IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc.No.43768-M of 2004 Date of Decision: January 10, 2007 Narottam Singh Dhillon and another ...Petitioners VERSUS State of Punjab ...Respondent CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.H.S.Mattewal, Senior Advocate with Mr.Sandeep Wadhawan, Advocate, for the petitioners. Mr.A.G.Masih, Sr.DAG, Punjab, for the State. ***** This order will dispose of Criminal Misc.Nos.43768-M of 2004 ( Narottam Singh Dhillon and another v. State of Punjab) and 58233-M of 2004 (Manjinder Singh Kang v. State of Punjab). The challenge in these petitions is to orders passed by Special Judge, Ropar and Addl.Sessions Judge-Cum-Special Judge, Amritsar, whereby the applications filed by the petitioners, seeking release of the operation of Bank accounts/lockers/FDRs have been dismissed. Crl.Misc.No.43768-M of 2004 :2: These petitions have been heard together as common question of law arises in these petitions. (The facts are being taken from Crl.Misc.No.43768-M of 2004). Narottam Singh Dhillon and his wife have filed Crl.Misc.No.43768-M of 2004 pleading that they have been involved and harassed in this case only because of being closely related to Shri Parkash Singh Badal, the former Chief Minister of Punjab. Terming this case to be a classic case of political vendetta, the petitioners have made a grouse of their arrest and involvement and the consequent seizure of their Bank accounts, lockers and FDRs by the Vigilance Bureau. FIR No.22 dated 29.8.2002 was registered by the Vigilance Bureau, Flying Squad-I, Punjab, Mohali under Sections 13(1) (e) read with Section 13(2) of the Prevention of Corruption Act coupled with Section 120-B IPC against one Hardeep Singh, who worked as officer on special duty (OSD) to Shri Parkash Singh Badal. It is alleged that said Hardeep Singh has collected wealth disproportionate to his known sources of income by employing illegal and corrupt methods, while working as O.S.D. to Parkash Singh Badal, Ex-Chief Minister. Petitioner No.1, who was statedly on holidays with his wife at Shimla, was allegedly picked up by Vigilance Bureau officials in an illegal and arbitrary manner. No documents were allegedly shown to the petitioner when he was forcibly taken to an undisclosed destination. His wife, petitioner No.2, accordingly gave telegrams to the Chief Justices of Punjab and Haryana High Court, Himachal Pradesh High Court and DGP, Punjab and DGP Himachal Pradesh. Another telegram was given to Chief Justice and the Vacation Judge of this court, highlighting the atrocities being Crl.Misc.No.43768-M of 2004 :3: committed on petitioner No.1, her husband. It is further disclosed that a petition under Article 226 of the Constitution of India, seeking writ of Habeas Corpus was filed in this court on 11.6.2003, when Warrant Officer was appointed to search for petitioner No.1. It is thereafter that he was shown to have been arrested in the present FIR, referred to above. It is then disclosed by the petitioners that not only petitioner No.1 was arrested in this manner, but different Bank accounts, lockers and FDRs, belonging to the petitioners were freezed by the Vigilance Authorities. It is alleged that the State and its authority have abused their power in acting against the petitioners, though they are not even remotely connected with the aforesaid case and are being subjected to harassment and humiliation. Aggrieved against the action of the Vigilance Bureau in freezing the Bank accounts, lockers and FDRs, the petitioners moved separate applications for release of the same standing on their respective names. Both these applications have been dismissed by the Special Judge, Ropar on 16.2.2004, which have now been impugned in the present petition. The case set up by the petitioners is that the impugned orders are bereft of any application of mind where the Judge has acted merely as a rubber stamp and a mouthpiece of the prosecution. Relying upon the provisions of Section 102 Cr.P.C., it is urged that there has been a complete violation of the said provisions, rendering the order of seizure etc. to be illegal, null and void. It is accordingly prayed that the same be set-aside. Manjinder Singh Kang petitioner in Crl.Misc.No.58233-M of 2004 has filed this petition, seeking quashing of the order passed by Special Judge, Amritsar on similar grounds, pleading victimization Crl.Misc.No.43768-M of 2004 :4: and political highhandedness as he also is close relative of Shri Parkash Singh Badal, the formal Chief Minister of Punjab. He has not disclosed his relationship with Ex.Chief Minister. Petitioner Manjinder Singh Kang has remained as Chairman of the Forest Corporation of Punjab, during the regime of Shri Parkash Singh Badal, FIR No.63 dated 27.9.2002 was registered against him under Sections 409/420/467/468/471 IPC and 13(i)(c)(d)(e) and 13(ii) of the Prevention of Corruption Act at Police Station, Vigilance Bureau, Jalandhar. Apart from arresting the petitioner, Manjinder Singh Kang, Bank accounts, lockers, FDRs belonging to the petitioner and his family members were also freezed by the Vigilance Bureau. Like petitioner Narottam Singh Dhillon, Manjinder Singh Kang also filed an application for release of the FDRs and operation of the Bank accounts before Special Judge, Amritsar (wrongly mentioned in the petition as Special Judge, Ropar), who vide his order dated 6.11.2004 has rejected his prayer in this regard. The impugned order is challenged on the identical grounds by Manjinder Singh Kang also. Replies have been filed on behalf of the State in both the cases. The allegations of political vendetta have been denied. It is rather disclosed that petitioner Narottam Singh was served a notice under Section 160 Cr.P.C. and he had accordingly