Orissa High Court
Maa Kuanri Transport & Others vs State Of Orissa & Others on 4 June, 2021
HIGH COURT OF ORISSA : CUTTACK
CRLMP Nos.164,165.166.167 & 168 of 2018
An application under Article 226 of the Constitution of India;
CRLMP No.164 of 2018
Maa Kuanri Transport & others ....... Petitioners
Versus
State of Orissa & others ..... Opposite parties
For petitioners : Mr. Dharanidhar Nayak, Sr. Advocate
& H.S.Mishra, Advocate.
For Opp.parties: Mr. Dillip Kumar Mishra,
Additional Government Advocate.
Mr. M.K.Das,T.K. Harichandan &
N.K.Das. (opp.party no.6)
CRLMP No.165 of 2018
Jagat Janani Services ....... Petitioner
Versus
State of Orissa & others ..... Opposite parties
For petitioner : Mr. Dharanidhar Nayak, Sr. Advocate
& H.S.Mishra, Advocate.
For Opp.parties: Mr. Dillip Kumar Mishra,
Additional Government Advocate.
Mr. M.K.Das,T.K. Harichandan &
N.K.Das. (opp.party no.6)
CRLMP No.166 of 2018
Chaturbhuja Development Committee ....... Petitioner
Versus
State of Orissa & others ..... Opposite parties
2
For petitioner : Mr.H.S. Mishra, Advocate
For Opp.parties: Mr. Dillip Kumar Mishra,
Addl. Government Advocate.
Mr. M.K.Das,T.K. Harichandan &
N.K.Das. (opp.party no.6)
CRLMP No.167 of 2018
Sanatan Mahakud ....... Petitioner
Versus
State of Orissa & others ..... Opposite parties
For petitioner : Mr.H.S. Mishra, Advocate
For Opp.parties: Mr. Dillip Kumar Mishra,
Addl. Government Advocate.
Mr. M.K.Das,T.K. Harichandan &
N.K.Das. (opp.party no.6)
CRLMP No.168 of 2018
Jagat Janani Services ....... Petitioner
Versus
State of Orissa & others ..... Opposite parties
For petitioner : Mr.H.S. Mishra, Advocate
For Opp.parties: Mr. Dillip Kumar Mishra,
Addl. Government Advocate.
Mr. M.K.Das,T.K. Harichandan &
N.K.Das. (opp.party no.6)
JUDGEMENT
PRESENT :
THE HON'BLE MR. JUSTICE P.PATNAIK
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Date of Hearing : 15.04.2021 Date of judgment: 04.06.2021
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P.PATNAIK, J. : The aforesaid petitions have been filed for quashing of the
order passed by opposite party no.6 in freezing the Bank Account
No.200010334681 of Maa Kuanri Transport, Unchabali, A/C
No.200010298866 of Jagat Janani Services Private Ltd.,Nambira,
A/C.No.200010263648 of Chaturbhuj Development Committee,
Balda, A/C No.100022799033, personal Account of Sri Sanatan
Mahakud and A/C No.200010352623 of Jagat Janani Services,
Nambira and the petitioners have also sought for quashing of the
intimation issued by the Bank authority to the petitioners' firm with
regard to freezing of the accounts on the instruction received from the
Investigating Officer, Sadar P.S., Keonjhar. Since all the aforesaid
matters have arisen out of Keonjhar P.S.Case No.12 dated
12.01.2018, the cases have been heard analogously and are being
disposed by common order/judgment.
2. The petitioner in CRLMP No.164 of 2018 has inter alia
sought for quashing of the order under Annexures-2 & 4 issued by
opposite party No.6 with further direction to issue a writ of
mandamus to opposite party no.6 to allow the petitioner to operate
the Bank Account bearing No. 200010263648. Further prayer has
been made for direction to opposite party Nos.4,5 & 6 to produce the
order of the Police to the Bank-opposite party no.6 and for quashing
of the said order.
