North Eastern Children'S Home ... vs The State Bank Of India ...
2021 Latest Caselaw 70 Mani

                                                                                                   Page |1
         Digitally
Yumk     signed by
         Yumkham

ham      Rother
         Date:                        IN THE HIGH COURT OF MANIPUR
         2021.03.17
Rother   14:17:10
                                                AT IMPHAL
         +05'30'

                                                 WP(C) No. 622 of 2018

                       North Eastern Children's Home represented by its
                       Secretary, Miss Rody Lalhmingmoi Hmar, having its
                       registered       office     at     Rengkai,        Bethlehem              Veng,
                       Churachandpur, P.O., P.S. & District Churachandpur.

                                                                                    -- -- -- Petitioner

                                                    - VERSUS -

                         1. The State Bank of India represented by the
                              Assistant General Manager, Regional Business
                              Office, State Bank of India, Babupara, Imphal-
                              795001.

                         2. The       Chief      Manager,         State        Bank       of     India,
                              Churachandpur             Branch,    PO,         PS     &        District-
                              Churachandpur, Manipur.

                         3. The       Chairperson,         Child     Welfare          Committee,
                              Churachandpur.

                         4. The Member Secretary, MSLSA.

                         5. Churachandpur District Legal Services Authority,
                              through the member Secretary, MSLSA.

                         6. Principal        Secretary       Home         is    impleaded            as
                              Respondent No.6 as per order dated 10.12.2018

-- -- -- Respondents

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019 Page |2

Criminal Revision Petition No. 6 of 2019

North Eastern Children's Home represented by its Secretary, Miss Rody Lalhmingmoi Hmar, having its registered office at Rengkai, Bethlehem Veng, Churachandpur, P.O., P.S. & District Churachandpur.

-- -- -- Petitioner

The State of Manipur represented by the Secretary (Home), Old Secretariat Building, Babupara, Government of Manipur, Imphal West District, Manipur-795001.

-- -- -- Respondent BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN

For the petitioners :: Mr. H. Kenajit, Advocate

For the Respondents :: Mr. H. Samarjit, GA Mr. Ch. Momon, Advocate.

Date of Hearing and
Reserving Judgment
& Order                           ::       26.02.2021

Date of Judgment & Order ::                17.03.2021


                    JUDGMENT AND ORDER
                          (CAV)

The writ petition has been filed by the petitioner

North Eastern Children's Home, represented by its Secretary

Rody Lalmingmoi Hmar, seeking a writ of mandamus for de-

freezing the FRCA saving account bearing No.1134 3706 468

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019 Page |3

of the petitioner in the second respondent bank in the name and

style of North Eastern Children's Home, Churachandpur.

2. The Criminal Revision Petition has been filed by

the same North Eastern Children's Home, Churachandpur

under Sections 397, 401 read with Section 482 of CrP.C. for

setting aside the order dated 30.3.2019 passed by the Special

Judge (POCSO), Imphal West in Special Trial (POCSO) Case

No.2 of 2017.

3. The writ petition has been filed by the North

Eastern Children's Home, Churachandpur, (hereinafter referred

to as "NECH") stating that the NECH is running a children home

in Churachandpur District and funds for running the said home

are fully funded from the foreign country and as such the NECH

opened a FCRA Saving Account in the branch of the second

respondent in the name and style of NECH bearing FCRA

Saving Account No.11343706468 and the said account is

operated by the Administrator and the Secretary of NECH. One

Timothy L Changsan was the founder member of NECH and he

was involved in the function of the NECH in various capacities

as Administrator, Director etc. However, the said Changsan had

applied to the Chairman/ Secretary of the NECH for resignation

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019 Page |4

from the said post of Director along with a prayer to leave the

board. The application of Changsan was taken up on 23.7.2017

along with the case of Jane Nancy Marian and the resignation

of Changsan was accepted by the Board of Trustees and Nancy

was also removed from the member of the Board of Trustees

and Society. The change of the Administrator and Secretary of

the NECH was duly informed to the second respondent and the

present Secretary and the new Administrator had been

operating the said account of the NECH since July, 2017.

