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4.The learned Additional Public Prosecutor appearing on behalf of the respondent police submitted that since the petitioner was not able to give a convincing answer as to the source of the huge amount of money and the purpose for which he was in possession of the same, the squad which was conducting surprise checks during election had seized the money and a complaint was given by the 2nd respondent, following which an FIR was registered under Section 102 Cr.P.C. The learned Additional Public Prosecutor further submitted that a report was forthwith submitted under Section 102(3) Cr.P.C to the learned Judicial Magistrate-II, Walajapet.

14.Mr.K.P. Anantha Krishnan, learned Amicus submitted that seizure of unaccounted money cannot in all circumstances be treated as a suspicion for the commission of an offence. The learned counsel by way of illustration submitted that if the police party during a routine check, intercepts a person and finds that the said person is carrying a large amount of cash, that will not give the power to the police to seize the money in exercise of Section 102 Cr.P.C. In other words, the learned counsel submitted that the seizure of money must be preceded by some complaint of an alleged or suspected stealing of money or being https://www.mhc.tn.gov.in/judis/ received on commission of an offence. The learned counsel insisted that there must be a basis for exercising the power of seizure under Section 102 Cr.P.C. and it cannot be exercised as a matter of routine by the police. The learned counsel submitted that in the present case there was a complaint given by the election squad who had seized the money and therefore, the police proceeded to register an FIR under Section 102 Cr.P.C. and investigated the case and ultimately found that it was for the commission of an offence, and accordingly a report was filed before the learned Magistrate. The learned counsel insisted that seizure of unaccounted money should not lead to a presumption of bribery in every case and there should be material collected during the course of investigation to come to such a conclusion.

15.The learned Additional Public Prosecutor in reply to these submissions once again placed reliance upon Sub Sections (1) and (3) of Section 102 Cr.P.C. and submitted that in the present case, the money was unaccounted, and it was seized by the election squad and a complaint was given to the police to investigate as to whether this money was purported to be used for the commission of an offence. https://www.mhc.tn.gov.in/judis/ Immediately thereafter, an FIR was registered under Section 102 Cr.P.C. and a report was submitted before the learned Magistrate in compliance with Section 102(3) Cr.P.C. On completion of the investigation, there were materials to show that the money seized was purportedly attempted to be used by the petitioner for commission of an offence under Section 171-E IPC. A report to that effect was also filed before the learned Magistrate. The learned Additional Public Prosecutor submitted that the facts of the present case squarely fall within the Explanation to Section 2(d) Cr.P.C. and the learned Magistrate will have to treat the report as a complaint and proceed further under Chapter XV of Cr.P.C.

19.In the present case, the FIR was registered under Section 102 Cr.P.C. based on the complaint given by the election squad. Immediately after the registration of the FIR, a report was sent to the learned Magistrate on the seizure of the money thereby complying with Section 102(3) Cr.P.C. On the completion of the investigation, it is stated that materials were collected to prima facie constitute an offence under Section 171-E of IPC. The facts of the present case squarely fall within the Explanation to Section 2(d) Cr.P.C. In the present case, the FIR was not registered on the basis of the commission of cognizable or non- cognizable offence. The FIR was registered on the basis of the seizure of the money by the election squad which was unaccounted, and a complaint was given in that regard. On the completion of the investigation, if a non-cognizable offence is disclosed, obviously the report submitted by the Investigation Officer must be treated as a https://www.mhc.tn.gov.in/judis/ complaint by virtue of Explanation to Section 2(d) Cr.P.C. If on the other hand, the materials collected during the course of investigation discloses the commission of a cognizable offence and a report is filed before the concerned Court, it has to be proceeded further only under Section 173(2) of Cr.P.C. and Chapter XVII of Cr.P.C will apply.