Police Officer has the power to seize any property found under suspicious circumstances. : Orissa High Court

Maa Kuanri Transport & Others vs State Of Orissa & Others on 4 June 2021 Orissa High Court Maa Kuanri Transport & Others vs State Of Orissa & Others on 4 June 2021 HIGH COURT OF ORISSA : CUTTACK CRLMP Nos.164 165.166.167 & 1618 An application under Article 226 of the Constitution of India CRLMP No.1618 Maa Kuanri Transport & others ....... Petitioners Versus State of Orissa & others ..... Opposite parties For petitioners : Mr. Dharanidhar Nayak Sr. Advocate & H.S.Mishra Advocate For Opp.parties: Mr. Dillip Kumar Mishra Additional Government Advocate Mr. M.K.Das T.K. Harichandan N.K.Das.OLR 452 7. Mr.H.S.Mishra learned counsel for the petitioners vehemently submitted that the petitioner Sri Sanatan Mahakud has not been named in the F.I.R. and he received the notice under section 160 Cr.P.C. to appear before the I.O. On 20.01.2018 since he sustained injury in spinal cord the petitioner intimated the I.O. B.K.Mallick opposite party No.5 that he would appear on a later date But due to the utter surprise and consternation he came to learn that five accounts of Sanatan Mahakud or his firm or company have been frozen. The learned counsel has referred to the decision reported in 2009 Vol.(1) Crimes 489Agrani Exports Pvt.Ltd. vrs. State of Orissa 2003 Cri.L.J. 1983 :: 2003 AIR Karnatak High Court 995 S.Satyanarayana vrs. State of Karnataka 1994 Indian Kanoon Maa Kuanri Transport & Others vs State Of Orissa & Others on 4 June 2021 Crl.L.J. 645 M s. Malnad Construction Company Shimoga and others vrs.State of Karnatak and others. Learned counsel for the petitioners further submitted that since the petitioner Sri Sanatan Mahakud resided outside the jurisdiction of Keonjhar Police Station notice under section 160 Cr.P.C. issued against any person not within the limits of the Police Station is without jurisdiction as per the decision in Sitaram Chayla Vrs. Officer in charge Laxmisagar P.S. reported in17 OCR 123. Further it has been contended by the learned counsel for the petitioners that the petitioner Sri Sanatan Mahakud was a MLA of Champua Assembly Constituency as independent candidate during the time of action taken by the Police 8. Per Contra a counter affidavit has been filed by opposite party nos.3 and 4 challenging the maintainability of the petition on the ground that the petitioners ought to have approached the learned magistrate by filing appropriate application. It has been further averred in the counter affidavit that the allegation made in the F.I.R. revealed that it was a preplanned and engineered move to paralise the movement of vehicles and persons on the National High Ways thereby harassing the public without any justifiable reason and in an illegal and inhuman manner. On earlier occasion on 11.12.2017 and 05.01.2018 there was road blockage on the same issue at the instigation of Sana Sena which group had been raised by Sri Sanatan Mahakud MLA Champua The activities of the agitators on 12.01.2018 strengthened the suspicion that they had been hired by Sanatan Mahakud MLA Champua on payment of money to carry on such demonstration. The complainant drew up plain paper F.I.R. at the spot at 1.15 P.M. under sections 143 148 341 283 294 506 149 of the Indian Penal Code read with Section 7 of Crl.Law Amendment Act 2013 Thereafter the opposite party no.4 got information that the I.I.C. Champua Police Station has detained a white colour Hoonda Santafe Car bearing registration No.OR 02 BV 8007 containing a tin box loaded with cash of different denominations. During verification it was ascertained that cash of Rs.50 00 000 was transported by Branch Manager IndusInd Bank Joda to hand over to Sanatan Mahakud at his Champua Office. Manager Manas Rout when questioned miserably failed to explain the illegal transportation of huge sum of cash in a private vehicle without any official authority or supporting documents. S.I. B.K.Mallik Investigating Officer went to Champua and seized the aforesaid cash along with other articles during investigation. Mr.Manas Rout Manager IndusInd Bank Joda admitted to have been carrying the aforesaid cash from IndusInd Bank without any document as per the direction of the MLA who is having accounts in their branch Sanatan Mahakud was issued with notice on 16.01.2018 under section 160 Cr.P.C. to appear in person on 20.01.2018 at Keonjhar Sadar Police Station for his examination in the case. On the same day the I.O. issued a letter to the Branch Manager IndusInd Bank Joda Branch to freeze the a f o r e s a i d a c c o u n t o p e r a t e d b y S r i S a n a t a n M a h a k u d i n t h e s a i d B a n k i . e . A c c o u n t No.200010334681 in the name of Kuanri Transport A C No.20001263648 in the name of Chhaturbhuj Development Committee A C No.100022799033 in the name of Sanatan Mahakud Account No.200010352623 in the name of Jagat Janani Services and Account No.200010298866 in the name of Jagat Janani Service Ltd. It has been