Deepak Verma, J.:— In this petition, filed under Article 226 of the Constitution, petitioner is challenging the order of respondent No. 1, served on respondent No. 2-Bank, by which the petitioner's account in respondent No. 2-Barik, has been directed to be frozen and, thus, rendering the said account inoperative.
2. The question that arises for consideration of this Court is, whether, while exercising powers under Section 102 of the Cr. P.C respondent No. 1 was justified in directing respondent No. 2 to freeze the petitioner's Bank account. For better appreciation of the case, Section 102 of the Cr.PC is reproduced hereinbelow:
“102.(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”.
3. Facts lie in narrow campass; petitioner is having a Savings Bank Account, bearing No. 6372.M-22 with respondent No. 2-Bank. The said account was opened by the petitioner some time in the year 1987 and, since then, she has been operating the same. The petitioner is also an assessee of Income Tax and is paying income tax. The petitioner is owner in possession of a house bearing No. 77-B Padmavati Colony. The said house is duly registered in her name. The petitioner has several movable and immovable properties in the said house. Petitioner's husband has since expired. Some time in the month of August, 1994, petitioner had taken a loan of Rs. 1 lac from Smt. Hemlata Bansal, resident of Agarwal Nagar, Indore at the interest of 15% per annum. The said loan was taken by a cheque drawn in her favour on 18.8.1994 of State Bank of Indore. On 11.2.1995, a raid was conducted by Supdt. of Police, Lokayukta, Indore against the son of the petitioner. The son is working as an Engineer in Public Health Engineering Department, and at the relevant point of time, was posted at Ratlam. During the said raid, several documents and papers were seized from the petitioner's house. In the process, the raiding party had also seized the petitioner's Pass Book of the aforesaid account, as also the Membership Book. Petitioner's contention is, that raid was conducted for ascertaining the assets of the petitioner's son and there was no need to have seized the documents with which, the petitioner's son had nothing to do.
4. The petitioner, unaware of passing of any order by respondent No. 1, directing the respondent No. 2, to freeze the petitioner's account, drew a cheque on 11.9.1995 for a sum of Rs. 1,00,020/- of her Bank for payment towards loan amount of Smt. Hemlata Bansal. The said cheque could not be honoured and she was told, that legal opinion is being sought in the matter from the legal department of the Bank-respondent No. 2. The petitioner's further contention is, before freezing the account of petitioner, respondent No. 1 had not given any opportunity of hearing to her as the order was passed behind her back. Thus, it violates the principles of natural justice. Since the petitioner was not able to pay the principal amount on account of the order of respondent No. 1 by which the petitioner's account has been frozen, the liability of the petitioner for payment of the principal amount and interest is increasing day-by-day. However, after waiting for a while, the petitioner once again issued another cheque on 10.11.1995, drawn on respondent No. 2-Bank for an amount of Rs. 1,00,200/-, so that Bankers cheque could be prepared in the name of Smt. Hemlata Bansal. The said cheque also met with the same fate and could not be honoured. Petitioner, thereafter; sent a notice demanding justice, to respondents vide Annexures K and L dated 14.11.1995, and dated 16.11.1995 respectively. Respondent No. 2, then, replied to the petitioner, assigning the reasons for not permitting the petitioner to operate the said Bank Account. Copy of the said impugned letter of respondent No. 2 dated 20.11.1995 has been filed as Annexure-M. The petitioner has approached this Court for a direction that the petitioner's account, which has been directed to be frozen by respondent No. 1, be quashed and the consequent letter of respondent No. 2 be also quashed.
5. On show-cause notice being issued, respondents have filed their reply in oppugnation. The main contention of the respondent No. 1 is, that Income Tax returns have been filed by the petitioner only on 17.10.1995 i.e after the date of search, which was conducted on 11.2.1995 Consequently, the said action has been termed as an afterthought. It has also been submitted, that the petitioner's husband Shri Balchand Sankala had expired in the year 1982, whereas, petitioner had constructed the said house at 77 Padmavati Colony, Indore in the year 1987. It has further been mentioned, that according to reliable sources of respondent No. 1, the plot and house have been acquired from the money which was paid by the petitioner's son, Subhash Sankla, who is working as an Executive Engineer in Public Health Engineering Department. The contention is, that the same have been purchased from ill-gotten money of the petitioner's son. It has further been submitted, that petitioner being a house-wife only, was not required to have borrowed a huge amount of Rs. 1 lac from Smt. Hemlata Bansal. Respondent No. 1 has tried to justify the order of freezing petitioner's account in respondent No. 2-Bank, under the provision of Section 102 of Cr.PC It has been urged, that such an account, in which money of the petitioner's son was kept, is liable to be attached under Sections 451 and 452 of Cr.PC Respondent No. 2 has submitted, that the petitioner's account was frozen on account of the order of respondent No. 1, which was communicated to it in writing. The prayer is, the petition deserves to be dismissed with costs;
6. On the aforesaid pleadings, I have heard the Counsel for the parties at length and perused the record.
7. The question, that has cropped up in this petition for consideration has already been mentioned hereinabove. Now, I shall proceed to consider the same.
