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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Janak Raj Kotwal, J.
Cube Construction Engineering – Appellant
Versus
Udhay Bhaskar Billa and Others – Respondents
Petition u/s. 104 No. 163 of 2015, MP No. 01 of 2015
Decided On : 22-12-2017
Bank Account Release - Criminal Investigation - Section 166-A(b), 217 RPC - The court discussed the release of a seized bank account by public servants in the context of criminal investigation. It highlighted the legal provisions of Section 166-A(b) and 217 RPC, emphasizing the requirement of a reasonable connection between the act and the performance of official duty for protection under Section 197 Cr.P.C. The court concluded that the release of the bank account by the respondents, in discharge of their official duties, did not amount to misuse or lack of connection with their duty, thus entitling them to protection under Section 197 Cr.P.C.
Fact of the Case:
The petitioner filed a complaint against the respondents for releasing a seized bank account without a magistrate's order, alleging offences under Section 166-A(b) and 217 RPC.
Finding of the Court:
The court found that the release of the bank account by the respondents was in discharge of their official duties and did not amount to misuse or lack of connection with their duty, entitling them to protection under Section 197 Cr.P.C.
Issues: The issues revolved around whether the release of the bank account without a magistrate's order constituted offences under Section 166-A(b) and 217 RPC, and whether the respondents were entitled to protection under Section 197 Cr.P.C.
Ratio Decidendi: The court held that the release of the bank account by the respondents, in discharge of their official duties, did not amount to misuse or lack of connection with their duty, thus entitling them to protection under Section 197 Cr.P.C.
Final Decision: The court dismissed the petition, finding no defect or illegality in the orders passed by the lower courts.
JUDGMENT :
Janak Raj Kotwal, J.
1. On a complaint lodged by the petitioner against GVPR Engineers Limited and Others before the Chief Judicial Magistrate, Jammu, FIR No. 55/2012 under sections 420, 406, 409 and 120-B RPC was registered with Police Station, Gandhi Nagar on 01.03.2012. In the course of investigation, the Investigating Officer, the then SHO Police Station, Gandhi Nagar, vide his Letter No. 839/5-1, dated 04.05.2012 (Annexure P-4) directed the Branch Head, J&K Bank Limited, Branch, Banjara Hills, J.N. Road, Hyderabad to seize the operation of Bank Account No. 0317010100000592 of the GVPR Engineers Limited as regards withdrawals/debit transfer with effect from 04.05.2012 and directed 'also that the account shall not be mortgaged or pledged in any manner as the same was case property of the ongoing investigation in the matter.
2. On 27.10.2012 the SDPO, Gandhi Nagar, herein respondent No. 1, transferred the investigation of the case to a Special Investigation Team (SIT) headed by herein respondent No. 2. The SIT on investigation of the case found that the dispute between the parties was of civil nature and commission of the offence of cheating or breach of trust was not proved and therefore, closed the case as not admitted. The report of the SIT was approved by the SHO, Police Station, Gandhi Nagar and the Superintendent of Police, South, Jammu and final report was filed in the court of the Judicial Magistrate (3rd Additional Munsiff), Jammu on 08.01.2013. Pursuant to the closing of the investigation, the respondent No. 1 vide his letter dated 28.11.2012 defreezed the aforementioned account of GVPR Engineers Limited (Annexure P-7).
3. The petitioner (complainant) moved a protest petition before the learned Magistrate. The Magistrate on consideration of the record produced before him, by virtue of his order dated 10.03.2013 (Annexure P-9), was of the view that investigation was not carried out in accordance with law and therefore, directed the Senior Superintendent of Police to get the case further investigated by some independent officer, not below the rank of Dy. S.P.
4. On 23.09.2014 petitioner filed a complaint against the respondents in the court of learned Special Mobile Magistrate (Passenger Tax), Jammu for commission of offences under section 217 read with Section 166-A(b) RPC by them during investigation in FIR No. 55/2012. It was alleged in that complaint that the act of the respondents in defreezing the bank account of GVPR Engineers Limited vide letter dated 28.11.2012 of respondent No. 1 without obtaining any order from the Magistrate was illegal as they were not authorized under law to act in such a manner and therefore, they in discharge of their public duty, disobeyed direction of law, which makes them liable for action under law.
5. Learned Special Mobile Magistrate vide his order dated 11.10.2014 dismissed the complaint taking the view that the respondents were public servants so complaint against them without valid sanction cannot be entertained as the alleged offence is said to have been committed by them in discharge of their official duty. Learned Magistrate in taking such a view relied upon a Supreme Court judgment in State of Uttar Pradesh vs. Paras Nath Singh, (2009) 6 SCC 372.
6. Petitioner challenged the order passed by the learned Magistrate in a revision petition before the learned 1st Additional Sessions Judge, Jammu. Learned revisional court dismissed the revision petition, taking the view that the attachment and the release of the bank account was done in exercise of jurisdiction of the investigating officer and the property was not the one about which offence was committed nor was used for the commission of offence. Learned revisional court held also that respondents had not exceeded their power and the act was done by them in discharge of their official duty so sanction under Section 197 Cr.P.C. was sine qua non for prosecuting them.
7. In this petition, petitioner invokes the supervisory ju
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