further stated in the counter affidavit that instead of appearing in Keonjhar Sadar P.S. Case No.218 Advocate of Mr.Sanatan Mahakud produced a letter for extension of time for his appearance before the Police and Sanatan Mahakud has not appeared in the Police Station. From this it is presumed that Sanatan Mahakud is deliberately avoiding to appear before the Police. Further in the counter affidavit it has been submitted that all the accounts have been frozen by the I.O. opposite party no.5 in Keonjhar Sadar Indian Kanoon Maa Kuanri Transport & Others vs State Of Orissa & Others on 4 June 2021 P.S.case No.118 in exercise of power under section 102 Cr.P.C. during the course of investigation as it was well established that money in the account is directly linked in the commission of the crime. It is further submitted that Bank accounts of Mr. Sanatan Mahakud constitute property within the meaning of Section 102 Cr.P.C. and Police Officer in course of investigation has the power to freeze the said account if such assets are linked to the commission of offence which the Police Officer is investigating into. The decision rendered in the case of State of Maharastra vrs. Tapas D Neogy reported in 1999(7) SCC 685 and the decision of the Hon ble apex Court in the case of Teesta Atul Setalvad vrs. The State of Gujarat reported in 2018(2) SCC 372 have been referred to 9. A counter affidavit has also been filed by opposite party no.6 stating therein that the opposite party no.6 being the Bank Officer has no power to investigate into the authenticity than to carry out the instruction of the I.O. and there is no illegality in carrying out the instruction of the I.O. and the present case is not maintainable against opposite party no.6 which may be dismissed against opposite party no.6 10. A rejoinder affidavit to the counter affidavit filed by opposite party Nos. 3 and 4 has been filed stating therein that a fabricated story has been designed to fit the prosecution case. In fact there is no such organization called "Sana Sena" in the district of Keonjhar. Moreover Mr.Sanatan Mahakud is the MLA of Champua and Keonjhar Sadar Police Station is not within the Champua Assembly Constituency. Road Blockage by the local residents to abolish the Toll Plaza at Banajodi has no relation with the petitioner nor the alleged cash seized by them has any connection with the petitioners. It has been further submitted that due to arbitrary action of opposite party Nos. 3 and 4 the personal liberty of Mr.Sanatan Mahakud and his family members has been infringed. The F.I.R registered has no connection with the freezing of the accounts and neither there is any material on record to show that the Police has exercised power under section 102 Cr.P.C. nor in the facts of the case a case is made out even remotely to exercise power under section 102 Cr.P.C. to freeze the accounts of the petitioners. The Investigating Agency has not intimated the magistrate regarding freezing of the accounts under section 102 Cr.P.C. In absence of any intimation to the magistrate and intimation to the Account holder no petition can be filed by the petitioners nor in absence of any intimation of freezing the accounts the magistrate can entertain the petition to release the amount Hence there is no alternative to the petitioners 11. Mr.Dilip Kumar Mishra learned Additional Government Advocate apart from reiterating the submissions made in the counter affidavit has vociferously submitted that in view of the decision in the case of Teesta Atul Setalvadthe present application is not maintainable. Learned counsel for the State submitted that even on suspicion the Investigating Officer can freeze the account and the I.O. gave notice under section 102 Cr.P.C. and the petitioners did not appear. So far as Section 102 Cr.P.C. the same has been scrupulously followed. Learned counsel for the State further submitted that after completion of investigation the petitioners can approach the learned trial 12. From the rival contentions the issue which emerges for determination is as to Indian Kanoon Maa Kuanri Transport & Others vs State Of Orissa & Others on 4 June 2021 i) Whether the action of the opposite parties in freezing different accounts of the petitioners purportedly under section 102 Cr.P.C. is legally permissible ii) whether relief sought for by the petitioners invoking Article 226 of the Constitution of India for quashing of the order for freezing of the accounts can be entertained by this Court at the first instance without approaching the learned jurisdictional magistrate 13. In order to appreciate issue No.1 it would be apposite to refer to section 102 Cr.P.C. which reads here as under 102. Power of police officer to seize certain property.