R.Sampath vs State Represented By
2021 Latest Caselaw 19605 Mad

                                                                                     Crl.R.C.No.795 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                            Orders reserved on 09.02.2022       Orders pronounced on 10.03.2022


                                                            CORAM

                                  THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN

                                                     Crl.R.C.No.795 of 2021

                     R.Sampath                                                        ...Petitioner

                                                               Vs.

                     State Represented by
                     Inspector of Police,
                     CBI / ACB / Chennai
                     Crime No.R.C.MA1 2019 (A) 0001.                                  ...Respondent

                                    Criminal Revision Petition is filed under Section 397 r/w 401 of
                     Code of Criminal Procedure, to set aside the order passed in
                     Crl.M.P.No.3298 of 2021 in C.C.No.7 of 2021 dated 24.09.2021 by the
                     learned XIV Additional Special Judge for CBI Cases, Chennai, and direct
                     defreezing of accounts, return of properties.


                                    For Petitioner      :   Mr.Sunder Mohan
                                    For Respondent      :   Mr.K.Srinivasan
                                                            Special Public Prosecutor for CBI cases.


                     1/25


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                                                                                  Crl.R.C.No.795 of 2021



                                                         ORDER

This Criminal Revision case is filed against the order passed in

Crl.M.P.No.3298 of 2021 in C.C.No.7 of 2021 on the file of the learned XIV

Additional Special Judge for CBI cases, Chennai.

2. Crl.M.P.No.3298 of 2021 was filed under Section 451

of Cr.P.C for the following reliefs:-

a) To direct defreezing of the following accounts:-

                          S.No.           Bank Name                A/C.No.           Held By
                          1.      ICICI Bank                   648801503814      Self
                          2.      ICICI Bank                   603301111209      Wife
                          3.      HSBC                         042-739839-006 Self
                          4.      HSBC                         042-738310-006 Wife

5. Oriental Bank of Commerce 08912010005370 Self & Wife

6. Oriental Bank of Commerce 08912010003530 Wife & Self

7. Oriental Bank of Commerce 08912191004168 S.Suraj & Self

b) and direct the complete defreeze State Bank of India account

No.20069128592 which was partly allowed to the extent of withdrawal of

pension amount in Crl.M.P.No.4003 of 2018.

c) to permit operation of the locker HH12 held in Oriental Bank

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of Commerce, Adayar Branch by petitioner and his wife.

3. The case of the petitioner is that he was working as

Deputy Director General, CPWD and retired from service on 31.12.2016.

On 10.03.2017, the respondent police searched his official residence at

Besant Nagar and took an inventory of articles available and prepared

inventory memo listing out the articles found at his residence. He also

seized certain documents and articles enumerated in the search list. The

documents included title deeds of the properties owned either by him or by

his wife, insurance policies held in his name besides, certain cheques,

mobile phone and keys relating to locker No.HH12 held jointly by him and

his wife in Oriental Bank of Commerce, Adyar. On 16.03.2017, respondent

called him and his wife to the Oriental Bank of Commerce, Adyar branch

for opening the locker No.HH12. They took a list of articles available in the

locker and proceedings were drawn by the respondent in the presence of

him, his wife and the Branch Manager of Oriental Bank of Commerce and

other officials. Locker was then closed and keys were handed over to the

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Inspector of Police Smt.Bindhu. Respondent directed Branch Manager to

maintain “status quo” with regard to operation of the locker. Respondent

issued instruction to freeze his account and his wife held in the following

Banks:-

                           S.No          Bank Name                A/C.No.           Held By
                           1.     State Bank of India         20069128592        Self & Wife
                           2.     Kotak Mahindra Bank         7411773035         Self & Wife
                           3.     ICICI Bank                  648801503814       Self
                           4.     ICICI Bank                  603301111209       Wife
                           5.     HSBC                        042-739839-006 Self
                           6.     HSBC                        042-738310-006 Wife