4. While so, on 9.7.2018, when the Secretary of the

NECH went to transact its account, the second respondent

informed her that the NECH's account has been freezed. When

the Secretary inquired the reason for doing the same, the

second respondent did not give any reply. On 12.7.2018, the

NECH made an application to the second respondent to de-

freeze the said account and also to let them know the reason

for freezing the account. The said application has not been

attended to by the second respondent.

5. It is further alleged that the NECH needs money

daily to look after the daily basic needs of food, medicines etc.

of 46 children who are presently staying in the home; the act of

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019 Page |5

the second respondent in freezing the account of the NECH is

arbitrary and it violates the right to life of the children staying in

the home and further it violates the principles of natural justice

as no notice was given to the petitioner for taking up such

drastic action by the second respondent against the NECH.

Hence, the writ petition.

6. The second respondent filed affidavit stating that it

is informed by the Inspector of Women Police Station,

Churachandpur vide letter dated 31.7.2018 that the

Administrator of the NECH namely Timothy L Changsan was

convicted in connection with FIR No.2(2/2015 WPS/CCP & FIR

No.3(2) 2015 WPS/CCP under Section 354/376-C/506 IPC and

6/8/10 POCSO Act by the Special Judge, POCSO, Imphal

West, Manipur on 30.4.2018 by sentencing to rigorous

imprisonment for life under POCSO Act; imprisonment for

seven years under Section 10 of POCSO Act and imprisonment

of seven years under Section 506 IPC and thereafter, the

convicted person had absconded and his whereabouts is not

known till date. Therefore, the Officer-in-Charge, Women Police

Station, Churachandpur vide letter dated 31.7.2018 requested

the second respondent for freezing of the saving account of the

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019 Page |6

petitioner and on receipt of the such request letter from the said

OC, WPS, the account of the NECH has been freezed.

7. Similarly, the Criminal Revision Petition has been

filed by the Administrator of the NECH seeking to review the

order dated 30.3.2019 of the Special Court (POCSO), Imphal

West passed in Criminal Miscellaneous Case No.87 of 2018

contending that by the said order, three movable properties of

the NECH namely (i) Honda Activa bearing registration No.MN-

02 7341; (ii) Tata Sumo Vieta Ex bearing registration No.MN-02

8289 and (iii) Tata Star Bus bearing registration No.MN-02B

0972 and a movable property bearing homestead/ingkhol under

patta No.2208/2631 measuring an area of 0.945 registered in

the name of the Administrator of NECH were ordered to be

attached by the District Collector, Churachandpur.

8. According to the NECH, all the movable and

immovable properties of the NECH were purchased through

financier viz., the philanthropist from abroad i.e., U.S.A., U.K.

and other European countries and the properties cannot be

claimed to be the property of the individual person who holds

any of the post of the society at any point of time.

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019 Page |7

9. It is alleged that since the trial had already been

concluded against the accused person, the present attachment

of movables and immovable properties of the NECH is

misconceived due to the wrong information provided by the

prosecution before the learned Special Court as the movable

and immovable properties are the properties of the NECH and

not of the accused person. Hence, prayed for reviewing the

order dated 30.3.2019 as attachment of properties either

movable or immovable can be done for the proclaimed offender,

but not to the properties of the NECH, being a registered body.

10. The learned counsel for the petitioner NEHC

contended that without affording an opportunity, second

respondent has freezed the bank account of the NEHC and the

said act of the second respondent is in clear violation of the

principles of natural justice. Since the NEHC required money

daily to look after the daily basic needs of the children who are

presently staying in the home, the account of the NECH needs

to be de-freezed.

11. The learned counsel further submitted that the

attachment of movable and immovable properties ordered by

the learned Special Court vide order dated 30.3.2019 is liable

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019 Page |8

to the set aside, as the properties directed to be attached are

not the properties of Changsang and the same are the

properties of the NECH. He would submit that the properties

ordered to be attached are the properties of NECH and

registered in the name of the NECH, it cannot be said to be the

properties of Changsang and the learned Special Judge erred

in passing the impugned order dated 30.3.2019 as the

documents filed before him clearly establish that the movable

and immovable properties stand in the name of NECH.