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 Sectionshall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized in 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 Provided that where the property seized under sub sectionis subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees it may forthwith be sold by auction under the orders of Superintendent of Police and the provisions of Sections 457 and 458 shall as nearly as may be practicable apply to the net proceeds of such sale On reading of the aforesaid provisions there is no doubt or debate that a police officer can seize the property which may be alleged or suspected to have been stolen or commission of the offence. The Bank Accounts which have been seized pursuant to Keonjhar Sadar P.S.Case No.1.01.2018 is sequel to the complaint lodged by the I.I.C. Keonjhar Sadar P.S. and on the basis of the complaint the case has been registered under sections 143 148 341 283 294 506 149 of the Indian Penal Code read with Section 7 of Criminal Law Amendment Act 2013 Now the question arises as to whether the action of the opposite parties in freezing different bank accounts of Mr.Sanatan Mahakud is in compliance to Section 102 Cr.P.C. In support of his contention learned counsel for the petitioners has referred to 2009(1) Crimes 489Agrani Exports Pvt.Ltd. vrs. State of Orissa wherein this Court has been pleased to hold that "Section 102 Investigating Officer got operation of loan account of the petitioner company stopped Question whether action under section 102 Cr.P.C. could be taken against the petitioner company by freezing Indian Kanoon Maa Kuanri Transport & Others vs State Of Orissa & Others on 4 June 2021 its loan account though neither the Company nor its directors were accused in criminal case being investigated by police Police found that FDR deposited as security for loan had belonged to a proprietary concern against whom criminal case was being investigated Nothing on record to show that said loan account had a direct nexus with alleged to have been committed by proprietary concerned Investigating Officer could not have got account of petitioner freezed and rather could have direct bank authority not to get term deposit encashed Action of freezing loan account of petitioner company could not be sustained Learned counsel for the petitioners has also referred the decision reported in 2003 Cri.L.J.1983 2003 AIR KANT. H.C. 995: S.Sathyanarayana vrs. State of Karnataka wherein it has been held that "......Hence the Police Officer has no authority or power to seize the property when it is neither suspected to be stolen nor found under the circumstances creating any offence having been committed unless discovery of a property leads to a suspicion of offence having been committed Learned counsel for the petitioners has also referred the decision reported in 1994 CRL.L.J. 645 1993ALLCRILR 817 Karnataka High Court M s. Malnad Construction Company Shimoga and others vrs. State of Karnataka and others wherein it has been held in para 16 that "16. Xx xx xx Thus a combined and careful reading of Section 102(1) andof the Code shows that a Police Officer is not conferred with any power to issue direction to Banks prohibiting operation of accounts. Any action affecting the rights of the person citizens cannot be sustained unless they are authorized by law. Undoubtedly issuing of a direction to Bank prohibiting operation of accounts does not fall within the powers of the Police Officers acting under Section 102 of the Code 14. Learned counsel for the State on the other hand has referred to the decision reported in2 Supreme Court Cases 372of section 102 indicates that the police officer has the power to seize any property which may be found under circumstances Indian Kanoon Maa Kuanri Transport & Others vs State Of Orissa & Others on 4 June 2021 creating suspicion of the commission of any offence. The legislature having used the expression " any property" and " any offence" have made the applicability of the provisions wide enough to cover offences created under any Act. But the two preconditions for applicability of Section 102(1) are that it must be "property" and secondly in respect of the said property there must have been suspicion of commission of any offence. In this view of the matter the two further questions that arise for consideration are whether the bank account of an accused or of his relation can be said to be " property" within the meaning of sub sectionof Section 102 Cr.P.C. and secondly whether circumstances exist creating suspicion of commission of any offence in relation to the same 18. After analyzing the decisions of different High Courts this Court in para 12 expounded the legal position thus :"12. Having considered the divergent views taken by different High Courts with regard to the power of seizure under 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. We are therefore persuaded to take the view that the bank account of the accused or any of his relations is "property" within the meaning of Section 102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into......... In the aforesaid premises we have no hesitation to come to the conclusion that the High Court of Bombay committed error in holding that the police officer could not have seized the bank account or could not have issued any direction to the bank officer prohibiting the account of the accused from being operated upon 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." "25. 