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TMI Blog1999 (9) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... registered three First Information Reports against the said Tapas Neogy and three others for offences under Sections 120-B, 467, 468, 471 and 420 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. It was alleged that the accused committed the offence while on duty and while he was posted as Architect and Town Planner under Government of Daman. The original plan of Daman was prepared by the Department of Architecture and Planning and was approved by the Town and Country Planning Board. In the approved plan, various zones were earmarked for industries, roads, defence, agriculture etc. It was further alleged that out of total area of land, 7.25% was earmarked for industries and 41.21% for agriculture and open space. The zoning could be changed by the Town and Country Planning Board. The procedure to alter the agricultural land into non-agricultural land was that the land owners who wish to change their land to non-agricultural use were required to apply to the Collector, who was the competent authority to grant such permission. Such applications were then forwarded to Town Planning Department for the purpose of clearance. It was further all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has no powers either to seize the said bank account or to issue any prohibitory order, prohibiting the operation of the bank account. In coming to this conclusion, the learned Single Judge followed the Division Bench decision of the Bombay High Court in Lloyds Bank's case and some other decisions of some other High Courts, taking the similar view. The State of Maharashtra in this appeal assails the correctness of the view taken by the learned Single Judge of the Bombay High Court. At the outset, it may be stated that there is no decision of this Court on the point in issue. When Mr. Shukla, the learned Senior Counsel, appearing for the appellant began his submissions, Mr. Mariarputham, the learned counsel for the respondent pointed out that pursuant to the impugned judgment of the Bombay High Court, the bank accounts in question have been allowed to be operated upon and, therefore, the question of law raised does not survive for consideration. But since the High Courts in the country have taken divergent views on the interpretation of Section 102 of the Code of Criminal Procedure and since there is no decision of this Court on the question, we indicated that notwithstanding the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken into account while interpreting the provisions contained in Section 102 of the Code of Criminal Procedure. It may be stated that though the Prevention of Corruption Act has been enacted to deal with the 'public servants' who receive gratification other than legal remuneration in respect of an official act and who by corrupt or illegal means or by abusing his position obtains for himself or for any other person any pecuniary advantage or valuable thing, or such public servant who is found to be in possession or has at any time during the period of his office been in possession of property for which he cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income, yet there is no specific provision in the Act itself as to how or in what manner the said property can be dealt with by the Investigating Officer even if he comes to the conclusion that the assets in the possession of the 'public servant' is directly linked with the commission of the offence. It is therefore, only by applying the provisions of Section 102 of the Criminal Procedure Code if the said provision is held to be conferring power of seizing and/or prohibiting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on whether bank account can be held to be 'property' within the meaning of Section 102 of the Cr.P.C. In the said case, proceeds realised by sale of official secrets were deposited by the accused in his wife's account. The Court in that case came to hold that it is not quite sure whether monies deposited in a bank account can be seized by means of a prohibitory order under the provisions of Section 102 but even assuming that a bank account is a 'property' within the meaning of Section 102 of the Code of Criminal Procedure, the further consideration must be satisfied namely the property has been found under circumstances which create the suspicion of the commission of an offence. But in that case it is not the discovery of the property that has created suspicion of commission of an offence but on the other hand the discovery of the bank account is a sequel to the discovery of commission of offence inasmuch as the police suspected that some of the proceeds realised by the sale of the official secrets have been passed on to the bank account of the wife of the accused. Therefore, the Court was of the opinion that the provisions of Section 102 cannot be invoked. In the case of M/s. Purb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the power of police officer under Section 102 of the Criminal Procedure Code, in connection with the fraudulent acquisition of properties and opening of fictitious bank accounts and withdrawal of huge amounts as subsidy from Government by producing bogus documents by the accused. The learned Judge took note of the earlier decision of Delhi High Court in Ms. Swaran Sabharwal vs. Commissioner of Police, 1988 Criminal Law Journal 240 (Vol.94), and analysed the provisions of Section 102 of the Criminal Procedure Code and the facts of the case were as under. It was revealed that during investigation the prosecution came to know that without actually manufacturing phosphate and fertilizers, the accused withdrew as much as ₹ 3.39 crores as subsidy from the Govt. of India by producing bogus documents. The Court ultimately came to the conclusion that the recovery of assets in the bank links prima facie with the commission of various offences with which they have been charged by the CBI and, therefore, the police officer could issue directions to various banks/financial institutions freezing the accounts of the accused. The learned Judge in the aforesaid case has really con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution of property to the victim of a crime, is totally alien to the Criminal Procedure Code. No doubt, the primary object of prosecution is punitive. However, Criminal Procedure Code, does contain several provisions, which seek to re-imburse or compensate victims of crime, or bring about restoration of property or its restitution. As S.452, Crl.P.C. itself indicates, one of the modes of disposing of property at the conclusion of the trial, is ordering their return to the person entitled to possession thereto. Even interim custody of property under Ss.451 and 457, Crl.P.C., recognises the rights of the person entitled to the possession of the properties. An innocent purchaser for value is sought to be re-imbursed by S.453, Crl.P.C. Restoration of immovable property under certain circumstances, is dealt with under S.456, Crl.P.C. Even, monetary compensation to victims of crime or any bona fide purchaser of property, is provided for under S.357, Crl.P.C. Wherein when a Court while convicting the accused imposes fine, the whole or any part of the fine, if recovered, may be ordered to paid as compensation to any person, for any lose or injury, caused by the offence or to any bona fid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic officer. We are, therefore, persuaded to take the view that the bank account of the accused or any of his relation 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. The contrary view expressed by Karnataka, Gauhati and Allahabad High Courts, does not represent the correct law. It may also be seen that under the Prevention of Corruption Act, 1988, in the matter of imposition of fine under sub-section (2) of Section 13, the legislatures have provided that the Courts in fixing the amount of fine shall take into consideration the amount or the value of the property, which the accused person has obtained by committing the offence or where the conviction is for an offence referred to in clause (e) of sub- section(1) of Section 13, the pecuniary resources or property for which the accused person is unable to account satisfactorily. The interpretation given by us in respect of the power of seizure under Section 102 of the Criminal Proced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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