Manipur High Court
Central Bureau Of Investigation ... vs Konjengbam Ongbi Mangsatabam ... on 18 January, 2022
Digitally
LHAINE signed by
LHAINEICHO IN THE HIGH COURT OF MANIPUR
ICHON NG HAOKIP
G Date:
2022.01.18
AT IMPHAL
HAOKIP 16:20:03
+05'30'
Cril. Rev. Petn. No. 14 of 2021
Central Bureau of Investigation (CBI), represented by its Head of
Branch (HOB), Anti-Crime Branch (ACB), Imphal, P.O. & P.S.
Lamphel, Imphal West District, Manipur- 795004.
... Petitioner
-Versus -
1. Konjengbam Ongbi Mangsatabam Ningol Chandani Devi w/o
Konjengbam Ibothem Singh of Sagolband Meino Leirak, P.O. &
P.S. Imphal, Imphal West District, Manipur.
2. Wahengbam Bonomali Singh, aged about 64 years, S/o (L) W.
Chandrahas Singh, a resident of Nongmeibung Wangkheirakpam
Leikai, P.O.& P.S. Porompat, Imphal East District, Manipur.
3. Wairokpam Rita Devi aged about 59 years, w/o (Late) Wairokpam
Naba Singh of Pungdongbam Makha Leikai, P.O. Lamlong & P.S.
Lamlai, Imphal East District, Manipur.
......../Respondents.
B E F O R E
HON'BLEMR. JUSTICE AHANTHE MBIMOL SINGH
For the Petitioner : Mr. W. Darakishwore, Sr.
Panel Counsel.
For the respondents : Mr. K. Pradip, Adv. & Mr.
Tolpishak, Adv.
Date of Hearing : 21.12.2021.
Date of Order : 18.01.2022
Cril. Rev. Petn. No. 14 of 2021 Page 1
ORDER
[1] Heard Mr. W. Darakishwor, learned senior panel counsel appearing
for the petitioner, Mr. K. Pradip, learned counsel appearing for the
respondent No. 1 and Mr. Th. Tolpishak, learned counsel appearing for the
respondents No. 2 & 3.
The present revision petition has been filed under Section 397
read with Section 401 of the Cr.P.C with a prayer for setting aside the
impugned common Zima order dated 29.04.2021 passed by the learned
Special Judge, (P.C. Act), Imphal West, Manipur in Cril. Misc. (Z) Case No.
7 of 2020, Cril. Misc. (Z) Case No. 1 of 2021 and Cril. Misc. (Z) Case No. 5
of 2021.
[2] The facts of the present case in a nutshell are that on receiving
reliable information, the petitioner (CBI) registered a case bearing No. R.C.
0212020A0003 or R.C. 3(A) 2020CBI/ACB/Imphal u/s 13(2) r/w 13(1)(b) of
the P.C.Act, 1988 (as amended) against one accused person, viz,
KonjengbamIbothem Singh for possessing assets both moveable and non-
moveable disproportionate to his known source of income. Thereafter, on
23.10.2020, the petitioner (CBI) conducted a search operation at the house
of the said accused person and seized a large number of documents and
articles by preparing a search-cum-seizure memo and kept the seized
properties in their custody.
[3] The three respondents in the present revision petition filed three
separate application registered as Cril.Misc.(Z) Case No. 7 of 2020, Cril.
Cril. Rev. Petn. No. 14 of 2021 Page 2
Misc. (Z) Case No. 1 of 2021 and Cril. Misc. (Z) Case No. 5 of 2021 in the
Court of the Special Judge (P.C. Act), Imphal West,with a prayer for
granting to them interim custody of some of the seized properties which
belongs to them on Zima. The said three Zima applications were allowed
by the learned Special Judge (P.C. Act), Imphal West by directing the CBI
to release in favour of the present respondents some of the seized
properties which belongs to them under certain conditions as mentioned in
the said order.
Feeling aggrieved, the petitioner filed the present revision
petition assailing the said Zima order dated 29.04.2021 passed by the
learned Special Judge (P.C Act), Imphal West, with a prayer for setting
aside the impugned order.