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 in sub sectionand sub sectionof 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 sub sectionof Section 102 of the Code. It will be open to the court concerned 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 27. 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 28. 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 On cumulative effect of the aforesaid factual and legal aspect this Court is of the considered view that the opposite parties have invoked the provisions under section 102 of the Code of Criminal Procedure after lodging of the F.I.R. and institution of the criminal cases which is legally 15. Section 102 Cr.P.C.indubitably empowers any police officer to seize the properties which have got any nexus or co relation with the commission of any offence In the instant case on the lodging of the F.I.R. by the IIC Keonjhar Sadar Police Station a case has been registered under Sections 143 148 341 283 294 506 149 of the Indian Penal Code read with Section 7 of Crl.Law Amendment Act 2013. Therefore it can be gainsaid that invoking section 102 Cr.P.C. by the opposite party no.4 is not bereft of any jurisdiction nor the scope ambit and applicability of Section 102 Cr.P.C. is any more res integra 16. After institution of the criminal case the petitioner Sri Sanatan Mahakud was issued with notice under Section 160 Cr.P.C. to appear in person on 20.01.2018 at Keonjhar Sadar Police Station for his examination. But Sri Sanatan Mahakud did not appear before the police on the ground of his ailment. As has been disclosed from the averments in the counter affidavit filed by opposite party nos.3 and 4 that Sri Sanatan Mahakud did not appear before the police station at least till filing of the counter affidavit. Though Sri Sanatan Mahakud has not been specifically named in the F.I.R. as Indian Kanoon Maa Kuanri Transport & Others vs State Of Orissa & Others on 4 June 2021 an accused but the complicity of Mr.Sanatan Mahakud has been well proved during investigation as stated in the counter affidavit. Law is well settled that F.I.R. is an encyclopedia of the fact and details of the crime are unearthed and unraveled during the course of investigation 17. In order to dilate the rival contentions it would be appropriate to refer to Section 160 of the Code of Criminal Procedure 1973 which reads as follows 160. Police officer s power to require attendance of witnesses Any police officer making an investigation under this Chapter may by order in writing require the attendance before himself of any person being within the limits of his own or any adjoining station who from the information given or otherwise appears to the acquainted with the facts and circumstances of the case and such person shall attend as so required Provided that no male person under the age of fifteen years or above the age of sixty five years or a woman or a mentally or physically disabled person shall be required to attend at any place other than the place in which such male person or woman resides 2) The State Government may by rules made in this behalf provide for the payment by the police officer of the reasonable expenses of every person attending under sub sectionat any place other than his residence 18. On perusal of the aforesaid provision the power of the police officer to require attendance has been well delineated. Therefore the notice by the police to Sri Sanatan Mahakud with regard to Keonjhar Sadar Police Station Case No.12 dated 12.01.2018 is in consonance with the aforesaid 19. In respect of relief seeking defreezing of all the accounts of Sri Sanatan Mahakud in the aforementioned applications this Court is of the considered view that the same is a sequel of the registration of the alleged offence as stated in the foregoing paragraphs. In pursuance of the lodging of F.I.R. the investigation commenced but despite notice under Section 160 Cr.P.C. Sri Sanatan Mahakud did not appear on account of his ailment 20. So far as issue No.2 is concerned the petitioner Mr. Sanatan Mahakud despite notice being issued under section 160 of the Code has not appeared before the Investigating Officer to put forth his stand. The petitioner is not precluded to raise his claim for defreezing of the bank accounts after completion of investigation Therefore in the fitness of things the petitioners ought to have approached the Investigating Officer for defreezing of the account or else in the event the Investigating Officer fails to accede to the prayer of the petitioner it was open for the petitioners to have approached the learned magistrate 21. Considering the facts and circumstances in its entirety and on cumulative appreciation of the decision of the Hon ble Apex Court in the case of Teesta Atul Setalvad (supra). While not entertaining these applications