7. Oriental Bank of Commerce 08912010005370 Self & Wife

8. Oriental Bank of Commerce 08912010003530 Wife & Self

9. Oriental Bank of Commerce 08912191004168 S.Suraj & Self

4. Petitioner made a request to the Inspector on 17.08.2017

to defreeze his account, where his pension was getting credited in State

Bank of India jointly held by him and his wife. The reminder was sent on

21.09.2017 to the Superintendent of Police, ACB. On 21.09.2017, he

received reply stating that defreezing of bank accounts cannot be done from

their end and it was advised that he may approach the concerned Court for

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defreezing the bank accounts. Final report was filed under Sections 120-B

IPC 7, 11, 12, 13 (2), r/w. 13 (1) (d) of the Prevention of Corruption Act,

1988. The amounts lying in the bank accounts have nothing to do with the

alleged offence in the charge sheet. The allegation is that petitioner

received cheque from the accused and then credited into his account at

Kotak Mahindra Bank, South Mambalam branch. The allegation that, it is

bribery amount, is not correct. Apart from this amount, amount lying in

other bank accounts are totally unrelated to the alleged offence. The articles

in the locker at Oriental Bank of Commerce have nothing to do with the

alleged offence. Most of the articles are gold jewelleries, which belong to

his wife or his daughter. Prosecution has not shown any nexus with the bank

accounts, documents and articles in the locker and the alleged offence.

Petitioner filed Crl.M.P.No.4003 of 2018 in C.C.No.9 of 2018 for

defreezing the account, for permission to operate the locker and for return of

the documents. That petition was partly allowed. The defreezing of account

in the State Bank of India was permitted to the extent of accessing his

account to withdraw the pension credited subsequent to 09.03.2017.

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5. Aggrieved against the order, petitioner filed Revision

before this Court in Crl.R.C.No.926 of 2018. This Court observed that, CBI

has to complete the investigation as soon as possible. Thereafter, petitioner

was granted liberty to workout his remedy in the manner known to law.

Subsequently, respondent registered FIR in Crime No.RC MA1 2019 (A)

0001 for the alleged offence under Section 13 (2) r/w. 13 (1) (e) of

Prevention of Corruption Act, 1988 and filed charge sheet in C.C.No.7 of

2021. Petitioner filed a petition in Crl.M.P.No.1016 of 2021 in C.C.No.9 of

2018 before the trial Court under Section 451 of Cr.P.C for defreezing

accounts and permission to operate bank locker. Respondent filed counter to

the effect that seized documents in C.C.No.9 of 2018 have been transferred

to RC MA1 2019 A 0001 of CBI/ACB in C.C.No.7 of 2021. No intimation

was given regarding transfer of seized documents to the above said case.

The bank accounts and the locker are absolutely essential for the petitioner

to use. Respondent cannot endlessly deprive his right to use his bank

accounts and locker. Therefore, this petition.

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6. Respondent filed counter alleging that while petitioner

was functioning as public servant during the period 03.12.2012 to

31.12.2016 as Deputy Director General (Headquarters) amassed

disproportionate assets in his name and in the name of his wife to the extent

of Rs.1,09,04,700.37/-. He cannot satisfactorily account for this income.

After the investigation, final report has been filed before the learned VIII

Principal Special Judge for CBI cases, Chennai, for the offences under

Section 13(2) r/w. 13(1)(e) of the Prevention of Corruption Act, 1988

against him and under Section 109 IPC r/w. Section 13(2) r/w 13(1)(e) of

Prevention of Corruption Act, 1988 against his wife Suguna. The averment

that, no intimation was given regarding the transfer of seized documents to

Crime No.RC MA1 2019 A 0001 is strongly denied. Seized documents and

material objects were intimidated by the investigating officer in RC MA1

2017 A 0005 and it was acknowledged by the petitioner. Several bank

accounts and locker contents of gold jewelleries, gold bars are maintained

by the petitioner and his wife and the same is shown as movable assets of

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the petitioner and his family members at the beginning of the check period

and at the end of check period. The bank balance held in banks by the

petitioner and his wife and their son Suraj Sampath at the beginning of

check period are shown in the charge sheet. Bank balance at the end of

check period are also shown in the charge sheet. Similar contents of locker

in the name of petitioner and his wife were also shown as movable assets in

the charge sheet. Petitioner and his wife maintained 16 bank accounts with

various banks during the check period and the bank balance are shown in

the charge sheet as movable assets and these proceeds form part of the

crime. Since, the case is in trial stage, the accounts cannot be defreezed.