[4] At the outset, Mr. K. Pradip and Mr. Th. Tolpishak, learned counsel
appearing for the respondents raised a preliminary issue regarding the
maintainability of the present revision petition on the ground that the CBI
seized or confiscated the documents and articles including money and gold
ornaments from the accused person illegally without following due process
of law provided under Section 18 A of the Prevention of Corruption Act,
1988 (hereinafter referred to as P.C. Act for short) read with Section 3 and
4 of the Criminal Law Amendment Ordinance 1944 (hereinafter referred to
as Cril. Ordinance for short) and as such, the CBI has no locus standi to
object to the Zima application filed by the respondents or to file the present
revision petition challenging the impugned Zima order passed by the
Cril. Rev. Petn. No. 14 of 2021 Page 3
learned Special Judge (P.C. Act), Imphal East. The counsel for the
respondents draw the attention of this Court to the provisions of Section 18
A of the P.C. Act and Section 3, 4 and Para 4-A of the Schedule to the Cril.
Ordinance which reads as under:
Section 18 A of the P.C. Act 1988:
"18A. Provision of Criminal Law Amendment Ordinance,
1944 to apply to attachment under this Act.-(1) Save as otherwise
provided under the Prevention of Money Laundering Act, 2002 (15 of
2003), the provisions of the Criminal Law Amendment Ordinance,
1944 (Ord. 38 of 1944) shall, as far as many be, apply to the
attachment, administration of attached property and execution of
order of attachment or confiscation of money or property procured by
means of an offence under this Act.
(2) For the purpose of this Act, the provisions of the Criminal
Law Amendment Ordinance, 1944 (Ord. 38 of 1944) shall have effect,
subject to the modification that the references to "District Judge" shall
be construed as references to "Special Judge."
Section 3 and 4 of the Cril. Ordinance:
" 3. Application for attachment of property. (1) Where the State
Government or, as the case may be, the Central Government, has
reason to believe that any person has committed (Whether after the
commencement of this Ordinance or not) any scheduled offence, the
State Government or, as the case may be, the Central Government
may, whether or not any Court has taken cognizance of the offence,
authorise the making of an application to the District Judge within the
local limits of whose jurisdiction the said person ordinarily resides or
carries on business, for the attachment, under this Ordinance of the
money or other property which the State Government or, as the case
may be, the Central Government believes the said person to have
procured by means of the offence, or if such money or property cannot
for any reason be attached, or other property of the said person of
value as nearly as may be equivalent to that of the aforesaid money or
other property.
(2) The provisions of Order XXVII of the First Schedule to the Code of
Civil Procedure, 1908, shall apply to proceedings for an order of
attachment under this Ordinance as they apply to suits by the
Government.
(3) An application under sub-section (1) shall be accompanied by one
or more affidavit, stating the grounds on which the belief that the said
person has committed any scheduled offence is founded, and the
Cril. Rev. Petn. No. 14 of 2021 Page 4
amount of money or value of other property believed to have been
procured by means of the offence. The application shall also furnish?
(a) any information available as to the location for the time being of
any such money or other property, and shall, if necessary, give
particulars, including the estimated value, of other property of the said
person;
(b) the names and addresses of any other persons believed to have
or to be likely to claim, any interest or title in the property of the said
person.
"4. Ad interim attachment. (1) Upon receipt of an
application under Section 3, the District Judge shall, unless for reasons
to be recorded in writing he is of the opinion that there exist no prima
facie grounds for believing that the person in respect of whom the
application is made has committed any scheduled offence or that he
has procured thereby any money or other property, pass without delay
an ad interim order attaching the money or other property alleged to
have been so procured, or if it transpires that such money or other
property is not available for attachment, such other property of the said
person of equivalent value as the District Judge may think fit:
Provided that the District Judge may if he thinks fit before passing such
order, and shall before refusing to pass such order, examine the
person or persons making the affidavit accompanying the application.
(2) At the same time as he passes an order under sub-section (1), the
District Judge shall issue to the person whose money or other property
is being attached, a notice, accompanied by copies of the order, the
application and affidavits and of the evidence, if any, recorded, calling
upon him to show cause on a date to be specified in the notice why the
order of attachment should not be made absolute.
(3) The District Judge shall also issue, accompanied by copies of the
documents accompanying the notice under sub-section (2), to all
persons represented to him as having or being likely to claim, any
interest or title in the property of the person to whom notice is issued
under the said sub-section calling upon each such person to appear on
the same date as specified in the notice under the said sub-section
and make objection if she so desires to the attachment of the property
or any portion thereof on the ground that he has an interest in such
property or portion thereof.
(4) Any person claiming an interest in the attached property or any
portion thereof may, notwithstanding that no notice has been served
upon him under this section, make an objection as aforesaid to the
District Judge at any time before an order is passed under sub-section
(1) or sub-section (3) as the case may be, of Section 5."
Cril. Rev. Petn. No. 14 of 2021 Page 5
"THE SCHEDULE"
Offences in connection with which property is liable to be attached
................
