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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 ..... 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 and if the person entitled to the possession of such property is unknown or absent and the va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal) 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i (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 wealthy people to deposit donation in the CJP's IDBI bank account as well as Union Bank of India Account of Sabrang and thereby obtained deposits of crores of rupees and used the money for personal use by diverting in different institutions with one/same address thereby indulging in wrong activities in the name of religion and used Rs. 1,51,00,000/- for personal use between 2009 and 2011 thereby committed breach of trust & cheated the victims by using internet. 13. Details of act done after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iskhan 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 arrived from Mumbai assured support in the Gulberg Society's case. This Teesta Setalvad helped us till the trial went on. She helped us only for the trial case and not economically. Then in the year 2007, Teesta Setalvad's man one Raiskhan A. Pathan, resident of Mumbai and at present residing in Ajit mill compound, Ajit Residency flat, at Rakhial. They told us that we lived in a rental house and are tired of paying rent since 2002. So, went to sell Gulbarg Society, then Raiskhan told us tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used 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 members and Teesta Setalvad began. Hence Teesta Setalvad took Tanvir Jafri, and the Chairman and the Secretary into her confidence and in a confidential meeting resolved that any persons who are members of the society could sell sale their houses to any persons of their choice regardless of caste or religion at the price of your choosing. Now none of the built homes will be used by us for the Museum. The resolution that was passed by which other society members had opposed it. In our opposition we ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigations, 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 pertaining to Sabrang Trust, CJP Trust, Teesta Atul Setalvad and Javad Anand, Appellants herein. Intimation about the seizure of concerned bank accounts was given to the concerned Magistrate on 21st January, 2014. On the applications for de-freezing of the concerned bank account filed before the Metropolitan Magistrate Court No. XI, Ahmedabad, it was mainly contended that-the Investigating Officer had failed to comply with the mandate of Section 102 of Code of Criminal Procedure, by not informing the Magistrate of the act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior 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 (FCRA) under the authorization of the Home Ministry, and therefore, local police had no authority to freeze them. 9. The High Court then adverted to the arguments of the Appellants as advanced, in paragraphs 16 to 24. The first point was about the absence of prior notice to the Appellants before the freezing of the bank accounts, which has been rejected following the Bombay High Court Full Bench decision in the case of Vinoskumar Ramachandran Valluvar v. The State of Maharashtra (2011) Cri.L.J. 2522 (Bom.). The Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh 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 extracted in paragraphs 37 and 38 of the impugned judgment, which read thus: 37. From the aforestated facts this Court drew following inference thus: 'Thus, from the above, it is evident that the accounts were also not audited for a long period of time, and it is only when the FIR was registered wherein serious allegations of misappropriation of lacs of rupees have been alleged that all of a sudden the accounts from April, 2003 to March, 2008 were got audited in the year 2014. 38. On the basis of the facts availa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alvads 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 Petitioners seek to avoid custodial interrogation by the investigating authorities by dismissing cogent documentary evidence as accounting jugglery. Approximately 44% of the total donations received in the Sabrang Trust and approximately 35% of the total donations received in the CJP, were transferred to their personal accounts. 3. Cash withdrawal running into over Rs. 1.09 crore need to be further scrutinized and examined wherein Rs. 50,000=00 to Rs. 5,00,000=00 have been withdrawn as cash on a single day. 4. Credit card details recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot 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 this stage, mere execution of bond is not going to serve the purpose of law. 41. The learned Counsel for the Petitioners submitted in the affidavit-in-rejoinder in Para 5.2, that the Petitioners have controverted the facts as regards non-auditing of accounts by the Petitioners for a continuous period of six years or so as alleged by the State with appropriate material. That is not the only question on which the investigation is based as indicated in detail. Irrespective of the accounts being audited or not, serious discrepancies have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 of the investigating agency is not required to be revealed to the suspect at that crucial stage, else, a message of alert would be received by the suspect creating a huge room for manipulation and or destruction of evidence. 45. It is noticed from the impugned order that the notice of the seizure or freezing of the accounts or its intimation was sent to the competent magistrate, and therefore, learned Counsel for the Petitioners has fairly not pressed the said argument. 46. It is also misconceived to argue that the seizure in exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 donors for executing specific projects and the amounts were and still are supposed to be spent in accordance with the agreements. The donors are private parties and none of them has complained about the embezzlement of their funds. The donors have been furnished with relevant information and accounts concerning their donations. In the written submissions filed by the Appellants it is submitted that the provisions of law sought to be invoked against the Appellants and the transactions in question must necessarily result in commission of some offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aborately 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 the completion of the investigation. If the Investigating Officer eventually finds that the accounts are not tainted with the crime, he would not hesitate to defreeze the same or to exclude the untainted amounts. 13. We have heard Mr. Kapil Sibal, learned senior Counsel along with Ms. Aparna Bhat, appearing for the Appellants and Mr. Tushar Mehta, learned Additional Solicitor General along with Mr. Ajay Chokshi, appearing for the State of Gujarat. 14. The sweep and applicability of Section 102 of the Code is no more res integra. That question has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal 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 and the Courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the Accused as a public officer. We are, therefore, persuaded to take the view that the bank account of the Accused or any of his relations is 'property' within the meaning of Section 102 of the Code of Criminal Procedure 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 inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 before the Principal Sessions Court, Chenglepet, to any other State outside the State of Tamil Nadu, adverted to the circumstance of a motivated order passed Under Section 102 of the Code for freezing of 183 bank accounts of the Mutt on the ground that the head of the Mutt was involved in a murder case. In that context, it observed that the power vested Under Section 102 of the Code cannot be stretched to irrelevant matters, to extremes and to a breaking point. The power must be exercised cautiously, failing which, the discretion exercised by the authority would be tai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by the police officer cannot be seized. Under Section 102 of the Code, the police officer can seize such property which is covered by Section 102(1) and no other. These observations are in no way different from the proposition expounded in the case of Tapas D. Neogy (supra). 21. Keeping these principles in mind and the material on record, it is noticed that the prosecution has alleged that the two Trusts are run by the private Appellants and other Accused. They were actively involved in collecting huge funds as donation in the name of providing legal assistance to the 2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 investigation is complete and police report is submitted to the concerned Court, it would be open to the Appellants to apply for de-freezing of the bank accounts and persuade the concerned Court that the said bank accounts are no more necessary for the purpose of investigation, as provided in Sub-section (3) of Section 102 of the Code. It will be open to the concerned Court to consider that request in accordance with law after hearing the investigating agency, including to impose conditions as may be warranted in the fact situation of the case. 24. In our opinion, such a course would meet th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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