3. The petitioner in CRLMP No.165 of 2018 has inter alia
sought for quashing of the order under Annexures-1 & 3 issued by
opposite party No.6 with further direction to issue a writ of
mandamus to opposite party no.6 to allow the petitioner to operate
the Bank Account bearing No. 200010352623. Further prayer has
been made for direction to opposite party Nos.4,5 & 6 to produce the
order of the Police to the Bank-opposite party no.6 and for quashing
of the said order.
The petitioner in CRLMP No.166 of 2018 has inter alia
sought for quashing of the order under Annexures-2 & 4 issued by
opposite party No.6 with further direction to issue a writ of
mandamus to opposite party no.6 to allow the petitioner to operate
the Bank Account bearing No. 200010263648. Further prayer has
been made for direction to opposite party Nos.4,5 & 6 to produce the
order of the Police to the Bank-opposite party no.6 and for quashing
of the said order.
The petitioner in CRLMP No.167 of 2018 has inter alia
sought for quashing of the order under Annexures-1 & 3 issued by
opposite party No.6 with further direction to issue a writ of
mandamus to opposite party no.6 to allow the petitioner to operate
the Bank Account bearing No. 100022799033. Further prayer has
been made for direction to opposite party Nos.4,5 & 6 to produce the
order of the Police to the Bank-opposite party no.6 and for quashing
of the said order.
The petitioner in CRLMP No.168 of 2018 has inter alia
sought for quashing of the order under Annexures-2 & 4 issued by
opposite party No.6 with further direction to issue a writ of
mandamus to opposite party no.6 to allow the petitioner to operate
the Bank Account bearing No. 200010298866. Further prayer has
been made for direction to opposite party Nos.4,5 & 6 to produce the
order of the Police to the Bank-opposite party no.6 and for quashing
of the said order.
4. The reasons for freezing of the aforesaid Bank Account is
based on Keonjhar Sadar P.S.Case No.12 dated 12.01.2018 which
has been registered under sections 143, 148, 341, 283, 294, 506/149
of the Indian Penal Code and Section 7 of the Criminal Law
Amendment Act, 2013. The allegation as has been projected in the
F.I.R. lodged on 12.01.2018 is that at about 1.45 P.M., the
complainant, Inspector S.Pradhan, I.I.C., Sadar Police Station,
Keonjhar drew up a plain paper F.I.R. on N.H.20 near Silisuan to the
effect that on the said date at about 1.15 P.M. getting information
regarding congregation of huge numbers of supporters of Sana Sena
near Railway over bridge at Silisuan, she had been to the spot along
with other police staff and found more than 2000 people congregating
at the place being armed with lathi and giving provocating slogans
against police administration demanding abolishment of Toll Plaza
from Banajodi under the leadership of Sudhir Kumar Nanda alias
Raja of Nuagarh of Keonjhar and others along with 18 number of
leaders. When the complainant along with police staff tried to
intervene, they threatened them with dire consequence and they used
to give slogans like Sana Sena Jindabad, Police Prasasana Murdabad
etc. and continued their road blockage. They also blocked the road on
the same issue on 11.12.2017 and 05.01.2018. Due to road block,
the impression and suspicion has been created that they had been
hired for money to continue prolonged agitational activities. She got a
reliable information that huge amount of cash from IndusInd Bank,
Joda will be delivered to the leaders for distribution amongst the
agitators for continuance of agitation. On the basis of the aforesaid
F.I.R. Keonjhar P.S.Case No.12 dated 12.01.2018 has been
registered under sections 143, 148, 341,283, 294, 506/149 of the
Indian Penal Code read with Section 7 of Crl. Law Amendment Act,
2013.
As a sequel of the aforesaid F.I.R., the opposite party no.6
issued letters dated 23.01.2018 and 31.01.2018 to the petitioner for
total freezing of different accounts in the name of petitioner, which
are impugned in these applications.
5. Being aggrieved and dissatisfied with the freezing of
different accounts, the aforesaid applications have been filed for
redressal of grievances.
