Petitioner is the accused in Crime No. 11 of 1996 and he had preferred the revision aggrieved against the order passed in Crl.M.P No. 271 of 1997 dated 22.12.1997 by the learned XII Additional Special Judge, Madras.

2. The case in brief for the disposal of the revision is as follows :-

The first respondent registered a case under Sec. 13 (2) rend with 13 (1) (a) of the Prevention of Corruption Act against the petitioner alleging that when lie was serving as a public servant in his capacity as Minister for Education and later as Member of Legislative Assembly had acquired asset disproportionate to known sources of income by abusing his position. During the course of investigation, on the suspicion of the first respondent, the S.B Account of the petitioner No. 2274 with the 2nd respondent bank was freezed. According to the first respondent, the petitioner purchased a Tata Estate Car on instalment basis and a sum of Rs. 2,70,900 paid by way of instalments represents only the ill-gotten money. The car was sold for Rs. 3 lakhs and the said amount was deposited in the aforesaid S.B account. According to the prosecution, a sum of Rs. 3 lakhs lying to the credit of the petitioner in the said account is an asset disproportionate to the known source of income.

3. The first respondent filed a detailed counter contended that the investigation so far done revealed that the petitioner has got assets disproportionate to the known source of income to the extent of Rs. 1.40 crores standing in the name of the petitioner as well as his wife and two sons. They entertained a reasonable suspicion on information that the petitioner has deposited the amounts in S.B account 2274. The Investigating Officer sent a letter dated 23.9.1996 to the 2nd respondent requesting to freeze the amount belonging to the accused. The sum of Rs. 3 lakhs has been deposited by the petitioner on 19.10.1996 The check period for the petitioner is from 24.6.1991 to 12.5.1996 During which period, the petitioner was holding the public office as a Minister and then as M.L.A He acquired Tata Estate vehicle bearing registration No. TN-37-J 0505 in his name from Gounder and Company, Coimbatore, for a price of Rs. 4,65,857. It was purchased on 15.7 1994. He paid a margin money of Rs. 1 lakh in cash and a sum of Rs. 76,878 as cheque issued by the Tamil Nadu Mercantile Bank. The amount have to be paid in 36 monthly equal instalments at Rs. 12,900 for 26 instalments and at Rs. 11,960 for 10 instalments. He paid 21 instalments. He was drawing a monthly salary of Rs. 4,000 and the payment of Instalments at Rs. 12,900 per month were disproportionate to the known source of income. The first respondent reasonably entertained the suspicion that the amount paid for the case is part of the amounts obtained by criminal misconduct.

4. The petitioner subsequently sold the vehicle during October, 1996 and the sale proceeds were deposited in the same account. Sec. 105-D of the Code of Criminal Procedure introduced is not applicable to the present proceedings. The order passed under Section 102, Crl.P.C was always subject to the orders of the court. The second respondent has informed about the freezing order to the petitioner and having known the same, the petitioner could have approached the court even much earlier. Since the matter is under investigation, it is not open to the petitioner to operate the same account and withdraw the amount. The freezing order already issued is valid in accordance with law as laid down in A. Ponnusamy v. State, 1991 L.W (Crl.) 339. Since the amount lying with the 2nd respondent is a part of the disproportionate assets, this Court is entitled to pass an order with regard to the disposal of the amount in accordance with Sec. 16 of the Prevention of Corruption Act and also under Sec. 452, Crl.P.C The amount is liable to be recovered as fine. The materials, and evidence collected point out that the amount lying in S.B account 2274 is part of the disproportionate asset. Hence, the lifting of the freezing order will cause prejudice to the investigation.

5. The trial court after hearing both sides, passed an order that the 2nd respondent is directed to permit the petitioner to withdraw a sum of Rs. 42,285,25 only from the S.B account on his executing a bond for a sum of Rs. 40,000 with one surety for a like sum with an undertaking that he will return the property as and when required by the court, to the satisfaction of the court and in other respects, petition is dismissed.

6. Learned counsel for the petitioner contended that the trial court failed to consider the word ‘seizure’ defined in law Lexicon. The decision in S. Sivaperumal v. B. Gopal and State, 1991 L.W (Crl.) 405, has not been properly considered. The failure on the part of the police to report about the prohibitory order issued to the bank forthwith is also improper. No power is empowered to the Investigating Agency to freeze the bank account as per Sec. 102, Crl.P.C

7. Heard the learned counsel of both sides.

8. The first respondent registered a case under Sec. 13 (2) read with 13 (1) (e) of Prevention of Corruption Act against the petitioner on 5.9.1996 alleging that when he was serving as a public servant in his capacity as Minister for Education and later as Member of Legislative Assembly had acquired assets disproportionate to known sources of income by abusing his position. The petitioner is having S.B account No. 2274 with the 2nd respondent Bank. The first respondent also conducted search at the residence of the petitioner at Chennai on 6.9.1996 On 11.9.1996 the first respondent issued prohibitory order and freezed the Savings Bank Account No. 2274 of the petitioner. On 19.10.1996 the petitioner deposited a sum of Rs. 3 lakhs into the account representing sale proceeds of Tata Estate Car bearing No. TN-37-J 0505. The 2nd respondent Bank intimated about the freezing of this account by the first respondent to the petitioner on 5.11.1996 According to the first respondent, the sum of Rs. 3 lakhs lying to the credit of the petitioner in the S.B account is an asset disproportionate to known sources of income.