"4-A. An offence punishable under the Prevention of Corruption
Act, 1988."
[5] By relying on the aforesaid provision of law, the learned counsel
appearing for the respondents submitted that under Section 18 A of the
P.C. Act, it is provided, inter-alia, that the provisions of the Cril. Ordinance
shall apply to the attachment or confiscation of money or property procured
by means of an offence under the P.C. Act and that under Section 3 and 4
of the Cril. Ordinance, the procedure for attachment or confiscation of
property of an offence under the P.C. Act are provided. The learned
counsel also submitted that the petitioner (CBI) did not follow the procedure
prescribe under the said Cril. Ordinance at the time of attachment or
seizure of the property of the accused person and as such, the said seizure
of the property is illegal and accordingly, the CBI has no locus standi to
object to the granting of custody of the seized properties to the
respondents on Zima or to file the present criminal revision for setting aside
the Zima order passed by the learned Special Judge (P.C. Act), Imphal
East.
In support of his contentions, the learned counsel relied on the
judgment of the Hon'ble Apex Court in the case of "Ratan Babulal Lath
Vs. State of Karnataka" reported in 2021 (3) Crimes 339 (S.C.) wherein, it
Cril. Rev. Petn. No. 14 of 2021 Page 6
has been held that it is not possible to sustain freezing of Bank Account of
the appellant taking recourse to Section 102 Cr.P.C. for an alleged offence
under P.C. Act as thePrevention of Corruption Act is a code by itself and
freezing of the account of the appellant cannot be sustained and it was
accordingly set aside.
[6] Mr. W. Darakishwor, learned senior panel counsel appearing for the
petitioner submitted that under Section 102 Cr.P.C., any Police Officer is
empowered to seize and kept it under custody any property which may be
alleged or suspected to have been stolen or which may be found under
circumstances which creates suspicion of the commission of any offences
including offences under the Prevention of Corruption Act, 1988. The
learned counsel further submitted that the petitioner (CBI) can seize and
kept it in their custody the property of the accused person for committing
the alleged offences under the P.C. Act in exercise of the power under
Section 102 Cr.P.C. and thereafter to attach the same under Section 18 A
of the P.C. Act if required.
In support of his contentions, the learned counsel relied on the
following judgment of the Hon'ble Apex Court:-
(a) "State of Maharashtra Vs. Tapas D. Neogy"
reported in (1999) 7SCC 685:
"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
Cril. Rev. Petn. No. 14 of 2021 Page 7
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 that bank account of the accused
or any of his relation 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 offence for which the
police officer is investigating into. The contrary view expressed by
the Karnataka, Gauhati and Allahabd High Courts, does not
represent the correct law. It may also be seen than under the
prevention of Corruption Act, 1988, in the matter of imposition of
the 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 of the value of the property which the
accused person has obtained by committing the offence or where
the conviction if 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 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 accounts, and so, we do
not interfere with the same."
(b) "Teesta Atul Setalvad Vs. State of Gujarat" reported
in (2018) 2 SCC 372 :
"17. The sweep and applicability of Section 102 of the code of
is no more res integra. That question has been directly considered
and answered in State of Maharashtra v. Tapas D. Neogy. The Court
examined the question whether the police officer investigating any
offence can issue prohibitory orders in respect of bank accounts in
exercise of power under Section 102 of the Code. The High Court, in
that case, after analysing the provisions of Section 102 of the code
had opined that bank account ofthe accused or of any relation of the
Cril. Rev. Petn. No. 14 of 2021 Page 8
accused cannot be held to be "property" within the meaning of
Section 102 of the Code. Therefore, the investigating officer will have
no power to seize bank accounts or to issue any prohibitory order
prohibiting the operation of the bank account. This Court noted that
there were conflicting decisions of different High Courts on this aspect
and as the question was seminal, it chose to answer the same. In
para 6, this Court noted thus: (SCC p. 691)
"6. A plain reading of sub-section (1) of Section 102
indicates that the police officer has the power to seize any
property which may be found under circumstances creating
suspicion of the commission of any offence. The legislature having
used the expression "any property" and "any offence" have made
the applicability of the provisions wide enough to cover offences
created under any Act. But the two preconditions for applicability
of Section 102(1) are that it must be "property" and secondly, in
respect of the said property there must have been suspicion of
commission of any offence. In this view of the matter the two
further questions that arise for consideration are whether the bank
account of an accused or of his relation can be said to be
"property" within the meaning of sub-section (1) of Section 102
CrPC and secondly, whether circumstances exist, creating
suspicion of commission of any offence in relation to the same."