6. Mr.D.Nayak, learned senior counsel has strenuously
urged that there is absolutely no justification for freezing of the
aforesaid accounts since no reason has been assigned by the opposite
party no.6. Learned senior counsel further submitted that section
102 Cr.P.C. has not been scrupulously followed nor the same is
attracted since the account freezing does not have any direct nexus
with the alleged crime and the opposite party-State have failed to
produce the materials, reasons for freezing of the accounts. In
support of his contention, learned senior counsel for the petitioners
has referred 2012 Criminal Law Journal, Karnatak High Court
3487. 2017 Vol.(2) OLR 452.
7. Mr.H.S.Mishra, learned counsel for the petitioners
vehemently submitted that the petitioner Sri Sanatan Mahakud has
not been named in the F.I.R. and he received the notice under section
160 Cr.P.C. to appear before the I.O. On 20.01.2018 since he
sustained injury in spinal cord, the petitioner intimated the I.O.,
B.K.Mallick-opposite party No.5 that he would appear on a later date.
But due to the utter surprise and consternation he came to learn
that five accounts of Sanatan Mahakud or his firm or company have
been frozen. The learned counsel has referred to the decision reported
in 2009 Vol.(1) Crimes 489 (Orissa), Agrani Exports Pvt.Ltd.-vrs.-
State of Orissa, 2003 Cri.L.J. 1983 :: 2003 AIR Karnatak High
Court 995, S.Satyanarayana-vrs.-State of Karnataka, 1994
Crl.L.J. 645 M/s. Malnad Construction Company, Shimoga and
others -vrs.State of Karnatak and others. Learned counsel for the
petitioners further submitted that since the petitioner, Sri Sanatan
Mahakud resided outside the jurisdiction of Keonjhar Police Station,
notice under section 160 Cr.P.C. issued against any person not
within the limits of the Police Station is without jurisdiction as per
the decision in Sitaram Chayla Vrs.-Officer-in-charge,
Laxmisagar P.S. reported in (1999) 17 OCR 123. Further, it has
been contended by the learned counsel for the petitioners that the
petitioner Sri Sanatan Mahakud was a MLA of Champua Assembly
Constituency as independent candidate during the time of action
taken by the Police.
8. Per Contra, a counter affidavit has been filed by opposite
party nos.3 and 4 challenging the maintainability of the petition on
the ground that the petitioners ought to have approached the learned
magistrate by filing appropriate application. It has been further
averred in the counter affidavit that the allegation made in the F.I.R.
revealed that it was a preplanned and engineered move to paralise
the movement of vehicles and persons on the National High Ways
thereby harassing the public without any justifiable reason and in an
illegal and inhuman manner. On earlier occasion on 11.12.2017 and
05.01.2018 there was road blockage on the same issue at the
instigation of Sana Sena which group had been raised by Sri
Sanatan Mahakud, MLA, Champua. The activities of the agitators on
12.01.2018 strengthened the suspicion that they had been hired by
Sanatan Mahakud, MLA, Champua on payment of money to carry on
such demonstration. The complainant drew up plain paper F.I.R. at
the spot at 1.15 P.M. under sections 143, 148, 341, 283, 294,
506/149 of the Indian Penal Code read with Section 7 of Crl.Law
Amendment Act, 2013. Thereafter the opposite party no.4 got
information that the I.I.C., Champua Police Station has detained a
white colour Hoonda Santafe Car bearing registration No.OR 02 BV
8007 containing a tin box loaded with cash of different
denominations. During verification it was ascertained that cash of
Rs.50,00,000/- was transported by Branch Manager, IndusInd
Bank, Joda to hand over to Sanatan Mahakud at his Champua
Office. Manager, Manas Rout when questioned miserably failed to
explain the illegal transportation of huge sum of cash in a private
vehicle without any official authority or supporting documents. S.I.,
B.K.Mallik, Investigating Officer went to Champua and seized the
aforesaid cash along with other articles during investigation.
