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TMI Blog2017 (12) TMI 1865X X X X Extracts X X X X X X X X Extracts X X X X ..... 102 of the Code had opined that bank account of the Accused or of any relation of the Accused cannot be held to be property within the meaning of Section 102 of the Code. Therefore, the Investigating Officer will have no power to seize bank accounts or to issue any prohibitory order prohibiting the operation of the bank account - 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. 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 - 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Pasha, Advs. For the Respondents : Tushar Mehta, ASG, Hemantika Wahi, Shodhika Sharma and Ajay Chokshi, Advs. JUDGMENT 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants 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 ( Indian Penal Code ). 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 Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation: (A) Name: 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 Accused: (1) Teesta 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 Ors. who come out after inquiry. 8. Reason for late information: 9. Narration of Property if lost or theft 10. Total price of theft 11. Accident (if death) death:...... 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 wealt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 arri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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 again, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of the members of Gulberg Society. Apart from this also, crores of rupees have also been amassed by them and used for personal reasons and committed a breach of trust and cheating with affected persons. Therefore, a complaint against Teesta Setalvad, her husband Javed Anand, who both live at 'Nirant' bungalow, Juhu Tara Road, Mumbai and Tanveer Jafri, and Chairman of Gulberg Society, Salimbhai Sandhi and Secretary Firoz Gulzar Mohammed Pathan and Ors. who may be involved after investigations, this is my complaint for a detailed and lawful investigation. The persons unknown are named as etc. This complaint is true as per my knowledge which has been read and understood by me and thereafter signed. I have received a copy of my complaint. Sd- (C.B. Gamit) (P.S.I. Crime) (S.O.G. Crime) Ahmedabad City. Sd-Asst- Adl. Chief Metro Magistrate Court-11 A'bad. 7. 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 pertainin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de 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 as under: 15. The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d accountants and auditors were extending full cooperation with the investigation. The principal argument of the Appellants was that the power Under Section 102 of Code of Criminal Procedure 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 extra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abrang 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 Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Criminal Procedure. 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. De-freezing 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 bringing 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 Code of Criminal Procedure 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 Code of Criminal Procedure 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay in the investigation except as indicated in Code of Criminal Procedure, 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 Code of Criminal Procedure is filed. 11. In the present appeals, the Appellants have largely reiterated the stand taken in the proceedings before the Magistrate and the High Court, wherefrom the present appeals have arisen. The Appellants contend that to justify the freezing of the bank accounts the investigating authority must demonstrate that the monies held in these accounts are connected with the commission of the offence. The investigation of the alleged offence has been a roving one and the police has investigated the entire accounts of the Appellants even beyond the period referred to in the FIR. Further, the seized accounts have nothing to do with the subject matter of the FIR. CJP Trust has no concern with the appeal made by the Sabrang Trust on its website. The donations were invited by Sabrang Trust to be deposited in its account displayed on the website. Notably, the grants/donations made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submit that the investigation is still in progress and the Appellants have not given full cooperation to the Investigating Officer. Rather, the Appellants have caused hurdles in the smooth progress of the investigation of the alleged crime. The record would reveal that proper procedure for seizure of the bank accounts was followed and that considering the nature of allegations in the FIR and the material gathered during the investigation thus far, would require elaborate investigation with regard to the subject matter of the FIR. The High Court had elaborately analysed the material on record while considering the prayer for grant of anticipatory bail of the private Appellants and prima facie found substance in the allegations against the Appellants of misuse of funds received by them through various donors and that the Appellants were not ready and willing to cooperate with the investigation. The Respondents would submit that since the investigation is in progress and the material already gathered throws up circumstances which create suspicion of the commission of the alleged offence, therefore it is imperative to continue the seizure of bank accounts until it is necessary and till ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uspicion of commission of any offence in relation to the same........... 15. After analysing the decisions of different High Courts, this Court in paragraph 12, expounded the legal position thus: 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 Code of Criminal Procedure. 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 Code of Criminal Procedure 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the principle stated by the Division Bench of the Bombay High Court in the case of Dr. Shashikant D. Karnik v. State of Maharashtra (2008) Cri.L.J. 148 (Bom.) has been overruled in terms of the Full Bench judgment of the Bombay High Court in the case of Vinoskumar Ramachandran Valluvar (supra), rightly negatived that contention. The Full Bench of the Bombay High Court has expounded that Section 102 does not require issuance of notice to a person before or simultaneously with the action attaching his bank account. In the case of Adarsh Co-operative Housing Society Limited v. Union of India and Ors. (2012) Cri.L.J. 520 (Bom.), the Division Bench of the Bombay High Court once again considered the issue and rejected the argument that prior notice to the account holder was required to be given before seizure of his bank account. It also noted that the bank account need not be only of the Accused but it can be any account creating suspicion about the commission of an offence. The view so taken commends us. 19. In the case of Sri Jayendra Saraswathy Swamigal (supra), the Court while considering a transfer petition Under Section 406 of the Code, seeking transfer of the case pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es had completed their respective investigations and vessel was seized in exercise of power Under Section 102 of the Code. In Para 16, the Court noted the concession given by the counsel for the Government that the vessel was not the object of the crime or the circumstances which came up in the course of investigation that create suspicion of the commission of any offence. In that case, it was alleged that while the fishing boat was sailing through the Arabian Sea, indiscriminate firing was opened from the vessel in question, as a result of which two innocent fishermen who were on board, died. The Counsel for the State had also conceded that the vessel was no longer required in connection with the offence in question. Indeed, in paragraph 14, the Court made the following observations: 14. The police officer in course of investigation can seize any property Under Section 102 if such property is alleged to be stolen or is suspected to be stolen or is the object of the crime under investigation or has direct link with the commission of offence for which the police officer is investigating into. A property not suspected of commission of the offence which is being investigated into b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure prescribed in Sub-section (2) and Sub-section (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 Sub-section (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 to de-freeze the 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 investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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