Madhya Pradesh High Court
Sunita Shrivastava vs The State Of Madhya Pradesh on 12 September, 2022
Author: Sheel Nagu
Bench: Sheel Nagu, Arun Kumar Sharma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
CRR. No.1474 of 2021
Between:-
1. SUNITA SHRIVASTAVA W/O OM
PRAKASH SHRIVASTAVA, AGED ABOUT
55 YEARS, OCCUPATION- HOUSEWIFE,
R/O KOLAR ROAD, DISTRICT- BHOPAL
(M.P.)
2. SANGEETA SHRIVASTAVA W/O
KAMLESH SHRIVASTAVA,
OCCUPATION- HOUSEWIFE, AGED
ABOUT 53 YEARS, R/O RAJENDRA
NAGAR, DISTRICT- SATNA (M.P.)
.....PETITIONERS
(BY SHRI ANIL KHARE, SENIOR
ADVOCATE WITH MS. TANVI KHARE,
ADVOCATE)
AND
2
STATE OF M.P. THROUGH S.P.E.,
LOKAYUKT, DISTRICT- BHOPAL,
DIVISION-REWA (M.P.)
....RESPONDENT
(BY SHRI SATYAM AGRAWAL, ADVOCATE)
AND
CRR. No.1117 of 2021
Between:-
SATISH KUMAR SHRIVASTAVA, AGED
ABOUT 61 YEARS, OCCUPATION-
GOVERNMENT SERVICE, R/O GALI NO.
9, RAJENDRA NAGAR, DISTRICT-
SATNA (M.P.)
.....PETITIONER
(BY SHRI ANIL KHARE, SENIOR
ADVOCATE WITH MS. TANVI KHARE,
ADVOCATE)
AND
STATE OF M.P. THROUGH S.P.E.,
LOKAYUKT, DISTRICT- BHOPAL,
DIVISION-REWA (M.P.)
3
....RESPONDENT
(BY SHRI SATYAM AGRAWAL,
ADVOCATE)
AND
CRR. No.1118 of 2021
Between:-
INGITA SHRIVASTAVA W/O SUJEET
SHRIVASTAVA, AGED ABOUT 34 YEARS,
OCCUPATION- HOUSEWIFE, R/O
SHAHDOL, DISTRICT- SHAHDOL (M.P.)
.....PETITIONER
(BY SHRI ANIL KHARE, SENIOR
ADVOCATE WITH MS. TANVI KHARE,
ADVOCATE)
AND
STATE OF M.P. THROUGH S.P.E.,
LOKAYUKT, DISTRICT- BHOPAL,
DIVISION-REWA (M.P.)
4
....RESPONDENT
(BY SHRI SATYAM AGRAWAL,
ADVOCATE)
AND
CRR. No.1206 of 2021
Between:-
1. RASHMI SHRIVASTAVA W/O SATISH
SHRIVASTAVA, AGED ABOUT 57 YEARS,
OCCUPATION- HOUSEWIFE, R/O GALI
NO.9, RAJENDRA NAGAR, DISTRICT-
SATNA (M.P.)
2. INGITA SHRIVASTAVA W/O SUJEET
SHRIVASTAVA, AGED ABOUT 34 YEARS,
OCCUPATION- HOUSEWIFE, R/O
SHAHDOL, DISTRICT- SHAHDOL (M.P.)
3. ANKITA SHRIVASTAVA W/O KUMAR
ANUBHAV, AGED ABOUT 32 YEARS,
OCCUPATION- SERVICE, R/O B 1405,
MAHINDRA LIFE SPACE, AURA
SECTOR 110A, NEW PALAM BIHAR,
GURGAON.
.....PETITIONERS
(BY SHRI ANIL KHARE, SENIOR
ADVOCATE WITH MS. TANVI KHARE,
ADVOCATE)
AND
5
STATE OF M.P. THROUGH S.P.E.,
LOKAYUKT, DISTRICT- BHOPAL,
DIVISION- REWA (M.P.)
....RESPONDENT
(BY SHRI SATYAM AGRAWAL,
ADVOCATE)
AND
CRR. No.1475 of 2021
Between:-
RASHMI SHRIVASTAVA W/O SATISH
SHRIVASTAVA, AGED ABOUT 57 YEARS,
OCCUPATION- HOUSEWIFE, R/O GALI
NO.9, RAJENDRA NAGAR, DISTRICT-
SATNA (M.P.)