Mr.Manas Rout, Manager, IndusInd Bank, Joda admitted to have
been carrying the aforesaid cash from IndusInd Bank without any
document as per the direction of the MLA, who is having accounts in
their branch. Sanatan Mahakud was issued with notice on
16.01.2018 under section 160 Cr.P.C. to appear in person on
20.01.2018 at Keonjhar Sadar Police Station for his examination in
the case. On the same day, the I.O. issued a letter to the Branch
Manager, IndusInd Bank, Joda Branch to freeze the aforesaid
account operated by Sri Sanatan Mahakud in the said Bank i.e.
Account No.200010334681 in the name of Kuanri Transport, A/C
No.20001263648 in the name of Chhaturbhuj Development
Committee, A/C No.100022799033 in the name of Sanatan
Mahakud, Account No.200010352623 in the name of Jagat Janani
Services and Account No.200010298866 in the name of Jagat Janani
Service Ltd. It has been further stated in the counter affidavit that
instead of appearing in Keonjhar Sadar P.S. Case No.21 of 2018,
Advocate of Mr.Sanatan Mahakud produced a letter for extension of
time for his appearance before the Police and Sanatan Mahakud has
not appeared in the Police Station. From this it is presumed that
Sanatan Mahakud is deliberately avoiding to appear before the Police.
Further, in the counter affidavit, it has been submitted that all the
accounts have been frozen by the I.O., opposite party no.5 in
Keonjhar Sadar P.S.case No.12 of 2018 in exercise of power under
section 102 Cr.P.C. during the course of investigation as it was well
established that money in the account is directly linked in the
commission of the crime. It is further submitted that Bank accounts
of Mr. Sanatan Mahakud constitute property within the meaning of
Section 102 Cr.P.C. and Police Officer in course of investigation has
the power to freeze the said account if such assets are linked to the
commission of offence which the Police Officer is investigating into.
The decision rendered in the case of State of Maharastra-vrs.
Tapas D Neogy reported in 1999(7) SCC 685 and the decision of
the Hon'ble apex Court in the case of Teesta Atul Setalvad vrs.-The
State of Gujarat reported in 2018(2) SCC 372 have been referred
to.
9. A counter affidavit has also been filed by opposite party
no.6 stating therein that the opposite party no.6 being the Bank
Officer has no power to investigate into the authenticity than to carry
out the instruction of the I.O. and there is no illegality in carrying out
the instruction of the I.O. and the present case is not maintainable
against opposite party no.6 which may be dismissed against opposite
party no.6.
10. A rejoinder affidavit to the counter affidavit filed by
opposite party Nos. 3 and 4 has been filed stating therein that a
fabricated story has been designed to fit the prosecution case. In fact
there is no such organization called "Sana Sena" in the district of
Keonjhar. Moreover, Mr.Sanatan Mahakud is the MLA of Champua
and Keonjhar Sadar Police Station is not within the Champua
Assembly Constituency. Road Blockage by the local residents to
abolish the Toll Plaza at Banajodi has no relation with the petitioner
nor the alleged cash seized by them has any connection with the
petitioners. It has been further submitted that due to arbitrary action
of opposite party Nos. 3 and 4 the personal liberty of Mr.Sanatan
Mahakud and his family members has been infringed. The F.I.R.
registered has no connection with the freezing of the accounts and
neither there is any material on record to show that the Police has
exercised power under section 102 Cr.P.C. nor in the facts of the
case, a case is made out even remotely to exercise power under
section 102 Cr.P.C. to freeze the accounts of the petitioners. The
Investigating Agency has not intimated the magistrate regarding
freezing of the accounts under section 102 Cr.P.C. In absence of any
intimation to the magistrate and intimation to the Account holder no
petition can be filed by the petitioners nor in absence of any
intimation of freezing the accounts the magistrate can entertain the
petition to release the amount. Hence, there is no alternative to the
petitioners.
