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TMI Blog1993 (9) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the claimants which the claimants had purchased in its name and well as in the names of its constituents. (c) Order the withdrawal of the order which is in the nature of a prohibitory order issued by the Investigating Agency to the bankers of the claimants concerning its banking operations in the accounts maintained by it, on such terms and conditions. The petitioners are the accused in Crime No. 455/93. They were entrusted with the construction of houses under Ashraya Housing Scheme by the Karnataka Housing Board (for short the Board) after calling for tenders. They were to construct 16,000 houses estimated at the cost of ₹ 24 crores at various places in different Districts, where the houses belonging to various persons had collapsed due to heavy rainfall. The first petitioner represented that it had stored 30,000 steel doors, 30,000 steel windows and 60,000 steel ventilators in its firm at Shimoga, similarly, second petitioner represented that it had stored 38,000 steel windows, 38,000 steel doors and 76,000 steel ventilators in its firm at Shimoga; on that basis they managed to get an advance of ₹ 2,95,60,000/- and 2,96,00,000/- by 17-12-1992 and thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting; since the materials were seized by the police they were not in a position to deliver them to the Board as directed by this Court; the properties seized are lying in open place exposed to vagaries of nature and if that is allowed they will lose the utility and value and that the petitioners would not be in a position to effect delivery of articles to the Board; since the demand drafts are seized they are put to great difficulty and therefore necessary directions are required to be given to the police to return the properties, demand drafts and to permit the petitioners to operate the bank accounts. Hence, the application was filed under S. 457 of the Code in the Court of the Principal Sessions Judge, Bangalore City, for the aforesaid reliefs. 3. The State opposed the petition contending that the investigation is still in progress; the articles seized are subjected to valuation and checking of the quantity; that an advance of ₹ 5.316 crores were already drawn by the petitioner without delivery of articles; the demand drafts are all subject matters of fraudulent transactions; in case the articles are returned to the petitioner there is no guarantee to recover the money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n account is therefore one issued without jurisdiction, as the same is not permissible under S. 102 of the Code. This being the position, the learned Sessions Judge ought to have ordered for the withdrawal of the prohibitory order. In support of this submission, the following decisions are cited : (1) 1991 Criminal Law Journal 2798 M/s. Purbanchal Road Service, Gauhati v. the State. (2) Textile Traders Syndicate Ltd. Bulandshahr v. The State of U.P. 10. The learned State Public Prosecutor submitted that under the said S. 102 such a direction can be given by a Police Officer prohibiting the operation of bank account, but he was not in a position to distinguish the aforementioned decisions cited on the point or to show how any Police Officer exercising power to seized any property coming within the ambit of S. 102 of the Code, could issue a direction to a bank prohibiting operation of accounts. He added, now that the investigation in regard to the bank accounts of the petitioners in regard to which prohibitory orders were issued is over; the investigating agency has obtained the necessary documents in that regard, the Court may pass appropriate order. 11. Sri R. S. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction there is a mandate to the Police Officer acting under sub-section (1) to report about the seizure of such property to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, 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. What is to be reported is about the seizure of the property. S. 102 of the Code does not cover issuing of prohibitory orders. 15. Two decisions pressed into service by the learned counsel for the petitioners are directly on the point. In the case of M/s. Purbanchal Road Service, Gauhati v. The State, 1991 (3) Cri LJ 2798 Gauhati High Court has referred to and placed reliance on the decision of Textile Traders Syndicate Ltd., Bulandshahr v. The State of U.P., 1960 Cri LJ 871. Paras 5 and 7 of the aforementioned Gauhati High Court decision read : Under S. 102, the Police Officer has to report the seizure to the Magistrate concerned, and of the property seized cannot be conveniently transported to the Court, the police officer may give custody thereof to any person on his executing a bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;prohibitory order' are not one and the same, while the former is covered by S. 102(1) of the code and the latter not. In view of S. 102(1) of the Code it is clear that a Police Officer may seize any property alleged or suspected to have been stolen or which may be found under the circumstances which create suspicion of the commission of any offence. Mere conversion of property in respect of which suspicion was created of the commission of offence does not deprive a Police Officer from seizing it. Thus a combined and careful reading of S. 102(1) and (3) of 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 persons/citizens cannot be sustained unless they are authorised by law. Undoubtedly, issuing of a direction to banks prohibiting operation of accounts does not fall within the powers of Police Officers acting under S. 102 of the Code. 17. With respect, I am unable to agree with the view taken by the Madras High Court in the case of Bharat Overseas Bank Ltd. in the view I have taken considering the true scope of S. 102 of the Code and the meaning of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of offences for which case is already registered against the petitioners and investigation is not yet complete. Further, in case the demand drafts are returned to the petitioners it may be difficult to recover the money advanced to them by the third respondent-Board and that even the investigation will be hampered. 20. Having regard to the facts and circumstances of the case and considering the offences said to have been committed by the petitioners, the learned Principal Sessions Judge in his discretion at that stage refused to order the return of the demand drafts. This Court acting under revisional jurisdiction should not interfere with such discretionary order on the facts and circumstances of the case. I may add here that the directions given in the aforementioned writ petitions in regard to supply of material within a given time by the petitioners to the third respondent-Board and the other passed under S. 457 of the Code relating to return of property seized operate independently. Merely because directions are given in the said writ petitions for supply of material as aforesaid they by themselves are not sufficient to order for the return of the demand drafts. Even t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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