Shri. Vilas S/O. Prabhakar Dange vs State Of Maharashtra Thr. Police ...
2017 Latest Caselaw 9379 Bom

WP  1033/17                                         1                           Judgment

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                   NAGPUR BENCH, NAGPUR.
                CRIMINAL WRIT PETITION NO. 1033/2017
Shri Vilas s/o Prabhakar Dange,
Aged about 58 years, Occu.: Retired,
R/o 14, Subhash Nagar, Nagpur - 440022.                                     PETITIONER

                                   .....VERSUS.....
State of Maharashtra,
Through Police Station Officer
Police Station Hingna,
Tahsil Hingna, District Nagpur.                                               RESPONDE
                                                                                       NT

Mr. Amit Khare, counsel for the petitioner. 
Mr. Shyam Bissa, Additional Public Prosecutor for the respondent.

                                       CORAM : REVATI MOHITE DERE, J.

                                        DATE        :          07  TH      DECEMBER,   2017.
P.C. 


              Heard   learned   counsel   for   the   parties.     Rule   is   made

returnable forthwith with the consent of the learned counsel for the

parties and the petition is taken up for final disposal.

2. By this petition, the petitioner has impugned the order dated

07.07.2017 passed by the learned Judicial Magistrate First Class, Hingna,

Nagpur, below Exhibit 1 in Miscellaneous Criminal Case No.107/2017, by

which the petitioner's application for releasing his bank accounts

maintained with the Union Bank of India and the State Bank of India, on

supratnama came to be rejected. The petitioner has also sought

action/enquiry against the Investigating Officer for failure to inform the

Magistrate regarding freezing of the accounts.

WP 1033/17 2 Judgment

3. Learned counsel for the petitioner submitted that the

learned Magistrate erred in law by rejecting the petitioner's application,

though there was non-compliance of the provisions of Section 102 of

Cr.P.C. He submitted that no notice was given by the Hingna police to

the petitioner that his bank accounts were going to be freezed nor was

there compliance of Section 102 of Cr.P.C. He submitted that under

Section 102 of Cr.P.C. the concerned police officer, on seizing the

property, is required to forthwith report the same to the Magistrate

having jurisdiction, which has not been done in the said case. Learned

counsel for the petitioner relied on the judgment of the Bombay High

Court in the case of New Krishna Co-operative Housing Society Ltd.

Versus State of Maharashtra, reported in 2016 SCC Online Bom

12899 in support of his submission.

4. Learned A.P.P.opposed the petition. He, however, does not

dispute the fact that till the filing of the aforesaid petition, no

information/report was furnished by the Investigating Officer to the

learned Magistrate giving information regarding freezing of the

petitioner's two bank accounts. He submits that however, on 27.11.2017,

the Hingna police filed a report in the Court of the learned Magistrate,

informing the learned Judge, that the petitioner's two bank accounts were

freezed.

WP 1033/17 3 Judgment

5. Perused the papers as well as the impugned order. An F.I.R.

was lodged as against the petitioner's wife and daughter on 30.03.2017,

with Hingna Police Station, Nagpur for the alleged offence punishable

under Section 406 read with Section 34 of the I.P.C. Pursuant thereto,

C.R. No.88/2017 was registered with the said police station as against the

petitioner's wife and daughter. During investigation, on 06.11.2017, the

police froze two bank accounts of the petitioner, one with the State Bank

of India and the other with the Union Bank of India, i.e. after almost eight

months of the registration of the offence. Admittedly, charge-sheet

has not been filed in the said case till date, nor is the petitioner an

accused in the said case. On 13.11.2017, the petitioner preferred an

application before the learned Magistrate and sought de-freezing of the

bank accounts maintained with the Union Bank of India and the State

Bank of India. It appears from the affidavit filed by the State that there

were cash deposits of Rs.1,30,000/- (Union Bank of India) and

Rs.1,46,000/- (State Bank of India) in the accounts of the petitioner

maintained with the Union Bank of India and the State Bank of India.

Section 102 of Cr.P.C. stipulates that any police officer may seize any

property which may be alleged or suspected to have been stolen or which

may be found under circumstances which create suspicion of the

commission of any offence. It is pertinent to note that under Section

102(3) of Cr.P.C., every police officer acting under sub-section (1) of

WP 1033/17 4 Judgment

Section 102, shall forthwith report the seizure to the Magistrate having

jurisdiction. It may be noted that the offence was registered in the said

case on 30.03.2017; whereas, the petitioners two bank accounts came to

be frozen on 06.11.2017. Admittedly, no report as contemplated under

Section 102(3) of Cr.P.C. was forwarded to the Magistrate till the filing of

this petition and till notice was issued by this Court on 13.11.2017. It

appears that the report was filed only on 27.11.2017, i.e. much later. It

is, therefore, evident that there is non-compliance of sub-section 3 of

Section 102 of Cr.P.C., inasmuch as, no report was forwarded forthwith to

the learned Magistrate, informing the action taken under Section 102 of

Cr.P.C. Even otherwise, there are no allegations as against the petitioner

and that the F.I.R. is lodged only as against his wife and daughter.

Admittedly, no notice was served on the petitioner before the petitioner's

bank accounts were frozen.

6. Considering the aforesaid, in the peculiar facts of this case,

the impugned order dated 07.07.2017 passed by the learned Judicial

Magistrate First Class, Hingna, Nagpur, below Exhibit 1 in Miscellaneous

Criminal Case No.107/2017 as well as the order, dated 27.11.2017

passed by the concerned Investigating Officer under Section 102 of

Cr.P.C. are quashed and set aside. The petitioner shall furnish an

undertaking before the concerned Magistrate that he will produce the

WP 1033/17 5 Judgment

amounts, i.e. Rs.1,30,000/- (Union Bank of India) and Rs.1,46,000/-

(State Bank of India) as and when directed. The concerned Investigating

Officer of Hingna Police Station, Nagpur shall thereafter de-freeze the

bank accounts of the petitioner maintained with the Union Bank of

India (A/c No. 443802010428636) and the State Bank of India (A/c

No. 10279762230).

7. Rule is made absolute in the aforesaid terms.

8. All parties to act on the authenticated copy of this order.

JUDGE APTE