Bombay High Court
Ishwar Marotrao Kumbhare vs State Of Mah. Thr. Pso Ps Wardha And ... on 25 July, 2022
Bench: Manish Pitale, Valmiki Sa Menezes
J-27-Cri.WP-34-2021.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.34 OF 2021
PETITIONER : Ishwar Marotrao Kumbhare,
Aged about 60 years, Occ. Retired, R/o
Dhobi Maidan, Near Red cross,
Society, Back Side of Rahate Hospital,
C.A. Rd., Juni Mangalwari, Nagpur.
..VERSUS..
RESPONDENTS : 1. State of Maharashtra,
Through Police Station Officer, Police
Station, Wardha.
2. The Asstt. Gen. Manager Bank of
Baroda, Dharampeth, Nagpur
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Shri S. V. Sirpurkar, Advocate for Petitioner
Shri M. J. Khan, APP for the Respondent No.1/State.
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CORAM : MANISH PITALE AND
VALMIKI SA MENEZES, JJ.
DATE : 25th JULY, 2022.
ORAL JUDGMENT : (PER : MANISH PITALE, J.)
1. Rule. Rule made returnable forthwith. The criminal
writ petition is heard finally with consent of the learned counsel
appearing for the parties.
J-27-Cri.WP-34-2021.odt
2. The Petitioner has filed the present petition
challenging the letter/communication dated 27.08.2020, sent
by the Investigating Officer i.e. Respondent no.1 herein to the
Respondent no.2 - Bank, thereby freezing bank account of the
Petitioner, wherein his pension is regularly deposited.
3. The backdrop in which the aforesaid letter was issued
is that First Information Report bearing Crime No.1382 of
2017 dated 09.06.2017 was registered at Police Station, Wardha
against the Petitioner for offences punishable under Sections
420, 409, 468 and 471 of the Indian Penal Code (IPC), on the
allegation that the Petitioner had misused his position as Bank
Manager and sanctioned a huge amount in favour of an entity
and that the said amount was misappropriated.
4. It is in this backdrop that the impugned
communication was issued, as a consequence of which, the
pension account of the Petitioner has been frozen and
according to him, he is facing economic hardship, as he stands
deprived of his only source of income.
J-27-Cri.WP-34-2021.odt
5. On notice being issued in the present petition, a
detailed affidavit-in-reply has been filed on behalf of
Respondent no.1, wherein the aforesaid action of freezing the
bank account of the Petitioner is sought to be justified. Details
of the extent of misappropriated amount are given and it is
claimed that the action taken by the Investigating Officer under
Section 91 of the Code of Criminal Procedure (Cr.P.C.) is
justified.
6. Shri Sirpurkar, learned counsel appearing for the
Petitioner submitted that the source of power for issuance of
such a communication could not have been Section 91 of the
Cr.P.C., which pertains to summons to produce a document or
other things and perhaps the power could be sourced to Section
102 of the Cr.P.C., which pertains to power of a Police Officer
to seize certain documents. It is submitted that even if the
Investigating Officer, in the present case could have taken
recourse to Section 102 of the Cr.P.C., in terms of the law laid
down by the Hon'ble Supreme Court in the case of State of
Maharashtra ..Vrs.. Tapas D. Neogy, 1999 (7) SCC 685,
followed by this Court in the case of Gulam Sarvar S/o Farukh
J-27-Cri.WP-34-2021.odt
Khan ..Vrs.. State of Maharashtra and others, 2018 SCC
OnLine Bom.164, the account of the petitioner could have
been frozen only in specific circumstances mentioned in
Section 102 of the Cr.P.C. It was submitted that none of such
circumstances exists in the present case and that therefore, the
present petition deserves to be allowed.
7. On the other hand, Shri Khan, learned Assistant
Public Prosecutor appearing for the Respondent no.1 submitted
that the details of the extent of misappropriation of amount on
the part of the Petitioner was stated in the reply. The bank
accounts opened by the Petitioner for misappropriating huge
amounts were also stated, which indicated the extent of
involvement of the Petitioner in the said bank. Reference was
also made to Section 102 of the Cr.P.C. and it was submitted
that in the facts and circumstances of the present case, the
impugned communication does not deserve interference..
