V.R. Datar, J.
1. Rule.
All these matters are connected and, therefore, this order will govern their disposal. However, petition No. 172 of 1997 is slightly on different footing and, therefore, the final order disposing of the same will be passed separately. The main question involved is regarding the power of the police officer investigating an offence to issue prohibitory order in respect of bank account. Claim is laid upon the provisions of Section 102 Cr.P.C. in that behalf. Certain other provisions are also relied upon and, in particular, Section 105A to G in Chapter VIIA, Cr.P.C. as amended by amending Act 40 of 1993. In order to appreciate the point involved in these petitions, a brief reference to the facts in each petition would be necessary.
2. Writ Petition No. 86 of 1997
The petitioner herein is alleged to have committed offences under Sections 465, 467, 468, 471, 419 and 420 IPC. The case is registered as CR No. 589 of 1996 by Cuffe Parade Police Station, Mumbai, The petitioner represented and posed himself as Chief Controller of Stores and Purchases of Government Department and thereby cheated one Arun Rawat and one other, Purshottam Kukreja. First Information in that behalf has been lodged by Purshottam Tikamdas Kukreja in Cuffe Parade Police Station. The first informant, Purshottam Kukreja is doing the business of printing in the name and style of Kukreja Art. So also Arun Rawat is dealing in printing business having his own printing press at Shah & Nahar Industrial Estate, Lower Parel, Mumbai.
An advertisement was published in newspapers inviting tenders in respect of a printing job purporting to be invited by Chief Con trailer of Stores and Purchases. As such, the informant approached the petitioner, Chandrashekar Agarwal who represented that the informant should fill up the tender and pay earnest money. Then he went on assuring the informant that his tender would be accepted. At one time the petitioner told the informant that if any friend of his required a job of printing, he could also be brought to him and the petitioner would see that his tender for the job is accepted. Accordingly, Arun Rawat was introduced to the petitioner by the informant and he was asked to fill in the tender for IGOU book printing. In that connection, Arun Rawat also paid various amounts by pay orders and cash. For all such payments, the petitioner passed receipts. When informant and Arun Rawat often visited the house and enquired about the tenders the petitioner started giving indifferent replies and avoided them. That is how both of them approached Free Press Journal office where they found that there is no such office as Central Accounts Department of CGPW. As such, the informant and Arun Rawat found that the petitioner cheated them and gave bogus and forged cash receipts and made false assurances regarding tender for printing. That is how the informant came to be cheated to the extent of Rs. 5,85,600/- and Arun Rawat was cheated to the extent of Rs. 5,50,000/-. That is how the petitioner is alleged to have swallowed the amount of Rs. 11,35,600/-.
3. After registration of the offence, the petitioner came to be arrested on 14.12.1996. During the course of investigation, it was found that the petitioner held joint bank accounts as under:
(i) Account No. 5527583006 in Mumbai City Bank,
(ii) Account No. 5700813004 in Delhi City Bank and
(iii) City Bank Credit Card No. 4568229150797018.
Sub Inspector A.S. Mathews attached to Cuffe Parade Police Station issued letter on 14th December, 1996 to City Bank to stop further transactions in two accounts of the petitioner in Mumbai and Delhi branch. When petitioner went to operate his accounts he was informed that the same were blocked at the instance of police attached to Cuffe Parade Police Station.
4. Thereafter an application came to be filed before the Additional Chief Metropolitan Magistrate, 37th court, Esplanade, Mumbai on 23.12.1996 by Senior Inspector of Police, Cuffe Parade Police Station, Mumbai praying therein that the cash amount of Rs. 7,68,871/- standing in the account of the petitioner in City Bank may be directed to be deposited and handed over to police. In this application, necessary details of the amounts paid by informant Purshottam Kukreja and Arun Rawat to the petitioner have been given; so also the details as to when the amounts came to be credited in the account of the petitioner in City Bank at Mumbai and Delhi branch. The learned Magistrate issued notice to 'he petitioner and the Manager of City Bank, Mumbai. The latter filed his say (Exhibit-D) to the petition explaining how an amount of Rs. 1,33,981/- has been debited to the account of the petitioner on 18.12.1996 itself towards the user of city card facility by the petitioner. Respondent No. 2 offered to hand over the balance amount as per the direction of the court.