11. Mr.Dilip Kumar Mishra, learned Additional Government
Advocate apart from reiterating the submissions made in the counter
affidavit has vociferously submitted that in view of the decision in the
case of Teesta Atul Setalvad (supra) the present application is not
maintainable. Learned counsel for the State submitted that even on
suspicion the Investigating Officer can freeze the account and the
I.O. gave notice under section 102 Cr.P.C. and the petitioners did not
appear. So far as Section 102 Cr.P.C. the same has been
scrupulously followed. Learned counsel for the State further
submitted that after completion of investigation, the petitioners can
approach the learned trial Court.
12. From the rival contentions, the issue which emerges for
determination is as to
(i) Whether the action of the opposite
parties in freezing different accounts of the
petitioners purportedly under section 102 Cr.P.C.
is legally permissible ?
(ii) whether relief sought for by the petitioners
invoking Article 226 of the Constitution of India for
quashing of the order for freezing of the accounts
can be entertained by this Court at the first
instance without approaching the learned
jurisdictional magistrate ?
13. In order to appreciate issue No.1, it would be apposite to
refer to section 102 Cr.P.C. which reads here as under:
"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
in such that it cannot be conveniently transported
to the Court or where there is difficulty in securing
proper accommodation for the custody of such
property, or where the continued retention of the
property in police custody may not be considered
necessary for the purpose of investigation, 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."
Provided that where the property seized
under sub section (1) is subject to speedy and
natural decay and if the person entitled to the
possession of such property is unknown or absent
and the value of such property is less than five
hundred rupees, it may forthwith be sold by
auction under the orders of Superintendent of
Police and the provisions of Sections 457 and 458
shall, as nearly as may be practicable, apply to the
net proceeds of such sale."
On reading of the aforesaid provisions, there is no doubt or
debate that a police officer can seize the property which may be
alleged or suspected to have been stolen or commission of the
offence. The Bank Accounts which have been seized pursuant to
Keonjhar Sadar P.S.Case No.12 of 12.01.2018 is sequel to the
complaint lodged by the I.I.C., Keonjhar Sadar P.S. and on the basis
of the complaint, the case has been registered under sections
143,148,341,283, 294,506/149 of the Indian Penal Code read with
Section 7 of Criminal Law Amendment Act, 2013.
Now, the question arises as to whether the action of the
opposite parties in freezing different bank accounts of Mr.Sanatan
Mahakud is in compliance to Section 102 Cr.P.C. In support of his
contention, learned counsel for the petitioners has referred to
2009(1) Crimes 489 (Orissa), Agrani Exports Pvt.Ltd.-vrs.-State of
Orissa wherein this Court has been pleased to hold that
"Section 102-Investigating Officer got operation of
loan account of the petitioner company stopped-
Question whether action under section 102 Cr.P.C.
could be taken against the petitioner company by
freezing its loan account though neither the
Company nor its directors were accused in criminal
case being investigated by police-Police found that
FDR deposited as security for loan had belonged to a
proprietary concern against whom criminal case was
being investigated-Nothing on record to show that
said loan account had a direct nexus with alleged to
have been committed by proprietary concerned-
Investigating Officer could not have got account of
petitioner freezed and rather could have direct bank
authority not to get term deposit encashed-Action of
freezing loan account of petitioner company could
not be sustained."
Learned counsel for the petitioners has also referred the
decision reported in 2003 Cri.L.J.1983 :: 2003 AIR - KANT. H.C.
995: S.Sathyanarayana -vrs.-State of Karnataka wherein it has
been held that
"......Hence, the Police Officer has no authority
or power to seize the property when it is
neither suspected to be stolen nor found under
the circumstances creating any offence having
been committed unless discovery of a property
leads to a suspicion of offence having been
committed...."
Learned counsel for the petitioners has also referred the
decision reported in 1994 CRL.L.J. 645 :: 1993 (3) ALLCRILR 817
Karnataka High Court - M/s. Malnad Construction Company,
Shimoga and others-vrs.-State of Karnataka and others wherein
it has been held in para-16 that
"16. Xx xx xx
Thus a combined and careful reading of
Section 102(1) and (3) of the Code shows that
a Police Officer is not conferred with any
power to issue direction to Banks prohibiting
operation of accounts. Any action affecting
the rights of the person/citizens cannot be
sustained unless they are authorized by law.
