Afr Maa Kuanri Transport vs State Of Odisha
2022 Latest Caselaw 7180 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                     CRLREV No. 245 of 2022,
                     CRLREV No. 244 of 2022,
                     CRLREV No. 246 of 2022,
                    CRLREV No. 247 of 2022 &
                     CRLREV No. 248 of 2022

      Applications under Section 397 read with Section 399 of
      the Code of Criminal Procedure, 1973.
                          ---------------
      CRLREV No. 245 of 2022

AFR   Maa Kuanri Transport                  ......        Petitioner

                           -Versus-

      State of Odisha                       .......       Opp. Party

      CRLREV No. 244 of 2022

      Chaturbhuja Development Committee ......           Petitioner

                           -Versus-

      State of Odisha                       .......      Opp. Party

      CRLREV No. 246 of 2022

      Jagat Janani Services Pvt. Ltd.        ......      Petitioner

                           -Versus-

      State of Odisha                       .......       Opp. Party

      CRLREV No. 247 of 2022

      Sanatan Mahakud                        ......      Petitioner

                           -Versus-

      State of Odisha                       .......       Opp. Party

                                                    Page 1 of 21
       CRLREV No. 248 of 2022

      Jagatjanani Services                    ......        Petitioner

                              -Versus-

      State of Odisha                          .......       Opp. Party

      Advocate(s) appeared in these cases:-
      _______________________________________________________

        For Petitioners       :      M/s. Yasobant Das, Sr. Advocate
                                     With M/s. Rajiv Kumar Mahanta,
                                     S.K. Dwibedi & S. Hota,
                                     Advocates
                                     (for all the cases)

         For Opp. Party       : Mr. D.K. Mishra,
                                Addl. Government Advocate for
                                the State
      _______________________________________________________
      CORAM:
           JUSTICE SASHIKANTA MISHRA

                                  JUDGMENT

th 8 December, 2022

SASHIKANTA MISHRA, J.

The common order passed by learned

S.D.J.M., Keonjhar on 29.04.2022 in CMC No. 19 of 2022,

CMC No.20 of 2022, CMC No. 21 of 2022, CMC No. 22 of

2022 and CMC No. 23 of 2022 in rejecting the prayer of

the petitioners to defreeze their bank accounts is under

challenge in the present batch of revisions.

2. The facts and point of law being same in all

these petitions, they were heard together and are being

disposed of by this common judgment.

3. For convenience, the facts relating to CRLREV

No. 245 of 2022 are referred to.

The petitioner is a partnership firm

represented by its Managing Partner, Sanatan Mahakud.

The firm is engaged in transportation business and also

facilitates the transport vehicles and other specialized

vehicles engaged in mines and industries on receipt of

commission. The Managing Partner received a notice

under Section 160 of Cr.P.C. on 16.01.2018 from the S.I.

of Sadar Police Station, Keonjhar directing him to appear

in person in the Police Station on 20.01.2018 at 10 a.m.

for his examination in connection with Sadar P.S. Case

No. 12 dated 12.01.2018. Because of certain physical

ailments, he could not appear on the date fixed and

requested for grant of 20 days time. On the same day, the

IIC and S.I. of Sadar Police Station held a press

conference stating that they have freezed the bank

accounts of the firm and other accounts of the Managing

Partner. Some cheques were deposited before the

IndusInd Bank towards payment to truck owners but the

same were not received by the Branch Manager of the

bank on the ground that the accounts had been frozen as

per the instructions of the I.O. of the Sadar Police Station.

The petitioner requested the Branch Manager of IndusInd

Bank, Joda in a letter on 29.01.2018 to disclose the

particulars of the freezing of the accounts but the Branch

Manager by letter dated 31.01.2018 refused to share copy

of the communication basing on which the account was

frozen. The petitioner therefore, approached this Court in

CRLMP No.164 of 2018, wherein the IIC of Sadar Police

Station entered appearance and filed counter affidavit

stating that the account in question had been frozen in

connection with Keonjhar Sadar P.S. Case No. 12 dated

12.01.2018. The petitioner, on enquiry, came to know that

the IIC of Sadar Police Station had himself lodged an FIR

on 12.08.2018 stating that there was a huge congregation

near Railway over bridge at Silisuan of more than 2000

people, who were armed and were giving provocative

slogans against police and the administration demanding

abolition of Toll Plaza from Banajodi. The said protest was

led by one Sudhir Kumar Nanda @ Raja of Nuasahi,

Keonjhar along with 18 leaders. They were also said to be

supporters of an outfit called "Sana Sena". It was further

stated that the IIC received reliable information that the

protesters had been hired for the purpose and that huge

amount of money would be distributed among them. He

further stated to have received information that huge

amount of cash from IndusInd Bank, Joda would be

delivered to the leaders for distribution amongst the

agitators to continue the agitation. On such information,

the case was registered under Sections 143/148/

341/283/294/506/149 IPC and Section 7 of the Criminal

Law Amendment Act.