5. In view of these developments, the petitioner Chandrashekhar Agarwal filed this petition questioning the authority of the police officer issuing prohibitory order in respect of his bank account and further prayer of the police before the Magistrate for a direction to the bank to hand over the amount in his account to the police. It is contended that there is no provision in the Code of Criminal Procedure conferring such power upon the police officer or the Magistrate and reliance on Section 102 Cr.P.C. cannot be placed by stretching that provision to any extent.
6. Writ Petition No. 826 of 1996
The petitioner, herein, Tapas Dhrubalal Neogy is the son of Smt. Madhuri Neogy and claims to be her constituted attorney for the purposes of this petition. Madhuri Neogy is old and infirm widow normally residing at Calcutta. The petitioner Tapas Neogy worked as an Architect and Town Planner in the Department of Town Planning of Union Territory of Daman and Diu.
The CBI, ACB, Mumbai registered three first information reports against the petitioner and three others viz., RC/64(A)/93, RC/65(A)/93 and RC/66(A)/93 for offences under Sections 120B read with Sections 467, 468, 471 and 420 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. These offences are alleged to be committed by the petitioner along with three others while on duty. The allegations in all these first information reports are common viz., that accused No. 1, Narayan Divakar was holding charge of Collector of Daman during the period from October, 1992 to April, 1993. The petitioner herein (accused No. 2) was then posted as architect and town planner, Government of Daman. The original plan of Daman was prepared by the Department of Architecture and Planning, Government of Daman and was approved by the Town and Country Planning Board for the period upto the year 2001. In this approved plan, various zones of industries, roads, defence, agriculture etc. were earmarked. Out of total area of land, 7.25% was earmarked for industries and 41.21% for agriculture and open space. This zoning could be changed by the Town and Country Planning Board, Daman. The procedure to alter agricultural land into non-agricultural land was that the land owners who wish to change their land to non-agricultural use were required to apply to the Collector, who was the competent authority to grant such permission. Such applications were then forwarded to Town Planning Department for the purpose of clearance. Accused No. 1, Narayan Divakar and the petitioner are alleged to have entered into conspiracy, by which Divakar caused a forged map of Daman to be prepared thereby increasing industrial zone. On that basis, the petitioner herein issued false certificates that the land fell within the industrial zone. Because of this, the land prices shot from Rs. 100/- to Rs. 110/- per sq. meter to Rs. 800/- to Rs. 1,600/- per sq.meter thereby accused No. 1, Divakar and the petitioner caused pecuniary advantage to be gained by the land owners whose names were mentioned in the first information report as other accused.
Pursuant to the first information reports the premises of the petitioner at Daman were searched on 12th October, 1993 by the 1st respondent, A.K. Asthana Inspector of Police, CBI, ACB, Mumbai and he seized certain documents under a panchanama. So also on the same day through its agency, respondent No. 1 caused premises of the mother of the petitioner at Calcutta to be searched and seized certain documents. The locker in Indian Bank at Calcutta jointly held by the petitioner's mother Madhuri and her other son Jayant Neogy was also searched on 2nd March, 1994 and the same was scaled. Another locker held by Madhuri and her daughter Isha Sen was searched on 3rd March, 1995 and the same was also sealed. Madhuri Neogy, the mother of the petitioner, held following bank accounts:
(i) Bank of Baroda-Account No. 10762, Rash Bihari Avenue Branch, Calcutta.
(ii) United Commercial Bank - Account No. 330, Southern Avenue Branch, Calcutta.
(iii) State Bank of India - Account No. 5297, S.P. Mookherjee Road Branch, Calcutta and
(iv) Indian Bank - Account Nos. 6299 and 5127, S.P. Mookherjee Road Branch, Calcutta.
The first respondent issued instructions to the managers of these banks to prohibit Smt. Madhuri Neogy from operating the accounts.
7. After learning this, Madhuri Neogy filed application before the Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Mumbai, on 19th October, 1994 under Section 457 Cr.P.C. for an order/direction to let her to operate the said bank accounts and for return of the documents and articles seized and which belonged to her. The learned Magistrate after hearing the petitioner's mother Madhuri as well as the prosecution on 13th October, 1995 granted relief in respect of locker etc. with certain conditions but refused to let her to operate the accounts. Although the learned Magistrate held that the order prohibiting the operation of accounts was without jurisdiction, he found that he had no inherent powers and, therefore, could not go beyond his jurisdiction and, as such, declined the prayer for operating the accounts. It is this order, which is impugned in this petition.
