Anjali Anand vs The State Of Jharkhand
2021 Latest Caselaw 3835 Jhar

                                                 1                       W.P. (Cr.) No. 57 of 2021


                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             W.P. (Cr.) No. 57 of 2021
                  Anjali Anand, aged about 40 years, wife of Late Balindra Kumar Singh,
                  resident of Village- Piprakala, Kutchery Road, P.O. & P.S. Kutchery,
                  Garhwa, District- Garhwa (Jharkhand)                 ... Petitioner
                                         -Versus-
             1.   The State of Jharkhand
             2.   Managing Director, Punjab National Bank, P.O. & P.S. Colaba, District-
                  Mumbai (Maharashtra)
             3.   Branch Manager, Punjab National Bank, Garhwa Branch, P.O. & P.S.
                  Garhwa, District- Garhwa (Jharkhand)                 ... Respondents
                                             -----

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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             For the Petitioner       : Mr. A.K. Kashyap, Sr. Advocate
             For the Respondents      : Mr. P.A.S. Pati, G.A.-II
                                             -----

09/07.10.2021. Heard Mr. A.K. Kashyap, learned senior counsel for the petitioner and

Mr. P.A.S. Pati, learned counsel for the respondent-State.

2. The petitioner has filed this petition for direction to the respondent

authorities to immediately and forthwith start operation of the account of

the petitioner bearing Account No.4051000100026513, IFSC No.

PUNB0405100, Punjab National Bank, Garhwa Branch, Garhwa. The prayer

is also made for quashing the order dated 23.12.2020 passed by the

learned Additional Sessions Judge-III, Garhwa in Sessions Trial No.29/2015,

which is still pending before that court.

3. The F.I.R. being Garhwa P.S. Case No.512 of 2014 dated 21.08.2014

was lodged under Sections 364, 302, 201, 120B and 34 of the Indian Penal

Code on the basis of the Fardbeyan of the petitioner recorded on

21.08.2014 at 11:45 a.m. at Sadar Hospital, Garhwa against unknown

miscreants stating inter alia that on 18.08.2014 at about 08:00 a.m., the

husband of the informant-Balindra Kumar Singh had gone to Ranka on Hero

Honda Motorcycle, bearing Registration No.JH-14A-2022, but he did not

return in evening. The petitioner/informant tried to contact him on his

Mobile numbers, which were switched off. The petitioner suspected some

mishappening and started searching her husband with the help of

neighbours, but did not find any clue till 19.08.2014. Thereafter, the

petitioner filed written information at the police station on 19.08.2014. On

21.08.2014, the petitioner came to know that the dead body of her husband

kept in a gunny bag was dropped in the well at a lonely place, situated in

Village Tildag. The dead body was identified by the villagers including the

informant/petitioner and she had suspected that unknown persons have

committed murder of her husband.

4. The petitioner earlier moved before this Court in W.P.(Cr.) No. 363 of

2019, which was disposed of vide order dated 17.06.2020 directing the

petitioner to approach the court below and make appropriate prayer for

releasing/unfreezing the bank account. Pursuant thereto, the petitioner

approached the court below by filing a petition with a prayer to

release/unfreeze the bank account. The prosecution has filed rejoinder to

that petition stating therein that minor children of the petitioner are

surviving and they are living with their grandmother and till the minor

children attained the age of majority, the amount in question may not be

released. In the said account, there is amount of approximately Rs.10

Lakhs. The trial court decided the petition of the petitioner and rejected the

prayer vide order dated 23.12.2020.

5. Mr. A.K. Kashyap, learned senior counsel for the petitioner submits

that only on the oral direction of the I.O., the bank has freezed the account

of the petitioner. He further submits that the children are residing with this

petitioner and the petitioner is taking care of her children, particularly in

their studies. He refers to Annexure-7 Series of the petition, which are

certificates of school. He vehemently relied upon Section 102(3) of the

Cr.P.C. and submits that in light of Section 102(3) Cr.P.C., there is no

attachment. To buttress this argument, he relied upon the judgment

rendered by the Hon'ble Bombay High Court in the case of Dr. Shashikant

D. Karnik v. State of Maharashtra, reported in 2008 0 CrLJ 148.

6. Paragraphs 8, 11, 12, 17, 18, 19, 20 and 23 of the said judgment are

quoted herein below:

8. In this background, this petition is filed challenging the order or direction or whatever that may be, because in the second affidavit filed by the same A.C.P. in this petition on 17.3.2007 in paragraph 4 it is stated that only letters were issued to the various banks by the then investigation officer not to permit operation of the said accounts, however, those bank accounts were neither attached nor it was reported to the concerned Court, being the property of the offence and what was prohibited was only the operation of the bank accounts.