.....PETITIONER
(BY SHRI ANIL KHARE, SENIOR
ADVOCATE WITH MS. TANVI KHARE,
ADVOCATE)
AND
STATE OF M.P. THROUGH S.P.E.,
LOKAYUKT, DISTRICT- BHOPAL,
DIVISION- REWA (M.P.)
6
....RESPONDENT
(BY SHRI SATYAM AGRAWAL,
ADVOCATE)
AND
CRR. No.1476 of 2021
Between:-
ANKITA SHRIVASTAVA W/O KUMAR
ANUBHAV, AGED ABOUT 32 YEARS,
OCCUPATION- SERVICE, R/O B 1405,
MAHINDRA LIFE SPACE, AURA
SECTOR 110A, NEW PALAM BIHAR,
GURGAON.
.....PETITIONER
(BY SHRI ANIL KHARE, SENIOR
ADVOCATE WITH MS. TANVI KHARE,
ADVOCATE)
AND
STATE OF M.P. THROUGH S.P.E.,
LOKAYUKT, DISTRICT- BHOPAL,
DIVISION- REWA (M.P.)
....RESPONDENT
7
(BY SHRI SATYAM AGRAWAL,
ADVOCATE)
-------------------------------------------------------------------------------------------
Reserved on : 23.06.2022
Passed on : 12.09.2022
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Per : Justice Sheel Nagu :
ORDER
This common order disposes of six Criminal Revisions i.e. CRR No.1474/2021, CRR No.1117/2021, CRR No.1118/2021, CRR No.1206/2021, CRR No.1475/2021 and CRR No.1476/2021 since the dispute involved is based on identical fact situation.
2. The facts are taken from CRR No.1117/2021 which is filed by accused Satish Kumar Shrivastava who is an accused in Crime No.54/2019 alleging offences u/S 13(1)B, 13(2) of Prevention of Corruption Act, 1988 and u/S 120B of IPC challenging the order dated 28.01.2021 passed by learned Special Judge (P.C. Act), Umaria in M.J.C.R No.46/2020 rejecting an application made u/Ss 451 and 457 of Cr.P.C for operating the Bank account No.31640370619 maintained at State Bank of India, Branch- Satna, District- Satna (M.P.) which was frozen in 2020 in connection with aforesaid prosecution. Similar impugned order dated 28.01.2021 is challenged in other Criminal Revisions i.e. CRR No.1474/2021, CRR No.1118/2021, CRR No.1206/2021, CRR No.1475/2021 and CRR No.1476/2021.
82.1 The other Criminal Revisions i.e. CRR No.1474/2021, CRR No.1118/2021, CRR No.1206/2021, CRR No.1475/2021 and CRR No.1476/2021 have been filed by close relatives (not accused) of the accused Satish Kumar Shrivastava against rejection of their application u/Ss 451 and 457 of Cr.P.C. for either release of cash seized by the Lokayukt in the raid conducted in their houses or seizure of ornaments, various vehicles, laptop and other documents.
2.2 That the rejection by the Trial Court on all the applications u/Ss 451 and 457 of Cr.P.C was on the ground that investigation in the matter is pending and the seized articles and cash are incriminating evidence, release of which may adversely affect the investigation/trial and that the seized cash and articles may be misappropriated.
3. Learned Counsel for rival parties are heard on the question of admission so also on final disposal.
4. The principal and sole contention of the learned senior counsel for the petitioners is that in view of Section 18(A) inducted by way of amendment in Prevention of Corruption Act, 1988 (for brevity "P.C. Act") w.e.f. 26.07.2018 all matters concerning attachment, administration of attached property and execution of order of attachment or confiscation of land or property seized inter alia under the P.C. Act shall be governed by The Criminal Law Amendment of Ordinance, 1944 (for brevity "Ordinance of 1944"). For ready reference and convenience, Section 18(A) of the P.C. Act is reproduced below in toto :-
9"18A. Provisions of Criminal Law Amendment Ordinance, 1944 to apply to attachment under this Act.-(1) Save as otherwise provided under the Prevention of Money Laundering Act, 2002 (15 of 2003), the provisions of the Criminal Law Amendment Ordinance, 1944 (Ord. 38 of 1944) shall, as far as may be, apply to the attachment, administration of attached property and execution of order of attachment or confiscation of money or property procured by means of an offence under this Act.