8. Writ Petitions No. 172 of 1997 and 75 of 1997 - The petitioner, herein, Mr. Dhannalal Premchand Jain is one of the directors of Mallikarjun Investments & Holdings (Pvt.) Ltd. C.A. No. 99 of 1996 came to be registered on 17.9.1996 against six office bearers of Shree Lakshmi Co-operative Credit Society Ltd. for offences under Sections 406, 409, 520 and 477A 1PC. During the course of investigation the respondents attached, under panchanama dated 24.10.1996, the office premises of the petitioner and sealed them. The al legation in that behalf is that the office bearers of Shree Lakshmi Co-operative Credit Society misappropriated the funds of the society and part of such funds were used for purchase of immoveable property. It is alleged that originally Mallikarjun Investments & Holdings Pvt. Ltd. was controlled by the wives of office bearers of Shree Lakshmi Co-operative Credit Society. It is thus alleged that misappropriated funds of the society were utilized to acquire immovable property of the Mallikarjun Investments & Holdings Pvt. Ltd. The company Mallikarjun Investments & Holdings Pvt. Ltd. sought to sell the property and petitioner Dhannalal coming to know of the same, instead of purchasing the property, purchased majority shares of the company and became director thereof. That is how he came to control and own the company and thus came in possession of the office premises which are sealed. The petitioner has paid Rs. 64 lakh to acquire shares of the company and its property and such a sum was given to other shareholders of the company who are the wives of the office bearers of Shree Lakshmi Co-operative Credit Society Ltd., the accused. Petitioner Dhannalal then applied to Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Mumbai on 6.11.1996 for removal of the seal on his office premises and the respondent opposed this application. The learned Magistrate rejected that application. That is how Dhannalal filed Criminal Revision Application No. 360 of 1996 in Sessions Court, Mumbai. The Additional Sessions Judge by his order dated 4. 2. 1996 directed unsealing of the premises and delivery of possession thereof to the petitioner Dhannalal upon his executing a bond in a sum of Rs. 5 lakhs and furnishing solvent surety in a sum of Rs. 1 lakh on the condition that he would not dispose of the same during the pendency of the trial. On the request of the respondents, the Additional Session Judge stayed this order for a period of four weeks. The latter part of the order staying the operation of the order of unsealing the premises is impugned in Criminal Writ Petition No. 172 of 1997. So also, the respondents the State of Maharashtra and Police feeling aggrieved by the earlier part of the order directing unsealing of the premises and handing over the same to the petitioner Dhannalal have filed Criminal Revision Application No. 75 of 1997.
In all the aforesaid matters, it is the case of police that the amounts acquired by misappropriation/corruption are deposited in the accounts of the petitioners referred to above while in respect of the last mentioned petitions the amount is alleged to be used for the purchase of immovable property. That is how these amounts in bank and the immovable property are sought to be followed up in investigation of the aforesaid offences.
9. So far as Criminal Writ Petition No. 172/1997 and Criminal Revision Application No. 75 of 1997 are concerned those can be disposed of on facts and in fact, criminal writ petition No '172 of 1997 has become infructuous. What is challenged in this writ petition is the stay of the operation of the order passed by the Additional Sessions Judge, Sessions Court, Mumbai, by which he directed unsealing of the premises and delivery of the possession thereof lo petitioner Dhannalal. By the end of March, the period of four weeks came to an end and, therefore, the order impugned in that petition came to an end by lapse of time and that is how the petition is rendered infructuous. Accordingly, criminal writ petition No. 172/1997 is disposed of as being infructuous. Criminal Revision Application No. 75 of 1997 is preferred by the State of Maharashtra challenging the order of unsealing the premises and delivery of the same to respondent Dhannalal therein. It would be seen that the property is immovable one and furthermore the learned Judge has passed the order subject to stringent conditions of furnishing security and bond by respondent Dhannalal in the revision application. A condition is also imposed that respondent Dhannalal will not transfer the premises in any manner. Under the circumstances, without deciding whether police officer has got power to attach immovable property, which in my opinion, he has not and having attached the property, the provisions of Section 457 Cr.P.C. have been invoked and that provision itself permits return of the property subject to certain conditions then the person is found entitled. In fact, it is not understood how the petitioner-State is affected in any manner by passing such an order. It is an immovable property not likely to be removed or hidden anywhere and so far as transfer, assignment etc., thereof is concerned, Dhannalal has been prohibited from doing so. Moreover, the Additional Sessions Judge in his order has observed that he docs not desire to give a clean chit to Dhannalal but as the matter stood, Dhannalal was possibly entitled to get back the property since he paid Rs. 64 lakhs to the Directors of the company and the payment is made by cheque. Under the circumstances, the interests of both the parties are properly protected and I find no merit in Criminal Revision Application No. 75 of 1997. Mr. Mhaispurkar, APP, however, submitted that instead of Dhannalal, the property, should have been delivered to the possession of the cooperative society. Nothing prevented the office bearers of such co-operative society in making application either before the Metropolitan Magistrate or the Additional Sessions Judge. I, therefore, find no merit in the revision application and the same will have to be dismissed. It is, accordingly, dismissed and rule discharged.