Undoubtedly, issuing of a direction to Bank
prohibiting operation of accounts does not
fall within the powers of the Police Officers
acting under Section 102 of the Code."
14. Learned counsel for the State on the other hand has
referred to the decision reported in (2018) 2 Supreme Court Cases
372 (Teesta Atul Setalvad -vrs.-State of Gujarat where the
Hon'ble Apex Court has illuminatively discussed about the sweep
and applicability of Section 102 Cr.P.C. In the aforesaid decision, the
Hon'ble Apex Court has been pleased to hold in Paragraphs-
17,18,25,26, 27 & 28 as follows:
"17. The sweep and applicability of Section 102 of
the Code 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 analyzing the provisions of
Section 102 of the Code had opined that bank
account of the accused or of any relation of the
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 Cr.P.C. and secondly, whether
circumstances exist, creating suspicion of
commission of any offence in relation to the same.
"18. After analyzing 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 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......... 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."
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."
"25. Suffice it to observe that as the investigating officer
was in possession of materials pointing out
circumstances which create suspicion of the commission
of an offence, in particular, the one under investigation
and he having exercised powers under section 102 of the
Code, which he could, in law, therefore, could legitimately
seize the bank accounts of the appellants after following
the procedure prescribed in sub-section (2) and sub-
section (3) of the same provision. As aforementioned, the
investigating officer after issuing instructions to seize the
stated bank accounts of the appellants submitted report
to the Magistrate concerned and thus complied with the
requirement of sub-section (3).
26. Although both sides have adverted to statement of
accounts and vouchers to buttress their respective
submissions we do not deem it necessary nor think it
appropriate to analyze the same while considering the
matter on hand which emanates from an application
preferred by the appellants to defreeze the stated bank
accounts pending investigation of the case. Indisputably,
the investigation is still in progress. The appellants will
have to explain their position to the investigating agency
and after investigation is complete, the matter can
proceed further depending on the material gathered
during the investigation. The suspicion entertained by the
investigating agency as to how the appellants
appropriated huge funds, which in fact were meant to be
disbursed to the unfortunate victims of 2002 riots will
have to be explained by the appellants. Further, once the
investigation is complete and police report is submitted to
the court concerned, it would be open to the appellants to
apply for defreezing of the bank accounts and persuade
the court concerned that the said bank accounts are no
more necessary for the purpose of investigation, as
provided in sub-section (3) of Section 102 of the Code. It
will be open to the court concerned to consider that
request in accordance with law after hearing the
investigating agency including to impose conditions as
may be warranted in the fact situation of the case.
27. In our opinion, such a course would meet the ends
of justice. We say so also because the explanation offered
by the appellants in respect of the discrepancies in the
accounts, pointed out by the respondents, will be a
matter of defence of the appellants.
28. We clarify that at an appropriate stage or upon
completion of the investigation, if the investigating officer
is satisfied with the explanation offered by the appellants
and is of the opinion that continuance of the seizure of
the stated bank accounts or any one of them is not
necessary, he will be well advised to issue instruction in
that behalf."
On cumulative effect of the aforesaid factual and legal
aspect this Court is of the considered view that the opposite parties
have invoked the provisions under section 102 of the Code of
Criminal Procedure after lodging of the F.I.R. and institution of the
criminal cases which is legally permissible.
15. Section 102, Cr.P.C. (Code of Criminal Procedure, 1973)
indubitably empowers any police officer to seize the properties which
have got any nexus or co-relation with the commission of any offence.
