# Vijendra Kapoor & Anr v. State of U.P. & Ors

- **Citation:** (2023) 7 ILRA 348
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-31
- **Case number:** Writ-C No. 4426 of 2023
- **Bench:** Surya Prakash Kesarwani, Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijendra-kapoor-anr-v-state-of-u-p-ors-50434
- **Pages:** 10

## Headnote

A. Banking Law - Criminal Procedure
Code1973 - Section 102 - Scope - Freezing
of the Bank Account - Basis of freezing the
account is involvement of the petitioners in
the matter of hooch tragedy on account of sale
of ethyl alcohol and rectified sprit - Held,
scope and object of Section 102 is to help and
assist investigation and to enable a police
officer to collect evidence to be produced to
prove charge complained of - Held further,
once the investigation is complete and Police
report is submitted to the Court concerned it is
open for the person whose account has been
freezed during investigation, to apply for
defreezing of the bank account before the
concerned Magistrate in terms of Section 102
(3) of Cr.P.C. - High Court permitted the
petitioner to move an application before the
concern court to defreeze the account in the
light of Teesta Atul Setalvad's case. [Para 3,
11, 16(viii) and 17]

Writ petition disposed of. (E-1)

List of Cases cited:

## Text

348 INDIAN LAW REPORTS ALLAHABAD SERIES
reasons and new ground that compromise
decree in dispute was voidable and required
to be set aside by competent court. It has
not considered whether the appellate court
has considered property the findings
recorded by the trial court. It has also not
itself
exercised
its
jurisdiction
of
reappraisal of both the judgments of the
courts below.

34.

In
view
of
the
above
consideration, this court finds that the
orders passed by the Settlement Officer
Consolidation, Basti and the Deputy
Director of Consolidation, Basti, impugned
in the writ petition cannot be sustained and
are hereby, quashed.

35. The order of the Consolidation
Officer is upheld.

36. The writ petition is allowed.
----------
(2023) 7 ILRA 348
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.03.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Writ-C No. 4426 of 2023

Vijendra Kapoor & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Devesh Kumar Shukla

Counsel for the Respondents:
C.S.C., Sri Sanjay Singh

A. Banking Law - Criminal Procedure
Code1973 - Section 102 - Scope - Freezing
of the Bank Account - Basis of freezing the
account is involvement of the petitioners in
the matter of hooch tragedy on account of sale
of ethyl alcohol and rectified sprit - Held,
scope and object of Section 102 is to help and
assist investigation and to enable a police
officer to collect evidence to be produced to
prove charge complained of - Held further,
once the investigation is complete and Police
report is submitted to the Court concerned it is
open for the person whose account has been
freezed during investigation, to apply for
defreezing of the bank account before the
concerned Magistrate in terms of Section 102
(3) of Cr.P.C. - High Court permitted the
petitioner to move an application before the
concern court to defreeze the account in the
light of Teesta Atul Setalvad's case. [Para 3,
11, 16(viii) and 17]

Writ petition disposed of. (E-1)

List of Cases cited:

1. St. of Maharashtra Vs Tapas D. Neogy;
(1999) 7 SCC 685 (Para 6 & 12)

2. M.T. Enrica Lexie Vs Doramma; (2012) 6 SCC
760 (Para 14)

3. Teesta Atul Setalvad Vs St. of Gujarat; (2018)
2 SCC 372 (Para 20 & 26)

4. Nevada Properties Pvt. Ltd. Vs St. of Mah. &
anr.; (2019) 20 SCC 119 (Para 28 to 34 & 42)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Anish Kumar Gupta, J.)

1. Heard Sri Devesh Kumar Shukla,
learned counsel for the petitioners, Sri
Rajiv Gupta, learned Additional Chief
Standing
Counsel
for
the
State
-
respondents and Sri Sanjai Singh, learned
counsel for the respondent No.4/Bank.

2. Petitioner No.1 is the husband of
the petitioner no.2. They have filed the
7 All. Vijendra Kapoor & Anr. Vs. State of U.P. & Ors.
349
present writ petition praying for the
following reliefs :

"i. Issue a writ, order or direction
in the nature of certiorari, quashing the
order dated 18-06-2021, passed by the
respondent no-3, whereby the bank account
of the petitioners has been freezed.

ii. Issue a writ, order or direction
in the nature of mandamus commanding
the respondent authorities to pass an
appropriate orders of defreezing the
account of the petitioners forthwith.

iii. Issue a writ, order of direction
in the nature of mandamus commanding
the respondent authorities as well as Bank,
not to interfere in the peaceful use of his
bank account in any manner."

