Case: Teesta Atul Setalvad &amp; Others Vs. State of Gujarat &amp; Others

2. The bank accounts, in all nine, of the appellants have been seized on the instructions of the Investigating Officer as a sequel to the complaint filed by the members of GulbergHousing Society, registered by D.C.P. Police Station, bearing CR No.1/2014, on 14th January, 2014 for offence punishable under Sections 406, 420 and 120B of the Indian Penal Code and Section 72A of the Information Technology Act, 2000. The bank accounts were seized and intimation in that behalf was given to the concerned Magistrate on 21st January,appellants filed a petition before the Bombay High Court, being Writ Petition (Criminal) No.173/2014, for quashing of the FIR and for setting aside the freezing order which, however, was rejected on 4th November, 2014 with liberty to the appellants to approach the jurisdictional court. Against the said decision the appellants preferred special leave petition before this Court, being Special Leave Petition (Criminal) No.3330/2014, which was allowed to be withdrawn on 5th May, 2014 with liberty to the appellants to move before the Competent Authority. The appellants then filed Special Criminal Application No.2710/2014 before the High Court of Gujarat at Ahmedabad. That application was, however, withdrawn on 29th September, 2014 with liberty to approach the concerned Magistrate for appropriate relief.3. The appellants thereafter moved formal applications before the Metropolitan Magistrates Court at Ahmedabad, being Miscellaneous Applicationwhich were dismissed by common order dated 28th November, 2014 passed by Additional Chief Metropolitan Magistrate, Ahmedabad. Aggrieved, the appellants filed four separate revision applications before the High Court of Gujarat at Ahmedabad, bearing Criminal Revision Applicationle the said revision applications were pending, the anticipatory bail application filed by the appellants in connection with the alleged offence came to be rejected by the High Court by a speaking order dated 12th February, 2015. That order has been challenged by way of Special Leave Petition (Criminal) No.1512/2015 which has been converted into Criminal Appeal No.338/2015 and is pending for consideration by a larger Bench in terms of order dated 19th March, 2015. The appellants have been given interim protection of stay of arrest during the pendency of the said appeal.4. The other relevant fact to be noted is that additional offences have been added to the FIR in relation to which the bank account freezing directions were issued by the Investigating Officer, punishable under Sections 467 and 471 of the Indian Penal Code ("IPC"). Besides, the Competent Authority under the Foreign Contribution (Regulation) Act, 1976 issued orders on 23rd July, 2015, categorising the authorization in respect of Citizens for Justice and Peace Trust ("CJP Trust", appellant in Criminal Appeal No.1084/2017), as "prior permission". In so far as the Sabrang Trust (appellant in Criminal Appeal No.1085/2017), vide order dated 9th September, 2015 the Competent Authority suspended its authorisation. It is also relevant to note that FIR has been registered by the Competent Authority of CBI in respect of violation of Foreign Contribution (Regulation) Act, 1976. On 8th July, 2015 the appellants have been granted anticipatory bail in respect of the said offence.5. Be that as it may, the criminal revision applications preferred by the appellants before the High Court of Gujarat, challenging the order dated 28th November, 2014 passed by the Magistrate rejecting the prayer for lifting of the bank account freezing, were finally heard and dismissed vide common judgment dated 6th/7th October, 2015. This order is the subject matter of the present appeals.The genesis of the freezing of the bank accounts of the appellants is the registration of the FIR bearing CR No.1/2014 on 4th January, 2014.e genesis of the freezing of the bank accounts of the appellants is the registration of the FIR bearing CR No.1/2014 on 4th January, 2014.The same reads asInformation Report of Offence under police Jurisdiction(under Sec.154 of Cr.P.C)1. Dist. Ahmedabad Po.St. D.C.P.First Information no. I CR No.01/2014 Dt.4/1/2014.2. Law (1) IPC sec.406, 420, 120(B) and The I.T. Act.(A) Date of offence occurred and date:year from 2007 to till today.(B) Date declared of offence (Po.St.) :) Station diary entry no. 07/2014 Time : 14:154. How got information :Writing.5. Offence place :(A) Distance of offence from po.st. and direction. Beat no. / Chawkyerg Society, Meghani Nagar, Ahmedabad and by the interest(C) If the offence has occurred outside the police station then name of that police station....Complaint / InformationName : Firozkhan(B) Name of Father : Saeed Khan Pathan(C) Birth Date/Year : ..................(D) Nationality : Indian(E) Passport No.............. Dt. ...............(F) Occupation : Business (G) Address : 15, Shukan Residency, 2nd floor, Opp. Sonal Cinema, Vejalpur Road, Ahmedabad City.7. Name, Add and details of AccusedTeesta Setalvad Resi. Nirant, Juhu Tara Road, Mumbai(2) Javed Anand (Husband) Resi. Nirant, Juhu Tara Road, Mumbai(3) Tanveer Jafri(4) Chairman of G.B.Soc. Salim Sandhi.