this Court is of the considered opinion that it would be appropriate Indian Kanoon Maa Kuanri Transport & Others vs State Of Orissa & Others on 4 June 2021 for petitioner to approach the Investigating Officer or opposite party no.4 for defreezing of all the accounts. In the event relief sought for by the petitioners is not acceded to either by the I.O. or by the opposite party no.4 it would be open to the petitioners to approach the jurisdictional Magistrate by filing appropriate application with same identical prayer. However it is made clear that this Court has not gone into the merits of the case raised by the contesting parties in the aforesaid Resultantly all the CRLMPs stand disposed of Orissa High Court Cuttack The 4th June 2021 R Indian Kanoon 

Summary: The policeman’s power to seize certain property- Any policeman may confiscate property that may or may be suspected of having been robbed or that could be found in circumstances that may give rise to any criminal suspicion. Such policeman shall report the seizure immediately to that police officer if he is subordinate to the officer in charge of the police station, it was mentioned by Justice P. Patnaik of the Orissa High Court in the matter of Maa Kuanri Transport and Ors. Versus State of Orissa and Ors.[CRLMP Nos.164,165.166.167 &amp; 168 of 2018] The order was passed for the facts where the petitions submitted for quashing the order of opposite Party 6 to freeze Maa Kuanri Transportation Bank Account, Unchabali, Jagat Janani Services Private Ltd, Nambira, Chaturbhuj Development Committee, Balda, Sri Sanatan Mahakud’s Personal Account, and petitioners for quashing the Commission’s intimation to the petitioner’s company with a revised version of that order. Since from Keonjhar P.S. Case No.12 dated 12 January 2018 all the above-mentioned questions arose, the cases were listened to analogously and resolved by common order and decision. Case no.12 dated 12.01.2018 registered under Articles 143, 148, 341, 283, 294, 506/20149 of the Indian Penal Code and Article 7 of the Criminal Law Amendment Act, 2013 is used to justify the freezing of the aforesaid Bank account. Case no.22 dated 22.01.2018 In the F.I.R. filed on 12 February 2018, at approximately 1.45 pm, the plaintiff Inspector S.Pradhan, I.I.C., Sadar Police Station, Keonjhar, drew a plain F.I.R. document on N.H.20 near Silisuan, which was about 1.15 p.m. on that date. She had been at the spot together with other police staff, receiving information on a huge group of fans of Sana Sena near Railway over a Silisuan bridge, found more than 2000 people gathering in that site armed with lathi and slogans provoking against the police government demanding the abolition of Toll-Plaza in Banajodi led by Sudhi. In trying to intervene, the complainant and police threatened them with dire repercussions, slogans like Sana Sena Zindabad, Prasasana Murdabad Police, etc., and continued to obstruct their road. On 11.12.2017 and 05.01.2018, they also blocked the road on the same matter. Because of the roadblock, there has been the feeling and suspicion that money has been hired to carry on on protracted agitation. She has reliable information about the huge amount of cash that IndusInd Bank is giving Joda to the leaders to continue to be distributed among the agitators. The F.I.R. Keonjhar P.S.Case No.12 dated 12 January 2018 is the basis for the registration of the Indian Penal Code pursuant to Section 143, 148, 341, 283, 294, 506/149 of the Crl. Law Amendment Act 2013. The learned counsel also argued that section 102 of the Cr.P.C. was not scrupulously followed or attracted since the freezing of the accounts does not have a direct link with the alleged crime and the other party-state did not produce any of the materials, causes of account freezes. To support his claim, the senior lawyer of the petitioners referred to the Karnataka High Court of 2012 Criminal Law Journal 3487. 2017 Vol. (2) OLR 452. In addition to reiterating the submissions made in the counter-affidavit, the learned Additional Government Advertiser has argued vociferously that this application cannot be maintained because of the decision of Teesta Atul Setalvad (supra). Learned State counsel submits that the Investigating Officer, even in case of suspicion, may freeze its account and the I.O. has given notification to the applicants in accordance with section 102 Cr.P.C. The same has been followed scrupulously as far as Section 102 Cr.P.C. According to the learned State counsel, the petitioners can reach the court of appreciation after completion of the investigation. Therefore, when the situation was fit, the petitioners should have approached the enquiry officer to de-freeze the account, or if the enquiry officer does not accede to the petitioner’s prayer, they should have approached the learned magistrate openly. Considering the facts and circumstances in their entirety and on cumulative appreciation of the decision of the Hon’ble Apex Court in the case of Teesta Atul Setalvad (supra).