ash 1 crwp-1792.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELATE JURISDICTION CRIMINAL WRIT PETITION NO.1792 OF 2010 Khan Kayamali Abdul Hasan. .. Petitioner Vs State of Maharashtra & Anr. .. Respondents -- Shri Subodh Desai with D. Banerji i/by Sapana Rachure for the Petitioner. Shri H.S. Dedhia for the Respondent No.1.-State. Shri Prakash Naik i/by M/s. Yasmin Bhansali & Co. for the Respondent No.2. -- CORAM : A.S. OKA, J DATED : 17TH OCTOBER, 2011 P.C. . Heard the learned counsel appearing for the Petitioner, the learned APP for the State and the learned counsel appearing for the second Respondent. On 16th December, 2010, the notice for final disposal at the admission stage was issued by this Court. 2. With a view to appreciate the controversy involved, it will be necessary to refer to the facts of the case. FIR was lodged at the instance of the second Respondent alleging commission of an offences punishable under Sections 408, 419, 465, 467, 468, 471, 420 r/w Section 34 of Indian Penal Code. It appears that in respect of a flat being Flat No.405, the power of seizure under Section 102(1) of the ash 2 crwp-1792.10 Code of Criminal Procedure, 1973 was exercised and the said flat was sealed. An application was made by the Petitioner before the learned Magistrate. In the said Application, the prayer was made for return of the flat. The prayer was objected to by the Investing Officer. By the impugned order dated 3rd May, 2010, the learned Magistrate rejected the said prayer. The learned Magistrate held that the Petitioner has not been shown as the beneficiary under the SRA Scheme. The learned Magistrate noted that according to the prosecution, the employee of the second Respondent acted hand in glow with the employees of the Collector office and fabricated the documents and gave possession to the Petitioner. 3. The learned counsel appearing for the Petitioner invited attention of the Court to a decision of the Full Bench of this Court dated 29th November, 2010 in Criminal Writ Petition No.3198 of 2009 ( Sudhir Vasant Karnataki v. The State of Maharashtra & Others ) and other connected Petitions. He pointed out that the majority view of the Full Bench holds that the expression “any property” used in sub-section (1) of Section 102 of the said Code does not include an immovable property. He, therefore, submitted that the application made by the Petitioner ought to have been allowed. The learned counsel appearing for the second Respondent submitted that there is no challenge in this Petition to the seizure of the flat. He submitted that the Petitioner ash 3 crwp-1792.10 obtained possession of the flat on the basis of the fabricated documents and in fact he was not eligible for the benefit of SRA. He submitted that without being any challenge to an order under Section 102(1) of the said Code, this Court cannot interfere with the impugned order. 4. I have given careful consideration to the submissions. It is not in dispute that the flat in question was seized by exercise of the power under Sub-section (1) of Section 102 of the said Code. It will be necessary to make a reference to the Paragraph 84 of the decision of the Full Bench. The relevant part of which reads thus:- “84. To sum up, we answer the reference thus: Q.(a) Whether the words “any property” used in sub- section (1) of Section 102 of the Code of Criminal Procedure, 1973 would mean to include “immoveable property”? Ans. We therefore, hold that the expression “any property” used in sub-section (1) of Section 102 of the Code does not include immovable property. Question (a) is, therefore, answered in the negative.” 5. The law laid down by a Larger Bench of this Court which binds this Court is that there is no power vesting under Section 102(1) of the said Code to effect seizure of an immovable property. It is true that when the learned Magistrate passed the impugned order, the decision of the Full Bench was not available. In view of the decision of ash 4 crwp-1792.10 the Full Bench, it will have to be held that the very action of seizure under Section 102(1) of the said Code is not only illegal but it is without jurisdiction and null and void, and therefore, the impugned order will have to be set aside by directing return of the flat as claimed by the Petitioner. At this stage, the learned counsel appearing for the second Respondent submits that the second Respondent will take out appropriate proceedings within a period of eight weeks from today. He, therefore, submits that the order of return of the flat may not be implemented for a reasonable time. 6. Hence, I pass the following order: ORDER : (a) The impugned order dated 3rd May, 2010 is quashed and set aside; (b) The Application made by the Petitioner being Misc. Application No.56/N/2010 dated 22nd March, 2010 is allowed by accepting the undertaking of the Petitioner therein that he shall not sell and/or transfer and/or mortgage and/or create any third party interests in respect of the suit flat till disposal of the case; ash 5 crwp-1792.10 (c) On the prayer made by the learned counsel appearing for the second Respondent, the operation of this order will remain stayed for a period of twelve weeks from today. (d) The Rule is made absolute on above terms. ( A.S. OKA, J )