4. In the meantime, this Court by order dated

04.06.2021 disposed of the CRLMP filed by the petitioner

with the following directions.

".......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."

5. Pursuant to such order, the advocates

representing the Managing Partner appeared before the

IIC on 22.06.2021 and submitted documents and an

application to defreeze the Bank Accounts. The IIC

however, instructed them to comply with the notice under

Section 160 Cr.P.C.. Pursuant to such instruction, the

Managing Partner appeared before the IIC and filed

necessary documents but no action was taken in the

matter. As such, the petitioner approached the Court of

learned S.D.J.M., Keonjhar and filed a petition under

Section 457 of Cr.P.C. with prayer to defreeze the

accounts. Learned S.D.J.M. rejected the petitions on the

ground that as per the report submitted by the IIC, Sadar

Police Station, the bank accounts are required for the

purpose of investigation and that the petitioner also has a

link with the case. It was further held that the petitioner

has not yet produced relevant documents of his bank

account. As already stated, the aforesaid order of the

learned S.D.J.M., is impugned in the present revisions.

6. After filing of these Revision Petitions, this

Court, by order dated 06.09.2022 directed the petitioner

(Managing Partner) to appear before the IIC, Keonjhar

Sadar P.S. on 26.09.2022 for the purpose of interrogation

and to cooperate with the investigation. Pursuant to such

order, the petitioner appeared before the IIC on

26.09.2022 and produced certain documents like IT

Returns and Statement of Accounts etc. which were

seized. However, a notice dated 29.09.2022 under Section

91 Cr.P.C. was issued to the petitioner on the ground that

the relevant documents had not been produced. It is

alleged that he did not comply with such notice.

7. Heard Mr. Y. Das, learned Senior Counsel

with Mr. R.K. Mahanta, learned counsel for the petitioner

and Mr. D.K. Mishra, learned Additional Government

Advocate for the State.

8. Assailing the impugned order, Mr. Das,

learned Senior Counsel would argue that while Section

102 of Cr.P.C. empowers the Police to seize property

during investigation, such power is qualified by the

requirement that the concerned property must have some

nexus with the alleged offence being investigated.

According to Mr. Das, there is absolutely no nexus

between the petitioner's bank accounts and the alleged

offence. Even the name of the petitioner or the Managing

Partner does not figure in the FIR. A sum of Rs.50 lakhs

was being transported from IndusInd Bank from Joda to

Champua, which was seized and has since been released

in favour of the Bank by order passed by learned S.D.J.M.

Neither the FIR nor the investigation has revealed as to

how the said amount was linked to the alleged offence.

Even otherwise, the FIR was lodged entirely on suspicion

and speculation as there was no proof whatsoever of any

money having been paid or attempted to be paid to the

agitators by any person much less by the petitioner firm

or its Managing Partner. Mr. Das further contends that

the notices issued by the IIC requiring the Managing

Partner to produce relevant documents and to reveal the

source of money deposited in his bank accounts is entirely

without jurisdiction as police has no power to call for such

information. Summing up his arguments Mr. Das

contends that firstly, there is no nexus whatsoever

between the petitioner's bank accounts and the alleged

offence; secondly, police has no power to ask the

petitioner to reveal the source of money kept in the bank

accounts and thirdly, freezing of the bank accounts is in

direct violation of the fundamental right of the petitioner

guaranteed under Article 19(1)(g) of the Constitution on

India.

9. Per contra, Mr. D.K. Mishra, learned Addl.

Government Advocate has argued that the fact that Rs.50

lakh in cash was seized while being transported at the

relevant time, prima facie, proves the truth in the

prosecution allegation. Mr. Mishra further contends that

the agitators were supporters of the Managing Partner,

who is an influential person of the area and were made to

stage the protest on the temptation of payment of money.

