5,000/-, Rs.49,156/- and Rs.29,644/- were credited to the account on 1.6.2016, 17.6.2016 and 15.7.2016 respectively and that all the three credit entries were on account of salary paid to the petitioner. At this stage, there is no dispute about these facts. So, prima facie, it appears to me that for the relevant period, there are no suspect entries in the account in question.
11. On a further reading of the statement of account as well, I could not come across any other entries which could be prima facie said to be suspect. Learned A.P.P. also could not show to me any such suspect entries in this account. Besides, as stated earlier, it is an admitted fact that this is a salary account of the petitioner.
12. In view of above, I cannot but find myself in agreement with learned counsel for the petitioner that the Saving Bank Account in question, on the basis of material collected during the course of investigation, could not have been directed to be seized by the Investigating Officer as prima facie, there are no entries in this account which could be suspected to be having nexus with commission of crime ::: Uploaded on - 07/02/2018 ::: Downloaded on - 09/02/2018 01:37:04 ::: J-cwp1132.17.odt 6/8 or result of commission of crime or proceeds of the crime.
13. Power under Section 102 of the Code of Criminal Procedure can be invoked by a Police Officer only when the property to be seized is alleged or suspected to have been stolen or which is found under such circumstances as to create suspicion of commission of any offence, so that such seizure provides effective assistance to him in the investigation. To exercise this power, it is not necessary for the Investigating Officer to justify the seizure of bank account by collecting evidence as if a trial is being held and it is enough for him to justify his action by reasonably showing that the amount in the account creates a reasonable suspicion of commission of crime. However, it is necessary in a case where account has been seized or frozen under Section 102(1) Cr.P.C., it being a property not capable of being transported to Court or actually held in custody by the Police, to report the seizure to the Magistrate, as required under sub-Section (3) of Section 102 Cr.P.c. A useful reference in this regard may be had to the cases of State of Maharashtra Vs. Tapas D. Neogy, reported in (1999) 7 SCC 685 and Teesta Atul Setalvad Vs. State of Gujarat, Criminal Appeal No.1099/2017 decided by Hon'ble Apex Court on 15.12.2017.
0. In this case, although it is alleged that the credit balance in the account in question is part of alleged misappropriated amount, I must say, the allegation has been made, as it appears from the record shown to ::: Uploaded on - 07/02/2018 ::: Downloaded on - 09/02/2018 01:37:04 ::: J-cwp1132.17.odt 7/8 me, just for the sake of it, without showing any material on which such an allegation is founded. Making of an allegation simplicitor; for the purposes of Section 102 of Cr.P.C., is not sufficient and it must be shown that the allegation is founded on such a material as to at least create a reasonable suspension about the amount in the account having some connection or possibility of having some connection with the commission of crime. In the present case, the facts discussed earlier, would show that even such possibility of the link between the credit balance in the account and the commission of the crime has not been indicated. That apart, the Magistrate having jurisdiction has not been informed of the seizure. Therefore, I am of the view that the impugned orders, which do not consider the essential requirements of Section 102 of the Cr.P.C., would have to be termed as illegal, not sustainable in law.
14. Apart from what is stated above, I am of the opinion that now the investigation is over and what has remained, before a charge- sheet is filed, is only a formality to be completed. This would provide an additional reason for favourably considering the argument of learned counsel for the petitioner. Nevertheless, in order to protect the interest of the prosecution, some conditions would have to be imposed.
15. In the result, the criminal writ petition is allowed.
16. The impugned orders are hereby quashed and set aside.
17. The saving bank account in question is directed to be ::: Uploaded on - 07/02/2018 ::: Downloaded on - 09/02/2018 01:37:04 ::: J-cwp1132.17.odt 8/8 released from the seizure, till final disposal of trial, subject to the condition that the petitioner shall furnish a bank guarantee of Rs.1,00,000/- to secure his liability in the matter, if it is ultimately fixed by the Court or the departmental authority.
18. The Bank guarantee so furnished shall be renewed by the petitioner from time to time until final disposal of the trial and any failure on his part to do so shall result in revival of the seizure order.
19. The bank guarantee to be furnished before the trial Court, to it's satisfaction.
20. Rule is made absolute in the above terms.
JUDGE okMksns ::: Uploaded on - 07/02/2018 ::: Downloaded on - 09/02/2018 01:37:04 :::