11. Mr. Sawant, Senior Counsel for the petitioner contended that the entire action of the respondents either in issuing the aforesaid letters or issuing the oral instructions, is totally illegal and is liable to be quashed. He drew our attention to Section 102 of the Cr.P.C. in that regard, however, did not dispute now as per the position of law stands that bank accounts could be seized under the provisions of Section 102 of Cr.P.C. Section 102 is reproduced hereunder: "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, 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."

12. According to Mr. Sawant, before taking any action under Section 102 of the Cr.P.C. three things are required to be fulfilled. Firstly, the police officer should come to the

conclusion that the property that is the accounts to be seized should be alleged or suspected to have been stolen or which may be found under circumstances which create suspicion of the commission of any offence.

Secondly, the police officer if subordinate to the officer in charge of the police station has to report the seizure to the officer in charge; and thirdly every police officer acting under sub section (1) has to mandatorily report the seizure to the Magistrate having jurisdiction.

17. Re-reading of Section 102 of the Cr.P.C. shows that what is permitted to be done is the seizure of the property by the Police Officer. Now, as per the view of the Supreme Court, bank accounts can be seized under Section 102 of the Cr.P.C. There is no doubt about that, and, since they are bank accounts, the seizure means their attachment by the police and the attachment order of the bank accounts will have the effect of stopping the account holder from operating those bank accounts. But in any case when the powers are to be exercised by the police officer under Section 102 of the Cr.P.C. and they are so exercised, there is nothing like giving oral instructions of stopping the operation of the account or written instructions not to allow operations of the accounts. If such instructions are given either oral or in writing then they are to be regarded as attachment of the account. Therefore, what is stated in the aforesaid affidavit of Mr. Pardeshi, as quoted above, is an attempt to escape from the consequences of non compliance to the section 102 of Cr.P.C. No other provision of the Cr.P.C. was shown to us by Mr. Mhaispurkar which empowers the police officer, firstly, to issue orders oral or written of stopping the operation of account before attachment or seizure and then pass second order of attachment of account. There is nothing like empowering the police officers to issue ad interim or temporary order of stopping the operation and then final order of attachment of the account. If they issue any order of stopping operation of the account, it has to be treated as action under Section 102 of the Cr.P.C. resulting in seizure i.e. attachment of the account, and, if that is so the compliance to all the three requirements, is a must.

18. So far as requirement under section 102 (1) is concerned, it is obligatory upon the police to show that the property which they want to attach or attaching is under circumstances which create suspicion of the commission of any offence. From paragraph 5 of the affidavit of Mr. Pardeshi, ACP attached to ACB, quoted above, and from the oral submissions made by Mr. Mhaispurkar, it is clear that till this date the authority who attached the accounts of the petitioner have not been able to come to any conclusion, even primafacie case that the amount in the accounts has any connection with the offence of disproportionate income of the petitioner. In these circumstances, there is no option but to hold that any action taken in giving oral instructions of stopping the operation of the account or in issuing written directions of stopping the operation of account, is illegal perse. Section 102 of the Cr.P.C. does not permit any police officer to seize the property, viz. to

attach the account in the first instance and then to decide whether the property has any connection with the commission of any offence. The attachment orders oral or written in this case are issued in 2002, we are in 2007, but till this date investigating agency has not been able to come to a conclusion, as stated in paragraph 5 of the affidavit reproduced above, that the amount lying in the bank accounts, is out of the disproportionate income of the petitioner. In these circumstances, the entire attachment under oral or written directions has to be struck down as has been illegal.

19. Second requirement of Section 102(2) of Cr.P.C. is that the officer seizing the account or attaching the account subordinate to the officer in charge of the police station has to forthwith report the seizure or attachment to his superior i.e. to the officer in charge of the police station. Even though the State has filed two affidavits of Mr. Pardeshi, ACP of Anti Corruption Bureau, not a word is uttered about this requirement of sub section (2) of Section 102 of Cr.P.C. that the officer ordering attachment of the accounts oral or in writing whether was subordinate to the officer in charge of the police station, meaning thereby whether any superior officer was there in the Anti Corruption Bureau above him and there was any report by the said officer to his superior. What is stated in paragraph 6 of the first affidavit of Mr. Pardeshi is that "..on completion of the open enquiry, the Enquiry Officer on 23.8.2005 submitted his final report". This is not the compliance to sub section (2) of Section 102 of Cr.P.C. If the Officer giving instructions of stopping the operation of the account of the petitioner to a superior, then it was necessary for that officer to report this matter to his superior as required by sub section (2) of Section 102.