10. Criminal Writ Petition No. 86 of 1997:- The facts are stated in detail supra and what is impugned is the police action attaching and freezing accounts of the petitioner in City Bank, Mumbai and Delhi and application before the Metropolitan Magistrate for calling that amount from the respective bank. Permission is sought by the petitioner to operate these accounts. Certain other ancillary reliefs are also claimed.
Criminal Application No. 826 of 1996:- The learned Metropolitan Magistrate has come to the conclusion that the police have no power to freeze the accounts of the petitioner therein but that he had no jurisdiction to interfere with that order for want of provision in the Code of Criminal Procedure.
Thus in these two petitions, the question regarding the power of the police officer to freeze the accounts in bank and issuing prohibitory order arises for consideration. Number of decisions are cited from both the sides and as such it would be useful to refer to them one after another.
11. Mr. Pradhan for the petitioner in Writ Petition No. 86 of 1997 has placed strong reliance upon a Division Bench decision of this Court in respect of Lloyds Bank Ltd 1933 Bom L.R. 88. In that case the accused was charged with stealing a blank cheque from the complainant and with having forged his signature upon it after making it out for Rs. 6,000. He presented the cheque for payment and received the amount in notes of Rs. 1,000 each. The notes were later converted into notes of Rs. 100 each. The accused lodged Rs. 5,000 with Lloyds Bank and opened a savings bank account. Shortly afterwards he withdrew Rs. 1,000 from the account. The Magistrate before whom the accused was placed issued a search warrant under Section 94 of the Criminal Procedure Code and recovered Rs. 4,000 from the Lloyds bank. The bank then applied to this Court. Broom field. 1. as he then was held that 'neither the accused, nor the complainant through the accused, had any right to any particular sum of money lying in the bank, that the accused had only an actionable claim for Rs. 4,000 which could not be produced in Court, that what had been produced and seized was a part of the assets of the bank which had no value as evidence, that the order could not have been made with an eye to a subsequent order disposing of the money produced for the money was not part of the proceeds of the alleged offence, and that it had no real connection with the subject-matter at all.'
12. It was contended in that case that there was connection between the offence alleged against the accused and the amount deposited by the accused in the bank. In that behalf, the Division Bench observed: 'No doubt, it may be said that there is a connection between the offence and the deposit, but there is no connection whatever between the offence and these particular monies which were attached from the bank. The learned Magistrate might just well have ordered the police to seize the furniture of the bank of the value of Rs. 4,000. Relying upon the decision in the matter of the complaint of H.H. the Nizam of Hyderabad v. A.M. Jacob ILR 1891 Cal. 52 the learned Magistrate cited the following observations: The thing called for must have some relation to, or connection with, the subject matter of the investigation or enquiry, or throw some light on the proceeding, or supply some link in the chain of evidence. It may be that the thing called for may turn out to be wholly irrelevant to the enquiry but so long as it is considered to be necessary or desirable for the purposes of the enquiry, the power is there. Any other view of the scope and object of this section will paralyse the administration of criminal justice, and render many enquiries into alleged offences wholly infructuous for once the subject matter of an offence has changed hands or has changed shape, the investigation must come to an end.' With regard to these, the Division Bench observed: 'Now, with respect, I entirely endorse the observations in the first part of this passage. But here, as I have shown, the thing called for has no relation to or connection with the subject matter of the investigation. It throws no light on the proceedings. It supplies no link in the chain of evidence. As regards the considerations referred to in the latter part of the passage, they have, in my opinion, no application here at all. There is no question of the administration of justice being paralysed or the inquiry being rendered infructuous. The primary object of criminal proceedings is the punishment of the offender. Restitution to the injured party is no doubt a desirable thing, but the criminal Courts are not always in a position to deal with that. Rights of third parties may be involved.'