3. By the impugned order dated
18.06.2021 the Senior Superintendent of
Police, Aligarh, has freezed the joint saving
bank account of the petitioners on the
ground of some involvement of the
petitioners in the matter of hooch tragedy
on account of sale of ethyl alcohol and
rectified sprit, has been recorded and
investigation is under process. As per
records of the writ petition, the joint saving
bank account of the petitioners is the saving
bank account from which the petitioners
pay their monthly instalment towards
housing loan. The balance standing in the
saving bank account as on 04.07.2021 was
Rs.1354.58(CR). A charge sheet against the
petitioner no.1 has been filed in case crime
no.224/2021
P.S.
Harduaganj,
under
Sections 60 A, 62 U.P. Excise Act and
Sections 120-B, 272, 273, 304, 420, 467,
468 and 471 I.P.C.

4. Learned Additional Chief Standing
Counsel
has
produced
before
us
instructions of the concerned police station
as forwarded by the Joint Director of
Prosecution, Aligarh, which is kept on
record.

5. In paragraphs 4, 5, 15 and 16 of the
instructions the respondents have stated as
under :

"4. प्रस्तर सूंख्या-4 में याची का
कर्न है फक याचीगण का सूंयुक्त खाता सूंख्या-
6563000100013382
पूंजाब
नेशनल
बैंक
रामर्ाट रोड शाखा में है, जजसमें याचीगण का
आधार काडघ सूं०-5842 5760 7982 व मो० सूं०-
8477036000 पूंजीकृत है। परन्तु यह कर्न
असत्य है फक याची सूंख्या-1 को अवैध शराब
ववक्रय के आपराधधक मुकदमों में झ ठा िँसाया
गया है। बजकक सत्यता यह है फक याची,
धगरोहबूंद, सरकश, हहस्रीशीटर, अिनी फ क्ट्री म ०
िरदान इिंक एण्ड सालिेंण्ट प्रा० शल० िता डी
132-133 स ०-1 यू०िी०एस०आई०डी०सी० ताला
नगरी जनिद अलीगढ़ में हेंण्ड सेनेटाइजर ि
अन्य उत्िादनों के यनमावण की आड़ में शमथाइल
एल्कोहल/रेक्ट्टीफाइड स्प्स्प्रट, ि अन्य कई प्रकार
के हायनकारक रासाययनक क मीकलों ज से मानि
जीिन के शलये घातक िदाथों से भरे हुये 203
(नाि 200 ली० प्रत्येक ड्रम) ड्रमों के भारी
भरकम स्टाक को अि ध देशी शराब अिशमश्रण
करने िाले माकफयाओिं को चोरी यििे बबना
ककसी अधधकाररता के अि ध रूि से राजस्ि को
हायन िहुुँचा कर सप्लाई करने िाला अिराधी
प्रिृवि का व्यस्प्क्ट्त ह । वर्घ 2021 में र्ाना
हरदुआगूंज
पुललस
द्वारा
प्रशासननक
उच्चाधधकाररयों के आदेशानुसार मु०अ०सूं०224/2021 में दववश देकर याची की उपरोक्त
िैक्टरी से एर्ाइल एककोहल/रेक्टीिाइड जस्प्रट,
जैसे मानव जीवन के ललये उच्च स्तरीय र्ातक
रसायन से भरे हुए 203 ड्रम व कुछ ड्रमों में
350 INDIAN LAW REPORTS ALLAHABAD SERIES
कई प्रकार के हाननकारक रासायननक कैमीकल
भरे हुये बरामद फकये गये हैं, तर्ा ववश्लेर्ण से
ज्ञात हुआ है फक याची मानव जीवन ललये अनत
र्ातक उपरोक्त रसायनों को जनपद के शराब
माफियाओूं को अवैध व अनुधचत लाभ प्राजतत
हेतु मँहूंगे दामों में ववक्रय करना पाया गया है।
याची के उक्त कृत्य से जनपद में अवैध
अपलमधित देशी महदरा के चोरी नछपे कारोबार
में जबरदस्त उछाल आया है, जजसके कारण
जनपद में कािी ननदोर् गरीब लोगों की मृत्यु
हो गयी है तर्ा कािी सूंख्या में गूंभीर रूप से
बीमार हुये हैं। तर्ा आँखों की रोशनी चली गयी
हैं, याची द्वारा सतलाई फकये गये उक्त रसायन
से ननलमघत अवैध अपलमधित जहरीली नकली
देशी शराब के सेवन से ननरीह व ननदोर् लोगों
के सार् लससरोई ईंट भट्टा शराब मजद र काण्ड
जैसी र्टनाएूं अमल में आयीूं हैं। इसके ववरुद्ध
जनपद के ववलभन्न र्ानों में लम्बा आपराधधक
इनतहास में आपराधधक मुकदमे पूंजीकृत हैं।

