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2018 Supreme(Pat) 507
IN THE HIGH COURT OF JUDICATURE AT PATNA
RAJEEV RANJAN PRASAD, J.
Brajesh Kumar Yadav S/o Late Ramesh Chandra Yadav & Anr. - Petitioners
Versus
The State of Bihar & Ors. - Respondents
Criminal Writ Jurisdiction Case No. 1334 of 2017
Decided On : 24-01-2018
Advocate Appeared:
For the Petitioners: Mr. P.K. Shahi, Mr. Shankar Kumar Thakur
For the Respondent: Mr. V.N.P. Sinha, Ms. Soni Srivastava
The main legal point established is that the police have no power to attach immovable property under Section 102(1) of the CrPC.
Headnote:
Seizure - Criminal Writ Application - Section 102 Cr.P.C. - 406/409/420/120(B)/34 of the Indian Penal Code - 102 Cr.P.C.
Fact of the Case:
The Criminal Writ Application was filed for quashing the order for the seizure of immovable property of the petitioners under Section 102 Cr.P.C. in connection with a case under Sections 406/409/420/120(B)/34 of the Indian Penal Code.
Finding of the Court:
The court found that the police officer did not have the authority to seize/attach immovable property under Section 102(1) Cr.P.C. and allowed the writ application by setting aside the impugned orders and consequential action.
Issues: The main issue was whether a police officer can direct seizure/attachment of an immovable property under Section 102 Cr.P.C.
Ratio Decidendi: The court relied on the judgment in the case of Brajesh Kumar Srivastava and concluded that the police have no power to attach immovable property under Section 102(1) of the CrPC.
Final Decision: The writ application was allowed, and the court granted liberty to the investigating officer to take appropriate steps in accordance with the law if there are materials to form a reasonable belief that the immovable properties have been acquired from ill-gotten money.
Heard the parties.
2. This Criminal Writ Application has been filed for quashing of the order as contained in Memo No. 133 dated 16.01.2017 (Annexure-9) whereby the Collector, Purnea (respondent no. 2) has on the request of the Inspector of Police cum Investigating Officer, Economic Offence Unit (hereinafter referred to as the “E.O.U.”) (respondent no. 6) deputed a Magistrate for the purpose of seizure of the immovable property of the present petitioners and thereupon the concerned authorities have in compliance of the direction seized the immovable properties of the present petitioners. The petitioners have also prayed for release of the properties which are fully described in Annexure-9 to the present application.
3. A perusal of the order, as contained in memo no. 133 dated 16.01.2017, issued by respondent no. 2, would show that the Inspector of Police cum Investigating Officer, EOU, Patna wrote a letter no. 4226 dated 19.07.2016 (Annexure-6 to the present application) in connection with Araria P.S. Case No. 33/2015 dated 21.01.2015 under Sections 406/409/420/120(B)/34 of the Indian Penal Code. The letter has been written by the Investigating Officer in exercise of his power said to have been conferred under Section 102 of the Code of Criminal Procedure for the seizure of any property, according to the Investigating Officer, the immovable properties in this case are the properties acquired from the proceeds of ill-gotten money. It is stated that it is necessary to seize these properties during the investigation in accordance with the provisions of Section 102 Cr.P.C. The District Magistrate, Purnea was requested to appoint a Magistrate and to direct the Anchala Adhikari, Sadar, Purnea to cooperate in the seizure and should take possession of the seized land. He also requested that the land mentioned in the letter may be demarcated by the Anchal Amin.
4. Learned senior counsel representing the petitioners has raised a question mark on the authority of the Inspector cum Investigating Officer, as according to him, the Police Officer, in the present case, has no power to seize/attach immovable property under Section 102(1) Cr.P.C.
5. Learned senior counsel submits that a coordinate Bench of this Court had occasion to consider the scope and ambit of section 102 Cr.P.C. in the case of Brajesh Kumar Srivastava Vs. State of Bihar reported in 2016(3) PLJR 464. It is his submission that the whole allegation against the petitioner in the present case is that he was the master-mind behind the alleged misappropriation of the crores of rupees, but so far as the present petitioners are concerned, they were not the proprietors of the Firm or the business entity who had procured the paddy from the three different districts on pretext of providing the rice.
6. The emphasis in the whole argument is on that irrespective of the merit of the allegations, presently the exercise of power by the Investigating Officer in the matter of seizure/attachment of the immovable properties belonging to the present petitioners is without any basis and has no sanction of law.
7. Learned senior counsel submits that sub-section 3 of Section 102 Cr.P.C. clearly stipulates that the properties which is seized under sub-section 1 of Section 102 Cr.P.C. has necessarily to be such as is capable of being transported or produced before the Court. Only in case where the property is capable of being transported but it is not convenient to do so that the custody thereof can be given to any person on his executing bond undertaking to produce the property before the court as and when required. It is his submission that the immovable property is in capable of being produced before the court, thus the immovable property cannot be seized under Section 102 Cr.P.C. as the ‘property’ has envisaged under Section 102 Cr.P.C. does not include ‘immovable property’.
8. Extending the argument, it is further submitted that Section 102 Cr.P.C. confers power upon the Investigating Offic