13. Thus this decision of the Division Bench of the court in a way support the contention of Mr. Pradhan for the petitioner, in this decision provisions of Section 561A of the Code of Criminal Procedure (Presently Section 482) were also invoked to say that the High Court in its inherent jurisdiction may direct the accused not to operate his bank account pending decision of the trial. However, the Division Bench then observed that there was alternate remedy available by adopting civil proceedings to attach the amount or prohibitory order from operating the account in that behalf and, therefore inherent powers could not be invoked for such a purpose when alternate remedy is available.
14. Allahabad High Court in the case of Textile Traders Syndicate Ltd, v. State of U.P. : AIR1960All405 had occasion to consider the provisions of Sections 550, 94 and 95 of the Code of Criminal Procedure (Old) and in particular the question regarding order prohibiting bank not to pay any amount to the accused out of his account with the bank. Section 550 of the old Code is similar to Section 102 of the present Code. It has been stated that the word 'seizure' has not been defined anywhere in the Code and, therefore, its ordinary and dictionary meaning will have to be taken and means the act of taking actual physical possession of movable property. The facts of the case of this decision are that the Textile Traders Syndicate Ltd. the petitioner company was suspected to be a bogus company by the district authorities and certain offences punishable under Sections 420 and 406 IPC were suspected to be committed by the said company through its Managing Director, K.L. Sharma. The detective inspector of the C.I.D. Investigating Branch was authorized to investigate the matter and during investigation he found that an account had been opened in the name of the company with Punjab National Bank, Bulandshahr. He reported to District Magistrate that certain parcels, letters and money orders had been received and were being received at the office of the Post Master, Bulandshahr in the name of the company were required in connection with the investigation that he was carrying out. On 24.10.1958 the opposite party No. 4 therein addressed an order purported to be under Section 550 Cr.P.C. to the Manager, Punjab National Bank, Bulandshahr that the amount to the credit of the aforesaid firm has been seized under Section 550 Cr.P.C. and it should not be paid to any person till further orders. In that connection when the matter was carried to the Allahabad High Court, it has been held in para 15 that:
As long as the money is in the possession of the thief and capable of seizure, it may be open to the police officer to seize it on the ground that it was or was suspected to be stolen property but once it passed into the hands of the debtor and the money becomes unidentifiable there can be no question of its being seized by the police officer. It was thus held that the order passed by a police officer prohibiting a bank with which the accused had an account not to pay any amount out of the account of the accused till further order cannot be passed under Section 550 of the Code and must be quashed.
15. Identical question arose before the Karnataka High Court in the case of M/s Malnad Construction Co. v. State of Karnataka : ILR1993KAR3082 . The petitioners in that case were accused in Crime No. 1344 of 1993. They were entrusted with the construction of houses under Ashraya Housing Scheme by the Karnataka Housing Board after calling for tenders. They were to construct 16,000 houses estimated at the cost of Rs. 24 crores at various places in different districts where the houses belonging to various persons had collapsed due to heavy rainfall. It is found during the course of investigation that the petitioners and others committed offences under Sections 463, 465, 471, 420, 409 read with Section 120(B), IPC and Section 13(1)(D)(i) and (iii) of the Prevention of Corruption Act. The investigating officer seized demand drafts of the value of Rs. 27 lakhs from accused Nagaraj and prohibitory orders were issued by the Police Officers to the banks so as to prevent the petitioners from operating the bank accounts. The Karnataka High Court held that a police officer is not conferred with any power under Section 102 to issue prohibitory order or direction to the banker of accused prohibiting operation of his account as the word 'seize' used in Section 102 means taking actual physical possession of seized property in pursuance of a legal process and prohibiting banker of accused to operate his accounts is not seizure under Section 102 as 'seizure' is an act of taking actual physical possession of the property. That is how the prohibitory order issued by police officer to bankers of accused was found to be untenable.
