1 HVN IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 908 OF 2008 WRIT PETITION NO. 908 OF 2008 WRIT PETITION NO. 908 OF 2008 WITH WITH WITH CRIMINAL APPLICATION NO. 166 OF 2008 CRIMINAL APPLICATION NO. 166 OF 2008 CRIMINAL APPLICATION NO. 166 OF 2008 WITH WITH WITH CRIMINAL APPLICATION NO. 183 OF 2008 CRIMINAL APPLICATION NO. 183 OF 2008 CRIMINAL APPLICATION NO. 183 OF 2008 WITH WITH WITH CRIMINAL APPLICATION NO. 203 OF 2008 CRIMINAL APPLICATION NO. 203 OF 2008 CRIMINAL APPLICATION NO. 203 OF 2008 M/s. Bombay Science & Research Education Institute, a trust registered under the provisions of the Public Trust Act, 1950 through its Trustee Mr. Vikas Jawaharlal Chaurasia, having registered address at Flat No. 47, Building No.2, Om Trimurty Society, Chunnabhatty, Sion, Mumbai 400 022. ... Petitioner Versus 1. The State of Maharashtra (At the instance of a) Uran Police Station, Uran Raigad. b) The State C.I.D. State of Maharashtra, Pune, Maharashtra. ... Respondents Mr.C.R.S. Mishra i/by M/s. C.R.S. Mishra and Co. for Petitioner in W.P. No. 908 of 2008 and Applicant in Cri. Appln. No. 203 of 2008. Mr. A.S. Gadkari, A.P.P. for State. Mr.M.M. Vashi for Orig. Complainant/Respondnet in W.P. No. 908 of 2008 and for Applicant in Cri.Appln. No. 166 of 2008. Mr. S.B. Pal in person in Cri. Appln. No. 183 of 2008. CORAM: BILAL NAZKI CORAM: BILAL NAZKI CORAM: BILAL NAZKI & A.A. KUMBHAKONI,JJ. A.A. KUMBHAKONI,JJ. A.A. KUMBHAKONI,JJ. DATED: JULY 14, 2008 DATED: JULY 14, 2008 DATED: JULY 14, 2008 2 ORAL JUDGMENT (Per Bilal Nazki, J.): . There are various applications filed. One of the application is for contempt being Contempt Petition No. 203 of 2008 alleging violation of the orders of this court passed on 06.05.2008. No respondents have been named in the application. Only State of Maharashtra at the instance of Uran Police Station and State C.I.D. have been shown as respondents. No contempt can be initiated in these circumstances. Therefore, this application is dismissed. 2. The another application is filed for intervention being Appellation No.166 of 2008 by the persons who claimed to be students. Since we have heard and are disposing of the main matter itself, these students may approach the Magistrate concerned, if they so choose. 3. The application being No. 183 of 2008 has also been filed for intervention. Since the main matter is being disposed of, no further orders are necessary on this intervention application. 4. The main writ petition has been filed against the order passed by the learned Magistrate on 24.5.2007 which was upheld in the revision filed by 3 the Petitioner before the learned Sessions Judge by order dated 26.12.2007. All these orders have been assailed in this writ petition. 5. We have our own doubts whether this Writ Petition can be entertained in view of the fact that the Sessions Judge and the High Court has concurrent jurisdiction to entertain a revision and it is for the parties to decide about the court they opt for. Once the party opts for the revision before Sessions Judge, it will not be possible for us to entertain another revision in the name of the Petition under Article 226 of the Constitution. But we are leaving this question open at present because we have heard the parties on merit. 6. Though the learned counsel for the Petitioner argued for more than half an hour, when we asked him to complete his argument within ten minutes, he did not argue further. Though he argued the matter again in reply. His main argument is that under Section 102 of Cr.P.C. there is no power with the police to seize immovable property. In this case, he relied on various judgments of various High Courts. 7. Section 102 lays down as under : 4 "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 (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." 5 8. The seizure by the police in the present case has been effected in the circumstances mentioned by the court below in their orders. The facts as narrated in the order of the learned Sessions Judge are as follows : . When there was F.I.R. filed against the Petitioner, it was registered and it was lodged as C.R. No. 3 of 2007 in Uran Police Station for the offences punishable under Section 406, 418, 420 read with 34 I.P.C. The offence had taken place allegedly during the period July 2004 and 4.1.2007. The student who filed the complaint had alleged that he had taken admission for S.W.T. (Specialized in Welding Technology). The said course was a three years course and out