Rohini W/O. Chandrashekhar ... vs State Of Maharashtra, Thr. ...
2021 Latest Caselaw 2655 Bom

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

                  CRIMINAL WRIT PETITION NO.920 OF 2018.


 Mrs. Rohini W/o. Chandrashekhar Kulkarni,
 Aged about 57 years, Occ. Nil,
 R/o. Plot No. 344, Near Shiv Mandir,
 H. B. State, Sonegaon, Nagpur.           . . . . PETITIONER

 . . . VERSUS . . .

 1.       State of Maharashtra,
          Through Secretary,
          Ministry of Home and Affairs,
          Mantralaya, Mumbai.

 2.       The Commissioner of Co-operative
          Societies, Maharashtra State Pune,
          2nd Floor, New Central Building,
          Ambedkar Wellesley Road,
          Station Road, Pune.

 3.       The District Collector,
          Collectorate Building,
          Civil Lines, Nagpur.

 4.       Deputy Commissioner of Police,
          CID Crime Branch,
          Jafar Nagar Road,
          Police Line Takli,
          Nagpur.

 5.       Samata Sahkari Bank Ltd.
          Through Liquidator,
          Gandhi Sagar, Mahal,
          Nagpur.                              . . . . RESPONDENTS
                           ...

          Shri Akshay Sudame, Advocate for Petitioner.
          Shri T.A.Mirza, APP for Respondent Nos. 1 to 4/State.
                            ...


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                  CORAM : Z. A. HAQ AND AMIT B. BORKAR, JJ.

DATED : 10.02.2021.

ORAL JUDGMENT (PER : AMIT B. BORKAR, J.) :

1. Rule. Rule is made returnable forthwith.

2. By this petition under Articles 226 of the Constitution of

India, the petitioner has challenged the communication dated 27th

March 2018 issued by the respondent no. 3 and the Notification

dated 2nd August 2019 issued by the respondent no.1 published in

the Official Gazette dated 6th August 2019 attaching bank account of

the petitioner.

3. The petitioner was appointed as Clerk on probation with

Samata Saharkari Bank in the year 1992. The petitioner was

promoted to the post of Chief Accountant by order dated 29 th January

2000. It is contended that due to the irregularities committed by the

managing committee members, the bank suffered huge losses. An

inquiry under Section 83 of the Maharashtra Cooperative Societies

Act, 1960 (for short "the Act of 1960") was conducted. It is stated

that in the enquiry under Section 88 of the Act of 1960, the petitioner

was exonerated.

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4. First Information Report came to be registered with

Sitabuldi Police Station, Nagpur, by Auditor on 15 th November 2007

as First Information Report No.338 of 2007. As per the said First

Information Report, it was alleged that 22 Managing Committee

Members, 06 employees and 02 borrowers have committed the

offences under Sections 406, 408, 409, 467, 468, 471, 420, 201, 120-

B, 109 read with Section 34 of the Indian Penal Code, 1860 and

Section 65 of the Information Technology Act, 2000 alongwith

Section 3 of the Maharashtra Protection of Interest of Depositors (In

Financial Establishments) Act, 1999 (for short, "the Act of 1999").

5. The petitioner was discharged from the service with

effect from 6th June 2011. On 13th June 2018, the petitioner came to

know that her Savings Bank Account no.1472000100357626 with

Punjab National Bank, Khamla Branch, Nagpur, has been freezed on

the instructions of the respondent no.4. It is contended that the said

Savings Account had been used by the petitioner to withdraw the

amount of pension and provident fund. Therefore, representation for

de-freezing the account filed with the Branch Manager on 13 th June

2018. The petitioner, on enquiry with the bank officials, came to

know that by way of impugned orders, the respondent no.4 has

attached bank account of the petitioner in exercise of power under

Section 91 of the Code of Criminal Procedure.

