Madras High Court
Dr.R.Selvammal vs The Inspector Of Police on 9 March, 2021
W.P. No.7557 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.03.2021
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
W.P. No.7557 of 2018
and W.M.P.Nos.9435 to 9437 of 2018
Dr.R.Selvammal .... Petitioner
Vs.
1. The Inspector of Police,
Tiruvannamalai Town Police Station,
Tiruvannamalai District.
2. The Deputy Director of Medical and Rural
Health Service and Welfare,
District Family Welfare Bureau,
Tiruvannamalai - 600 601 ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorarified mandamus, calling for the records relating to
the impugned notice vide Na.Ka.No.70/A1/2018 dated 01.02.2018 issued by
the second respondent and quash the same and to direct the respondents to
remove the seal on the residence cum clinic, namely, Sri Bhuvaneshwari
Hospital at No.260, Thiruvoodal Street, Tiruvannamalai 606 601.
1/11
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W.P. No.7557 of 2018
For Petitioner : Mr.OM.Prakash, Senior Counsel
for Mr.S.Kumara Devan
For Respondents : Mr.M.Inbanathan, AGP
ORDER
This Writ Petition has been filed challenging the notice dated
01.02.2018 issued by the second respondent sealing the premises of the
petitioner, where, according to the respondents, the petitioner's hospital are
illegally terminating pregnancies.
2. Mr.OM.Prakash, learned Senior Counsel appearing on behalf of
Mr.S.Kumara Devan, learned counsel for the petitioner would submit that
the impugned notice is illegal, unlawful and arbitrary and is not supported
by any statutory provision. It is also contended by the learned Senior
Counsel that even without any prior notice, the respondents have sealed the
premises of the petitioner.
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W.P. No.7557 of 2018
3. The learned counsel for the petitioner also drew the attention of
this Court to a Judgment of the Hon'ble Supreme Court in the case of
Nevada Properties Pvt.Ltd., -vs- The State of Maharashtra dated
24.09.2019, reported in AIR 2019 SC 4554 and would submit that as per
the aforesaid decision, in case of commission of any criminal offence under
Section 102 of Cr.P.C, the respondents are empowered to only seize
movable properties and do not have the power to seal immovable properties.
According to the learned Senior Counsel for the petitioner, in contravention
of the settled provisions of law, the respondents have sealed the premises of
the petitioner's hospital, even without issuing any prior notice.
4. Section 102 of The Code of Criminal Procedure, 1973 reads as
follows:
"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.
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W.P. No.7557 of 2018
(3) 1 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."
5. Admittedly, the property which has been seized is not the
subject matter of the crime. The case of the respondents is that the
petitioner has committed the criminal offence of illegally terminating
pregnancies without following the due procedure established under Law.
Section 102(1) of Cr.P.C makes it clear that only in cases where the 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, the Police Officer has got the power to seize the same. In the case
on hand, the property, as observed earlier, is an immovable property and is
not the subject matter of the crime. If at all, the respondents suspect that
illegal termination of pregnancies are taking place in the petitioner's hospital,
they can very well prosecute the offenders, but they do not have the right to
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W.P. No.7557 of 2018
seal the premises. The decision of the Hon'ble Supreme Court referred to by
the learned Senior Counsel for the petitioner is squarely applicable to the
facts of the instance case.
6. Paragraphs 6 and 7 of the aforesaid decision of the Hon'ble
Supreme Court is extracted hereunder.