7. It is seen from the additional counter filed by the

respondent that transfer of documents and material objects from the case in

Crime No.RC MA1 2017 A0005 to another case in Crime No.RC MA1

2019 A0001 is a well known fact to the petitioner. The movable assets, such

as bank balances, are part of crime in Crime No.RC MA1 2019 A0001 and

it was informed to the petitioner/accused persons during their examination

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before the filing of charge sheet in Crime No.RC MA1 2019 A0001. 16

Savings Bank accounts in the name of petitioner Sampath, Smt.S.Suguna

jointly and severally and the accounts in the name of the son individually or

jointly with either of the accused were shown as movable assets and marked

in item Sl.Nos.17 to 32. Locker held at Oriental Bank of Commerce, Adyar

Branch contends were also shown as movable assets and marked as item

No.2 in statement B of the charge in Crime No.RC MA1 2019 A0001 Vide

C.C.No.7 of 2021. All the properties are case properties. The amounts

lying in the accounts are considered in the case for calculating

disproportionate assets and hence, the petitioner should not be allowed to

operate the accounts.

8. Learned counsel for the petitioner submitted that after

freezing the accounts, petitioner filed Crl.M.P.No.4003 of 2018 in C.C.No.9

of 2018 before XIV Additional Court for CBI Cases for defreezing the

accounts. The Court partly allowed the petition and directed to defreeze the

bank account held in SBI only to the extent of permitting the petitioner to

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access his account to withdraw the pension credited subsequent to

09.03.2017. Against the said order, petitioner filed Crl.R.C.No.926 of 2018.

It was submitted by the respondent that seized documents, accounts and

locker are necessary for investigation of another possible crime of amassing

properties disproportionate to the known sources of income. Therefore, this

Court observed that Central Bureau of Investigation has to complete the

investigation as soon as possible. Thereafter, liberty was granted to the

petitioner to work out the remedy in the manner known to law.

Subsequently, respondent registered First Information Report in Crime

No.RC MA1 2019 A0001 for the alleged offence under Section 13(2) read

with 13(1)(e) of Prevention of Corruption Act and filed charge sheet in

C.C.No.7 of 2021. Petitioner filed Crl.M.P.No.1016 of 2021 in C.C.No.9 of

2018 under Section 451 Cr.P.C for defreezing accounts and permission to

operate bank locker. Respondent filed a counter stating that the seized

documents in C.C.No.9 of 2018 has been transferred to Crime No.RC MA1

2019 A0001 relatable to C.C.No.7 of 2021. Therefore, that petition was

withdrawn and thereafter, Crl.M.P.No.3298 of 2021 in C.C.No.7 of 2021

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was filed. That petition was dismissed. Therefore, this present Criminal

Revision Case.

9. It is further submitted by the learned counsel for the

petitioner that respondent did not give any intimation with regard to transfer

of properties seized to Crime No.RC MA1 2019 A0001. Respondent cannot

resort the seizure under Section 102 Cr.P.C. unless the case properties are

needed for trial. In order to seize the property under Section 102 Cr.P.C, the

property should have either been a stolen property or it has created

suspicion of commission of offence. Bank accounts, being a sequel to the

discovery of commission of offence, cannot be seized under Section 102

Cr.P.C. Prosecution is not clear as to the case in which the property seized

are going to be treated as case properties. Investigation is completed in both

the cases. If at all there is a necessity to seize the properties, respondent

should have invoked Section 18(a) of Prevention of Corruption Act, 1988.