16. In Ms. Swaran Sabharwal v. Commissioner of Police 1988 Cri. L.J. 241 the Delhi High Court had occasion to consider this aspect. In that case proceeds realized by sale of official secrets were deposited by accused in his wife's account. After considering the provisions of Section 102 in paragraphs 7 and 8 the court observed:
We may further point out that no justification seems to exist for 'seizing' the amounts in the bank account. All that the respondents seem to want to establish from the account is that some funds were transferred by the petitioner's husband to her. This can be proved at any time by a comparison between the two accounts and since the entries in the accounts are always available no purpose seems to be served by restraining the operation of the bank account. Since, as we point out below, it is not the case of the department that the moneys in the bank constitute 'case property' i.e. the property involved in the commission of the crimes with which Ram Swarup is charged, the seizure of the monies by the issue of a prohibitory order cannot be upheld.
8. Again, even if the provisions of S. 102 are held applicable, the respondents have not followed the requirements of the section. Reading that provision, by adapting it to the case of seizure of a bank account, the police officer should have done two things: he should have informed the concerned magistrate forthwith regarding the prohibitory order. He should also give notice of the seizure to the petitioner and al lowed her to operate the bank account subject to her executing a bond undertaking to produce the amounts in court as and when required or to hold them subject to such orders as the court may make regarding the disposal of the same. This was not done. Even a copy of the prohibitory order was not given to the petitioner. The police did not seek the directions of the magistrate trying the offence. Not only that, when petitioner herself approached the magistrate, who was trying the petitioner's husband under the Official Secrets Act, her request to be al lowed to operate the account was opposed by the police contending that the bank account was not 'case property' and that the petitioner's remedies lay elsewhere than in the court of the magistrate. The magistrate accepted the plea of the police and dismissed the application of the petitioner and directed her to seek remedy elsewhere before the appropriate authority. The petitioner, having lost before the magistrate, had no other recourse except to file a writ petition praying for the setting aside the prohibitory order.
17. It was ultimately held that S. 102 cannot be invoked for issuing prohibitory order in regard to the operation of account since they were not circumstances attendant upon a bank account or its operation that have led officer to suspect that some offence has been committed somewhere. On the other hand the discovery of the bank account was a sequel lo the discovery of the commission of the offence.
18. So also in Purbanchal Road Service v. The State the Gauhati High Court held that the police officer cannot pass order prohibiting bank not to pay amount of that account and lockers to the accused. In P.K. Parmar v. Union of India : 48(1992)DLT35 the Delhi High Court considered the same question and referred to its earlier decision in 1988 Cri LJ 241 but distinguished the fads and ultimately observed:
In a nut shell the principle of law laid down in these authorities is that unless, the discovery of a property leads to the suspicion of offence having been committed, Section 102 cannot be invoked for seizing such properties. Therefore, let us see whether there are any circumstances in the present case to indicate that it is (he discovery of the frozen accounts or the seizure of the aforesaid articles that has led the CBI to the suspicion of substantive offences having been committed Under Sections 420, 467, 468 and 471 read with Section 120B, IPC. It is the specific allegation of the CBI in the counter affidavit that petitioners 12 and 13 were paupers and living on old age pension and, therefore, the seizure of various properties from the first petitioner alleged to be gifted by them to him prima facie indicates the fraudulent acquisition of such properties by the first petitioner. Similarly the discovery of an account in the name of Kishan Chand, petitioner No. 11 who is none else than the first petitioner himself in itself is an attending circumstance showing the commission of some offence by the petitioner. It defies common sense why the first petitioner should open a fictitious account as Kishan Chand. The allegations in para 2.9 of the petition that petitioners 5 to 30 were not in any way directly or indirectly concerned with the firm or the company or that their deposits and dealings with the financial institutions are independent dealings, has been factually found to be incorrect because petitioner No. 11, under a different name is the first petitioner himself. Similarly petitioner No. 27 is the same person as petitioner No. 5 under different name. The very fact that the accounts are found either in the name of non-existent persons or in bogus names and all such accounts being allegedly operated by the first petitioner himself immediately points an accusing finger upon the first petitioner. Similarly the allegations of the CBI that the first petitioner has opened the accounts in the name of his wife, daughters and son by forging their signatures is in itself an attending circumstance which is sufficient to set the machinery of criminal law in motion against the first petitioner.
This decision noted the observations in 1988 Cri. L.J. 241 by the Division Bench to the effect that they were not quite sure whether the monies deposited in a bank account could be seized by means of prohibitory order under Section 102 of the Code.
