Rampal Mataprasad Yadav And ... vs The State Of Maharashtra, Thr. ...
2016 Latest Caselaw 5624 Bom

     APL 534.16 [J].odt                            1




                                                                               
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   NAGPUR BENCH : NAGPUR




                                                       
                    CRIMINAL APPLICATION [APL] NO.534 OF 2016




                                                      
     1]     Rampal Mataprasad Yadav,
            Aged about 39 years,
            Occupation-Construction Business,
            etc.




                                              
     2]     Smt. Bharti w/o Rampal Yadav,
                             
            Aged about 32 years,
            Occupation - Household,
                            
            Both R/o. Plot No.27, Tukdojinagar,
            Narsala Road, Dighori,
            Nagpur.                                     ..             Applicants 

                                    .. Versus ..
      
   



     1]     The State of Maharashtra,
            Through Crime Branch,
            Nagpur City Police, Civil Lines,
            Nagpur.





     2]     State Bank of Hyderabad,
            Ramdaspeth Branch,
            50, S.K.I. House, Ramdaspeth,
            Nagpur-440 010.                             ..             Non-applicants





                 ..........
     Shri R.P. Joshi, Advocate for the Applicants,
     Shri C.A. Lokhande, APP for Non-Applicant No.1-State,
     None for Non-Applicant No.2.
                 ..........

                                    CORAM :  S.B. SHUKRE, J.

DATED : SEPTEMBER 28, 2016.

ORAL JUDGMENT

1] Admit. Heard finally with the consent of the learned counsel

for the parties.

2] By this application, the action of freezing of the accounts

taken by the investigating officer purportedly under Section 91 of the

Code of Criminal Procedure, it appears to be a mistake and it ought to

have been under Section 102 of the Code of Criminal Procedure, bank

account of the applicants being no.62281040745 with the State Bank of

Hyderabad, Ramdaspeth Branch, Nagpur and FDR No.TD/CS/H 406027

having amount of Rs.14,66,256/-, as amount principally invested, has

been challenged. The communications issued in this regard are of the

dates of 21.1.2016 and 22.1.2016.

3] The reply of the prosecution solemnly affirms that this action

has been taken under Section 91 of the Code of Criminal Procedure.

However, the learned APP submits that its a plain mistake and the

relevant section is only Section 102 of the Code of Criminal Procedure.

So, now it is confirmed that what this court has to look into is the

Section 102 of the Code of Criminal Procedure and its applicability to the

action taken by the investigating officer in this case.

4] Shri R.P. Joshi, the learned counsel for the applicants, has

invited my attention to the law laid down by the Division Bench of this

court in the case of Dr. Shashikant D. Karnik .v. State of Maharashtra,

reported in 2008 CRI.L.J. 148 and submitted that pre-requisites of

Section 102 of the Code of Criminal Procedure, as prescribed by the

Division Bench, have not been fulfilled in this case.

5] Shri C.A. Lokhande, the learned APP for the non-applicant

no.1-State, submits that so far as the requirement of reporting to

concerned Magistrate is concerned, same has been fulfilled by the

investigating officer by reporting the same on 2.2.2016 to the Court of

Judicial Magistrate having jurisdiction over the Police Station. He also

submits that the other requirements relating to the property in the

account being stolen or suspected to be stolen or obtained by

commission of the crime have been generally fulfilled.

6] In the case of Dr. Shashikant Karnik (supra), the Division

Bench of this court has laid down that powers under Section 102 can be

exercised if three conditions mentioned therein are fulfilled. These

conditions are : (1) the property proposed to be seized must be stolen or

suspected to be stolen or obtained by commission of some crime, (2) if

the seizure has been ordered by an officer subordinate to the officer

incharge of the Police Station, he must report the seizure to the Officer

incharge and (3) every Police Officer acting under this section must

mandatorily report the seizure to the Magistrate having jurisdiction.

7] Reply of the prosecution is completely silent about the

fulfillment of the first condition, stated earlier. Learned APP for the Non-

Applicant no.1-State also could not point out to me as to which of the

amounts credited to the Account No.62281040745 was or were obtained

by commission of crime or having some nexus with the crime prima facie

committed by the main accused. The same is true about the FDR of

Rs.14,66,255=00 having principal value of Rs.14,66,256/- bearing

No.TD/CS/H 406027. On the contrary, as rightly submitted by the

learned counsel for the applicants, this FDR appears to be obtained by

investing money which apparently had no connection with the

commission of the crime by the main accused in this case. This can be

seen from the various entries taken in the pass book produced before me

for my perusal, which has been returned to the learned counsel for the

applicants. The first relevant entry is of 2.6.2014 showing that amount

of Rs.13,00,000/- was credited to the bank account and this amount was

invested in a term deposit account on that very day of 2.6.2014. This

term deposit had the maturity value to Rs.14,66,256/- which was then

renewed on 19.10.2015 in the nature of the FDR No.406027. Thus, I

find that the property in both these accounts do not have any prima facie

connection with the crime committed by the main accused in this case.

8] So, the first and the basic requirement of Section 102 of the

Code of Criminal Procedure has not been fulfilled. It would then have to

be held that the impugned communications are illegal and deserve to be

quashed and set aside. Even about the reporting of the seizure forthwith

to the concerned Magistrate, I would like to say that here also there is

non compliance by the investigating officer. The seizure is required to be

reported forthwith and that means immediately and without any loss of

time. But, if the submission of the learned APP is to be accepted as true,

the report has been made on 2.2.2016. This condition is also not

fulfilled in the instant case.

9] In the result, the Criminal Application deserves to be allowed

and it is accordingly allowed. The impugned communications are

quashed and set aside. The accounts are defreezed.

JUDGE

Gulande

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Uploaded by : A.S. Gulande, P.A. Uploaded on : 30.09.2016