attended the office of Vigilance Bureau. Justifying the action in freezing/seizing the lockers, FDRs etc., it is stated that during investigation it was revealed that petitioner Narottam Singh was a conduit in converting the ill-gotten black money of Hardeep Singh, who was OSD to Ex- Chief Minister, Punjab. It is also disclosed that during investigation it was revealed that he was having no money before the date Shri Crl.Misc.No.43768-M of 2004 :5: Parkash Singh Badal assumed the office of the Chief Minister, Punjab and thereafter he converted the black money of Badals to the tune of crores of rupees by depositing it in his accounts at the first instance and subsequently paying it to Badals for Orbit Resorts & others ventures. Suspecting that the money and articles lying in the lockers were apparently the part of same money, which he had either got directly through Badals or through Hardeep Singh, OSD to Ex- Chief Minister, the order seizing the same was made. It is also claimed that this was well within the powers of the Vigilance Bureau. Besides, it is further averred in the reply that petitioner Narottam Singh is an absconder of U.S. Government and warrants of his arrest have been issued by the law courts at California. He has allegedly advanced loans through cheques to Shri Parkash Singh Badal, Smt.Surinder Kaur Badal and Shri Sukhbir Singh Badal at lower rates of interest than those he had taken from the banks. The reply filed by the State would also disclose that Hardeep Singh is still absconding and challan, after completing the formalities, has been presented in the court of Special Judge, Ropar. The plea of innocence, as raised by the petitioners, accordingly is strongly controverted by the State besides disclosing that the investigation has revealed a clear and complete nexus between petitioner Narottam Singh and the main accused Hardeep Singh and Shri Parkash Singh Badal etc. to the effect that he was helping them out by converting the black money into white. Under these circumstances, action of Special Judge, Ropar in dismissing the applications of the petitioners has been justified. Similarly the order passed in the case of Manjinder Singh Crl.Misc.No.43768-M of 2004 :6: Kang petitioner has been justified in the reply filed by the State. It is stated that the properties, which have been ordered to be attached during investigation, are the ill-gotten wealth collected by accused Manjinder Singh Kang in his capacity as a public servant and these properties are likely to be confiscated to the State under Section 452 Cr.P.C. read with Criminal Law Amendment Ordinance, 1944. Accordingly, it has been prayed by the State that both the petitions deserve to be dismissed. The application moved by Narottam Singh Dhillon before Special Judge, Ropar is not placed on record. It is also otherwise not disclosed as to under what provision, this application was filed before the Special Judge, Ropar. It is noticeable from the petitions that the petitioners are apparently taking different stands depending upon their convenience. Initially the case set up was that the Bank accounts/FDRs etc. are not a property and not open to be seized. However, when this aspect was clarified by the State on the basis of judgment of the Hon'ble Supreme Court in the case of State of Maharashtra v. Tapas D.Neogy, (1999) 7 Supreme Court Cases 685, the petitioners then changed stance to urge that there had been a violation of mandatory provisions of Section 102 Cr.P.C., rendering the order of seizure to be bad. The perusal of the impugned orders, Annexures P-2 and P-3, would show that only ground pleaded in the applications seeking release of the Bank accounts etc. was that the money was needed for day-to-day expenses and for defending the cases in the Court. The stand of the petitioners in the application, as noticed in the impugned order, may be referred here which is as under:- Crl.Misc.No.43768-M of 2004 :7: “That the applicants need money for day to day expenses and the Vigilance Bureau has no authority to freeze the account. Therefore, it is prayed that the accounts be released and the applicant be permitted to operate the account and the lockers” It is, thus, clear that no prayer was made before the Special Judge in terms of the contents of Section 102 Cr.P.C. as is now urged. It would be debatable if the plea, which was not raised before the Special Court, can be permitted to be raised while impugning the order in this regard passed by the Special Judge. In this regard, a reference can be made to the observations of the Hon'ble Supreme Court in Radha Kishan v. State of Uttar Pradesh, AIR 1963 Supreme Court 822, where the Hon'ble Supreme Court declined to go into the aspect of contravention of provisions of Section 342 Cr.P.C. when no grievance in this regard was raised either before the Court of Addl.Sessions Judge or before the High Court. It was further observed that a point as to the prejudice to the accused appellant cannot be allowed to be raised for the first time in an appeal as whether there was prejudice is a question of fact. Leaving this aspect aside, let us see if impugned order can be termed illegal and infirm in any manner on the grounds as now pleaded. It appears that the petitioners are not challenging the power of the police or its authority to seize the Bank accounts, it being a property. It is, however, submitted that having done so, the respondents were bound to comply with the requirement of Section Crl.Misc.No.43768-M of 2004 :8: 102 Cr.P.C., which is termed to be mandatory in nature. It is accordingly submitted that since this mandatory requirement has not been followed, the order seizing the property is required to be revoked. In this regard, strong reliance has been placed on the case of R.Chandrasekar v. Inspector of Police, Salem and another, 2003 (1) R.C.R.