STATE OF MAHARASHTRA Vs. TAPAS D NEOGY

JUDGEMENT

(1.) Leave granted.

(2.) This appeal by special leave is directed against the judgment and order dated 9-4-97 of the Bombay High Court in Criminal Application No. 826 of 1996. The said criminal application along with four other criminal writ petitions involving the same question of law were decided together and disposed of by the common judgment which is being impugned in this appeal. The short question that arose before the High Court is whether a Police Officer, investigating into an offence can issue prohibitory order in respect of the bank account of the accused in exercise of power under Section 102 of the Criminal Procedure Code

(3.) So far as Crl. Application No. 826 of 1996 is concerned, the short facts are that one Tapas D. Neogy was an Architect and Town Planner in the Department of Town Planning of the Union Territory of Daman and Diu. The CBI, ACB, Mumbai 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 alleged that Tapas Neogy and accused Narayan Divakar entered into a conspiracy by which Divakar caused a forged map of Daman to be prepared, thereby increasing industrial zone. On the basis of the same forged map, accused Tapas Neogy issued false certificates indicating that the land fell within the industrial zone. On account of such act, the land prices shoot up from Rs. 100/- to Rs. 110/-per square meter to Rs. 800/- to Rs. 1,600/- per sq. meter, and in the process, accused Divakar and accused Tapas Neogy caused pecuniary advantage to be gained by the land owners. Pursuant to the First Information Report, the premises of Tapas Neogy at Daman were searched on 12th of October, 1993 and several incriminating documents were seized. On the same day, the premises of the mother of accused Tapas Neogy at Calcutta was also searched and certain documents were seized. The locker in Indian Bank at Calcutta, jointly held by Tapas Neogys mother and his brother was also searched and was sealed and another locker held by the mother and sister of Tapas was searched and was also sealed. The Investigating Officer issued instructions to Managers of different banks not to allow the accounts to be operated upon. The mother of Tapas then filed an application before the Additional Chief Metropolitan Magistrate, 37th Court, Esplande, Mumbai, under Section 457 of the Cr.P.C. to allow her to operate the bank account and for return of the documents and articles seized, claiming that they belonged to her. The Magistrate by his Order dated 13th of October, 1995, granted the relief in respect of the locker in question but refused to allow the mother of said Tapas Neogy to operate the bank account. The Magistrate was of the view that he had no inherent power and, therefore, has no jurisdiction to allow to grant the relief sought under Section 457 of the Criminal Procedure Code. Against the said order of the learned Magistrate, the matter was carried to the Bombay High Court. The High Court in the impugned judgment analysed the provisions of Section 102 of the Criminal Procedure Code and after noticing several judgments of different High Courts, came to the conclusion that the bank account of an accused or any relation of the accused cannot be held to be property within the meaning of Section 102 of the Code of Criminal Procedure and, therefore, the Investigating Officer 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 Banks case (supra) 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.