Shivaraj Patil, J.:—

The petitioners have filed this Criminal Revision Petition aggrieved by the order dated 7.5.1993, passed by the learned Principal Sessions Judge, Bangalore, in Criminal Miscellaneous No. 578/93, so far it relates to the rejection of their petition and with regard to imposition of Condition No. 4 for return of the building materials seized by the Police in Crime No. 455/93 of Ulsoorgate Police Station (Crime No. 1344/93 of C.O.D).

2. The facts briefly stated leading to this Petition are:

The petitioners filed the Petition under Section 457 of the Code of Criminal Procedure (for short the Code) for the following reliefs in the Court of the Principal Sessions Judge, Bangalore.

(a) Return of the steel fabricated, finished and semi finished articles, seized in the case from the factory premises of the claimant's establishment to the custody of the claimants forthwith.

(b) Direct the return of the demand draft seized in the case from the possession of the claimants which the claimants had purchased in its name and well as in the names of its constituents.

(c) Order the withdrawal of the order which is in the nature of a prohibitory order issued by the Investigating Agency to the bankers of the claimants concerning its banking operations in the accounts maintained by it, on such terms and conditions.

The petitioners are the accused in Crime No. 455/93. They were entrusted with the construction of houses under Ashraya Housing Scheme by the Karnataka Housing Board (for short the Board) after calling for tenders. They were to construct 16,000 houses estimated at the cost of Rs. 24 crores at various places in different Districts, where the houses belonging to various persons had collapsed due to heavy rainfall. The first petitioner represented that it had stored 30,000 steel doors, 30,000 steel windows and 60,000 steel ventilators in its firm at Shimoga, similarly, second petitioner represented that it had stored 38,000 steel windows, 38,000 steel doors and 76,000 steel ventilators in its firm at Shimoga; on that basis they managed to get an advance of Rs. 2,95,60,000/- and 2,96,00,000/- by 17.2.1992 and thereafter they pleaded their inability to construct the houses for Ashraya Scheme, but they agreed to supply the doors, windows and ventilators required for the construction of houses. Further, even after lapse of 11 months materials were not supplied, the Housing Commissioner addressed a letter on 18.2.1993 to the Inspector General of Police, CoD, that there was a false representation about the availability of the building materials and on that basis heavy amount of advance had been drawn by the petitioners. It was also alleged that the other accused persons, that is Executive Engineer, Chief Engineer and other officials of the Board had colluded and conspired for the sanction of the advances to the contractors. After investigation it was found that the petitioners and others have committed the offences punishable under Sections 463, 465, 471, 420, 409 read with Section 120(B) I.P.C and 13(1)(D)(i) and (iii) of the Prevention of Corruption Act. Initially, Crime No. 455/93 was registered in Ulsoorgate Police Station, which was transferred to CoD later. During the course of investigation, the materials stocked in the factory premises of the petitioners were seized by the Investigating Officer on 14.4.1993 under a mahazar and the materials so seized were retained by the Police with the permission of the Court at Shimoga. Further, during the course of investigation 9 demand drafts of the value of Rs. 27 lakhs have been seized from accused Nagraj and prohibitory orders were issued by the Police Officers to the Banks so as to prevent the petitioners from operating the bank accounts.

The petitioner pleaded that they had stocked huge quantities of finished and semi-finished products and raw-materials of the steel fabrications for being delivered to the Board, but the Board did not take delivery of the same. Hence, they filed W.P Nos. 2297/93 and 2787/93 before this Court, in which directions were issued to the Board for receiving the steel fabricated materials as per the agreement subject to certain conditions. As per the Order in the said Writ Petitions articles were to be removed within four months from the date of the Order. The orders were made subject to what was stated in para-6 of the statement of objections filed by the Board in the aforementioned Writ Petitions. It is contended that all efforts were made by the petitioners to make the articles ready by fabricating, since the materials were seized by the police they were not in a position to deliver them to the Board as directed by this Court; the properties seized are lying in open place exposed to vagaries of nature and if that is allowed they will lose the utility and value and that the petitioners would not be in a position to effect delivery of articles to the Board; since the demand drafts are seized they are put to great difficulty and therefore necessary directions are required to be given to the police to return the properties, demand drafts and to permit the petitioners to operate the bank accounts. Hence, the application was filed under Section 457 of the Code in the Court of the Principal Sessions Judge, Bangalore City, for the aforesaid reliefs.