(Criminal) 503. The counsel for the petitioners would also refer to the case of Ms.Swaran Sabharwal v. Commissioner of Police, 1988 Crl.L.J.241 in support of his submission. During the course of arguments, it was also submitted that no order seizing the accounts has been made, which of course was vehemently refuted by the learned State counsel. In this regard, order dated 13.6.2003 passed by the Superintendent of Police was referred and shown during the course of arguments. The learned State counsel otherwise also would say that the requirement, as laid down in Section 102(3) Cr.P.C., would not be mandatory in nature and as such may reveal only irregularity and even if not complied with, order would not be rendered void or vitiated. He would also submit that the nature of property is such which could not have been produced before the court and the basic purpose for provisions of Section 102 Cr.P.C., specially relating to requirement of reporting the seizure to the Magistrate, is for passing an order regulating the disposal of the property during the course of investigation, if it is subject to decay etc. He would also contend that once the application was moved on 16.12.2004, it would mean that the Special Judge in this case was informed about the seizure and hence the requirement of Section 102(3) Cr.P.C. would stand satisfied. Learned State counsel would further contend that it is required to be seen if Crl.Misc.No.43768-M of 2004 :9: this has resulted in any prejudice to the petitioners. He would then contend that this case is very peculiar in its nature and is the one where ill-gotten wealth of very highly placed political figure was converted from black to white and all transactions in this regard conducted by the petitioners would need very careful scrutiny. Accordingly, this ill-gotten wealth would escape scrutiny and investigation if the order seizing the same is interfered. It would also escape confiscation and order under Section 16 of the Prevention of Corruption Act if required. He would accordingly submit that even if the Magistrate was not informed in time about this seizure, it would, at the most, be an irregularity, which may not call for interference for quashing of the order of seizure made in this case. Before proceedings further, it may be seen if the provisions of Section 102(3) Cr.P.C. can be said to be mandatory or directory in nature. It is well understood that non-observance of a mandatory condition is fatal to the validity of the action. However, non-observance would not matter if the condition is found to be merely directory. In other words, it is not every omission or defect which entails the drastic penalty of invalidity. As per Prof.Wade some conditions may be both mandatory and directory: mandatory as to substantial compliance, but directory as to precise compliance. Giving example in this regard, Prof.Wade observed that where a local authority was empowered to assess coast protection charges on landowners within six months but did so after twenty-three months, the delay was so excessive that there was total non-compliance with the condition, and the assessments were void; but had the excess been a few days only, they would probably have been valid. It was Crl.Misc.No.43768-M of 2004 :10: observed in Re Bowman [1932] 2 KB 621 that the Court may readily find reasons for overlooking trivial or unimportant irregularities. It is a question of construction, to be settled by looking at the whole scheme and purpose of the Act and by weighing the importance of the condition, the prejudice to private rights, and the claims of the public interest. It was further observed that in any case, judges faced with these questions of construction may regard categories such as mandatory and directory as presenting `not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another'. Even it is possible for whole areas of statutory law to be treated as merely directory. Requirements which are less substantial, and more like matters of mere formality, may fall on either side of the line. In short, it will depend upon the provisions of the statute. Where the effect is penal scrupulous observance of statutory conditions can normally be required. The Hon'ble Supreme Court in the case of Nasiruddin and Ors. v. Sita Ram Agarwal, JT 2003(2) SC 56 held that it is well- settled that the real intention of the legislation must be gathered from the language used. It may be true that the use of the expression `shall or may' is not decisive for arriving at a finding as to whether statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well- settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character. Referring to Sutherland, Statutory Construction, 3rd edition, Vol.3 at p.107, the Hon'ble Supreme Court pointed out as under:- Crl.Misc.No.43768-M of 2004 :11: “Yet there is another aspect of the matter which cannot be lost sight of. It is a well- settled principle that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time-frame, the same will be held to be directory unless the consequences therefor are specified............It is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again, at p.109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow noncompliance with the provision. At p.111 of the above noted edition, it is stated as follows:- “As a corollary of the rule outlined above, the fact that no consequences of noncompliance are stated in the statute, has been considered as a factor tending Crl.Misc.No.43768-M of 2004 :12: towards a directory construction. But this is only an element to be considered, and is by no means conclusive.” Applying the above-noted test to the contents of the provisions of Section 102(3) Cr.P.C., it can be seen that after laying down the requirement of reporting the seizure, the section further itself provides for exception in cases where the property seized is such that it cannot be conveniently transported to the court etc........ The consequences of non-reporting about the seized property have also not been provided under the section. In addition, the requirement of reporting in the manner, as stated, is on the part of a public functionary and in view of the law laid down by the Hon'ble Supreme Court, as noticed above, the same is required to be held to be directory unless the consequences thereof are specified. Since the consequences therefor have not been specified, it would be safe to say that requirement of Section 102(3) Cr.P.C. cannot be termed as mandatory but would be directory in nature. In R.Chandrasekar's case (supra) though it was observed that notice as required under Section 102(3) Cr.P.C. was not served yet the main reason for revoking the order passed in this case was on different premise. It was noticed that when a property is not found under circumstances creating suspicion of the offence having been committed, then Section 102 Cr.P.C. does not apply. Section 102 Cr.P.C. empowers the police officers to seize any property, which may be alleged or suspected to have been stolen or which is found under circumstances, which creates a suspicion of commission of an offence. In R.Chandrasekar's case (supra) the position was found Crl.Misc.No.43768-M of 2004 :13: different as is clear from the following observations:- “In the case on hand, the position is different. Here it is not the discovery of property that has created suspicion that an offence has been committed. There are no circumstances attendant upon the bank account or its operation that have led the police to suspect that some offence has been committed somewhere. The allegation of the prosecution is that the bank account in this case is a sequel to the discovery of the commission of the offence. This is not sufficient to attract Section 102 of Cr.P.C. as it cannot be since (sic) that the bank account has been traced or discovered in circumstance which have made the police aware of the commission of an offence.” Even otherwise, this case apparently was decided having regard to the facts peculiar to this case. Respondents in this case had attempted to establish that some funds were suspected to be transferred by the petitioner's father to the petitioner's Bank account in this case, which was not considered sufficient to attract Section 102 Cr.P.C. It was in this context that basic reference was made that even the requirement of Section 102 Cr.P.C. that the police officer was required to report the same to the Magistrate and give notice to the petitioners was not followed. Similar is the position in the case of Ms.Swaran Sabharwal's case (supra). It was also a case where discovery of bank account being a sequel to discovery of commission of offence under Official Secrets Act and it was in this context said Crl.Misc.No.43768-M of 2004 :14: that Section 102 Cr.P.C. cannot be invoked. It is neither the case of the petitioners nor it appears to be so that discovery of the bank account is sequel to the discovery of the offence. As already noticed, the present case appears to be standing on its own facts, which are peculiar in nature. Here the allegations against the petitioners are that they were not having any money and were used as a conduit to convert crores of rupees of Ex-Chief Minister through his O.S.D. from black to white. Even the investment of money in this manner has been traced to Orbit Resorts. This is not a normal case of seizure of accounts, but this amount apparently may not be belonging to the petitioners. The investigation obviously cannot be scuttled, which may establish a nexus between the transactions in the Bank accounts/FDRs with that of other persons, like Chief Minister Shri Parkash Singh Badal and his OSD Hardeep Singh. One cannot turn a blind eye to a fact that Hardeep Singh OSD has so far succeeded to evade law and is a proclaimed offender since long. The petitioners and their co-accused have, as such, obviously been able to scuttle the full investigation in this case by avoiding the process of law. It is in these peculiar facts and circumstances, the requirement of seizure and the fact of alleged non-compliance of some of the requirements may need to be appreciated. Learned State counsel, in this regard, was not un-justified in referring and relying upon the law laid down by the Hon'ble Supreme Court in the case of Tapas D.Neogy (supra) where finding fault with the judgment of the High Court, the Hon'ble Supreme Court held as under:- “Having considered the divergent views taken by different High Courts with regard to the power of seizure under Crl.Misc.No.43768-M of 2004 :15: Section 102 of the Code of Criminal Procedure, and whether the bank account can be held to be “property” within the meaning of the said Section 102(1), we see no justification to give any narrow interpretation to the provisions of the Criminal Procedure Code. It is well known that corruption in public offices has become so rampant that it has become difficult to cope up with the same. Then again the time consumed by the courts in concluding the trials is another factor which should be borne in mind in interpreting the provisions of Section 102 of the Criminal Procedure Code and the underlying object engrafted therein, inasmuch as if there can be no order of seizure of the bank account of the accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of the illegal gratification, could be withdrawn by the accused and the courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the accused as a public officer.