5. प्रस्तर सूंख्या-5 में याची का कर्न
है फक उपरोक्त खाता याची की दुकान से
सूंबूंधधत नहीूं है शराब व्यिसाय की खरीद विक्री
से सिंबिंधधत अलग एमाउण्ट सिंचाशलत ह । उक्ट्त
ितवमान बैंक खाते का सिंबिंध याची के शराब
कारोबार सिंबिंधी व्यिसाययक लेन देन से नहीिं ह ।
इस सिंंिंबिंध में कथन करना ह कक उक्ट्त कथन
का सिंबिंधधत याचीगण के ितवमान बैंक खाते से
सिंबिंधी बैंक लेन देन से ह , स्प्जसके सिंबिंध में
याचीगण के अयतररक्ट्त यह िास्तविकता कोई
नहीिं जान सकता कक याचीगण द्वारा खाते में
से फकया गया लेने देन फकस मद में व्यय फकया
जा रहा है।

15. प्रस्तर सूंख्या-15 में अूंफकत
याचीगण का कर्न है फक फ्रीज खाता केस
प्रापटी न होने के कारण धारा-102 CrPc के
प्राववधानुसार अवैध है तर्ा मान० न्यायालय
द्वारा हस्तक्षेप फकये जाने योग्य है। इस सूंबूंध
में कर्न करना है उक्त कर्न कान न से
सूंबूंधधत है कोई हटतपणी नहीूं करनी है।

16. प्रस्तर सूंख्या-16 में अूंफकत
याचीगण का कर्न है फक याचीगण उच्चस्तरीय
रेजीडेंलसयल वपलर हैं तर्ा प्रश्नगत खाते को
डडफ्रीज करने हेतु दर-दर भटक रहे हैं। परन्तु
यह कर्न असत्य है फक याचीगण को उत्पीड़ित
रखने की गरज से अकारण ही उनकी प्रार्घना
को हवा में उ़िा हदया गया है। बजकक सत्यता
यह है फक शासन/प्रशासन द्वारा आदेश याची
सूंख्या-1 द्वारा जजले के सम्प णघ शासन/प्रशासन
व जनता जनादघन को हहला देने वाले
आपराधधक कृत्य के कारण जारी फकया गया है
जो जजला स्तर के उच्चतम अधधकारीगण द्वारा
क्षेत्रीय सामाजजक शाजन्त व कान न व्यवस्र्ा को
बनाये रखने हेतु जारी फकया गया है। अतः
उपरोक्त बैंक शाखा को उक्त आदेश के ववरुद्ध
जाकर याचीगण के प्रार्घना पत्र को स्वीकार
करने का कान नन कोई अधधकार नहीूं है।"

6. Section 102 of the Criminal
Procedure Code provides as under :

"102. Power of police officer to
seize certain property.

(1) Any police 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.
7 All. Vijendra Kapoor & Anr. Vs. State of U.P. & Ors.
351

(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, 2[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
value of such property is less than five
hundred rupees, it may forthwith be sold by
auction
under
the
orders
of
the
Superintendent of Police and the provisions
of sections 457 and 458 shall, as nearly as
may be practicable, apply to the net
proceeds of such sale.]"