Since investigation is still in progress, it is not possible to

finally arrive at an opinion as regards the nexus between

the bank accounts and the alleged offence. Mr. Mishra

also argues that the Managing Partner has not cooperated

with the investigation by not responding positively to the

notices issued by him. According to Mr. Mishra, if the

Managing Partner is innocent, he should have come

forward and disclosed the source of money kept in his

bank account more so, when the Deputy Branch Manager

of IndusInd Bank, Joda, namely, Abhisekh Sarkar has

stated in his statement under Section 164 of Cr.P.C. that

he was asked to take out cash of Rs.50 lakhs by the

bank's cashier by stating that the same was meant for

Sanatan Mahakud, M.L.A. of Champua (the managing

partner).

10. There is no dispute with regard to the power

of the Police to seize any property under Section 102 of

Cr.P.C. The question is, if such power is absolute and

unqualified. To answer this, it would be profitable to refer

to the provision itself, which is quoted hereinbelow;

"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 is such that it cannot be conveniently transported to the Court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same."

11. Thus, the Police Officer, in course of

investigation can seize any property 'if such property is

alleged to be stolen or is suspected to be stolen or is the

object of the crime under investigation or has direct link

with the commission of offence which is being investigated'.

Conversely, a property not falling under any of the

aforementioned categories cannot be seized. In the case of

M.T. Enrica Lexie and Anr. v. Doramma and Ors.,

reported in AIR 2012 SC 2134, the Apex Court held that

"a property not suspected for commission of the offence

which is being investigated into by the Police Office cannot

be seized". It has been argued at length by Mr. Das,

learned Senior Counsel that the FIR allegations pertain to

agitation by a group of persons demanding abolition of toll

plaza on the national highway and further that they were

being paid money for such purpose. The name of the

petitioner does not find place in the FIR. The petitioner or

the Managing Partner have not been named as accused

person in the case. The only material relied upon by the

prosecution in this regard is, seizure of cash of Rs.50

lakhs during its transportation from Joda to Champua.

There is no direct or indirect material to even remotely

suggest that the said money was meant to be distributed

among the agitators. In so far as the other accounts are

concerned, there is not a whisper of allegation that any

money from such accounts was either used or meant to be

distributed among the agitators. It has also been argued

that money standing in the accounts is duly accounted for

being reflected in the statutorily audited accounts as also

in the income tax returns, GST returns etc. Despite the

fact that investigation is yet to conclude, the prosecution

has not come up with any material showing a live nexus

between the money kept in the said bank accounts and

the alleged offences. If the FIR allegations are considered

objectively, it would reveal nothing but an apprehension

in the mind of the informant that the agitators were acting

on the temptation of being paid money.

12. For the forgoing discussion, this Court holds

that the power of police to seize the property under

Section 102 of Cr.P.C. is not absolute or unqualified to the

extent that such power can be exercised only in respect of

property alleged to be stolen or suspected to be stolen or

object of the crime under investigation or having direct

link with the commission of offence being investigated.

13. Another aspect that needs consideration in

this context is non-compliance of the mandatory provision

under Sub-Section (3) of Section 102 of Cr.P.C. It has

been argued by Mr. Das, learned Senior Counsel that as

per Sub-Section (3) of Section 102, the Police Officer

seizing the property is obliged to report such seizure to the

concerned Magistrate. In the instant case, such

requirement of the statute was not complied with

inasmuch as the fact of seizure of the bank accounts was

not reported to the Magistrate so as to allow him to give

custody thereof to any person. In the instant case, only

upon the petition under Section 457 Cr.P.C. being filed by

the petitioner, learned S.D.J.M. called for a report from

the I.O. regarding seizure whereupon it was intimated that

the same is required for the purpose of investigation. Mr.

Das has relied upon a decision of Chhatisgarh High Court

in the case of Shree Mahalaxmi Associates v. State of

Chhattisgarh, reported in AIR Online 2020 Chh 1211,

wherein it was held that the Magistrate in question could

not have rejected the prayer of the petitioner therein

without considering whether there was compliance of the

provisions contained in Sub-Section (3) of Section 102.

This Court is in respectful agreement with the above view

and further holds that from the use of the word 'shall' in

Sub-Section (3) it is evident that the police officer is

mandated to report the seizure of the property to the

Magistrate.