(2) For the purposes of this Act, the provisions of the Criminal Law Amendment Ordinance, 1944 (Ord. 38 of 1944) shall have effect, subject to the modification that the references to "District Judge" shall be construed as references to "Special Judge" "
4.1 Learned senior counsel Shri Anil Khare referring to Ordinance of 1944 contends that detailed procedure stipulated in Clauses 3, 4 and 5 have not been followed. It is submitted that as per Clause 4, whenever the Investigating Agency seizes any property alleged to be involved in offences punishable under the P.C. Act, the Special Judge is obliged to issue notice to the person from whom money/property was seized to enable him to show cause as to why the attachment be not made absolute. Clause 3 further provides that all such persons who are likely to have any claim over the said attached property/money be also noticed to enable them to file objections. It is also urged by referring to Clause 5 of Ordinance of 1944 that if no objections are received pursuant to the notice issued under Clause 4 before the date specified for the same, the Special Judge shall pass an order making the interim attachment absolute. However, if the objections are made, the Special Judge shall proceed to investigate the same and examine the parties entrusted in said attached money/property and while doing so shall exercise powers of a Civil Court. Thereafter, the Special Judge shall pass an order other than 10 making the Ad interim attachment absolute or varying the same by releasing a portion of the property from attachment or withdrawing the order. It is pointed out that the provision of Clause 5 further stipulates that the Special Judge while releasing the attached property in toto or partly shall ensure that there shall remain under attachment, such part of the property of accused which is not less then the property/money believed to have been procured by means of offence in question. Attention is also invited by learned senior counsel for the petitioners to Clause 6 which provides for further safeguard of attachment of property of mala fide transferees to whom the attached property/money has since been transferred. Learned senior counsel also contends that Clauses 7, 8, 9, 9-A and 10 deal with subsequent stages of attachment, security in lieu of attachment, administration of attached property and it's duration. It is also submitted that Clause 11 of Ordinance of 1944 relates to appeals by the aggrieved persons against orders passed in respect of objections made under Clause 4 or reply of application made under Clauses 8 and 9 to the High Court. Thereafter, it is pointed out that Clause 12 relates to the power raised in Criminal Courts to evaluate property procured by scheduled offences and Clause 13 to disposal of attached property upon termination of criminal proceedings. The schedule appended to the Ordinance of 1944 inter alia relates to offences punishable under the P.C. Act and, in this manner, it is submitted by learned senior counsel that the Ordinance of 1944 is a complete and exhaustive code as regards the subject of attachment, administration of attachment property, execution of order of attachment or confiscation of money or property procured by means of an offence under the P.C. Act.
114.2 By referring to the aforesaid Ordinance of 1944 and Section 18A of the PC Act, learned senior counsel submits that without following the mandatory provisions in the Ordinance of 1944 which are attracted in view of the provisions of Section 18A of the P.C. Act, the impugned orders passed by the learned Special Judge (P.C. Act), Umaria are without any jurisdiction as the same has been passed without even a reference to the Ordinance of 1944 much less compliance.
4.3 In support of the aforesaid contention of learned senior counsel, the decision of the Apex Court in the case of Ratan Babulal Lath vs. State of Karnataka rendered on 06.09.2021 in Criminal Appeal No.949/2021 (Arising out of SLP(Crl.) No.2987/2021) is pressed into service. By the said judgment , the Apex Court quashed the order of freezing of Bank account of the accused therein which was made pursuant to Section 102 of Cr.P.C and not under the provisions of Ordinance of 1944.
5. Learned counsel for the prosecution on the other hand does not dispute that the provisions of the Ordinance of 1944 was not followed for the attachment of the Bank account, money, properties of the petitioners during the investigation in the offences in question. However, the learned counsel for the prosecution has attempted to distinguish between the concept of seizure and attachment to urge that the exercise of seizure of incriminating the material has been undertaken by invoking Section 102 of Cr.P.C. and not of attachment. It is submitted that since no attachment has taken place, need to invoke the Ordinance of 1944 does not arise, and therefore, the decision of the Apex Court in Ratan Babulal Lath (Supra) is of no avail to the petitioner.
12Reliance is placed by the prosecution on (2018) 2 SCC 272 (Anusuiya @ Saraswatibai and another vs. State of Madhya Pradesh) and 1999 7 SCC 685 (State of Maharashtra vs. Tapas D. Neogy) and order dated 01.07.2019 of Co-ordinate Bench of this Court passed in W.P. No.11561/2019 (Dilip Mehta vs. Special Police Establishment, Lokayukt)
6. After hearing the learned counsel for rival parties, this Court is of the considered view that this Court need not go into the subtle difference between attachment and seizure of property/money involved qua offences punishable under the P.C. Act. The reason being that the Apex Court while passing the order in the case of Ratan Babulal Lath (Supra) in Criminal Appeal No.949/2021 has impliedly treated the freezing of the Bank account of the petitioners equivalent to attachment by holding that such freezing is not permissible without following the procedure laid down in the Ordinance of 1944.