3. The State opposed the Petition contending that the investigation is still in progress; the articles seized are subjected to valuation and checking of the quantity; that an advance of Rs. 5,316 crores were already drawn by the petitioners without delivery of articles; the demand drafts are all subject matters of fraudulent transactions; in case the articles are returned to the petitioners there is no guarantee to recover the money advanced and that the investigation will be hampered. On these grounds the State pleaded for rejecting the Petition.

4. The learned Principal Sessions Judge by the order under Revision allowed prayer-(a) made in the petition, that is, returning of the steel fabricated finished and semi-finished articles subject to certain conditions and rejected the remaining prayers (b) and (c) made in the Petition.

5. The State has not challenged the order under Revision.

6. Sri C.V Nagesh, learned Counsel for the petitioners, urged that Condition No. 4 imposed by the Court below even with regard to return of the building materials seized cannot be sustained and it requires to be modified.

Condition No. 4 reads:

“The petitioners and KHB shall report to the Police the manner, method and quantity of such articles were used in the construction of houses under the Ashraya Scheme.”

The learned Counsel pointed out that once the petitioners delivered the building materials to the Board they shall have no control and knowledge to make a report to the Police about the manner, method and quantity of such articles used in the construction of houses under the Ashraya Scheme. As can be seen from condition No. 4 extracted above, the petitioners and Board shall report to the Police about the materials used in the construction of houses under the said Scheme. Once the articles/materials are delivered to the Board by the petitioners in the nature of things it may not be possible for the petitioners to make a report.

7. Sri T.J Chouta, learned State Public Prosecutor for respondents 1 and 2 and Sri R.S Hegde, learned Counsel for respondent No. 3 fairly submitted that they have no objection to modify condition No. 4 so as to relieve the petitioners from making a report about the use of the materials in the construction of houses.

8. In my opinion, condition No. 4 aforementioned requires to be modified confining that condition to the Board only to make a report and relieving the petitioners from the condition of making the report. The condition No. 4 is to be modified accordingly.

9. The learned Counsel for the petitioners contended that under Section 102 of the Code a Police Officer cannot direct a banker not to allow an accused to operate the account maintained by him in a bank. A letter/direction issued by the Police Officer prohibiting the operation of an account is therefore one issued without jurisdiction, as the same is not permissible under Section 102 of the Code. This being the position, the learned Sessions Judge ought to have ordered for the withdrawal of the prohibitory order. In support of this submission, the following Decisions are cited:

(1) 1991 (3) Criminal Law Journal 27981;

(2) 1960 Criminal Law Journal 8712.

10. The learned State Public Prosecutor submitted that under the said Section 102 such a direction can be given by a Police Officer prohibiting the operation of bank account, but he was not in a position to distinguish the aforementioned Decisions cited on the point or to show how any Police Officer exercising power to seize any property coming within the ambit of Section 102 of the Code, could issue a direction to a bank prohibiting operation of accounts. He added, now that the investigation in regard to the bank accounts of the petitioners in regard to which prohibitory orders were issued is over; the investigating agency has obtained the necessary documents in that regard, the Court may pass appropriate order.

11. Sri R.S Hegde, learned Counsel appearing for respondent No. 3, relied on the Judgment of Madras High Court, on this point, passed in Criminal Miscellaneous Petition No. 274/89, decided on 14.9.1990, reported in I (1992) C.C.R 983.

12. In order to appreciate the relative merits of the respective contentions, I think it is appropriate and useful to quote Section 102 of the Code, which reads:

“102. Power of the 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.”