Provision of Criminal Law Amendment Ordinance, 1944 should have been

applied for attaching the property. Immovable properties of the petitioner

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are not attached. Funds in the bank account cannot be considered as case

properties. Therefore, learned counsel for the petitioner submitted that

freezing of bank accounts and bank locker is against law and freezing order

has to be set aside. In support of his submission, learned counsel for the

petitioner relied on the judgment reported in (1987) SCC Online Del 221

(Ms.Swaran Sabharwal ..vs.. Commissioner of Police), (1997) 7 SCC 685

(State of Maharashtra ..vs.. Tapas D.Neogy), (2018) 2 SCC 372 (Teesta Atul

Setalvad ..vs.. State of Gujarat), 2019 SCC OnLine SC 1247 (Nevada

Properties Private Limited ..vs.. State of Maharashtra) and 2021 SCC

OnLine SC 875 (Ratan Babulal ..vs.. State of Karnataka).

10. In response, learned Special Public Prosecutor

appearing for the respondent submitted that the police officer has power to

seize the property suspected to have been stolen or which may be found

under circumstances, which create suspicion of the commission of any

offence. Accordingly, petitioner's account along with his wife's account,

bank locker were freezed. Respondent can attach the property at any time.

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There are two cases registered against the petitioner and others, one for

misconduct and other for amassing wealth disproportionate to known

sources of income. Transfer of accounts and property seized in misconduct

case was informed to the petitioner during the course of investigation.

These are the case properties required to prove the charges against the

petitioner and liable to be confiscated. In fact, memo was filed for

transferring the case properties from one case to another case. Amounts

available in the bank accounts, articles available in the bank locker are

proceeds of crime and if they are allowed to be accessed by the petitioner,

the case of the prosecution would be seriously prejudiced and therefore, the

learned Special Public Prosecutor prayed for dismissal of this petition.

11. Now, the main points for consideration in this petition

are :-

(1) Whether the seizure of the bank accounts, locker by the

respondent under Section 102 Cr.P.C is in accordance with law.

(2) Whether the property seized in one crime number can be

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transferred to other crime number.

12. Section 102(1) Cr.P.C 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. The reading of this section makes it clear that the police officer may seize

any property alleged or suspected to have been stolen or or which may be

found under circumstances, which create suspicion of commission of any

offence.

13. From the judgments relied by the learned counsel for

the petitioner, especially, the judgment reported in (1987) SCC Online Del

221 (Ms.Swaran Sabharwal ..vs.. Commissioner of Police), it is observed

that assuming that a bank account is 'property' within the meaning of

Section, it should be a property 'found under circumstances which create the

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suspicion of commission of offence to justify action under Section 102

Cr.P.C.'. There are no circumstances attendant upon the bank account or its

operation that have led the officer to suspect that some offences have been

committed somewhere. The discovery of the bank account is a sequel to the

discovery of the commission of offence. The police suspected that some of

the proceeds realised by the sale of official secrets have been passed on to

the petitioner by her husband. This itself is not sufficient to attract Section

102 Cr.P.C., as it cannot be said that the bank account has been traced or

discovered in the circumstance, which have made police aware of the

commission of offence.

14. This judgment was referred in the judgment reported in

(1997) 7 SCC 685 (State of Maharashtra ..vs.. Tapas D.Neogy) and it was

observed that 'Having considered the divergent views taken by different

High Courts with regard to the power of seizure under Section 102 of Cr.P.C

and whether the bank account can be held to be 'property' within the

meaning of Section 102(1) Cr.P.C., we see no justification to give any

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narrow interpretation to the provisions of Code of Criminal Procedure. 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 Cr.P.C and a police officer in the course of investigation can seize or

prohibit the operation of the said account, if such assets have direct links

with the commission of offence, for which the police officer is investigating

into.