7. Sub Section (1) of Section 102 of
the Criminal Procedure Code empowers
any police officer to 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. Sub Section
(2)
requires
such
police
officer,
if
subordinate to the officer in charge of a
police station, to report forthwith the
seizure to that officer.

9. Sub Section (3) provides that 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.

10. The proviso to sub Rule (3) that
deals with situation the property ceased under
sub Section (1) is subject to speedy and
natural decay.

11. Thus, property including a bank
account creating suspicion about commission
of an offence may be seized by the
investigating officer or he may prohibit
operation of such bank account of any person
who may be found under circumstances
creating suspicion of commission of any
offence. The scope and object of Section 102
is to help and assist investigation and to
enable a police officer to collect evidence to
be produced to prove charge complained of
and set up in the charge sheet. Plain reading
of sub Section 1 of Section 102 makes it clear
that the property seized must be suspected to
have been stolen or which may be found
under circumstances which creates suspicion
of the commission of any offence.

12. In the case of State of
Maharashtra Vs. Tapas D. Neogy (1999)
7 SCC 685 (paragraphs 6 & 12) Hon'ble
Supreme Court held as under :

"6. A plain reading of sub-section
(1) of Section 102 indicates that the police
352 INDIAN LAW REPORTS ALLAHABAD SERIES
officer has the power to seize any property
which may be found under circumstances
creating suspicion of the commission of any
offence. The legislature having used the
expression
"any
property"
and
"any
offence" have made the applicability of the
provisions wide enough to cover offences
created under any Act. But the two
preconditions for applicability of Section
102(1) are that it must be "property" and
secondly, in respect of the said property
there
must
have
been
suspicion
of
commission of any offence. In this view of
the matter the two further questions that
arise for consideration are whether the
bank account of an accused or of his
relation can be said to be "property" within
the meaning of sub-section (1) of Section
102
CrPC
and
secondly,
whether
circumstances exist, creating suspicion of
commission of any offence in relation to the
same. .......

12.
Having
considered
the
divergent views taken by different High
Courts with regard to the power of seizure
under Section 102 of the Code of Criminal
Procedure, and whether the bank account
can be held to be "property" within the
meaning of the said Section 102(1), we see
no justification to give any narrow
interpretation to the provisions of the
Criminal Procedure Code. 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 Criminal Procedure Code 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 Criminal
Procedure Code 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 investigating into. The
contrary view expressed by the Karnataka,
Gauhati and Allahabad High Courts, does
not represent the correct law. It may also
be seen that under the Prevention of
Corruption Act, 1988, in the matter of
imposition of fine under sub-section (2) of
Section 13, the legislatures have provided
that the courts in fixing the amount of fine
shall take into consideration the amount or
the value of the property which the accused
person has obtained by committing the
offence or where the conviction is for an
offence referred to in clause (e) of subsection (1) of Section 13, the pecuniary
resources or property for which the
accused person is unable to account
satisfactorily. The interpretation given by
us in respect of the power of seizure under
Section 102 of the Criminal Procedure
Code is in accordance with the intention of
the legislature engrafted in Section 16 of
the Prevention of Corruption Act referred
to above. In the aforesaid premises, we
have no hesitation to come to the
conclusion that the High Court of Bombay
committed error in holding that the police
officer could not have seized the bank
account or could not have issued any
direction to the bank officer, prohibiting
7 All. Vijendra Kapoor & Anr. Vs. State of U.P. & Ors.
353
the account of the accused from being
operated upon. Though we have laid down
the law, but so far as the present case is
concerned, the order impugned has already
been given effect to and the accused has
been operating his account, and so, we do
not interfere with the same."

13. In the case of M.T. Enrica Lexie
Vs. Doramma, (2012) 6 SCC 760 (para
14) Hon'ble Supreme Court explained the
object, purpose and scope of Section 102
Cr.P.C., and held as under :

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.