(5) Secretary of G.B.Soc. Firoz Gulzar M.Pathan and others who come out after inquiry.8. Reason for late information......12. Details of 1st Information :.........The facts of this case are such that as mentioned on above date, time and place, the accused named in had conspired and exhibited the photographs and video of Gulberg Society and other affected areas and the accused had put up on the CJP and Sabrang"s websites with the help of internet against the wishes of the complainant and on the website appealed wealthy people to deposit donation in the CJP"s IDBI bank account as well as Union Bank of India Account of Sabrang and thereby obtained deposits of crores of rupees and used the money for personal use by diverting in different institutions with one/same address thereby indulging in wrong activities in the name of religion and used Rs. 1,51,00,000/for personal use between 2009 and 2011 thereby committed breach of trust & cheated the victims by using internet.Details of act done after registration of the04/01/2014My name is Firozkhan Saeedkhan Pathan, Aged 41, Business. Re.15, Shukun Residency, 2nd Floor, Opp. Sonal Cinema, Vejalpur Road, Ahmedabad City (M) 9974240961. On being asked personally, I am giving this complaint that I am residing at the above mentioned address with my family since 2004 and own a Relief Cyber Café at Relief Road. In the year 2002, I was residing in Bungalow No. 18, at Gulbarg Society, Chamanpura, Omnagar Road at Meghaninagar, with my family at the time of Godhra Riots. This bungalow was in the name of my uncle Anwarkhan Ahmedkhan Pathan. In this bungalow the nominee was my aunt Jetunbibi Anwarkhan Pathan. But this massacre time my elder father Anwarkhan Ahmedkhan Pathan was killed.Thus, this bungalow is on the name of his wife Jetunbibi Anwarkhan Pathan who was residing there. This bungalow no. 18 was three storied. On the ground floor in two rooms my elder uncle Anwarkhan A.Pathan and his wife were lived. And other two rooms my younger uncle Rashidkhan A.Pathan and his wife Jamilabanu and my grandmother Kherunnisha A. Pathan lived in it. On the Second floor two rooms where my uncle Anwarkhan"s son Asiamkhan A.Pathan and his wife Suraiya and their son Azar lived. And in other two rooms my elder father Anwarkhan"s younger son Akhtar Khan A. Pathan and his wife Sajedabanu and their son Sadab and daughter Farin resided.On the third floor, I myself, my father and my mother Jehunnissa and my younger brother Imtiyazkhan Saeedkhan Pathan were residing. In the year 2002, after Godhra incident, our Gulbarg Society too was burnt byelements and 68 persons killed including my grand mother Kherunnisha A. Pathan Aged 80 and my uncle Anwarkhan A. Pathan Aged 70, my mother Johurannisha Saeedkhan Pathan aged 57, my uncle"s wife Jamilabanu Rashidkhan Pathan aged 45 and my elder father Anwarkhan"s son Akhtarkhan A. Pathan and his wife Sahedabanu Akhtarkhan and his son Sadabkhan A.Pathan. We lived at Dariyakhan Ghummat, Shahibaug relief camp for three months. At that time Raiskhan Azizkhan Pathan and Teesta Setawad met us and told that they run one NGO and had taken an interview.They told that they would publish the interview in their magazine namely Communalism Combat and would help you economically and legally and also assured of help whenever needed. I did not know Raiskhan and Teesta Setalwad before this time. After that, we have taken a flat on rent at Rakhial and live there for one year, and then, in the year 2004, we lived in a flat which on rent, at Juhapura for one and half year. And after that we lived in Ambar tower flat No.28, taken on rent and lived for one and half year there. After that in the 2007 lived in Firozalla, Nr. Vejalpur and then in the 2010, we shifted 15, Shukun Residency, 2nd floor, Opp. Sonal Cinema, Vejalpur with my family. After Godhra Riots, we organized programme for paying our tribute to our departed souls at Gulbarg Society on the 28th Feb every year and read Quran there. At this time, one NGO CJP"s Ms. Setalvad arrived from Mumbai assured support in the Gulberg Society"s case. This Teesta Setalvad helped us till the trial went on. She helped us only for the trial case and not economically.Then in the year 2007, Teesta Setalvad"s man one Raiskhan A. Pathan, resident of Mumbai and at present residing in Ajit mill compound, Ajit Residency flat, at Rakhial. They told us that we lived in a rental house and are tired of paying rent since 2002. So, went to sell Gulbarg Society, then Raiskhan told us that he has to talk with her and then reply us. After some time we the members of society were went at M.M. Tirmizi"s office which is at Mirzapur and arranged a meeting there.In this meeting, Gulbarg Society members, Raiskhan Pathan, Teesta Setalwad and M.M. Tirmizi were present. When Raiskhan told Teesta Setalvad that the members of the Gulbarg Society wanted to sell their houses, she got angry at Raiskhan and told us that we all should not indulge in selling the society and informed that she would handle it in her own way and asked Raiskhan to leave the