20. Third requirement of Sub Section (3) of Section 102, lays down a mandate that every police officer acting under sub- section (1) shall forthwith report the seizure or attachment of accounts to the Magistrate having jurisdiction. Admittedly, this is not done in the present case. Paragraph 5 of the second affidavit of Mr. Pardeshi, quoted above is very clear in this regard as well as the oral submission of Mr. Mhaispurkar. It will be therefore clear that there is absolutely no compliance to any of the provisions of sub sections (1), (2) and (3) of Section 102 of Cr.P.C, in this matter. Consequently, the petition is required to be allowed and the orders are required to be quashed as prayed.

23. We are aware that in the judgment of the Supreme Court in the case of State of Maharashtra vs. Tapas V. Neogy, the Supreme Court has observed in paragraph 12 the underlying object of Section 102 of Cr.P.C. was to empower the court to get the said money which has any direct links with the commission of the offence committed by the accused as a public officer. The Police officer in course of investigation can seize or prohibit the operation of the said account if the assets have direct links with the commission of the offence for which the police officer is investigating into.

7. By way of relying the said judgment, learned senior counsel for the

petitioner submits that there is no compliance of Section 102(3) Cr.P.C. and

in that view of the matter, the trial court was in error while rejecting the

petition filed by the petitioner.

8. Learned senior counsel for the petitioner further submits that the

judgment relied by the learned counsel for the respondents reported in

(1997) 7 SCC 685 has also been considered by the Hon'ble Bombay High

Court in that judgment. He also submits that in the judgment relied by the

learned counsel for the respondents in (1997) 7 SCC 685 , the question

was with regard to Prevention of Corruption Act and on that basis the said

judgment was passed. He further submits that the account, in question was

joint and if the husband of the petitioner died, the petitioner is entitled to

operate that account. To buttress this argument, he relied upon the Code of

Bank's Commitment.

9. Paragraph 8.7 of the said Code of Bank's Commitment is quoted

herein below:

"8.7. Settlement of claims in respect of Deceased Account holders 8.7.1. We will follow a simplified procedure for settlement of accounts deceased account holders

(a) Accounts with survivor/nominee clause In case of a deposit account of a deceased depositor where the depositor had utilised the nomination facility and made a valid nomination or where the account was opened with the surivorship clause ("either or survivor", or "anyone or survivor", or "former or survivor" or "latter or survivor"), the payment of the balance in the deposit account to the survivor(s)/nominee of a deceased deposit account holder will be made provided:

(i) the identify of the survivor(s)/nominee(s) and the fact of the death of the account holder, is established through appropriate documentary evidence;

(ii) there is no order from the competent court restraining the bank from making the payment from the acount of the deceased; and

(iii) it has been made clear to the

survivor(s)/nominee that he would be receiving the payment from the bank as a trustee of the legal heirs of the deceased depositor, i.e., such payment to him shall not affect the right or claim which any person may have against the survivor(s)/nominee to whom the payment is made.

The payment made to the survivor(s)/nominee, subject to the foregoing conditions, would constitute a full discharge of the bank's liability. In such cases, payment to the survivor(s)/nominee of the deceased depositors will be made without insisting on production of succession certificate, letter of administration or probate, etc., or obtaining any bond of indemnity or surety from the survivors(s)/nominee, irrespective of the amount standing to the credit of the deceased account holder."

10. By way of referring the said Code, learned senior counsel for the

petitioner submits that as per the said Code, if no order by the competent

court is there, normally the operation will not be stopped.

11. Per contra, Mr. Pati, learned counsel for the respondents submits that

in the case diary particularly in paragraph no.154, it has come that the

children are minor and till they attained the age of majority, the amount in

question was required to be stopped. He further submits that the petitioner

is found one of the accused in the murder of her husband and for that she

has also been taken into custody. The trial has not yet been concluded and

for the welfare of the children, defreezing of the account will not be proper.

To buttress this argument, he relied upon the judgment rendered by the

Hon'ble Calcutta High Court in the case of Smt. Lakshmi Bose Roy

Chowdhury v. Indian Oil Corpn. Ltd. & Ors. , reported in 2007 SCC

OnLine Cal 924.