8. Before adverting to the facts of the present case, it
would be appropriate to refer the position of law clarified by
the Hon'ble Supreme Court in the case of State of
J-27-Cri.WP-34-2021.odt
Maharashtra ..Vrs.. Tapas D. Neogy (supra). After having taken
note of the divergent views taken by the different High Courts,
the Hon'ble Supreme Court held as follows :
"12. Having considered the divergent views taken
by different High Courts with regard to the power of
seizure under Section 102 of the Code of Criminal
Procedure, and whether the bank account can be held
to be "property" within the meaning of said Section
102(1), we see no justification to give any narrow
interpretation to the provisions of the Criminal
Procedure Code. It is well known that corruption in
public offices has become so rampant that it has
become difficult to cope up with the same. Then again
the time consumed by the Courts in concluding the
trials is another factor which should be borne in mind
in interpreting the provisions of Section 102 of the
Criminal Procedure Code and the underlying object
engrafted therein, inasmuch as if there can be no order
of seizure of the bank account of the accused then the
entire money deposited in a bank which is ultimately
held in the trial to be the outcome of the illegal
gratification, could be withdrawn by the accused and
the Courts would be powerless to get the said money
which has any direct link with the commission of the
offence committed by the accused as a public officer.
We are, therefore, persuaded to take the view that the
bank account of the accused or any of his relations is
"property" within the meaning of Section 102 of the
Criminal Procedure Code and a police officer in course
of investigation can seize or prohibit the operation of
the said account if such assets have direct links with the
commission of the offence for which the police officer
is investigating into. The contrary view expressed by
Karnataka, Gauhati and Allahabad High Courts, does
not represent the correct law."
J-27-Cri.WP-34-2021.odt
9. In the case of Gulam Sarvar S/o Farukh Khan ..Vrs..
State of Maharashtra and others (supra), a learned Single Judge
of this Court referred to a Section 102 of the Cr.P.C. and held
as follows :
"13. Power under Section 102 of the Code of
Criminal Procedure can be invoked by a Police Officer
only when the property to be seized is alleged or
suspected to have been stolen or which is found under
such circumstances as to create suspicion of
commission of any offence, so that such seizure
provides effective assistance to him in the
investigation. To exercise this power, it is not necessary
for the Investigating Officer to justify the seizure of
bank account by collecting evidence as if a trial is being
held and it is enough for him to justify his action by
reasonably showing that the amount in the account
creates a reasonable suspicion of commission of crime.
However, it is necessary in a case where account has
been seized or frozen under Section 102(1) Cr.P.C., it
being a property not capable of being transported to
Court or actually held in custody by the Police, to
report the seizure to the Magistrate, as required under
sub-Section (3) of Section 102 Cr.P.C. A useful
reference in this regard may be had to the cases of State
of Maharashtra Vs. Tapas D. Neogy, reported in (1999)
7 SCC 685 and Teesta Atul Setalvad Vs. State of
Gujarat, Criminal Appeal No.1099/2017 decided by
Hon'ble Apex Court on 15.12.2017."
10. Thus, there can be no quarrel with the proposition
that an Investigating Officer can exercise power under Section
102 of the Cr.P.C. to direct freezing of bank account of an
J-27-Cri.WP-34-2021.odt
accused person, but the same can be done only in the
contingencies specified in the said provision and the position of
law as clarified by the Hon'ble Supreme Court and this Court,
noted above.
11. Applying the said position of the law to the facts of
the present case, it becomes evident that the impugned
communication is unsustainable. There is no material to
indicate that the misappropriated amount in any manner found
its way into the aforesaid bank account of the Petitioner, where
his pension is being regularly deposited or that any link is
established even prima facie with the said bank account. In the
absence of such material, there was no basis for the
Investigating Officer to have issued the impugned
communication dated 27.08.2020, whereby the said bank
account of the Petitioner was frozen.
12. A perusal of the statement of the bank account shows
that there are periodic entries pertaining to the monthly
pension of the Petitioner being deposited. To allow
continuance of freezing of the said bank account would
J-27-Cri.WP-34-2021.odt
obviously cause economic hardship to the Petitioner, which is
not justified in the facts and circumstances of the present case.
13. In view of the above, criminal writ petition is allowed
in terms of prayer Clause (1), which reads as follows :
1. Quash and set aside the Letter dated
27.08.2020 (Annexure-IV) by respondent i.e. police
station, Wardha, Dist. Wardha to Bank of Baroda
Dharampeth Branch, Nagpur for account
no.04650100011402 and further direct respondent i.e.
police station, Wardha, Dist. Wardha to de-freeze the
account of the petitioner with Bank of Baroda,
Dharampeth Branch, Nagpur bearing account
no.04650100011402.
14. Rule made absolute in the above terms.
(VALMIKI SA MENEZES, J.) (MANISH PITALE, J.)
TAMBE
Digitally Signed By:ASHISH
ASHOKRAO TAMBE
Personal Assistant
to Hon'ble JUDGE
Signing Date:27.07.2022 18:42