13. The word ‘seize’ is not defined in the Code. The ordinary dictionary and natural meaning of the word ‘seize’ is: ‘to lay hold of suddenly or forcibly; to take hold of; to reach and grasp; to clutch; to take possession of by the legal authority.

Looking to the use of the words ‘seize’ and ‘seizure’ under Section 102 and other provisions of the Code, in the context and the purpose sought to be achieved under those provisions, it appears the word ‘seize’ denotes ‘taking of possession of any property’ falling within the scope of the said Section.

14. Section 102(1) of the Code confers power on Police Officer to 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. Hence, there cannot be any debate as to the power of the Police Officer to seize any property stolen or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence. Under sub-section (3) of the same Section there is a mandate to the Police Officer acting under sub-section (1) to report about the seizure of such property 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 bond undertaking to produce the property before the Court as and when required. What is to be reported is about the seizure of the property. Section 102 of the Code does not cover issuing of prohibitory orders.

15. The two Decisions pressed into service by the learned Counsel for the petitioners are directly on the point.

In the case of Purbanchal Road Service, Gauhati v. The State, Gauhati High Court has referred to and placed reliance on the Decision of Textile Traders Syndicate Ltd. Bulandshahr v. The State of U.P. Paras 5 and 7 of the aforementioned Gauhati High Court Decision read:

“Under Section 102, the Police Officer has to report the seizure to the Magistrate concerned, and if the property seized cannot be conveniently transported to the Court, the Police Officer may give custody thereof to any person on his executing a bond undertaking to produce the properties before the Court as and when required. Section 451 Cr. P.C provides for disposal and custody respecting the property produced before any criminal Court during enquiry or trial. Section 457 Cr. P.C provides that, whenever seizure of property by any police officer is reported to a Magistrate under Section 102 Cr. P.C and such property is not produced before a criminal Court during enquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or delivery of such property to the person entitled to possession thereof. On reading of Sections 102, 451 and 457 Cr. P.C together, it indicates that the word ‘seize’ used in Section 102 Cr. P.C means actual taking possession in pursuance of a legal process. Therefore, prohibiting a bank with which the accused has an account and a locker, not to pay any amount out of the account of the accused to the accused and not to allow the accused to take away property from the locker is not seizure under Section 102 Cr. P.C as the ‘seizure’ as contemplated under Section 102 Cr. P.C is an act of taking possession of the property in fact, and as such no such order can be passed by a Police Officer.

I respectfully agree with the decision of the Allahabad High Court cited above. For the reasons stated above, the impugned order of the Special Judge and the orders of the Police Officer (CBI) are hereby quashed. However, considering the facts and circumstances of the case, in the case of lockers, if there is any article which may be found under the circumstances which creates suspicion of the commission of any offence, the police officer (CBI) may take possession of that property in accordance with law within two weeks from today and the concerned banks shall not allow the petitioner to take out any article from the lockers within the said period of two weeks.”

16. I respectfully agree with the view taken in the above Decisions that a Police Officer has no power to issue prohibitory orders under Section 102 of the Code. But, I add that a Police Officer has certainly power to seize any property coming within the purview of Section 102(1) of the Code and nothing prevents a Police Officer to effect seizure of any property even in a bank relating to an accused, if it is required, including a locker in a bank and the articles in it. ‘Seizure’ and ‘prohibitory order’ are not one and the same, while the former is covered by Section 102(1) of the Code and the latter not.

In view of Section 102(1) of the Code it is clear that a Police Officer may seize any property alleged or suspected to have been stolen or which may be found under the circumstances which create suspicion of the commission of any offence. Mere conversion of property in respect of which suspicion was created of the commission of offence, does not deprive a Police Officer from seizing it.

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 persons/citizens cannot be sustained unless they are authorised by law. Undoubtedly, issuing of a direction to banks prohibiting operation of accounts does not fall within the powers of Police Officers acting under Section 102 of the Code.