14. In the case of Teesta Atul
Setalvad Vs. State of Gujarat (2018) 2
SCC 372 (paragraphs 20 & 26) Hon'ble
Supreme Court considered the scope and
effect
of
Section
102
Cr.P.C.,
and
following the law laid down in the case of
State of Maharashtra Vs. Tapas D.
Neogy (supra) held as under :

"20. As regards the procedure for
issuing instructions to freeze the bank
accounts, it is noticed that the same has
been followed by giving intimation to the
Magistrate concerned on 21-11-2014 as
required in terms of Section 102 of the
Code. There is nothing in Section 102
which mandates giving of prior notice to
the account-holder before the seizure of his
bank
account.
The
Magistrate
after
noticing that the principle stated by the
Division Bench of the Bombay High Court
in Shashikant D. Karnik v. State of
Maharashtra has been overruled in terms
of the Full Bench judgment of the Bombay
High Court in Vinodkumar Ramachandran
Valluvar, rightly negatived that contention.
The Full Bench of the Bombay High Court
has expounded that Section 102 does not
require issuance of notice to a person
before or simultaneously with the action
attaching his bank account. In Adarsh
Coop. Housing Society Ltd. v. Union of
India , 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.

26.Although both sides have
adverted to statement of accounts and
vouchers to buttress their respective
submissions, we do not deem it necessary
nor think it appropriate to analyse the same
while considering the matter on hand
which emanates from an application
preferred by the appellants to defreeze 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
354 INDIAN LAW REPORTS ALLAHABAD SERIES
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 court
concerned, it would be open to the
appellants to apply for defreezing of the
bank accounts and persuade the court
concerned 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 court concerned 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."

 (emphasis supplied by us)

15. In the case of Nevada Properties
Private Limited through its Directors Vs.
State of Maharashtra and another (2019)
20 SCC 119 (paragraphs 28 to 34 & 42),
Hon'ble Supreme Court held as under :

"28. The first part of sub-section
(1) of Section 102 of the Code relates to the
property
which
may
be
alleged
or
suspected to have been stolen. Immovable
property certainly cannot be stolen and
cannot fall in this part. The second part
relates to the property which may be found
by a police officer under circumstances
which create suspicion of the commission
of any offence. We have already referred to
the judgments of the Delhi High Court in
P.K. Parmar [P.K. Parmar v. Union of
India, 1992 SCC OnLine Del 136 : 1992
Cri LJ 2499] , Swaran Sabharwal [Swaran
Sabharwal v. Commr. of Police, 1987 SCC
OnLine Del 221 : 1988 Cri LJ 241] and
Jagdish Chander [Jagdish Chander v.
State, 1989 SCC OnLine Del 403 : (1990)
40 DLT 233] , which have elucidated and
in a restricted and narrow manner defined
the requirement for invoking the second
part. However, we have come across a
decision of this Court in Teesta Atul
Setalvad v. State of Gujarat [Teesta Atul
Setalvad v. State of Gujarat, (2018) 2 SCC
372 : (2018) 1 SCC (Cri) 718] , on an
appeal from the judgment [Teesta Atul
Setalvad v. State of Gujarat, 2015 SCC
OnLine Guj 6283] of the Gujarat High
Court and had dealt with a situation when
an act of freezing the accounts was a
sequel to the crime as the crime was
detected earlier. The Gujarat High Court
took a somewhat contrary view, by not
interfering
and
directing
defreezing,
observing that even if the action of the
investigating agency at the inception to
seize may not be regular, the court cannot
be oblivious to the collection of substantial
material by the investigating agency which
justifies its action under Section 102 of the
Code. Further when the investigation had
progressed to a material point, defreezing
the bank accounts on the basis of such
arguments would paralyse the investigation
which would not be in the interest of
justice. After referring to the factual matrix
in Teesta Atul Setalvad [Teesta Atul
Setalvad v. State of Gujarat, (2018) 2 SCC
372 : (2018) 1 SCC (Cri) 718] , this Court
observed that the investigating officer was
in possession of material pointing out to the
circumstances that had created suspicion of
the commission of an offence, in particular
the one under investigation, and therefore
exercise of power under Section 102 of the
Code would be in law legitimate as it was
exercised after following the procedure
prescribed in sub-sections (2) and (3) of the
same provision.