15. While dealing with the scope of the power under

Section 102 Cr.P.C, it is observed in the judgment reported in 2015 SCC

OnLine Mad 6729 (M.Adithya Cholan ..vs.. Union of India) quoting from

the case of His Holiness Sri Kanchi Kamakoti Peetadhipathi Jagadguru

Sri.Sankaracharya Swamigal Srimatam Samasthanam, represented by its

Manager ..vs.. State of Tamil Nadu reported in 2005 (1) CTC 657 that,

“this Court explains that only two categories of properties, namely, (1)

alleged or suspected to have been stolen or (2) which may be found under

circumstances, which create suspicion of the commission of any offence,

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can be seized. The assets and money should have direct links with the

offence committed by the accused.”

16. Dealing with the question centers around sweep,

purport and applicability of Section 102(1) of Cr.P.C, the Hon'ble Supreme

Court in Teesta Atul Setalvad ..vs.. State of Gujarat reported in (2018) 2

SCC 372 observed quoting from the judgment reported in (1997) 7 SCC

685 (State of Maharashtra ..vs.. Tapas D.Neogy) that, '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 Cr.P.C and a

police officer in the course of investigation can seize or prohibit the

operation of the said account, if such assets have direct links with the

commission of offence for which the police officer is investigating into. It

was observed also in the decision in State of Maharashtra ..vs.. Tapas

D.Nyogy (cited supra) that, there is no room to countenance to challenge

the action of the seizure of bank account of any person, which may be found

under circumstances creating suspicion of the commission of any offence.

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17. While dealing with the question as to whether the

expresion 'any property' used in sub-section (1) of Section 102 of Cr.P.C.,

includes immovable property or not and whether a police officer can take

custody and seize the immovable property, the Hon'ble Supreme Court in

Nevada Properties Private Limited through its Directors ..vs.. State of

Maharashtra reported in 2019 SCC OnLine SC 1247 : (2019) 20 SCC 119,

held that 'Section 102 postulates seizure of the property. Immovable

property cannot, in its strict sense, be seized, though documents of title etc.,

relating to immovable property can be seized, taking into custody and

produced. The reference was answered by holding that power of a police

officer under Section 102 of Cr.P.C. to seize any property, which may be

found under circumstances that create suspicion of the commission of any

offence, would not include the power to attach, seize and seal any

immovable property”.

18. The reading of the aforesaid judgments gives an

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understanding that the bank account can be held to be 'property' within the

meaning of Section 102(1) of Cr.P.C., and if it is established that it had

direct link with the offence committed by the accused, it can be seized.

What is important is that the account and assets should have direct links

with the commission of offence, for which the police officer is investigating

into. In that case, police officer can seize the account or prohibit the

operation of the account.

19. Finally, learned counsel for the petitioner submitted the

judgment of the Hon'ble Supreme Court in Rattan Babulal ..vs.. State of

Karnataka reported in 2021 SCC OnLine 875 for the proposition that when

Section 18A of Prevention of Corruption Act gives power of attachment and

forfeiture of property, the attachment of bank account and freezing of

account under Section 102 Cr.P.C is unsustainable. Learned counsel for the

petitioner heavily relied on this judgment in support of his submission that

the seizure of account and locker and its freezing under Section 102 Cr.P.C.,

is not sustainable and against the law. The reading of this judgment shows

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that, it was submitted by the respondent therein that they are in the process

of filing an application under Section 18A of Prevention of Corruption Act,

1988. Taking that into account, it was held that it was not possible to

sustain the freezing of bank account under Section 102 Cr.P.C., as the

Prevention of Corruption Act is a Code by itself.