office. Thereafter Ms. Setalvad organised a meeting of the members of the society and informed chairman, secretary to make a survey of Then a matting held the members of the society and told that chairman and secretary surveyed the society and expressed her wish to make a museum at this place. I will pay you the value of your houses within a month.After this, in 2008, on 28.2.208, when all of us members and residents of the Gulberg Society gathered there to commemorate the dead, Teesta Setalvad had also visited and held a meeting. At this meeting affected persons following Godhra from Naroda Gaam, Queishi Yunusmiya and Odh village"s Anwarmiyan and Saeed Radeeq Ahmed and Hasan Khan Pathan and Yusuf Vora and Jaffer Khan Pathan as also affected persons from Nroda Patiya, Sardarpura, Visnagar (Deepda Darwaza), and Pandharwada were also present at the meeting. Every year since 2007 Teesta Setalvad held meetings calling affected persons and media persons and made CDs of the opinions of affected persons and their plight and talked of making a museum there. At this meeting, son of former MP Ahsan Jafri, Tanvir Jafri was also there and spoke of putting a statute of his father Ahsan Jafri and building a Museum there.Then on 28.2.2009, a meeting of the members and residents of Gulberg society and other victims from all over Gujarat and the media and other important people was held when all members of the society had told her that you had said in the 2007 meeting that within a month we would be paid. Until now no money has been paid. Hence pay us the money, we said. She said that we are collecting funds and as soon as funds are collected we will be paid, we were informed. Then, in the years 2010 and 2011 , on 28.2.2002, she organized functions when also members had asked questions, but she had made excused and not given the money.On 28.2.2012, this Teesta Setalvad organised a larger, well planed programme at Gulberg Society where the affected persons of riots, media"s persons and Muslim leaders had gathered. At that time, all over Gulberg society, photos of dead persons on a Projector were shown. Banners displayed showed as if the Museum had been created. A large stage was made a Shobha Mudgal, a famous classical artist was called and a programme was held. Members of our society had opposed this and said that since you had not given any monies to the members and falsely projected that you had made a museum and collected donations, since then, strong opposition between society members and Teesta Setalvad began. Hence Teesta Setalvad took Tanvir Jafri, and the Chairman and the Secretary into her confidence and in a confidential meeting resolved that any persons who are members of the society could sell sale their houses to any persons of their choice regardless of caste or religion at the price of your choosing.Now none of the built homes will be used by us for the Museum. The resolution that was passed by which other society members had opposed it. In our opposition we had said that for 12 years since the incident took place, and since 2007, you had on the excuse of a Museum being built amassed crores of rupees and this fund you did not use for the Society or for riot victims, you have not paid any monies. You have breached our trust and cheated us. Along with this Teesta Setalvad and resident of Surat, Tanveer Ahsan Hussain Jafri together, from 2007 to 2012 conducted programmes, made CDs and sent to her sister, Nargis Jafri and his younger brother Zuber who lived in USA via email and through hard copies. There, they organised seminars, showed CD"s and wrongfully collected funds and collected crores of rupees for this. At these seminars, now and then, Teesta Setalvad, Tanveer Jafri, as also their persons, Father Cedric Prakash and R.B. Shree Kumar (Retd. D.G.P.) had visited America.This Teesta Setalvad and Tanveer Jafri and other persons jointly planned a conspiracy of gathering photos etc of affected persons of Gulberg Society and other affected locations and displayed these on the CJP and Sabrang website and on internet against our desires.Then the bank account numbers of the CJP. Institute Bank A/c. in IDBI No.014104000204736 and the Sabrang Bank Account @ Union Bank of India No.369102010802885 were displayed on the internet and appeals for the fund and crores of rupees were collected in the bank accounts. This fund was fraudulently used for their personal expenses through the creation of different organisations at the same address.We got this information under an RTI application:that the CJP NGO had, from 2009 to 2011 had collected Rs.63lakhs and the Sabrang Trust had collected Rs.88Chief Metro Magistrate. Simultaneously, with the registration of the aforementioned FIR, the Assistant Commissioner of Police, Cyber Cell, Crime Branch, Ahmedabad issued instructions to the Union Bank of India, Juhu Tara Branch, Mumbai and IDBI, Khar Branch, Mumbai to seize the stated bank accounts pertaining to Sabrang Trust, CJP Trust, Teesta Atul Setalvad and Javad Anand, appellants herein. Intimation about the seizure of concerned bank accounts was given to the concerned Magistrate on 21st