9. Learned counsel for the petitioner mainly contended that the amount in the bank deposit will not be a property and as such, the Investigating Agency has ho power to freeze the same under Sec. 102, Crl.P.C Further more, Sec. 102 (3), Crl.P.C contemplates that it should be immediately reported to the concerned court and the same has not been complied with in this case and under the circumstance also, the petition has to be allowed. Learned counsel for the respondents contended that the petitioner has got assets disproportionate to the known sources of income to the extent of Rs. 1.40 crores. They entertained a reasonable suspicion on information about the money deposited in the account. The petitioner was drawing the monthly salary of Rs. 4,000 only whereas the payment of instalment for the car was Rs. 12,900 per month. The first respondent reasonably entertained suspicion that the amount paid for the car is the part of the amount obtained by criminal misconduct. However, the intimation was sent to the court only on 25.11.1997 Even before that on 10 11.1997, the petitioner filed petition under Sec. 451, Crl.P.C It is, therefore, clear that only after the filing of the petition by the petitioner, the first respondent has thought it fit to send a report about the prohibitory order to the court.

10. Learned counsel for the petitioner mainly contended that the money deposited in the S.B account is not a property and as such, Sec. 102, Cr.P.C is not attracted. Learned counsel for the first respondent relied upon a Bench decision of this Court in A. Ponnuswamy v. State, 1991 L.W (Crl.) 339, wherein it is observed as follows:

“In legal parlance, the word ‘property’ is a comprehensive word which can be used to denote different meanings depending on the context in which if is used. Therefore, it is not possible to define the word ‘property’ in abstract terms. It cannot, therefore, be said that the term property in its strict legal sense only means the physical object itself, but on the other hand, it would take in certain rights of the physical object. Therefore, the question is whether a chose in action is a property which would come within the definition of ‘property’ found in Sec. 102, Crl.P.C A chose in action has been defined as the right to recover a sum of money in action and the bank deposit, is admittedly chose in action and, therefore, it must be deemed as property in its wider sence . . . . The word ‘seizure’ in Sec. 102, Crl.P.C would take in its fold ‘impounding, freezing of prohibition of operation of a bank account and the words ‘seize’, ‘take possession’, ‘attach’ or ‘prohibit delivery’ in various other sections in the Code will have no relevance in interpreting the provisions contained in Sec. 102”.

This decision is exactly applicable to the case in all fours.

11. Sec. 102, Crl.P.C reads as follows:

“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 offense.

(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-sec. (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 give effect to the further orders of the court as to the disposal of the same.”

12. No doubt under Section 102 (3), Criminal Procedure Code, every police officer acting under Sec. 102 (1) shall forthwith report the seizure to the Magistrate having jurisdiction. Now in the present case, immediately it has not been complied with by the first respondent. Simply because the 1st respondent failed to comply with. Sec. 102 (3) . Criminal Procedure Code, it cannot be concluded that the entire freezing of the account is vitiated. At best, it can be said that it is only irregular and the 1st respondent has failed to comply with the procedure. Further more, the bank itself has communicated to the petitioner within a period of 59 days from the date of freezing of account, but, however, the petitioner has come forward with an application under Sec. 451. Crl.P.C only after a period of one year from the date of freezing of account.

13. Learned counsel for the petitioner relied upon Nemichand Jain v. The Superintendent of Central Excise and Customs, Silchar and Another, AIR 1963 Manipur 35, wherein it is observed that when a police officer seizes property under Sec. 550, Crl.P.C it is his duty to report the matter forthwith to a Magistrate under Sec. 523, Crl.P.C and the disposal of such property has to be in accordance with the order of the Magistrate . . . it is only a Magistrate who can pass orders regarding their disposal and the Inspector General of Police has no power to order their disposal. There is no dispute about the proposition because the final order has to be passed only by the concerned court.

14. Learned counsel for the petitioner also relied upon M/s. Purbanchal Road Service, Gauhati v. State, 1991 Crl.L.J 2798, wherein it is observed that the word ‘seize’ used in Sec. 102, Crl.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 Sec. 102, Crl.P.C This decision cannot be made applicable in view of the Bench decision of this Court cited supra.”

15. The petitioner also relied upon Kasturi Lal v. State of U.P, AIR 1965 SC 1039 and this case relates to Gold and Silver articles suspected to be stolen - search and seizure and procedure relating to disposal of property seized. This decision is also not applicable to the case on hand.

16. The petitioner also relied upon Anwar Ahmad v. State Of U.P , AIR 1976 SC 680, wherein it is observed that it is clear from Sec. 523 that the moment a police officer during the course of investigation seized a property suspected to have been stolen or which is the subject matter of an offence, he has to report the matter to the Magistrate concerned and it is for the Magistrate to pass such orders as he thinks fit regarding the disposal of the property. There is no dispute about this proposition Learned counsel relied upon another decision in Mirza Iqbql Hussain v. State of U.P, (1982) 3 SCC 516, wherein it is observed that since the Prevention of Corruption Act does not provide for confiscation or prescribe any mode by which an order of confiscation may be made, power under Sec. 452 (1), Crl.P.C would be available to a court trying an offence under the Act by virtue of Sec. 4 (2), Crl.P.C Such a court, therefore, will have jurisdiction and power to make an order of confiscation of the property seized from the accused. This decision also has no application to the case on hand.

17. The trial court has considered the contentions raised by the parties, I have also carefully considered the submissions made by both sides and also the position of law. In view of the Bench decision of this Court, wherein it has been clearly held that the money deposit in the bank is also a property and as such, the freezing of account by the first respondent is proper and correct. Only after trial, it can be established whether this amount represents the disproportionate money acquired by the petitioner or not. There is prima facie material for freezing the account and on the other hand, the contentions raised by the petitioner have no force. There is no illegality or infirmity in the order and I find no reason to interfere with the same.

18. For the reasons stated above, the revision fails and is dismissed. Consequently, Crl.M.P No. 2544 of 1999 is closed.