29. Section 102 postulates seizure
of the property. Immovable property
cannot, in its strict sense, be seized, though
documents
of
title,
etc.
relating
to
immovable property can be seized, taken
7 All. Vijendra Kapoor & Anr. Vs. State of U.P. & Ors.
355
into custody and produced. Immovable
property can be attached and also
locked/sealed. It could be argued that the
word "seize" would include such action of
attachment
and
sealing.
Seizure
of
immovable property in this sense and
manner would in law require dispossession
of the person in occupation/possession of
the immovable property, unless there are
no claimants, which would be rare.
Language of Section 102 of the Code does
not support the interpretation that the
police officer has the power to dispossess a
person in occupation and take possession
of an immovable property in order to seize
it. In the absence of the legislature
conferring this express or implied power
under Section 102 of the Code to the police
officer, we would hesitate and not hold that
this power should be inferred and is
implicit in the power to effect seizure.

30. Equally important, for the
purpose of interpretation is the scope and
object of Section 102 of the Code, which is
to help and assist investigation and to
enable the police officer to collect and
collate evidence to be produced to prove
the charge complained of and set up in the
charge-sheet. The section is a part of the
provisions
concerning
investigation
undertaken by the police officer. After the
charge-sheet is filed, the prosecution leads
and
produces
evidence
to
secure
conviction. Section 102 is not, per se, an
enabling provision by which the police
officer acts to seize the property to do
justice and to hand over the property to a
person whom the police officer feels is the
rightful and true owner. This is clear from
the objective behind Section 102, use of the
words in the section and the scope and
ambit of the power conferred on the
criminal court vide Sections 451 to 459 of
the Code.

31.
The
expression
"circumstances which create suspicion of
the commission of any offence" in Section
102 does not refer to a firm opinion or an
adjudication/finding by a police officer to
ascertain whether or not "any property" is
required to be seized. The word "suspicion"
is a weaker and a broader expression than
"reasonable belief" or "satisfaction". The
police officer is an investigator and not an
adjudicator or a decision maker. This is the
reason why the Ordinance was enacted to
deal with attachment of money and
immovable properties in cases of scheduled
offences.

32. In case and if we allow the
police
officer
to
"seize"
immovable
property on a mere "suspicion of the
commission of any offence", it would mean
and imply giving a drastic and extreme
power to dispossess, etc. to the police
officer on a mere conjecture and surmise,
that is, on suspicion, which has hitherto not
been exercised. We have hardly come
across any case where immovable property
was seized vide an attachment order that
was treated as a seizure order by police
officer under Section 102 of the Code. The
reason is obvious. Disputes relating to title,
possession, etc., of immovable property are
civil disputes which have to be decided and
adjudicated in civil courts. We must
discourage and stall any attempt to convert
civil disputes into criminal cases to put
pressure on the other side (see Binod
Kumar v. State of Bihar [Binod Kumar v.
State of Bihar, (2014) 10 SCC 663 : (2015)
1 SCC (Cri) 203] ). Thus, it will not be
proper to hold that Section 102 of the Code
empowers
a
police
officer
to
seize
immovable property, land, plots, residential
houses, streets or similar properties. Given
the nature of criminal litigation, such
seizure of an immovable property by the
police officer in the form of an attachment
356 INDIAN LAW REPORTS ALLAHABAD SERIES
and dispossession would not facilitate
investigation to collect evidence/material to
be produced during inquiry and trial.

33. As far as possession of the
immovable property is concerned, specific
provisions in the form of Sections 145 and
146 of the Code can be invoked as per and
in accordance with law. Section 102 of the
Code is not a general provision which
enables and authorises the police officer to
seize immovable property for being able to
be produced in the criminal court during
trial. This, however, would not bar or
prohibit the police officer from seizing
documents/papers of title relating to
immovable property, as it is distinct and
different
from
seizure
of
immovable
property. Disputes and matters relating to
the physical and legal possession and title
of the property must be adjudicated upon
by a civil court.

34. In view of the aforesaid
discussion, the reference is answered by
holding that the power of a police officer
under Section 102 of the Code to seize any
property, which may be found under
circumstances that create suspicion of the
commission of any offence, would not
include the power to attach, seize and seal
an immovable property.