January, 2014. On the applications forof the concerned bank account filed before the Metropolitan Magistrate Court No. XI, Ahmedabad, it was mainly contended thatthe Investigating Officer had failed to comply with the mandate of Section 102 of Cr.P.C., by not informing the Magistrate of the action of freezing of the accounts; the Investigating Officer has not given prior notice to the account holders before freezing of their bank accounts; the appellant CJP Trust, in any case, is not named as accused in the alleged crime and is not associated with the same in any manner; the concerned Trust maintains proper accounts which are duly audited and there is no trace of any illegality committed in respect of receipt and expenditure; the contributions made by foreign fund is after due approval of the Competent Authority; the attempt of freezing of the bank accounts of the Trust and also personal accounts of the Trustees, in particular private appellants, was motivated and an attempt to stifle them from carrying on their social welfare activities; the bank accounts had no causal connection with the commission of alleged offence in respect of which investigation was in progress and more so, not even one donor has come forward to question the intention or activity of the concerned Trust. These contentions have been duly considered by the Magistrate whilst rejecting the application submitted by the appellants forthe accounts. The Magistrate took the view that the private applicants were the Trustees of the Trusts whose bank accounts have been seized and preliminary investigation revealed substantial discrepancies in the accounts, including that the accounts of the Trusts were not audited for the relevant period and the transactions and huge withdrawals from the bank accounts raised suspicion regarding the commission of the alleged offence. It is further held that since the investigation was at the nascent stage and was in progress and the private appellants were seemingly not cooperating with the investigation, the prayer for lifting of seizure of the bank accounts cannot be acceded to. Accordingly, the applications came to be rejected vide a common order dated 28th November, 2014 by the Additional Chief Metropolitan Magistrate Court No.XI, Ahmedabad.8. Before the High Court, more or less similar arguments were canvassed on behalf of the appellants. The High Court in paragraph 15 of the impugned judgment adverted to the gist of contentions recorded by the Magistrate asThe questions which raised in the Lower Court, as submitted by the learned counsel for the petitioners, were (A) That seizer of accounts was illegal in absence of prior notice, (B) The action of freezing of accounts in absence required intimation to the Magistrate concerned was illegal, (C) The accounts could not have been freezed for all times to come and the object of the investigation could have been achieved by requiring the petitioners to execute a bond to compensate the State, if at all the case against the petitioners was made out, (D) Freezing of accounts could have been resorted only as a sequel to crime and not for the purpose of discovery of crime, (E) The accounts had nothing to do with proceeds of crime and therefore continued seizure was unnecessary. (F) That accounts were Foreign Contribution Regularization Accounts (FCRA) under the authorization of the Home Ministry, and therefore, local police had no authority to freeze them.The High Court then adverted to the arguments of the appellants as advanced, in paragraphs 16 to 24. The first point was about the absence of prior notice to the appellants before the freezing of the bank accounts, which has been rejected following the Bombay High Court Full Bench decision in the case of Vinoskumar Ramachandran Valluvar V. The State of Maharashtra (2011) Cri.L.J. 2522 (Bom.). The High Court then noted the contention of the appellants that the Audit Reports of the accounts concerned were submitted to various authorities, like Charity Commissioner, Home Ministry etc., who neither raised any objection nor found any irregularity in the accounts. Further, different contributories including Human Resources Development Ministry, have contributed to the corpus of the Trust and none of the contributors or donors have ever raised any objection about the activities of the appellants. The High Court also noted that even United Nations Organization was one of the donors. For obtaining donations from the said organizations, strict procedure and formalities are required to be complied with and have been so complied with and only thereafter the donation amount has been released. The concerned authorities did not find any irregularities in the transactions in question. It was then contended that freezing of accounts cannot be for indefinite period. The appellants can be allowed to operate the accounts upon execution of a bond and that would subserve the interest of justice. The appellants also contended that the accounts wereby the Chartered Accountants and no irregularity or illegality has been found during the saidIn case there is any illegality or irregularity, the same