of three years, two and half years course would be conducted by the College and remaining six months course would be conducted in Japan or United Kingdom. It was promised that during the said period of six months, the stipend of Rs.60,000/- per month would be given to each student. It was also promised that the student will be employed in Merchant Navy. It was also instructed by the Director Vikas 6 Chaurasia and Dy. Director Santosh Pol that the said course is recognized by the Director General Shipping and also by America Bureau of Shipping (ABS). . Another complaint was registered at the instance of the Shipping Corporation of India. One Officer serving in the Shipping Corporation, Government of India has lodged this complaint. He is serving as Assistant Shipping Master at Mumbai. According to his complaint, his office used to issue Continuous Discharge Certificate (CDC) to concerned persons. The Director General of Shipping is empowered to accord permission to the educational institutions, relating to shipping. . In these circumstances, the seizure of the property was made as it was found during the investigation that crores of rupees have been collected from the students and used for purchase of the properties and some of the amounts collected from the students were kept in bank accounts. . The learned Magistrate rejected the application of the Petitioner against the 7 seizure order. The learned Sessions Judge by a detailed order dated 26.12.2007 has confirmed the order of Magistrate. Hence, this appeal. 9. The learned counsel for the Petitioner submits that the immovable property cannot be attached and the learned counsel for the Petitioner had relied on some judgments of the High Courts. We do not think that the question is res integra in view of the Judgment of State of Maharashtra Vs. Tapas D. Neogy, (1999) 7 S.C.C. 685. It is true that there was divergence of opinion with regard to the scope of the term "the property" mentioned in Section 102 before this judgment in various High Courts. But the controversy was put to rest by this judgment of the Supreme Court. In Para 12 of the said Judgment, the Supreme Court held that : "We are, therefore, persuaded to take the "We are, therefore, persuaded to take the "We are, therefore, persuaded to take the view that the bank account of the accused or view that the bank account of the accused or view that the bank account of the accused or any of his relation is "property" within the any of his relation is "property" within the any of his relation is "property" within the meaning of Section 102 of the Criminal meaning of Section 102 of the Criminal meaning of Section 102 of the Criminal Procedure Code and a police officer in Procedure Code and a police officer in Procedure Code and a police officer in course of investigation can seize or course of investigation can seize or course of investigation can seize or prohibit the operation of the said account prohibit the operation of the said account prohibit the operation of the said account if such assets have direct links with the if such assets have direct links with the if such assets have direct links with the commission of the offence for which the commission of the offence for which the commission of the offence for which the 8 police officer is investigating into. The police officer is investigating into. The police officer is investigating into. The contrary view expressed by Karnataka, Gauhati and Allahabad High Courts, does not represent the correct law." (Emphasis provided). 10. Now contention of the Petitioner is that though Supreme Court held that the bank account was "property" within the meaning of Section 102 of Criminal Procedure Code, but "immovable properties" can not be "properties" within the meaning of Section 102. 11. We do not find that there is any basis for such distinction to be made in the movable and immovable properties as far as "property" is mentioned in Section 102. All properties whether movable or immovable in our view can be seized by police under Section 102, as there is nothing in the provision to show that the property would include only movable and not immovable. The Supreme Court has held in the para quoted above that there was no justification to come to the conclusion that the "property" should be defined in the narrow sense. 12. For these reasons, Petition is dismissed. 9 (A.A.KUMBHAKONI, J.) (A.A.KUMBHAKONI, J.) (A.A.KUMBHAKONI, J.) (BILAL NAZKI,J.) (BILAL NAZKI,J.) (BILAL NAZKI,J.)