"6. The question in Tapas D. Neogy case [State of
Maharashtra v. Tapas D. Neogy, (1999) 7 SCC 685 : 1999
SCC (Cri) 1352] was whether a bank account of an
accused or any relation of the accused was “property”
within the meaning of Section 102 of the Code and if
so, whether the investigating officer has the power to
seize the bank account or issue a prohibitory order
restraining operation of the bank account. Reference
was made to several judgments of the High Courts, some
of which would be discussed later, to hold as under:
(SCC pp. 694-95, para 12)
“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 the 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
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W.P. No.7557 of 2018
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 the Karnataka [Malnad
Construction Co. v. State of Karnataka, 1993
SCC OnLine Kar 197 : ILR 1993 Kar 3082] ,
Gauhati [Purbanchal Road Service v. State,
1990 SCC OnLine Gau 40 : (1991) 1 Gau LR 220]
and Allahabad [Textile Traders Syndicate
Ltd. v. State of U.P., 1959 SCC OnLine All 207
: AIR 1960 All 405] High Courts, does not
represent the correct law. It may also be seen
that under the Prevention of Corruption Act,
1988, in the matter of imposition of fine
under sub-section (2) of Section 13, the
legislatures have provided that the courts in
fixing the amount of fine shall take into
consideration the amount or the value of the
property which the accused person has obtained
by committing the offence or where the
conviction is for an offence referred to in
clause (e) of sub-section (1) of Section 13,
the pecuniary resources or property for which
the accused person is unable to account
satisfactorily. The interpretation given by us
in respect of the power of seizure under
Section 102 of the Criminal Procedure Code is
in accordance with the intention of the
legislature engrafted in Section 16 of the
Prevention of Corruption Act referred to
above. In the aforesaid premises, we have no
hesitation to come to the conclusion that the
High Court of Bombay committed [Tapas Dhrublal
Neogy v. A.K. Asthana, Criminal Application
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W.P. No.7557 of 2018
No. 826 of 1996, order dated 9-4-1997 (Bom)]
error in holding that the police officer could
not have seized the bank account or could not
have issued any direction to the bank officer,
prohibiting the account of the accused from
being operated upon. Though we have laid down
the law, but so far as the present case is
concerned, the order impugned has already been
given effect to and the accused has been
operating his account, and so, we do not
interfere with the same.”
7. Money, as per clause (7) of Section 2 of
the Sale of Goods Act, 1930, is neither goods
nor movable property, albeit Section 22 IPC
defines the term “movable property” to include
corporeal property of every description,
except land and things attached to the earth
or permanently fastened to anything which is
attached to the earth. The expression “movable
property” has not been specifically defined in
the Code. In terms of Section 2(y) of the
Code, words and meanings defined in IPC would
equally be applicable to the Code. Money,
therefore, would be property for the purposes
of the Code. Money is not an immovable
property."
As seen from the aforesaid decision, only movables can be attached
and not any immovable property as done in the present case.
7. Infact, in paragraph 10 of the Counter affidavit filed by the second
respondent before this Court, he has stated that the first respondent has not
sealed the petitioner's clinic or her residential house and he would further
state that the District Welfare Board Officials might have sealed the clinic,
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W.P. No.7557 of 2018
as it was used for illegal termination of pregnancy. But as seen from the
impugned notice, the premises of the petitioner has been sealed only by the
second respondent. By total non-application of mind, it has been stated by
the second respondent in his counter affidavit that the District Welfare
Board Officials might have sealed the clinic of the petitioner, as it was used
for illegal termination of pregnancy, but in fact, as seen from the impugned
notice, only with the knowledge of the second respondent, the petitioner's
clinic was sealed. This itself will clearly show that without authority under
Law, the premises of the petitioner has been sealed. Infact, as early as on
20.04.2018, this Court granted an order of interim direction in favour of the
petitioner directing the respondents to remove the seal from the petitioner's
hospital and permitted the petitioner to use the same. Admittedly, till date,
without any hindrance, the petitioner has been making use of his clinic.
8. It is also submitted by Mr.V.Shanmugasundar, learned Special
Government Pleader appearing for the respondents that a criminal case is
still pending against the petitioner in Crime No.228 of 2018 and no charge
sheet has been filed against the petitioner till date.
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W.P. No.7557 of 2018
9. In view of the settled position of law as held by the decision of
the Hon'ble Supreme Court referred to supra, this Court is of the considered
view that the sealing of the petitioner's premises by the respondents under
the impugned notice is arbitrary and illegal. Hence, the same will have to be
necessarily quashed. Accordingly, the impugned notice dated 01.02.2018 is
hereby quashed and the Writ Petition is allowed. No costs. Consequently,
connected miscellaneous petitions are closed.
09.03.2021
Index: Yes/ No
Internet: Yes/No
Speaking Order/Non-speaking Order
srn
To
1. The Inspector of Police,
Tiruvannamalai Town Police Station,
Tiruvannamalai District.
2. The Deputy Director of Medical and Rural
Health Service and Welfare,
District Family Welfare Bureau,
Tiruvannamalai - 600 601
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W.P. No.7557 of 2018
http://www.judis.nic.in
W.P. No.7557 of 2018
ABDUL QUDDHOSE, J.
srn
W.P. No.7557 of 2018
and W.M.P.Nos.9435 to 9437 of 2018
09.03.2021
http://www.judis.nic.in