"18. After analysing the decisions of different High Courts, this
Court in para 12, expounded the legal position thus: (SCC pp. 694-95)
"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 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 that bank account of the accused or any of his relation 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 offence for which the police officer is
investigating into. The contrary view expressed by the Karnataka,
Cril. Rev. Petn. No. 14 of 2021 Page 9
Gauhati and Allahabd High Courts, does not represent the correct
law. It may also be seen than under the prevention of Corruption
Act, 1988, in the matter of imposition of the 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
of the value of the property which the accused person has
obtained by committing the offence or where the conviction if 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 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 accounts, and so, we do not interfere with the same.
After this decision, 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."
[7] It has also been submitted by the learned counsel appearing for the
petitioner that the judgment of the Hon'ble Apex Court in the case of
"Ratan Babulal Lath's" (Supra), relied on by the counsel for the
respondent, had been passed without considering the earlier judgments of
the Hon'ble Apex Court in the cases of "Tapas D. Neogy" (Supra) and
"Teesta Atul Setalval" (Supra) and as such, the said judgment had been
passed par incuraim and it has no binding or precedential value. The
learned counsel, accordingly, submitted that the preliminary objection
raised by the counsel for the respondents has no merit and the same
deserves to be rejected outright.
Cril. Rev. Petn. No. 14 of 2021 Page 10
In support of his contentions, the learned counsel relied on the
judgment of the Hon'ble Supreme Court rendered in the case "State of
Assam Vs. Ripa Sharma" reported in (2013) 3 SCC 63 wherein, it has
been held that judgment rendered in ignorance of earlier judgment of
Benches of Co-equal strength would render the same par incuriam and that
such judgments cannot be elevated to the status of precedent.
[8] On careful examination of the provisions of Section 18 A and Section
29 (c) (iii) of the P.C. Act as well as the provisions of the Criminal Law
Amendment Ordinance, 1944, it is crystal clear that for attachment,
administration of attached property execution of order of attachment or
confiscation of money or property procured by means of an offence under
the Prevention of Corruption Act, 1988, the procedure prescribe under the
provisions of the Criminal Law Amendment Ordinance, 1944 shall apply
and the P.C. Act being a complete code and a Special Act will naturally
exclude the application of Section 102 Cr.P.C. in the matter of attachment
or seizure of property relating to offence committed under the P.C. Act,
1988. The resultant conclusion is that if any property is to be attached or
seized in connection with the allegation of committing offence under the
P.C. Act, such attachment or seizure of the property is to be carried out in
terms of the provisions under the Criminal Law Amendment Ordinance,
1944 and not under the provisions of Section 102 Cr.P.C. If the authorities
attached or seized any such properties in connection with offences under
Cril. Rev. Petn. No. 14 of 2021 Page 11
the P.C. Act taking recourse to Section 102 Cr.P.C., such attachment or
seizure is not sustainable as held by the Hon'ble Supreme Court in the
case of "Ratan Babulal Lath" (Supra).
[9] So far as the judgments of the Hon'ble Apex Court in the cases of
"Tapas D. Neogy" and "Teesta Atul Setalvad" (Supra) relied on by the
counsel for the petitioner is concerned, it is to be pointed out that the
aforesaid two judgments were passed on 16.09.1999 and 15.12.2017
respectively before the amendment of the P.C. Act, 1988. The provisions of
Section 18 A of the P.C. Act, 1988 were incorporated in the PC Act w.e.f.
26.07.2018 only and as such, the principle laid down by the Hon'ble Apex
Court in the aforesaid two judgments relied on by the counsel for the
respondents, which were decided much earlier to the aforesaid amendment
will have no application in the facts and circumstances of the present case.
[10] The counsel for the petitioner did not controvert or deny the
contentions made on behalf of the respondents that the properties of the
respondents have been seized without following the provisions laid down
under the Criminal Law Amendment Ordinance, 1944. Accordingly, the
seizure of the properties of the respondents are not sustainable. In view of
the above and for the reasons given hereinabove, this Court finds force in
the preliminary objection raised on behalf of the respondents that the
petitioner (CBI) has no locus standi to file the present revision petition.
Cril. Rev. Petn. No. 14 of 2021 Page 12
In the result, the present criminal revision petition is hereby
dismissed as not maintainable, however, without costs.
JUDGE
FR/NFR
Lhaineichong
Cril. Rev. Petn. No. 14 of 2021 Page 13