14. Reading of the impugned order further shows

that the learned S.D.J.M. has not considered the

aforementioned aspects at all much less the apparent

non-compliance of the requirement of Section 102(3) of

Cr.P.C. On the other hand, the report of the I.O. seems to

have been accepted mechanically. It is needless to say

that for a Magistrate exercising jurisdiction under Section

457 of Cr.P.C. application of judicial mind to the facts of

the case and the likely consequence of the order proposed

to be passed must be considered by him before actually

passing such order. Unfortunately, learned S.D.J.M.

appears to have dealt with the matter in a slipshod

manner without bothering to examine the pros and cons

involved therein. For the above reasons therefore, the

impugned order cannot be sustained in the eye of law.

15. Another aspect needs to be considered. It has

been brought on record by way of affidavits filed by the IIC

of Sadar P.S. that during pendency of the present cases, a

notice was issued to the petitioner on 29.09.2022

purportedly under Section 91 of Cr.P.C. calling upon him

to produce the documents relating to the frozen bank

accounts. He has been asked to disclose the source of

deposits/credits on account of what money has been

deposited in the said five accounts since the opening of

the account till 12.04.2018 in respect of each and every

deposit chronologically and details of

distribution/utilization of money withdrawn from the

above five accounts since opening of the account till

12.04.2018 in respect of each and every withdrawal

chronologically.

16. Before proceeding further, it would be proper

to refer to the provision under Section 91 of Cr.P.C.,

which reads as follows:

"91. Summons to produce document or other thing.-- (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend

and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.

(3) Nothing in this section shall be deemed--

(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891), or

(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority."

This provision has been interpreted by the Apex Court in

several decisions, notable among them is the case of

State of Orissa v. Debendra Nath Padhi, reported in

(2005) 1 SCC 568. In case of Debendra Nath Padhi

(supra), the Apex Court observed as under;

"25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is "necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code". The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the court for summoning and production of a document

as may be necessary at any of the stages mentioned in the section. Insofar as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused. If under Section 227, what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by court and under a written order an officer in charge of a police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof."

Thus, in exercising the power under Section 91 of Cr.P.C.

the first and foremost requirement is 'necessity' or

'desirability'.

17. Viewed in light of the above principles it is

seen that the petitioner was initially called upon to

produce certain documents by a notice under Section 160

of Cr.P.C., which he did. The said documents were treated

as inadequate and therefore, the notice under Section 91

was issued calling upon him to produce documents

relating to each and every single transaction of his bank

accounts till 12.04.2018 since the date of opening of the

accounts. At the first blush, this appears to be a

draconian use of power by the police. This Court has

already held that freezing of the bank accounts is entirely

unjustified in the absence of evidence showing link

between the alleged offences and the accounts in

question. It is further to be noted that this is not a case of

disproportionate assets or money laundering where the

source of money may be relevant for investigation. On the

contrary, this is a case, as stated earlier, based entirely on

suspicion that the money "may be" used in funding the

agitation. Interestingly, it is not the prosecution case that

the money was actually so used. Therefore, how the

information sought for in the notice under Section 91 of

Cr.P.C. is necessary, remains shrouded in mystery. As

regards desirability, it is to be noted that the petitioner

being a businessman, freezing of the bank accounts would

obviously have had an adverse effect on his transactions.

The question is, can the entire business of a person be

brought to a grinding halt only on suspicion. The answer

can only be in the negative. Moreover, as argued by

learned Senior Counsel, this action also directly affects

the petitioner's fundamental right guaranteed under

Article 19(1)(g), i.e., the right to practice any profession, or

to carry on any occupation, trade or business. On an

objective examination of the facts and circumstances

obtaining in the case, this Court is of the considered view

that in the absence of any link between the alleged offence

and the petitioner's bank accounts, issuance of the notice

under Section 91 of Cr.P.C. is entirely illegal, unjustified

and tantamounts to unnecessary harassment of the

petitioner by the investigating agency more so by the fact

that nothing incriminating has come out in the prolonged

investigation that has shown no sign of conclusion, even

after lapse of more than four years.

18. Thus, from a conspectus of the analysis and

discussion made hereinbefore, this Court finds that the

impugned order passed by learned S.D.J.M., in rejecting

the application filed by the petitioner under Section 457 of

Cr.P.C. to defreeze the accounts cannot be sustained in

the eye of law and is therefore, set aside. Learned S.D.J.M.

is directed to pass necessary orders directing defreezing of

the seized bank accounts without any further delay.

Consequently, the petitioner shall not be required to

comply with the notice dated 29.09.2022 issued by the IIC

of Sadar Police Station, Keonjhar under Section 91 of

Cr.P.C.

19. The Criminal Revisions are disposed of

accordingly.

...............................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 8th December, 2022/ A.K. Rana