Bombay High Court
Sangeeta Sanjay Malavankar @ ... vs The State Of Maharashtra on 7 December, 2021
Bench: S. K. Shinde
Digitally
signed by
SHAMBHAVI
SHAMBHAVI NILESH
29-WP-2141-2021.odt
NILESH SHIVGAN
SHIVGAN Date:
2021.12.09
15:27:28
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.2141 OF 2021
1 Sangeeta Sanjay Malavankar
@ Sangeeta Sandeep Sarvagod
Age: 53, Occ: Service,,
2 Sandeep Bhimrao Sarvagod
Age: 47, Adult, Occ: Service,
Both residing at Room No.M/61,
3nd Floor, BEST Kamgar Vasahat,
Dr.S.S.Rao Road, Parel,
Mumbai 400 053 ...Petitioners
Versus
The State of Maharashtra
Through the Public Prosecutor,
And Rabale Police Station at
Navi Mumbai ... Respondents
...
Mr. Deepak S. Padwal for the Petitioners.
Mr. A.R. Patil , APP for the Respondent-State.
...
CORAM : SANDEEP K. SHINDE J.
DATE : DECEMBER 07 , 2021.
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ORAL JUDGMENT :
1. Rule.
2. Rule made returnable forthwith.
3. This petition filed under Article 227 of the
Constitution of India read with Section 482 of the Code of
Criminal Procedure, 1973 ('Cr.P.C.' for short), assails the
order dated 12th March, 2020 in Criminal Revision
Application No.212 of 2019, by which the learned
Additional Sessions Judge, upheld, police action of seizing
immovable property of the petitioners, who are the accused
in Crime No.I-217 of 2019.
BACK-GROUND FACTS:
4. Petitioners are accused in Crime No.I-217 of 2019
registered with Rabale Police Station, Navi Mumbai under
Section 420 of IPC on a complaint filed by Jayshree Kisan
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Ghosalkar. Pending investigation, Investigating Officer moved an
application on 12th July, 2019 seeking approval to attach/seize
the immovable property of the petitioners, suspected to have
been purchased from the crime proceeds. The learned Judicial
Magistrate, First Class, vide order dated 12 th July, 2019 granted
permission to attach the property in exercise of the powers
under Section 105-C of the Cr.P.C. Pursuant thereto,
Investigating Officer issued a notice/order under Section 105-A
of the Cr.P.C. and informed the petitioners that they have been
restrained from selling and/or alienatly the said property without
permission of the Court. This order was challenged in the
revision before the learned Additional Sessions Judge, Thane.
The learned Sessions Judge held, that although the Magistrate
could not have invoked Section 105-C of the Cr.P.C.,
nevertheless, seizure/attachment, cannot be faulted with in view
of the provisions under Section 102 of the Cr.P.C. Resultantly,
revision was dismissed. That order is assailed in this Writ
Petition.
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5. Heard learned counsel for the petitioners and Mr.
Patil, the learned Prosecutor for the State. Perused the
impugned orders.
6. Chapter VIIA of the Cr.P.C, was inserted by the Act
of 40 of 1993. In the statement and the objects and the reasons
to the Act of 40 of 1993, there is a clear reference, that the
Government of India had signed an agreement with the
Government of United Kingdom of GreatBritain and Northern
Ireland for extending assistance in the investigation and
prosecution of crime and the tracing, restraint and confiscation
of the proceeds of crime (including crimes involving currency
transfer) and terrorist funds, with a view to check the terrorist
activities in India and the United Kingdom. The statement
further goes on to provide the three objectives, viz. :
(a) the transfer of persons between the contracting
States including persons in custody for the purpose of
assisting in investigation or giving evidence in
proceedings;
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(b) attachment and forfeiture of properties obtained or
derived from the commission of an offence that
may have been or has been committed in the other
country; and
(c) enforcement of attachment and forfeiture orders
issued by a court in the other country."
. After considering the objects and statements and
reasons to the Amending Act of 40 of 1993, the Apex Court in
the case of State of Madhya Pradesh v. Badram Mithani 2010 2
SCC 602 has held that property envisaged in Section 105-C(1)
cannot be ordinary property earned out of ordinary offences
committed in India, and that provisions under Chapter VIIA of
the Cr.P.C. are not applicable in respect of local offences like
gambling or offences under the Indian Penal Code, 1860.
Therefore, in view of the law laid down by the Apex Court in
the case of Badram Mithani (Supra), the order passed by the
learned Magistrate dated 12th July, 2019 under Section 105(C) of
the Cr.P.C. was clearly not maintainable.
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7. In so far, as the order passed by the learned
Additional Sessions Judge in Revision is concerned, it may be
stated that the learned Judge has overlooked the judgment in
the case of Nevada Properties Pvt. Limited v. State of
Maharashtra 2019 20 SCC 119 wherein Hon'ble Apex Courthas
held that Section 102 is not general provision, which enables
and authorises police officer to seize immovable property for
being able to produce in criminal Court during the trial and
thus power of seizure in Section 102 is to be limited to movable
property.
8. Therefore, in view of the law enunciated by the Apex
Court in the case of State of Badram Mithani (Supra) and
Nevada Properties Pvt. Ltd. (Supra), the impugned orders are
quashed and set aside.
9. Rule is is made absolute in the aforesaid terms.
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10. Petition is disposed of.
(SANDEEP K. SHINDE,J.)
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