12. Paragraph 43 of the said judgment is quoted herein below:

43. That apart, we must also bear in mind that the Petitioner, along with others, stands charged for the offence of murder of a per son under whom she is claiming the benefits. Unless the Petitioner is acquitted and exonerated from the charges, it will not be fair for this Court to pass an Order directing the Corporate Respondents to restart payments under the Rehabilitation Scheme or to disburse all arrears of

payments under that Scheme from November 2004. This Court must also bear in mind the provisions of Section 25 of the Hindu Succession Act, 1956 which lays down that a person who commits murder or abets the commission of murder, shall be disqualified from inheriting the property of the person murdered or any other property in furtherance of succession to which he or she committed or abetted the commission of the murder. Section 25 of the Hindu Succession Act, 1956 reads as follows:--

"S. 25. Murderer disqualified-A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder,"

13. By way of relying this judgment, Mr. Pati submits that the petitioner is

found to be one of the accused and in view of Section 25 of the Hindu

Succession Act, 1956, the bank account will not be defreezed. He further

submits that this aspect of the matter has been again considered by the

Hon'ble Madhya Pradesh High Court in the case of Smt. Pinki Gautam v.

Ashok Veer Vikram Ranveer Gautam, reported in 2016 SCC OnLine

MP 8428.

14. Paragraph 5, 6, 7 and 8 of the said judgment are quoted herein

below:

5. On account of this finding, learned trial Court has directed to issue succession certificate for half amount in favour of respondent Ashokveer Vikram and for remaining amount the Court has directed that the appropriate order shall be passed after the decision of criminal trial against the petitioner. On factual matrix of the case, it is not disputed that although the petitioner is wife of deceased Ramnaresh, but she is facing trial of murder of her husband.

6. Section 25 of Hindu Succession Act, 1956 reads as under:--

Murder disqualified:-- A person who commits murder or abets the commissions of murder shall be disqualified from inheriting the property of person murdered or any another property in furtherance of the succession to which he or she committed or abetted the commissions of the murder.

7. Therefore, the petitioner cannot claim the right on the property of her husband whom she is alleged to have murdered. This disqualification against inheritance of the property remains in effect, till the decision of the criminal trial

for murder against petitioner. It is necessary that the prosecution of petitioner for murder of her husband should be finally adjudicated.

8. Therefore, keeping in view the above provision of law, the order of trial Court suffers no illegality. There is no ground made out to interfere in the impugned order.

15. In light of the above facts, the Court is required to consider whether

the bank account can be permitted to be defreezed or not. It is an admitted

fact that the husband of the petitioner has been murdered. Later on, this

petitioner was also made an accused and she was taken into custody. So far

as Section 102(3) Cr.P.C. is concerned, it is clear that the attachment is

required as per the said Section. It has not been done in the case in hand

and that aspect of the matter, so far as the case of the petitioner is

concerned is fortified by the judgment rendered in the cases of Smt.

Lakshmi Bose Roy Chowdhury v. Indian Oil Corpn. Ltd. & Ors., and Smt.

Pinki Gautam v. Ashok Veer Vikram Ranveer Gautam (supra) and this has

been considered that if a person is charged with conspiracy of murder, he

will be disqualified for operating the property of the deceased. Considering

the fact that the petitioner is accused in the murder of her husband, she is

not entitled for defreezing of the bank account, even Section 102(3) Cr.P.C.

has not been complied as the petitioner is found to be an accused and the

trial is still pending.

16. It has been vehemently contended by Mr. Kashyap, learned senior

counsel for the petitioner that the welfare of the children are being taken by

the petitioner and for that school certificates of the children are annexed by

the petitioner, contained in Annexure-7 Series of the petition.

17. The welfare of the children and their studies, at this stage, is also

required to be looked into by the Court. It is an admitted fact that the I.O.

has orally instructed the bank to freeze the account. The trial court has also

rejected the petition filed by the petitioner taking into account the welfare

of the children. The studies of children, at this stage, is paramount which is

required to be considered. Although, this Court is of the opinion and comes

to the conclusion that the petitioner, in view of Section 25 of the Hindu

Succession Act, is not entitled for defreezing the bank account, but in the

interest of justice and considering the welfare of the children and their

studies, this Court sitting under Article 226 of the Constitution of India,

which is Court of equity, thinks it proper to remand the matter to the trial

court and directing the petitioner to demonstrate before the trial court that

how she is maintaining the children and if the trial court comes to a

conclusion that children are being taken care of by the petitioner, the trial

court, after examining this aspect of the matter, will issue direction to the

extent that the petitioner will not withdraw the amount in question at a time

and will pass order considering reasonable amount for studies of children

and their maintenance. It is made clear that if the petitioner is not able to

demonstrate before the trial court about maintaining the children, the trial

court shall not pass any order of defreezing the account, in question.

18. In view of the above facts, the order dated 23.12.2020 passed by the

learned Additional Sessions Judge-III, Garhwa in Sessions Trial No.29/2015

is quashed and remitted back to enquire and pass order in terms of the

above.

19. Accordingly, this criminal writ petition stands disposed of.

(Sanjay Kumar Dwivedi, J.) Ajay/