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6. The petitioner has, therefore, challenged the impugned

communications by way of present petition. This Court on 14 th

September 2018 issued notices to the respondents. The respondent

no.4 has filed reply and has stated that the order to freeze the bank

account of the petitioner has been passed in exercise of power under

Section 102 of the Code of Criminal Procedure. It is further stated

that the impugned communications were issued in relation to the

investigation in Crime No.338 of 2007 registered under Sections 406,

408, 409, 467, 468, 471, 420, 201, 120-B and 109 read with Section

34 of the Indian Penal Code, 1860 and Section 65 of the Information

Technology Act, 2000 alongwith Section 3 of the Act of 1999.

7. It is further stated in the reply that the Managing

Committee members alongwith employees of Samata Sahakari Bank

Ltd. have cheated depositors/investors by indulging in fraudulent

transactions. In para 9 of the said reply, it has been stated that

though the petitioner has been exonerated in an enquiry under

Section 88 of the Act of 1960, it will have no effect on the registration

of the criminal offences, which are alleged against the petitioner.

8. We have carefully considered the impugned

communications and the notification. At this stage, it will be relevant

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to note Section 102 of the Code of Criminal Procedure. Section 102

of the Code of Criminal Procedure reads as under:

"102. Power of police officer to seize certain property - (1) 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. (2) Such police officer, if subordinate to the officer in charge

of a police station, shall forthwith report the seizure to that officer.

(3) Every police officer acting under sub-section (1) shall forthwith

report the seizure to the Magistrate having jurisdiction and where the

property seized is such that it cannot be conveniently transported to

the Court or where there is difficulty in securing proper

accommodation for the custody of such property, or where the

continued retention of the property in police custody may not be

considered necessary for the purpose of investigation, he may give

custody thereof to any person on his executing a bond undertaking to

produce the property before the Court as and when required and to

give effect to the further orders of the Court as to the disposal of the

same;

Provided that where the property seized under sub-section

(1) is subject to speedy and natural decay and if the person entitled

to the possession of such property is unknown or absent and the value

of such property is less than five hundred rupees, it may forthwith be

sold by auction under the orders of the Superintendent of Police and

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the provisions of sections 457 and 458 shall, as nearly as may be

practicable, apply to the net proceeds of such sale".

9. On careful reading of Section 102 of the Code of

Criminal Procedure shows that the Police Officer in the course of

investigation can seize any property under Section 102 of the Code

of Criminal Procedure, if such property is alleged or suspected to

have been stolen or which may be found under circumstances, which

create suspicion of commission of any offence. As per Section 102

(1) of the Code of Criminal Procedure, it is obligatory upon the

Investigating Agency to show that the property which is attached is

creates suspicion of the commission of offence.

10. Taking into consideration, the offences which are

alleged against the petitioner, it was necessary for the Investigating

Agency to show that the amount in the Savings Account of the

petitioner has any connection with the offences alleged against the

petitioner. From the material produced by the petitioner, it appears

that the Savings Account, which was being operated by the petitioner,

was her pension account. The offences, which are alleged against the

petitioner, were for the period between 1997 till 2007. The

prosecution has not shown that the amount in the Savings Account

of the petitioner has any relation to the offences alleged against the

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petitioner. The prosecution is not able to show as to whether the

ingredients of sub-section (3) of Section 102 of the Code of Criminal

Procedure of reporting seizure to the Magistrate had been complied

with.

11. We are, therefore, satisfied that the communication

and notification impugned in the present petition deserve to be

quashed and set aside. We, therefore, pass the following order:

ORDER

Communication dated 27th March 2018 issued by respondent

no.4 and the Notification dated 2nd August 2019 issued by the

respondent no.1 published in the Official Gazette dated 6 th August,

2019 attaching Bank account no. 1472000100357626 of the

petitioner with Punjab National Bank, Khamla Branch, Nagpur, is

quashed and set aside.

Rule is made absolute in the above terms.

                        JUDGE                                             JUDGE




Ambulkar.