7. The Apex Court has held in the said case that recourse to Section 102 of Cr.P.C which empowers the Police to seize incriminating property/money involved in an offence punishable under the P.C. Act is impermissible without taking recourse to the detailed procedure prescribed under Ordinance of 1944. For ready reference and convenience, the order the Apex Court dated 06.09.2021 passed in Criminal Appeal No.949/2021 (Ratan Babulal Lath vs. State of Karnataka) is reproduced below:-
"Leave granted.
The only question which we are examining is whether the attachment of bank account of the appellant is sustainable in exercise of powers under Section 102 Cr.P.C.13
The counter affidavit of the respondent seeks to suggest that they are in the process of filing an application under Section 18A of the Prevention of Corruption Act, 1988, since the earlier authorization issued by the Government under Section 3 of the Criminal Law Amendment of Ordinance, 1944 was not in the form of the Government Order.
Be that as it may, on that account, it is not possible to sustain the freezing of the bank account of the appellant taking recourse to Section 102 Cr.P.C. as the Prevention of Corruption Act is a Code by itself.
In view of the aforesaid position, the freezing of the account of the appellant cannot be sustained and is, accordingly, set aside. Consequently, the impugned order is also set aside leaving open to the respondent to take such recourse in law as may be permissible.
The appeal is allowed.
The parties to bear their own costs."
8. In view of the above discussion and the fact that the prosecution does not dispute that procedure prescribed in Ordinance of 1944 was not followed while seizing/attaching the money/property/documents alleged to be involved in the offences in question under the P.C. Act, the seizure made by the Prosecuting Agency is rendered vitiated.
9. However, it will be traversity of justice if the property/money/documents alleged to be involved in offences under the P.C. Act are allowed to be returned to the accused since it will lead to misappropriation and disappearance of the said property. More so, the defect found in the seizure of these properties is merely technical. The possibility of the said seized properties/money/documents being actually involved in offences alleged cannot be ruled out. If that is so, then all these 14 properties/money/documents are liable to be confiscated to become the property of the State. The release of such a property which has the potential of being confiscated in the future would amount to failure of justice as the subject matter of the investigation/trial render susceptible to disappearance/misappropriation.
9.1 To cater to the aforesaid eventuality, this Court directs that the incriminating property/money/documents seized found in the possession of the petitioners during the investigation of the offences in question be kept in safe custody and possession of the Principal District Judge, Umaria till passing of appropriate orders by the appropriate Court after following the procedure laid down by Ordinance of 1944 as regards attachment and custody.
10. Accordingly, all the six Criminal Revisions i.e. CRR No.1474/2021, CRR No.1117/2021, CRR No.1118/2021, CRR No.1206/2021, CRR No.1475/2021 and CRR No.1476/2021 are disposed of in the following terms :-
(i) The impugned orders dated 28.01.2021, so far it rejects the application u/Ss 451 and 457 of Cr.P.C. of the petitioners passed by Special Judge (P.C. Act), Umaria in M.J.C.R. No.43/2020, M.J.C.R. No.46/2020, M.J.C.R. No.45/2020, M.J.C.R. No.42/2020, M.J.C.R. No.44/2020 & M.J.C.R. No.47/2020 are set aside.
(ii) The possession of the seized money/property/documents qua the petitioners in all six Criminal Revisions in respect of offences in question shall be transferred on paper from the 15 possession of the police to the possession of the Special Judge (Lokayukt), Rewa without making the money/ property/documents move physically.
(iii) The Investigating Agency and the Special Judge shall follow the procedure laid down in Clauses 3, 4 and 5 of the Ordinance of 1944 in regard to the seized property, money and documents including applications for release of the attached property if made by petitioners and thereafter, pass appropriate orders as expeditiously as possible within a period of 90 days from today.
(iv) It is made clear by this Court that in no circumstances, the physical possession of the seized property/ cash/ documents shall be handed over to the petitioners. However, the same shall remain subject to the order that is passed by the Special Judge after following the procedure laid down under Ordinance of 1944.
11. No cost.
(SHEEL NAGU) (ARUN KUMAR SHARMA)
JUDGE JUDGE
YS
Digitally signed by YOGESH KUMAR
SHIRVASTAVA
Date: 2022.09.13 16:42:49 +05'30'