17. With respect, I am unable to agree with the view taken by the Madras High Court in the case of Bharat Overseas Bank Ltd. in the view I have taken considering the true scope of Section 102 of the Code and the meaning of the words ‘seize and seizure’ in the context they are used. Hence, I am of the opinion that prohibitory orders issued by the Police Officers to Banks in the case on hand should be withdrawn.

18. Sri C.V Nagesh, learned Counsel for the petitioners, urged that the demand drafts seized from the possession of the claimants, which were purchased by them and in the names of their constituents ought to have been ordered to be returned by the learned Principal Sessions Judge. In this regard he stated that the petitioners filed W.P Nos. 2297/93 and 2787/93 in this Court. This Court in both the Writ Petitions has given directions as follows:

“The petitioners shall supply the material in the finished form satisfying the specifications subject to the conditions mentioned in para-6 of the statement of objections filed in W.P 2297/93. Further, both the learned Counsel submitted that for the supply of balance material, a direction may be issued to the petitioner to supply the same within a given time. As agreed, by both the counsel, petitioner shall supply balance material within a period of 4 months from today.”

Further, after hearing both the parties time was extended for supply of the balance materials. If the demand drafts seized are not returned to the petitioners it will result in great hardship to them, as it may be difficult for them to supply the balance materials, inasmuch as some of the demand drafts were purchased in the names of the parties or firms to whom the amount was to be paid for supply of materials.

19. The learned State Public Prosecutor and learned Counsel for respondent No. 3 strongly opposed the request of the petitioners to return the demand drafts of the total value of Rs. 27 lakhs seized from the petitioners on the grounds that the petitioners are involved in the case of serious offences punishable under Sections 463, 465, 471, 420, 409 read with Section 120(B), I.P.C and 13(1)(D)(i) and (iii) of the Prevention of Corruption Act; looking to the allegations that they fraudulently made the Board to part with the huge sum of Rs. 5,316 crores when the sufficient material did not exist physically and without delivering the articles and that the demand drafts are all subject matters of fraudulent transactions. According to the learned Counsel, at any rate, they were found under circumstances which create suspicion of the commission of offences for which case is already registered against the petitioners and investigation is not yet complete. Further, in case the demand drafts are returned to the petitioners it may be difficult to recover the money advanced to them by the third respondent-Board and that even the investigation will be hampered.

20. Having regard to the facts and circumstances of the case and considering the offences said to have been committed by the petitioners, the learned Principal Sessions Judge in his discretion at that stage refused to order the return of the demand drafts. This Court acting under revisional jurisdiction should not interfere with such discretionary order on the facts and circumstances of the case. I may add here that the directions given in the aforementioned Writ Petitions in regard to supply of material within a given time by the petitioners to the third respondent-Board and the other passed under Section 457 of the Code relating to return of property seized operate independently. Merely because directions are given in the said Writ Petitions for supply of material as aforesaid they by themselves are not sufficient to order for the return of the demand drafts. Even taking into consideration this aspect also, in view of the facts and circumstances of the case such as seriousness of offences, the huge amount alleged to have been taken by the petitioners from the third respondent-Board on alleged misrepresentation leading to fraudulent transaction, I am of the opinion that order passed by the learned Principal Sessions Judge in this regard should not be interfered with at this stage.

21. In the result, for the reasons stated and discussion made above, I pass the following order;

(1) This Revision Petition is allowed in part.

(2) The Condition No. 4 imposed by the learned Principal Sessions Judge, Bangalore, for return of the building materials seized by the police in Crime No. 455/93 of Ulsoor Gate Police Station (Crime No. 1344/93 of CoD) stands modified as under:

The K.H.B shall report to the police the manner, method and quantity of such articles were used in the construction of houses under the Ashraya Scheme.

(3) The prohibitory orders issued by the Police Officers from operating the Bank accounts of the petitioners in Vijaya Bank, S.R Road, Shimoga and Vijaya Bank, K.G Road, Bangalore, should be withdrawn by the Police Officers concerned.

(4) In all other respects order impugned in this Revision Petition remains undisturbed.