can be deciphered by examining the entries in the books of accounts and the vouchers in the relevant documents which are already furnished to the Investigating Agency. It was contended that freezing of the accounts of the Trust, in particular, operated for receiving donations under the FCRA, was motivated and to completely paralyse the working of the Trust. It was contended that there can be no presumption that the use of the funds from the accounts in question was not for private purpose. It was also contended that the appellants and their chartered accountants and auditors were extending full cooperation with the investigation. The principal argument of the appellants was that the power under Section 102 of Cr.P.C. could not have been exercised as no material was produced by the investigating authority to support the fact that the property in question was parted with to indicate the commission of alleged offence of cheating or breach of trust or for that matter forgery of the record. These contentions were countered by the respondents. The High Court then considered the relevant material placed on record and the affidavits filed by the investigating authority highlighting the suspicious transactions done from the stated bank accounts and the conduct of the appellants, including the incorrect statements made by the appellants on oath in the proceedings before the Court regarding the maintenance of the accounts of the two Trusts. The High Court also adverted to the decision of the coordinate Bench while rejecting the anticipatory bail application preferred by the appellants and inference drawn in support of the conclusion as to why the prayer for anticipatory bail should be rejected. The same has been extracted in paragraphs 37 and 38 of the impugned judgment, which readFrom the aforestated facts this Court drew following inference thus:"Thus, from the above, it is evident that the accounts were also not audited for a long period of time, and it is only when the FIR was registered wherein serious allegations of misappropriation of lacs of rupees have been alleged that all of a sudden the accounts from April, 2003 to March, 2008 were got audited in the year 2014.38. On the basis of the facts available on record as aforestated, this Court assigned the reasons as to why custodial investigation was necessary; they were as under:(a) From the accounts of the Sabrang Trust and CJP, a total amount of Rs.1,69,84,669=00 have been transferred to the Sabrang Communication & Publishing Pvt Ltd, a company owned by the petitioners.(b) From the accounts of the Sabrang Trust and of CJP, an amount of Rs.46,91,250=00 and Rs.28,34,804=00 were transferred to the personal accounts of the petitioner nos. 1 & 2 respectively.(c) From the accounts of the Sabrang Trust and CJP, the petitioners have withdrawn Rs.1,08,73,782=00 as cash.(d) From the accounts of the Sabrang Trust and CJP, the petitioners have paid Rs.29,66,121=00 towards Credit Card payments.(e) The petitioners have endeavored to explain the credit card payment running into lakhs of rupees by stating that all such personal expenditure were repaid to the NGO Page 40 of 48Page 40 of 48 Created On Fri May 06 16:33:26 IST 2016 R/CR.RA/249/2015 JUDGMENT accounts. This employment of public donations to personal use needs to be investigated. The petitioners have not submitted any debit/ credit vouchers and/or cheques details to prove their statement.(f) Upon scrutiny of the saving accounts Nos.014104000142595 & 014104000142601 of the petitioner nos. 1 & 2 with the IDBI, Mumbai, it was noticed that both the accounts were opened on 30.04.2005. The FCRA permission from MHA for CJP and Sabrang Trust was granted in November, 2007. Proposal to purchase the Gulbarg Society was mooted by petitioner no.1 orally in December, 2007 and formally in January, 2008, Resolution was passed by the society accepting her proposal in June, 2008 and thereafter the advertisements commenced and monies started pouring in. Further no substantial income of any nature, except from the CJP and Sabrang Trust, is noticed in both the above mentioned personal accounts of the petitioners, which were further invested in fixed deposits, shares and mutual funds such as ICICI Prudential, Reliance Capital, Kotak Mahindra, Franklin Templeton etc.(g) The donations received by the Sabrang Trust and CJP are utilized for personal purposes.(h) Receipt of donations to the tune of Rs.29,20,000=00 from Ashoka Foundation, Arlington, USA, in the personal accounts of Ms. Setalvad and Rs.6,05,442=00 as foreign remittance in Ms. Setalvads personal account.