20. In the case before hand, accounts and bank locker were

freezed, not in this case, but in Crime No.RC MA1 2017 A0005 concerned

in C.C.No.9 of 2018, all the properties were transferred to Crime No.RC

MA1 2019 A0001 in C.C.No.7 of 2021. There is no freezing order in Crime

No.RC MA1 2019 A0001 in C.C.No.7 of 2021. Already petitioner filed

Crl.M.P.No.4003 of 2018 in C.C.No.9 of 2018 for defreezing the account

and that was allowed in part. Both the cases in C.C.No.9 of 2018 and

C.C.No.7 of 2021 are interrelated. Interrelated in the sense, C.C.No.9 of

2018 was registered for the offences under Sections 120-B IPC, 7, 11, 12,

13 (2), r/w. 13 (1) (d) of the Prevention of Corruption Act, 1988 and the case

in C.C.No.7 of 2021 was registered for the offences under Sections 13 (2)

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r/w. 13(1)(e) of Prevention of Corruption Act, 1988. One is for misconduct

and other one is for amassing wealth disproportionate to the known source

of income.

21. The reading of the aforesaid judgments, especially the

judgment reported in (1997) 7 SCC 685 (cited supra) shows that the bank

account of the accused or any of his relatives is 'property' within the

meaning of Section 102 of Cr.P.C., and the police officer, in the course of

investigation, can seize or prohibit the operation of the said account, if such

assets have direct links with the commission of offence. This position was

again reiterated in the judgment reported in (2018) 2 SCC 372 (cited supra).

After this decision, which is a decision of three member Hon'ble Judges of

the Supreme Court, there is no room to countenance the challenge to the

action of seizure of bank account of any person, which may be found under

circumstances, creating suspicion of the commission of any offence. The

power of police officer under Section 102 of the Code to seize any property,

which may be found under circumstances, which create suspicion of the

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commission of any offence was again reaffirmed, but it was held that this

power would not include the power to attach, seize and seal an immovable

property in the judgment reported in (2019) 20 SCC 119 (cited supra).

22. In the case before hand, it is specifically alleged by the

respondent that the amount lying in the deposit of the bank accounts and

articles kept in the locker freezed are proceeds of crime and they required

for the purpose of marking as evidence and for the purpose of fixing the

disproportionate assets during the course of trial. If the accounts are

defrozen and the petitioner is permitted to operate the locker, there is every

possibility of withdrawing the amount available in the bank account and

removing the articles. It is submitted that the proceeds of crime are liable to

be confiscated at the end of trial. The respondent still has option to take

action under Section 18 A of the Prevention of Corruption Act to apply for

attachment, confiscation of money and property. Taking into consideration

the legal position on the subject and the submissions of the respondent that

the articles available in the bank locker and the amounts available in the

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bank accounts are required as evidence during the course of trial, this Court

is of the view that the trial Court has rightly dismissed the petition in

Crl.M.P.No.3298 of 2021 in C.C.No.7 of 2021 and it requires no

interference.

23. It is, thus, answered that seizure of bank accounts and

bank locker is in accordance with law for the point No.1. It is already

referred that the cases in C.C.No.9 of 2018 and C.C.No.7 of 2021 are

connected. Both the cases have to be tried simultaneously. It is specifically

stated by the respondent that transfer of property from C.C.No.9 of 2018 to

C.C.No.7 of 2021 was informed to the petitioner and a memo was filed in

this regard in the Court. In the facts and circumstances of the case, this

Court is of the view that there is nothing wrong in transferring the property

seized in C.C.No.9 of 2018 to C.C.No.7 of 2021. Thus, the point No.2 is

answered.

24. In this view of the matter, the order of learned XIV

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Additional Special Judge for CBI Cases, Chennai, in Crl.M.P.No.3298 of

2021 in C.C.No.7 of 2021 dated 24.09.2021 is confirmed and the Criminal

Revision Case is dismissed.

10.03.2022 Index:Yes Internet:Yes Speaking Order: Yes/No ep/mra

To

1. The Inspector of Police, CBI / ACB / Chennai Crime No.R.C.MA1 2019 (A) 0001.

2.The XIV Additional Special Judge for CBI Cases, Chennai.

3.The Special Public Prosecutor, High Court, Madras.

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G.CHANDRASEKHARAN.J,

mra

Order in Crl.R.C.No.795 of 2021

10.03.2022

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