Allowed

Nitin Nagarji Mehta v. the State of Maharashtra and Anr.

Bombay HC21 Jun 2013WP/224/2012

Case brief

AI extract

What is this about?

A single judge bench of the Bombay High Court examined a writ petition challenging the freezing of the petitioner's bank accounts during an investigation for cheating and forgery. Without establishing a link between the funds and the alleged offence, the Court held the seizure invalid under Section 102 of the CrPC and quashed the order.

What did the court decide?

The prohibitory order dated 8/12/2011 and the direction to freeze the petitioner's bank accounts issued by the investigating officer were quashed and set aside.

Nitin Nagarji Mehta Vs the State of Maharashtra and Anr. — Property and Title | Bombay HC (2013)

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CWP-224.12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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CRIMINAL WRIT PETITION NO. 224 OF 2012

NITIN NAGARJI MEHTA

.. PETITIONER

VERSUS

STATE OF MAHARASHTRA & ANR... RESPONDENTS

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Mr. Samir A. Vaidya, Advocate for the petitioner Mrs. P. P. Bhosale, APP for the State I.O. - Mr. Pravin R. More, Sr. PI, Samata Nagar Police Station , Mumbai, present.

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CORAM:-ABHAY M. THIPSAY, J. DATED : 21/06/2013

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P.C.

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Rule. By consent Rule made returnable forthwith. By consent, heard finally.

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The petitioner is an accused in C.R. No. 492 of 2011, registered at Borivali Police Station, in respect of offences punishable under Sections 420,465,467,468 and 471 of the I.P.C. In the course of investigation, the investigating officer

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issued a letter dated 8/12/2011 addressed to the manager of The Greater Bombay Cooperative Bank Ltd, where the petitioner was having nine bank accounts, that all the accounts held by the petitioner be 'freezed'. In this communication, the investigating officer referred to the provisions of Section 102 of the Code of Criminal Procedure (“Code” for short). The petitioner being aggrieved by the said order/letter dated 8/12/2011 has approached this court invoking its constitutional jurisdiction.

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The learned counsel for the petitioner submitted that, the action of directing the bank to 'freeze' the accounts held by the petitioner is patently illegal and not in accordance with law. He submitted that apart from the merits of the decision to freeze the accounts, the procedure requisite for such seizure has also not been followed.

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The investigating officer has filed his affidavit-in-reply in the matter. I have gone through the contents thereof.

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That the investigating agency has powers to 'freeze' the accounts in exercise of the powers u/s 102 of the Code, cannot be doubted or disputed, in view of the decision of the Supreme

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Court of India, in the case of State of Maharashtra v. Tapas

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T. Niaogy, 1999 (7) SCC 685 . It has been held that, the power conferred on a police officer by Section 102 of the Code, would include power to give a direction to the bankers of the concerned person not to permit him to operate accounts held by him in the bank.

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The Learned APP submits that, in this case proper procedure for such seizure has been followed and the magistrate was intimated immediately about such seizure.

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Section 102 of the Code permits seizure of property by a police officer in the following circumstances;

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i) If it is suspected that such property has been stolen;

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ii) If the property is found under circumstances

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which create suspicion of the commission of any offence;

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The term 'Stolen property' has been defined u/s 410 of the I.P.C. Clearly, in view of the facts of the case, the property, even if assumed to have been obtained by the petitioner - by committing cheating or deception, cannot be construed as 'stolen property', so as to give a right to the investigating officer to seize the same.

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The other circumstance viz:- that 'the property is found in such circumstances, so as to create suspicion of any offence' also did not exist in this case.

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The existence of such bank accounts, by itself, did not indicate the commission of any offence.

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Even otherwise, in the affidavit of the Investigating Officer, there is not even a bald assertion ' that in the course of investigation, the investigating officer came to the conclusion that the money deposited in the said accounts had been the

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money, which had been earned by the petitioner by committing the offences, which the investigating officer was investigating into' .

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Section 102 of the Code does not confer an arbitrary and uncontrolled power upon a police officer to seize any property belonging to the offender or suspected offender. Though it has been held that, in exercise of the powers u/s 102 of the Code, a police officer would be entitled to give a direction to the bankers of a person, not to permit such person, to operate the account held by him in the bank. He can do so only, if the amount standing to the credit is suspected to be “stolen property” or where the property is found “under circumstances, which create suspicion of the commission of any offence”. Unless there is a nexus between the property and the offence which is being investigated into, the investigating officer cannot seize the property by virtue of Section 102 of the Code. In this case, it is not even asserted that the amounts lying in

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the accounts of the petitioner had any link with the offence which the investigating officer was investigated into. Thus, the conditions requisite for exercise of the power u/s 102 of the Code, were not fulfilled in this case. As such, the seizure of the bank accounts effected by directing 'freezing' thereof, is not proper or legal.

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The investigating officer has exceeded the jurisdiction vested in him by law. As such the impugned direction needs to be interfered with by exercising the constitutional jurisdiction of this court.

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The petition is allowed.

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The prohibitory order/letter dated 8/12/2011, issued by the investigating officer and the direction to freeze the petitioner’s bank accounts, as given to the petitioner’s bankers is quashed and set aside.

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The petition is disposed of in the aforesaid terms.

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17. Rule is made absolute accordingly.

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(ABHAY M. THIPSAY, J.)

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md.saleem

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Nitin Nagarji Mehta v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Nitin Nagarji Mehta v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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