In the instant case, on the lodging of the F.I.R. by the IIC, Keonjhar
Sadar Police Station, a case has been registered under Sections 143,
148, 341,283, 294, 506/149 of the Indian Penal Code read with
Section 7 of Crl.Law Amendment Act, 2013. Therefore, it can be
gainsaid that invoking section 102, Cr.P.C. by the opposite party
no.4 is not bereft of any jurisdiction nor the scope, ambit and
applicability of Section 102, Cr.P.C. is any more res integra.
16. After institution of the criminal case, the petitioner, Sri
Sanatan Mahakud was issued with notice under Section 160, Cr.P.C.
to appear in person on 20.01.2018 at Keonjhar Sadar Police Station
for his examination. But Sri Sanatan Mahakud did not appear before
the police on the ground of his ailment. As has been disclosed from
the averments in the counter affidavit filed by opposite party nos.3
and 4 that Sri Sanatan Mahakud did not appear before the police
station at least till filing of the counter affidavit. Though Sri Sanatan
Mahakud has not been specifically named in the F.I.R. as an
accused, but the complicity of Mr.Sanatan Mahakud has been well
proved during investigation as stated in the counter affidavit. Law is
well settled that F.I.R. is an encyclopedia of the fact and details of the
crime are unearthed and unraveled during the course of
investigation.
17. In order to dilate the rival contentions, it would be
appropriate to refer to Section 160 of the Code of Criminal
Procedure,1973 which reads as follows :
"160. Police officer's power to require
attendance of witnesses -(1) Any police officer
making an investigation under this Chapter may,
by order in writing, require the attendance before
himself of any person being within the limits of
his own or any adjoining station who, from the
information given or otherwise, appears to the
acquainted with the facts and circumstances of
the case; and such person shall attend as so
required:
Provided that no male person under the
age of fifteen years or above the age of sixty-five
years or a woman or a mentally or physically
disabled person shall be required to attend at any
place other than the place in which such male
person or woman resides.
(2) The State Government may, by rules
made in this behalf, provide for the payment by
the police officer of the reasonable expenses of
every person, attending under sub-section (1) at
any place other than his residence."
18. On perusal of the aforesaid provision, the power of the
police officer to require attendance has been well delineated.
Therefore, the notice by the police to Sri Sanatan Mahakud with
regard to Keonjhar Sadar Police Station Case No.12 dated 12.01.2018
is in consonance with the aforesaid provision.
19. In respect of relief seeking defreezing of all the accounts
of Sri Sanatan Mahakud in the aforementioned applications, this
Court is of the considered view that the same is a sequel of the
registration of the alleged offence as stated in the foregoing
paragraphs. In pursuance of the lodging of F.I.R., the investigation
commenced, but despite notice under Section 160, Cr.P.C. Sri
Sanatan Mahakud did not appear on account of his ailment.
20. So far as issue No.2 is concerned, the petitioner Mr.
Sanatan Mahakud despite notice being issued under section 160 of
the Code has not appeared before the Investigating Officer to put
forth his stand. The petitioner is not precluded to raise his claim for
defreezing of the bank accounts after completion of investigation.
Therefore, in the fitness of things, the petitioners ought to have
approached the Investigating Officer for defreezing of the account or
else in the event the Investigating Officer fails to accede to the prayer
of the petitioner, it was open for the petitioners to have approached
the learned magistrate.
21. Considering the facts and circumstances in its entirety
and on cumulative appreciation of the decision of the Hon'ble Apex
Court in the case of Teesta Atul Setalvad (supra). While not
entertaining these applications, this Court is of the considered
opinion that it would be appropriate for petitioner to approach the
Investigating Officer or opposite party no.4 for defreezing of all the
accounts. In the event, relief sought for by the petitioners is not
acceded to either by the I.O. or by the opposite party no.4, it would be
open to the petitioners to approach the jurisdictional Magistrate by
filing appropriate application with same/ identical prayer. However,
it is made clear that this Court has not gone into the merits of the
case raised by the contesting parties in the aforesaid applications.
Resultantly, all the CRLMPs stand disposed of.
......................
P.Patnaik,J.
Orissa High Court, Cuttack
The 4th June,2021/R