8. Mr. Ajaya Bagadiya, learned Counsel, appearing for petitioner, has strenuously argued, that the words “seize any property” occurring in Section 102 of Cr. P.C would mean, that seizure should be, taking of actual physical possession thereof and ‘property’ does not include Bank Account. To advance his arguments further, he has placed reliance on a judgment reported in AIR 1960 All. 405, Textile Traders Syndicate Ltd. v. State of U.P. In the said judgment the word ‘seize’ has been considered. Applying the ordinary dictionary, meaning of the word ‘seize’, it has been held, that the Act would mean taking of actual physical possession of movable property. Since, the actual physical possession of the Bank Account cannot be taken therefore, it would not be a seizure. Following the said judgment, Gauhati High Court has also held in the case of Purvanchal Road Service Gauhati v. State, reported in 1991 Cr.L.J 2798, that seizure would mean taking of actual physical possession of the property and in the said judgment, the powers of Section 102 of Cr. P.C have also been dealt with: Relevant para 5 of the judgment of Purvanchal Road Service (supra) is reproduced hereinbelow:
“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 take 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. 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 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 act, and as such no such order can be passed by a Police Officer.”
9. Ratio decidendi of the said judgment clearly establishes, that Police Officer shall have no power to direct Bank not to allow the holder of the account to operate the same on account of some suspicion.
10. Perusal of the record shows, that basis of suspicion has not at all been mentioned in the reply filed by respondent/State. The details of the inquiry alleged to have been conducted against the petitioner's son have also not been given in the said reply. The respondent No. 1 so far has not been able to make out any proximate connection between the petitioner's Bank account and alleged ill-gotton money of her son. It was necessary and incumbent on the part of the respondent No. 1 to have placed some material before this Court to connect the petitioner's amount with acquiring of the same by her son illegally and unlawfully. The respondent No. 1 was also not in a position to inform whether any charge-sheet has been filed against the petitioner's son so far, or, not? This is sufficient to hold, that the respondent No. 1 acted in post-haste manner and exceeded the powers and jurisdiction conferred on him.
11. Apart from this, it is also necessary to point out, that the petitioner's account was directed to be frozen by respondent No. 1, but, at no point of time any opportunity of hearing was given to the petitioner. Admittedly, the account is solely in the name of petitioner and hereon has got nothing to do with this account. Since, petitioner had been operating the account in her own right, it was necessary for respondent No. 1 to have given a show-cause notice to her, calling upon as to why this account should not be frozen. Perusal of the record shows, that no such step was taken by the respondent No. 1.
12. I may also advert to the definition of the word ‘seizure’ as appearing in Black's Law Dictionary 6th Edition. The word ‘seizure’ has been defined as under:
“Seizure—The Act of taking possession of property, e.g for violation of law or by a virtue of an execution of a judgment. Termed implies a taking or removal of something from the possession, actual, or, constructive of another person or persons.
A seizure of property occurs when there is some meaningful interference with an individual's possessory interest in that property.”
13. It may be pointed out here, that respondent No. 1 had not taken actual physical possession of the property in question at any point of time. Although, respondent No. 1 had directed respondent No. 2, not to allow the petitioner to operate the Bank Account, but, there was no actual physical taking over of possession. Thus, in the considered opinion of this Court, respondent No. 1 had no power or jurisdiction under Section 102 of Cr. P.C to pass such an order, that too without giving an opportunity of hearing. Apart from the above, it is also necessary to point out, that petitioner is not being held guilty of violation of any law, or, as abettor, or, otherwise.
14. Consequently, the direction given by respondent No. 1 to respondent No. 2 is, hereby, quashed and letter of respondent No. 2 (Annexure-M) dt. 20.11.1995 is also quashed. However, it is clarified, that respondent No. 1 shall be at liberty to take any further action against the petitioner, after due observance of the principles of natural justice, and after being satisfied with regard to a reasonable and proximate nexus of the said money, having been acquired by the petitioner's son unlawfully or illegally. The petition, thus, succeeds and is, hereby, allowed, but with no order as to costs.
15. Petition allowed.
Comments