(i) Monthly withdrawal of salary by both the accused from all the six accounts of CJP, Sabrang Trust and Sabrang Communications.It also appears that the custodial interrogation is necessary for the following reasons :1. The case of the prosecution is based on cogent documentary evidence received from the Charity Commissioner, Mumbai, Ministry of Home Affairs, New Delhi, various Banks, etc. Financial details received from these authorities require detailed investigation.2. The petitioners have never remained present before any investigating agency and have employed every means to avoid the due process of law. The petitioners seek to avoid custodial interrogation by the investigating authorities by dismissing cogent documentary evidence as accounting jugglery. Approximately 44% of the total donations received in the Sabrang Trust and approximately 35% of the total donations received in the CJP, were transferred to their personal accounts.3. Cash withdrawal running into over Rs 1.09 crore need to be further scrutinized and examined wherein Rs.50,000=00 to Rs.5,00,000=00 have been withdrawn as cash on a single day.4. Credit card details received from the UBI and Citi Bank revealed expenditure of purely personal nature running into lacs of rupees being serviced from the CJP and Sabrang Trust accounts through cheques signed by the petitioners.After having noticed the relevant material, the High Court proceeded to consider the contentions germane for answering the issue regardingof the bank accounts and answered in the followingThis Court is conscious of the fact that question of custodial investigation is not under consideration. The endeavour of the Court is to point out material in possession of the investigating agency in relation to the accounts in question and the conduct of the petitioners. It is required to be noted that thein the same terms as in the aforestated bail applications, has been filed by the State in these petitions also. From the aforestated facts, it cannot be disputed that the investigating agency has in its possession a considerable material entitling it to freeze the accounts of the petitioners under Section 102 of Cr.P.C. The power to seize the tainted property or the property which is doubted as tainted, on the basis of substantial material under Section 102 of Cr.P.C. is not in dispute. It is also settled legal position that the investigating agency, while investigating the matter, is the master of its case; the Courts would be loath to interfere in the investigation in absence of serious irregularity or illegality aimed at mala fide impairing the right of the accused rather than serving public interest. It may be true that the action of the investigating agency at the inception may not be regular, but the Court cannot be oblivious to the collection of substantial material by the investigating agency justifying the action under Section 102 of Cr.P.C.Therefore, it is insignificant at this stage, when the investigation has progressed to a material point, to ponder around the question as to whether the act of freezing the accounts was a sequel to crime or the crime was detected later. If the arguments to that effect advanced by the learned counsel for the petitioners is accepted at this stage, it would advance the public injustice rather than serving the ends of justice.accounts on the basis of such arguments, may paralyze the investigation, which cannot be approved as an act in the interest of justice.40. Having found the aforestated serious material against the petitioners, it cannot be said that the execution of the bond by the petitioners is a suitable alternative. Securing the public interest rather than money is the central point of consideration when theft or manipulation of accounts meant for the beneficiaries, is alleged. It is rightly contended by the learned Public Prosecutor that when the investigating agency is wanting to ascertain the extent of the tainted accounts, and when on the basis of material, the whole corpus of the accounts is under the cloud of doubt, at this stage, mere execution of bond is not going to serve the purpose of law.41. The learned counsel for the petitioners submitted in thein Para 5.2, that the petitioners have controverted the facts as regardsof accounts by the petitioners for a continuous period of six years or so as alleged by the State with appropriate material. That is not the only question on which the investigation is based as indicated in detail. Irrespective of the accounts being audited or not, serious discrepancies have been noticed by the Court in the audited accounts submitted to the Charity Commissioner and in the bank statements etc. It is apparent from thefiled by the State that they have noticed and compared various entries in the audited accounts with the statements of the bank accounts. Further, this is not a stage where the Court will appreciate the case as if in a trial. The question is whether there is a material with the investigating agency justifying freezing of accounts under Section 102. The purpose of Section 102 obviously is to find out the truth after noticing the material raising doubt about the commission of offence. At this stage, it is not incumbent upon the investigating agency to justify the material as if in a trial and it would be suffice for it to justify the material for the purpose of investigation. If justifiable material for investigation is available, the Court would not sit in appeal over such justification, as investigation is in the absolute domain of the investigating agency, and as pointed out earlier, the Court may interfere only in exception circumstances.42. As indicated above, prima