12. The learned counsel for the second respondent

bank, on the other hand, submitted that they have freezed the

account of the NECH based on the letter received from the

Office-in-Charge of Women Police Station, Churachandpur and

therefore, the petitioner NECH cannot complain that the second

respondent has arbitrarily freezed the account of the NECH.

13. This Court also heard the submission of the

learned Public Prosecutor, who submitted that the order dated

30.3.2019 need not be reviewed/set aside, as the present

Administrator being the niece of Changsan would know the

whereabouts of Changsan and till today, the accused

Changsan through the foreign funds which he received from

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019 Page |9

NECH had enough money to abscond and live in hiding.

Therefore, it is necessary that all movable and immovable

Properties stood in his name are to be attached and seized so

that he will surrender himself and serve his sentence as ordered

by the learned Special Judge.

14. This Court considered the submissions raised by

the respective parties and also perused the materials available

on record.

15. Before going into the merits and demerits of the

writ petition as well as the criminal revision petition, certain facts

and the previous filing of cases need to be stated for the sake

of convenience and for proper adjudication of the matter.

16. As is evident from the pleadings of the parties,

Timonthy Lalhmunmawi Changsan was in London for

Theological and Pastoral training from 2003 till 2005 and during

that time, he conceived the idea of establishing a Children

Home and collected funds from sponsors in London and other

foreign countries. He came to India in 2004 during his training

and established NECH and he became the defacto

Administrator of the Children Home. The said Children Home

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019 P a g e | 10

become the main source of income for the Changsan and his

family and relatives which enable them to lead a lavish life.

17. The so called Administrator of NECH viz.,

Changsan was convicted on 30.4.2018 under Sections 6 and

10 of POCSO Act and under Section 506 of IPC. However, on

the day of pronouncement of the judgment, the Changson failed

to appear and accordingly, issued warrant of arrest against him

fixing the sentence date on 5.5.2018. On 5.5.2018, the

investigating officer has submitted a report for non-execution of

the warrant of arrest on the ground that Changson had already

left Manipur for Guwahati by Air Asia Flight 784. The learned

Special Court, after hearing the prosecution and the learned

counsel for Changsan awarded sentence to undergo rigorous

life imprisonment under Section 6 of the POCSO Act; seven

years imprisonment under Section 10 of the POCSO Act and

another seven years imprisonment under Section 506 of IPC.

The said judgment and order was forwarded to the Director

General of Police, Manipur and the Superintendent of Police,

Churachandpur for taking necessary steps to enable to execute

the warrant of arrest issued by the Court.

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019 P a g e | 11

18. It appears that despite warrant of arrest, repeated

house search, due publication in newspapers as well as

messages to all the Police Stations of Manipur and the Director

General of Police, Assam, the accused convict Changan has

not been traced out till date and the Court has also declared him

as absconding accused. In fact, proclamation requiring the

appearance of Changsang was issued and surety action was

also initiated. The publication of the proclamation order in the

local newspaper has been done and the report circular with

proforma had been sent to the CBI also. The Officer-in-Charge

of Women Police Station has also submitted a letter of request

to the Superintendent of Police, Churachandpur District to

forward the request letter to the sister States namely Assam,

Nagaland, Meghalaya, Arunachal Pradesh, Mizoram, Tripura

and Sikkim for action to nab the fugitive. Letter to the FRO

Superintendent of Police, Churachandpur, CID (SB), Imphal

addressed seeking travel particulars of the fugitive using the

passport number K1150556 and also called upon the Deputy

Director, Bureau of Immigration, New Delhi to process the

request of the Superintendent of Police, Churachandpur District

for ensuring that the Look Out Notice is forwarded to all

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019 P a g e | 12

enforcement authorities so as to secure the convict/fugitive at

the earliest.

19. It also appears that still the matter is pending

before the learned Special Judge, POCSO, Imphal West for

appearance of the convict/fugitive. In this regard, while dealing

with as public interest litigation, the Hon'ble Division Bench of

this Court vide order dated 14.3.2019, also directed the Special

Court to take all appropriate and necessary steps as required

by law to secure the convict/fugitive, if there is a failure on the

part of the convict/fugitive to appear. Thus, the Police

Department is taking effective steps in securing the

convict/fugitive Changan.

