Code of Criminal Procedure, 1973 – S. 102 – Power of police officer to seize certain property – Sweep, purport and applicability of.
CRIMINAL APPELLATE JURISDICTION
(Dipak Misra, CJI.) and (A.M. Khanwilkar) JJ.
15th December, 2017.
CRIMINAL APPEAL NO. 1099 OF 2017
(Arising out of SLP(Crl.) No. 6474 of 2016)
TEESTA ATUL SETALVAD …Appellant(s)
THE STATE OF GUJARAT …Respondent(s) WITH
CRIMINAL APPEAL NO. 1083 OF 2017
(Arising out of SLP(Crl.) No.6477 of 2016)
JAVED IFTEKHER AHMED ANAND …Appellant(s)
THE STATE OF GUJARAT & ORS. …Respondent(s)
CRIMINAL APPEAL NO. 1084 OF 2017
(Arising out of SLP(Crl.) No.6476 of 2016)
CITIZENS FOR JUSTICE & PEACE …Appellant(s)
THE STATE OF GUJARAT & ORS. …Respondent(s)
CRIMINAL APPEAL NO. 1085 OF 2017
(Arising out of SLP(Crl.) No.6475 of 2016)
SABRANG TRUST …Appellant(s)
THE STATE OF GUJARAT & ORS. …Respondent(s) 2
J U D G M E N T
A.M. Khanwilkar, J.
1. The common question posed in these appeals centres around the sweep, purport and applicability of Section 102 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”), which reads thus:
“102. Power of police officer to seize certain property.- (1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.
(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.
(3) Every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.
Provided that where the property seized under sub-section (1) is subject to speedy and natural decay 3
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 the 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.”
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 Gulberg Co-Operative Housing 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, 2014. The 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 Magistrate’s Court at Ahmedabad, being Miscellaneous Application Nos.175-178/2014 which 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 Application Nos.249-252 of 2015. While 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. In other words, the limited issue to be addressed in the present appeals is about the justness of the action of the Investigating Officer of freezing of stated bank accounts of the appellants in connection with FIR registered as CR No.1/2014; and the correctness of the approach of the Magistrate in rejecting the request for de-freezing the bank accounts of the appellants as affirmed by the High Court vide impugned judgment.