42. Section 102 has been in the
statute book for more than a century.
Section 102 corresponds to Section 550 of
the Code of Criminal Procedure, 1898. For
more than a century the courts have read
the words "any property" to mean movable
property [Textile Traders Syndicate Ltd. v.
State of U.P., 1959 SCC OnLine All 207 :
AIR 1960 All 405] , [Kuriachan Chacko v.
State of Kerala, 2012 SCC OnLine Ker
31708 : (2012) 3 KLJ 620] ,[Brajesh
Kumar Srivastava v. State of Bihar, 2016
SCC OnLine Pat 2900 : (2016) 3 Pat LJR
464] and no decision to the contrary was
brought to our notice. Reliance is only
placed on the judgment of this Court in
State of Maharashtra v. Tapas D. Neogy
[State of Maharashtra v. Tapas D. Neogy,
(1999) 7 SCC 685 : 1999 SCC (Cri) 1352] .
In that case, the question was totally
different and this Court only decided that a
bank account of an accused was property
within the meaning of Section 102. The
Court did not go into the question of
movable or immovable property and,
therefore, this judgment would not be
applicable.

16. The legal position as emerges
from the plain reading of Section 102
Cr.P.C. and also on perusal of law laid
down by Hon'ble Supreme Court in the
judgments
aforenoted,
is
briefly
summarized as under:

(i) The Police officer has the
power to freeze "any" property either
stolen or which may be found under the
circumstances
creating
suspicion
of
commission of any offence. By using the
words ''any property" and "any offence",
the legislature has made the applicability
of Section 102 wide enough to cover any
offences under any Act.

(ii)
The
preconditions
for
applicability of Section 102 of Cr.P.C. are:

(a) that there must be a property
and

(b) that property is alleged or
suspected to have been stolen or which may
be found under circumstances which create
suspicion of the commission of any offence.

(iii) Undoubtedly, a bank account
is covered within the meaning of "property"
under Section 102 (1) of Cr.P.C.

(iv) The Police Officer in course
of investigation can seize any property
under Section 102 Cr.P.C. if:

(a) such property is alleged to be
stolen or
7 All. Pramod Sharma & Ors. Vs. State of U.P. & Ors.
357

(b) is suspected to be stolen or

(c) is the object of the crime
under investigation or

(d)
has
direct
link
with
commission of offence for which the Police
Officer is investigating

(v) So far as the procedure of
issuing instructions to freeze the bank
accounts, the Police Officer is required to
give an intimation of such freezing of
account to the concerned Magistrate.

(vi) Before issuing instructions to
bank for freezing the bank account there is
no requirement of issuing any prior notice
to the account holder before freezing of the
bank account.

(vii)
Under
Section
102
of
Cr.P.C. immovable property in its strict
sense
cannot
be
seized
though
the
documents of title relating to immovable
property can be seized. Power under
Section 102 would not include the power to
attach, seize and seal an immovable
property.

(viii) Once the investigation is
complete and Police report is submitted to the
Court concerned it is open for the person whose
account has been freezed during investigation,
to apply for defreezing of the bank account
before the concerned Magistrate in terms of
Section 102 (3) of Cr.P.C. and persuade the
Court concerned that the said bank account is
no more necessary for the purpose of
investigation. If such application is filed, the
Court concerned shall consider the request in
accordance with law, and after hearing the
investigation agency, may allow the application
and direct defreezing of such bank account.
While doing so, the Court concerned may
impose conditions as may be warranted in the
facts and situations of the case.

17. Since it is admitted case of the
parties that a charge sheet has already been
filed, therefore, we permit the petitioners to
move an application before the concerned
court for release of their bank account in
the light of the law laid down by Hon'ble
Supreme Court in the case of Teesta Atul
Setalvad (supra).

18. In the event such an application is
filed
by
the
petitioners
before
the
concerned Court/Magistrate, it shall be
decided by the concerned Court/Magistrate
in accordance with law, expeditiously,
preferably within two months from the date
of submission of the application.

19. The writ petition is disposed of
with the observations made above.
----------
(2023) 7 ILRA 357
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.05.2023

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ-C No. 6415 of 2023
And
Writ-C No. 3217 of 2023

Pramod Sharma & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Anil Kumar Shukla, Sri Anuj Srivastava,
Sri Ramesh Kumar

Counsel for the Respondents:
C.S.C., Sri Mahesh Narain Singh, Sri Ravi
Prakash Pandey
Civil Law - Land Acquisition Act, 1894 -
Sections 11(2), 18 & 28A - The Uttar
Pradesh Land Acquisition (Determination
of
Compensation
and
Declaration
of
Award by Agreement), 1997 Key Issues: 1.