20. By the order dated 18.7.2019, the Hon'ble Division

Bench of this Court, directed the writ petition to be tagged with

Criminal Revision Petition No.6 of 2019 and accordingly, both

the cases were listed before the Single Judge and heard the

arguments of the respective counsel.

21. Coming to the merits of the writ petition, it is

contended on behalf of the petitioner NECH that all of a sudden

on 9.7.2018 when the Secretary of the NECH went to the

second respondent bank to transact its account, the second

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019 P a g e | 13

respondent informed the petitioner that the account stood in the

name of NECH has been freezed.

22. By placing reliance upon the letter of the Office-in-

Charge of Women Police Station, Churachandpur, the learned

counsel for the second respondent contended that the said

freezing of the account of the NECH has been made based on

the letter received from the OC/WPS/Churachandpur and

therefore, the second respondent has not acted on their own

and therefore, the petitioner NECH is not entitled to maintain

the writ petition for direction to de-freeze the FRCA Saving

Account bearing No.1134 3706 468.

23. It appears that the action of the second respondent

in freezing the FRCA Saving Account of the petitioner NECH is

based on the letter received by them from the

OC/WPS/Churachandpur, Manipur dated 31.7.2018, wherein it

has been stated that Timothy Lalhmunmawi Changsan, who is

the Administrator of NECH was convicted in connection with

FIR No.2(2) 2015 WPS/CCP and FIR No.3(2) 2015 WPS/CCP

under Sections 354/376-C/506 IPC and 6/8/10 POCSO Act by

the Special Judge, POCSO, Imphal West on 30.4.2018 and

sentenced to undergo rigorous imprisonment of life and other

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019 P a g e | 14

sentences. However, the convict Changsan had absconded

and his whereabouts is not known till today. In the said letter, it

is also stated that all the bank accounts and any accounts which

have link with the absconded convict was freezed by the second

respondent and would like to request the second respondent to

continue to freeze all the accounts and accounts which have

link with the absconding convicted person Changsan as the

crime happened at the NECH and the absconding convict is

likely to benefit directly or indirectly from those accounts if not

freezed. The letter further states that though the absconding

person has been removed as the Administrator, the new

Administrator and new Secretary who are presently operating

the account are elder brother and niece of the absconding

person. As such, he will still have access to the funds in the

account indirectly. In such circumstances, it is necessary to

continue to freeze the particular account viz., Account

No.11343706468 as the NECH is now controlled by the

relatives and family members of the absconding convict

Changsan.

24. Taking note of the ground reality of the matter that

the absconding convict viz., Changsan still has access to the

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019 P a g e | 15

funds in the account indirectly, the second respondent has

passed the impugned order freezing the Account

No.11343706468. This Court finds no Infirmity In the order of

the second respondent freezing the Particular account of the

NECH and, in fact, the freezing order has been passed by the

second respondent in order to avoid diversion of funds by the

absconding convict and as such there is no ill-motive on the part

of the second respondent in freezing the account of the NECH.

25. As far as the Criminal Revision Petition is

concerned, the learned counsel for the petitioner contended

that the impugned order dated 30.3.2019 passed by the learned

Special Court is bad in the eyes of law and that the learned

Special Court has failed to take into consideration that when the

properties are in the name of NECH, how can it be presumed

that it is the property of the accused Changsan.

26. The learned counsel further submitted that unless

this Court set aside the order dated 30.3.2019 and further

proceedings of the learned Special Court against the properties,

it is likely to cause irreparable injury and damage to the NECH

as well as the vehicles of NECH have been seized and there is

no vehicle for transportation of the members of the NECH.

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019 P a g e | 16

27. In reply, the learned Public Prosecutor submitted

that though Changsan is no longer the Administrator, he still

maintains control over the NECH as the people who are running

the NECH today are all his family and relatives. He would

submit that the NECH is the brain child of the absconding

convict Changsan and no other local persons are involved in its

establishment and administration, therefore, it can be

concluded that the NECH belongs to the absconding convict.

28. The learned Public Prosecutor further submitted

that the learned Special Court, after analysing the materials

produced before it, has rightly ordered attachment of three

immovable properties and one homestead belonging to the

convict Changsang.

