Uttam @ Baba Sapan Senapati vs State Of Mah. Thr. Ps Kalamna ...
2022 Latest Caselaw 7702 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  NAGPUR BENCH, NAGPUR.


           CRIMINAL WRIT PETITION NO. 695 OF 2021

        Uttam @ Baba Sapan Senapati Aged 40
        years, occ. Begging (Transgender), R/o
        Plot No.31, Kaamna Nagar, Near Durga
        Kirana Store, Police Station Kalamna,
        Distt. Nagpur. Presently in Jail.
                                                  ... PETITIONER
                              VERSUS

        State of Maharashtra,
        through Police Station, Kalamna,
        Nagpur.

                                                 ... RESPONDENT

____________________________________________________________
       Shri Rajesh S. Nayak, Advocate for the petitioner.
       Shri H.D. Dubey, A.P.P. for respondent-State.
______________________________________________________________

              CORAM                  : VINAY JOSHI, J.
              JUDGMENT RESERVED ON   : 01.08.2022.
              JUDGMENT PRONOUNCED ON : 05.08.2022

JUDGMENT :

RULE. Rule is made returnable forthwith.

2. Heard finally by consent of both the parties.

3. The petitioner raises a challenge to the order dated

28.08.2020 passed by the Additional Sessions Judge, Nagpur thereby

rejecting the petitioner's application for defreezing the bank accounts.

4. It is the petitioner's case that he holds three savings bank

accounts at State Bank of India, Panchpaoli Branch, Nagpur. The

petitioner was arrested in Crime No.491 of 2019 for the offences

punishable under Sections 302, 307, 341, 323, 143, 147, 148, 149 of

the Indian Penal Code read with Section 135 of the Maharashtra Police

Act, 1951 alleging the offence of murder. During the course of

investigation, the Investigating Officer has freezed the petitioner's bank

accounts. The petitioner has applied for defreezing of his respective

bank accounts, however, it has been rejected.

5. Learned Counsel appearing for the petitioner primly

canvassed that the Trial Court has not considered the mandate of

Section 102(3) of the Code of Criminal Procedure (hereinafter referred

to as 'the Code'). It is submitted that the Investigating Officer was

under legal obligation to submit forthwith the report of the seizure to

the Magistrate, however for non-compliance of said provision, the

impugned seizure is illegal, bad in law. On said ground alone the

impugned order requires to be set aside. Moreover, it is canvassed that

the amount lying in bank account has no nexus with the crime, and

thus, the seizure itself is illegal.

6. On the other hand, learned A.P.P. appearing for the

respondent/State has supported the impugned order. It is contended

that the amount which was lying in the petitioner's bank account, has

close nexus with the crime. It is submitted that the petitioner was the

head of transgender group. They used to do work of Badhai/begging

and thus, the amount collected from said work, was deposited in the

petitioner's bank account being head of the transgender group. It is

submitted that the said amount was not petitioner's individual amount,

but it was a collection of all group members.

7. Learned A.P.P. though conceded that the provisions of

Section 102(3) of the Code have not been followed, however he has

submitted that since the said amount was not a stolen property, there is

no necessity to follow the mandate of Section 102(3) of the Code.

Though learned A.P.P. submitted that provisions of Section 102 of the

Code are not applicable, he is unable to point out any other provision

under which seizure could be made. Moreover, it is submitted that the

procedure contemplated under Section 102(3) of the Code is of

directory nature and it's non-compliance is a mere irregularity.

8. At the instance of report dated 04.06.2019 lodged by one

Rashi Khobragade (transgender), the crime was registered. It is the

prosecution case, that the petitioner was a leader of transgender group,

who used to collect money by claiming alms. The amount received from

the activities of the gang was credited in the petitioner's bank account,

so as to distribute at later stage. There was a dispute in between the

petitioner and the other gang members about distribution of money. On

that count, on 04.06.2019, the petitioner along with co-accused by

hatching conspiracy have committed a murder of another transgender

namely Pravin @ Chamcham Gajbhiye and therefore, the report.

9. It is not in dispute that the petitioner was holding three

bank accounts in his singular or joint name. It is also not disputed that

at the instance of Investigating Officer, the concern bank accounts

having total sum of Rs.8,48,141/-, has been freezed. Moreover, the

Investigating Officer vide its additional reply has conceded that

provisions of Section 102(3) of the Code, have not been followed.

10. The learned Counsel for the petitioner while canvassing the

mandatory nature of Section 102(3) of the Code has relied on the

decision of this Court in case of Manish Khandelwal & ors vs. The State

of Maharashtra & ors. 2019 ALL MR (Cri) 3580 . In said case the similar

issue arose about the nature, ambit and scope of Section 102(3) of the

Code. After considering various reported decisions, this Court took a

view that the Investigating Officer is duty bound to report the seizure

to the Magistrate having jurisdiction and thus, non-compliance of

Section 102(3) of the Code vitiates the entire seizure. Though the

petitioner also relied on the decision of the Supreme Court in case of

OPTO Circuit India Ltd. vs. Axiz Bank & ors. 2021 ALL SCR (Cri) 400

however, being distinct facts, it is of no assistance.

11. The petitioner was arrested for the offence of murder,

which has no direct nexus with the petitioner's bank accounts. It is the

prosecution case, that the sum at the credit of the petitioner's bank

account was fallout of the income of Group. Learned A.P.P. is unable to

point out any provision of seizure besides Section 102 of the Code.

Unless there is a source or power conferred by the Code, the

Investigating Officer cannot justify his action. The Investigating Officer

can seize a property if such a property is alleged to be stolen or

suspected to be stolen the property is linked with the commission of

offence. Obviously, the property which does not relates to the

commission of crime, cannot be seized.

12. It is the petitioner's main contention that the seizure can be

only under Section 102 of the Code, therefore the Investigating Officer

ought to have followed the mandate of Sub-Section 3 to Section 102 of

the Code by immediately reporting the seizure to the Magistrate having

jurisdiction. In above referred case of Manish Khandelwal ( supra), this

Court has elaborately dealt the issue and held that compliance of Sub-

section 3 of Section 102 of the Code, is of mandatory nature. The

petitioner is having legitimate right to use his money lying at his bank

account. Any sort of deprivation of legitimate right without following

statutory mandate would vitiates the action. Apparently, the mandatory

provisions have not been followed in the case in hand. Moreover, the

State is unable to point out any other provision under which amount

can be freezed. Thus, for the very reason of non-compliance of the

statutory mandate, action of freezing bank account vitiates. Therefore

the order passed by the Trial Court would not sustain in the eyes of law

and requires to be set aside.

13. In view of the above, petition succeeds. The impugned

order dated 28.08.2020 passed by the Trial Court in Sessions Case

No.576 of 2019 is hereby quashed and set aside. The action of

Investigating Officer of freezing the petitioner's bank accounts, is set

aside. The petition stands disposed of in above terms.

(VINAY JOSHI, J.)

Trupti

TRUPTI SANTOSHJI AGRAWAL

05.08.2022 15:10