facie the entire accounts are in serious clouds of doubt, and therefore, freezing thereof could be the only remedy with the investigating agency. The law must be allowed to take its own course, even at the cost of causing inconvenience to the accused or others, and therefore, the petitioners cannot be heard to complain that the consequence of legal action has translated into paralyzing its activities.43. It is also rightly contended by the learned Public Prosecutor that arguments of the learned counsel for the petitioners justifying the transactions or offering justification as to certain entries are more in the nature of defence than valid arguments at this stage. Such facts are required to be considered at this stage by the investigating agency on cooperation of the petitioners, and later, in the trial, if at all the case is found against the petitioners by the investigating agency for trial, and if the cognizance of the offence as alleged is taken by the competent Court. Therefore, arguments that the trusts are registered under the FCRA 1976, and that it has various reputed contributors or the donors including the Human Resources Development Ministry or that the trusts have avowed objects of brining about the communal harmony and helping the victim and providing legal aid to them must fail.44. The arguments impugning the freezing of the accounts under Section 102 of Cr.P.C. without notice to the petitioners are to be noted for rejection for the simple reason that the Section 102 does not contemplate issuance of any such notice, and for the purpose of investigation, no notice to the suspect can be expected under the law. Section 102 of Cr.P.C. is an important step towards investigation and in view of settled legal position that accused cannot have any say in investigation, notice to the suspect is out of question. The intention of the investigating agency is not required to be revealed to the suspect at that crucial stage, else, a message of alert would be received by the suspect creating a huge room for manipulation and or destruction of evidence.45. It is noticed from the impugned order that the notice of the seizure or freezing of the accounts or its intimation was sent to the competent magistrate, and therefore, learned counsel for the petitioners has fairly not pressed the said argument.46. It is also misconceived to argue that the seizure in exercise of powers under Section 102 of Cr.P.C. would be valid only if the accounts in question contain the proceeds of crime.47. There appears to be no substance in the argument that it is only Human Resources Development Ministry which can exercise power of freezing or seizing of the account. There is nothing in the language of any of the provisions of FCRA 1976 to infer any fetters on the powers of the police to investigate even those accounts in which the authorization to obtain the donation even from a foreign national is granted under the FCRA Act. No fetters, therefore can be read in the powers of investigating agency investigating the case under the Cr.P.C.48. True it is that the learned Government Public Prosecutor rightly concedes against perennial freezing of accounts; however, it is for the investigating agency, probably on conclusion of the investigation to determine the extent of the accounts tainted with crime and tothe rest, if at all such Defreezing is warranted in the facts and circumstances of the case. This issue can be answered from another angle as contended by the learned Public Prosecutor. If upon conclusion of the investigation, a part of accounts is found to be tainted, obviously it would amount to stolen property within the meaning of Section 410 of IPC, and in such an eventuality, by no stretch of imagination, a stolen property can be released before trial or acquittal of accused.49. The argument as to applicability of the penal provisions invoked against the petitioners cannot be gone into at this stage when the investigation is at crucial point and the material in this regard is yet to be placed before the Court after conclusion of the investigation. In fact, in view of the settled legal position that accused has no role to play in the investigation except as indicated in Cr.P.C., the question as to applicability of a particular provision is required to be left to the discretion of the investigating agency and then to the Court as and when and if the report under Section 173 of Cr.P.C. is filed."

Reasoning:
14. The sweep and applicability of Section 102 of the Code is no more res integra.After this decision, there is no room to countenance the challenge to the action of seizure of bank account of any person which may be found under circumstances creating suspicion of the commission of any offence.17. In the present case, FIR has been registered at least against three private appellants, naming them as accused. CJP Trust has not been named as an accused in the FIR. But the investigation thus far, according to the respondents, reveals that Teesta Atul Setalvad and Javed Anand are actively associated with the said Trusts and have carried out transactions which may be found under circumstances suspicious of the commission of the alleged offence. That is still a matter of investigation. For the present, the Investigating Officer is of the view that there are certain circumstances emerging from the transactions done from these bank accounts which create suspicion of the commission of an offence. It is on that belief he has exercised his discretion to issue directions to seize the bank accounts pertaining to CJP Trust.18. As regards the procedure for issuing instructions to freeze the bank accounts, it is noticed that the same has been followed by giving intimation to the concerned Magistrate on 21st November, 2014 as required in terms of Section 102 of the Code. There is nothing in Section 102 which mandates giving of prior notice to the account holder before the seizure of his bank account.Keeping these principles in mind and the material on record, it is noticed that the prosecution has alleged that the two Trusts are run by the private appellants and other accused. They were actively involved in collecting huge funds as donation in the name of providing legal assistance to the 2002 Gujarat Riot Victims. Such donations received by the two Trusts had never reached the victims, the members of the Gulberg Society in respect of which grievance has been made in the subject FIR. Further, substantial discrepancies have been noticed from the bank accounts, copies of audited account statements and Balance Sheet. The final account did not tally with the accounts, as submitted. The appellants did not offer credible explanation in that regard, much less satisfactory. According to the respondents, the conduct of the appellants ofduring the investigation strengthens the suspicion of the commission of an offence. They provided incorrect information. It is also a case ofand suppression of material facts. These circumstances create suspicion of the commission of offence under investigation. It is alleged by the respondents that the appellants deliberately and intentionally did not disclose that they have already opened new accounts and transferred huge sums of money after knowing that stated bank accounts of the appellants were seized on 21.01.2014 by the investigating agency. The details of the two newly opened accounts were not forthcoming. Further, in the proceedings filed before different Courts, incorrect plea has been taken by the appellants, suggestive of the fact that their accounts were not compliant and duly scrutinized by the Competent Authority.22. Suffice it to observe that as the Investigating Officer was in possession of materials pointing out circumstances which create suspicion of the commission of an offence, in particular, the one under investigation and he having exercised powers under Section 102 of the Code, which he could, in law, therefore, could legitimately seize the bank accounts of the appellants after following the procedure prescribed inion (3) of the same provision. As aforementioned, the Investigating Officer after issuing instructions to seize the stated bank accounts of the appellants submitted report to the Magistrate concerned and thus complied with the requirement of(3).23. Although both sides have adverted to statement of accounts and vouchers to buttress their respective submissions, we do not deem it necessary nor think it appropriate to analyse the same while considering the matter on hand which emanates from an application preferred by the appellants tothe stated bank accounts pending investigation of the case. Indisputably, the investigation is still in progress. The appellants will have to explain their position to the investigating agency and after investigation is complete, the matter can proceed further depending on the material gathered during the investigation. The suspicion entertained by the investigating agency as to how the appellants appropriated huge funds, which in fact were meant to be disbursed to the unfortunate victims of 2002 riots will have to be explained by the appellants. Further, once the investigation is complete and police report is submitted to the concerned Court, it would be open to the appellants to apply forof the bank accounts and persuade the concerned Court that the said bank accounts are no more necessary for the purpose of investigation, as provided in(3) of Section 102 of the Code. It will be open to the concerned Court to consider that request in accordance with law after hearing the investigating agency, including to impose conditions as may be warranted in the fact situation of the case.24. In our opinion, such a course would meet the ends of justice. We say so also because the explanation offered by the appellants in respect of the discrepancies in the accounts, pointed out by the respondents, will be a matter of defence of the appellants.25. We clarify that at an appropriate stage or upon completion of the investigation, if the Investigating Officer is satisfied with the explanation offered by the appellants and is of the opinion that continuance of the seizure of the stated bank accounts or any one of them is not necessary, he will be well advised to issue instruction in that behalf.