29. This Court considered the submissions of the

learned counsel for the petitioner and the learned Public

Prosecutor.

30. It appears that as per the order dated 25.2.2019,

the learned Special Court issued proclamation under Section

82 of Cr.P.C. as well as attachment of properties belonging to

Changsang. Pursuant to the order of the learned Special Court,

the Sub-Inspector of Police, WPS, CCP submitted a report for

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019 P a g e | 17

execution of the proclamation and also submitted photographs

of affixing the proclamation. It also appears that the

proclamation order was published in the daily newspapers

having wide circulation. Insofar as the attachment of properties

is concerned, the investigating Officer has submitted a report

dated 19.10.2018 in which the list of movable and immovable

properties belonging to the convict were also mentioned. In his

report, the Investigating officer has given three movable

properties and one homestead/ingkhol under patta

No.2208/2631 measuring an area of 0.945 acre. Thus, the

learned Special Court, directed the Officer-in-Charge of

Churachandpur to attach the aforesaid three movable

properties and submit a report and the District Collector,

Churachandpur is also directed to attach the aforesaid

immovable property and submit a report.

31. It is pertinent to note that as per the impugned

attachment order of the learned Special Court, the following

movable properties belonging to Changsan were seized by

observing formalities:

(i) Honda Activa / Registration No.MN02/7341

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019 P a g e | 18

(ii) TATA Sumo VICTA-ExB /Registration

No.MN02/8289

(iii) TATA STAR Bus B/ Registration

No.MN02B/0972

32. Since the order of the learned Special Court

impugned in the Criminal Revision Petition is based on the

materials produced before it, it cannot be said that the

impugned order is bad in the eyes of law. The fact remains that

if the order of the learned Special Court impugned in the

Criminal Revision Petition is reviewed and the seized movables

and immovable properties are released, then the proclaimed

absconder viz., Timothy Lalhmunmawi Changsan will not

surrender himself and he will continue to abscond as his

business is thriving and he will enjoy the income of the Children

Home from his place of hiding. In such view of the matter, this

Court finds that there is no merit in the Criminal Revision

Petition and the same is liable to be dismissed.

33. As stated supra, the NECH was started by the

convict Changsang and he was administering the same and

now his family members alone are running the Home and no

outsiders are in the administration of the home. Further,

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019 P a g e | 19

contrary to the objects of the creation of the Home, the relatives

of the convict are staying in the home, which is earmarked only

for the purpose of the Children Home. Though the bank

accounts and the attached properties are stood in the name of

the NECH, the present Administrator is the relative of the

convict Changsang. Since the NECH is run from the funds

donated by the public in India and the foreign countries and is

not run by the individual fund of the convict, in the interest of the

children staying in the NECH, the NECH should be taken over

by the Government and run through the Social Welfare

Department of the State. That apart, since the present

Administrator and Trustees are relatives of the convict

Changsang, it would be appropriate to take over the NECH by

the Government and appoint an independent Administrator and

other office bearers in accordance with law.

34. In the result,

(a) The Writ Petition No.622 of 2018 is

dismissed.

(b) The Criminal Revision Petition No.6 of 2019

is dismissed.

(c) M.C.No.184 of 2019 is closed.

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019 P a g e | 20

(d) The sixth respondent in the Writ Petition,

namely, the Principal Secretary, Home

Department, State of Manipur, is directed to

take the custody of the North Eastern

Children Home (NECH), Rengkai Village,

Churachandpur and the children staying in

it immediately and run the same as

Government Children Home through the

Social Welfare Department, Government of

Manipur.

(e) The Principal Secretary, Home Department,

is directed to submit a, compliance report

before this Court on 19.04.2021.

(f) The Principal Secretary, Home Department,

Government of Manipur and the Social

Welfare Department, Government of

Manipur are also hereby directed to submit

a periodical report before this Court qua

running of the Home and the welfare of the

children once in six months.

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019 P a g e | 21

35. Registry is directed to post this matter on

19.04.2021 for reporting compliance.

36. Registry is directed to issue copy of this order to

both the parties through their WhatsApp/e-mail.

JUDGE

FR/NFR

Sushil

W.P.(C) No. 622 of 2018 and Criminal Revision Petition No. 6 of 2019