19. Relying upon the aforesaid decisions Mr. Pradhan, therefore, submitted that the order passed by the police officer in this case and application preferred before the learned Magistrate for production of the amount from the bank account of the petitioner cannot be sustained and no order could be passed by the learned Magistrate on that application. For these very reasons Mr. Gupte appearing for the petitioner in Criminal Application No. 826 of 1996 submitted that the case of the petitioner stands on a higher footing inasmuch as the account frozen in that case is that of the mother of the accused petitioner and further the learned Magistrate has held that police officer had no power to freeze the account and issue prohibitory order.
20. Opposing these applications Mr. Patwardhan in Criminal Application No. 826 of 1996 strongly submitted that the Division Bench decision of this Court in Lloyds Bank's case is quite old and numerous changes have undergone and-various new economic offences are coming to surface. Various enactments have been amended. Mr. Patwardhan submitted that in interpreting the provisions of Section 102 Cr.P.C. in a given case, the court should go beyond the words used in that section having regard to the purpose and the object underlying that provision. In that behalf he referred to the decision of the Supreme Court in Directorate of Enforcement v. Deepak Maliajan : 1994CriLJ2269 and submitted that in any ease reference to a larger bench is necessary in this case, Mr. Patwardhan also referred me to certain provisions of FERA as also Section 166A of the Code of Criminal Procedure.
21. Mr. Mhaispurkar, Additional Public Prosecutor, appearing for respondent in Criminal Writ Petition No. 86 of 1997 submitted that the petitioners have not approached the Magistrate in the first instance and they have straightaway filed this petition. As such the petition is not maintainable on this ground. On merits Mr. Mhaispurkar relied upon the provisions of Chapter VJIA newly added to the Code of Criminal Procedure by amending, Act 40 of 1993. The title of this Chapter is 'Reciprocal arrangements for assistance in certain matters and procedure for attachment and forfeiture of property'.- In particular reliance is placed upon Section 105E from this Chapter as a source of power of the police officer conducting investigation to seize the properly of any kind. In this behalf Mr. Pradhan submitted that the very title of this Chapter would go to show that these provisions arc applicable in case of reciprocal arrangements regarding service of process in a contracting State and those provisions cannot be invoked for offences committed in India which has nothing to do with foreign country. However, Mr. Mhaispurkar submits that marginal notes in an Indian statute as in an act of Parliament cannot be referred to for the purpose of construing the statute nor can the title of the Chapter be legitimately used to restrict the plain terms of an enactment vidt The Commissioner of Income tax v. Ahmedbhai Umarbhai & Co. Bombay : [1950]181ITR472(SC) . Mr. Mhaispurkar submits that before a property like amount in a bank in a foreign country could be attached, police officer must have such a power in India to do so and then only that order could be executed in another foreign country by virtue of these provisions. I find much force in this submission of Mr. Mhaispurkar. In this connection, Sub-section (5) of Section 452 Cr.P.C. is also relevant and reads:
In this section, the term 'property' includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.
This section relates to the disposal of property on conclusion of trial and Sub-section (5) would go to show that the property in whichever form can be followed up for the purpose of disposal. Section 453 Cr.P.C. also makes a provision for payment to innocent purchaser of money found on accused. According to me this provision would go to show that original property even if converted in any form can be followed up during investigation and appropriate orders can be passed at the conclusion of the trial. If this is the position, it is not understood why exception can be made only in respect of bank accounts particularly when in the aforesaid cases, it has been alleged that monies mostly obtained by corrupt practices have been deposited in the bank accounts by the petitioners in the aforesaid two petitions.
22. Since, however, I am bound by the Division Bench decision of this Court, though old, and since various High Courts have taken a view that bank account is not a property and police officer has no power to attach the same or issue prohibitory order, rule in Petition No. 86 of 1997 and Application No. 826 of 1996 will have to be made absolute. Accordingly, rule in Petition No. 86 of 1997 is made absolute in terms of prayer Clause (a) and (b). So also rule in Application No. 826 of 1996 is made absolute in terms of prayer Clause (b).
As the question is not decided by Apex Court and the question is of great importance, I direct that this order in Petition No. 86 of 1997 and Application No. 826 of 1996 shall be stayed for a period of four weeks.
If an application for certified copy is made by any of the parties same be issued expeditiously.