Dr. Gurcharan Singh vs The State of Punjab

D.B. Lal, J.—Dr. Gurcharan Singh has filed the present petition u/s 482 of the Criminal Procedure Code for quashing the two orders passed by the Superintendent of Police, Vigilance, Jullundur--Annexure P. 3 prohibiting him to operate the account lying with the Bank of Baroda (Chandigarh) and Annexure P. 4 freezing the fixed deposit amount of the petitioner lying with the United Commercial Bank (Delhi).

The case of the petitioner is, that he is a man of status and as such was possessed of considerable moveable and immovable properties The income of his family per mensem was to the tune of Rs. 8000/- and out of which he was saving a considerable sum. Thereby, the petitioner has shown that he could have as many as 9 accounts, either single or joint, with several Banks described in para No. 10 of the application. It so happened that the petitioner was suspected of amassing wealth disproportionate to his known source of income and as such, investigation in a prosecution case, inter alia u/s 5(1) (2) of the Prevention of Corruption Act. 1947, commenced against him during the course of that investigation, presumably u/s 102 of the Criminal Procedure, 1973, the two impugned orders (Annexures P. 3 and P. 4) were obtained by the police, which amounted to a seizure of the property belonging to the petitioner. It is contended by the petitioner that no order of seizure of the property could be passed in relation to his Bank accounts. It was not a property as contemplated in section 102 and as such, no seizure of the said property could take place. Since an abuse of the process of the Court has resulted, the petitioner wants the quashing of the two orders.

When the matter was listed before a learned Single Judge of this Court, he found that the question was of sufficient importance and, as such should be decided by a Division Bench. That is how this matter comes before us for decision.

A perusal of section 5(1)(e) of the Prevention of Corruption Act, 1947, makes it clear that the petitioner could be stated to commit the offence of criminal misconduct if he or any person on his behalf is in possession of "any pecuniary resource" or property disproportionate to his known source of income. The contention on behalf of the prosecution is that the Bank accounts would be a pecuniary resource in possession of the Bank on behalf of the petitioner and since the said pecuniary resource is disproportionate to the known source of income of the petitioner he could be stated to have committed the offence of "criminal misconduct". It is, therefore, abundantly clear that the Bank account would be the property regarding which the offence appears to have been committed. The petitioner, however, contends that the said Bank account is a chose in action and not property in the sense of that term used in section 102 of the Criminal Procedure Code.

The seizure of property u/s 102 is decidedly reflected in Chapter XXXIV of the Code which deals with "disposal of property" u/s 457, the seizure of property by any police officer is reported to a Magistrate and the Magistrate may make such order as he thinks fit respecting the disposal of such property After the conclusion of the trial, the Magistrate has to make an order u/s 452 for the disposal of that property. The jurisdiction is reposed in the Magistrate not only because the property is produced before him or is in his custody, but also because it is the property regarding which any offence appeared to have been committed or which was used for the commission of the offence. In sub-section (5) of section 45 2 it is provided that the term "property" includes not only such property regarding which an offence appears to have been committed as was originally in the possession of the accused, but also any property into or for which the same may have been converted or executed, and any thing acquired by such conversion or exchange, whether immediately or otherwise, Therefore, the Magistrate would have decidedly the jurisdiction to dispose of the Bank account claimed by the petitioner, u/s 452. The controversy is, as to whether the said Bank account could be seized u/s 102 and could it be considered a property for seizure under that Section ?

In legal usage, ''property'' is perhaps the most comprehensive word which can be employed, and it may signify either the subject matter in which rights or interests exist, or it may signify valuable rights and interests protected by law or it may signify both. The term may have different meanings depending on the context in which it is used and in the manner its user is contemplated especially during investigation of a crime, and in that category section 102 would obviously fall, and one has to see it in a case of the present pattern, the property, used for the offence of criminal misconduct could be the Bank account capable of being operated upon by the accused. The statutory meaning of the word ''property'' thus used in Section 102 must be gathered from its concept as reflected in that section. In 73 Corpus Juris Secundum at page 140, the following passage is found:--

While the word ''property may signify the physical corporeal thing, or it may denote rights and interests, when the term is used without qualification expressly made or plainly implied, it may reasonably be constricted to included obligations rights and other intangibles as well as physical things ; and thus the word ''property'' means not only the thing possessed, that is, the physical corporeal thing but also rights in the physical corporeal thing which are created and sanctioned by law.

It is, therefore, evident that property in its strict legal sense does not mean the physical object itself, but rather certain rights over the physical object. Shri Thapar, the learned counsel for the petitioner, has preferred to designee the right of the petitioner as chose in action because the Bank would be in a position of a debtor and a right to sue can be claimed by the petitioner. But chose in action is personal property. It has been stated to be a particular species of property, recognized as such in the law (73 Corpus Juris Secundum at page 175). It is an intangible or incorporeal right and in that sense, obviously, it is property over which a claim can be held u/s 102. A chose in action has been defined as the right to recover a sum of money by action. The Bank deposit is obviously a chose in action. In Halsbury''s Laws of England, 3rd Ed. Volume 29 at page 359, a chose in action has been considered to mean things recoverable by suit or action at law as contrasted with things or chooses in actual physical possession. It is, therefore, evident that the Bank account would be thus personal property belonging to the petitioner. It would be his chose in action and the only mode of seizure of that chose in action is the act of freezing the account or prohibiting the petitioner from operating the same. There would only be a difference in the mode of seizure, which can either be actual or constructive depending upon the nature of the things seized. In the instant case, the seizure is constructive in the sense that the thing is not physically seized but the Bank is prohibited from giving it to the petitioner. In R.K. Dalmia Vs. Delhi Administration, , their Lordships of the Supreme Court considered the expression ''property'' used in the Penal Code and according to them, the word ''property'' is used in the Code in a much wider sense than the expression "moveable property". This observation was, no doubt, made with reference to section 405 and other sections of the Penal Code but, in our opinion, nevertheless, would apply to the interpretation of the expression ''property'' used in section 102 of the Criminal Procedure Code Their Lordships emphasized that in this sense, it may be said that the word ''property'' in a particular section covers only that type of property with respect to which the offence contemplated in that section can be committed. In the instant case, the offence committed is of criminal misconduct as defined in section 5 (1) (e) of the Prevention of Corruption Act, 1947. Therefore, the Bank account would be property capable of being seized u/s 102 of the Criminal Procedure Code.

The other fact of the argument would be, that in case the Bank account is not held to be property capable of being seized u/s 102 of the Criminal Procedure Code, it would lead to the very destruction of the Bank account defeating the very basis of the prosecution. In case the petitioner is permitted to withdraw his amount, nothing would remain to be proceeded against for confiscation u/s 452 of the Criminal Procedure Code and that right of confiscation is very much there with the Court. Therefore, it would be very appropriate to hold that the Bank account with respect to which the offence of criminal misconduct was committed is the property capable of being seized u/s 102 of the Criminal Procedure Code.

Shri Thapar then relied on Textile Traders Syndicate Ltd., Bulandshahr Vs. The State of U.P. and Others, , a decision of a Single Judge of that Court, in which a similar situation arose where the Investigating Officer issued a prohibitory order to the Bank not to pay the amount to the accused as the said amount standing to the credit of the accused was " seized " u/s 550 of the then Criminal Procedure Code, which is equivalent to the present section 102 of the Criminal Procedure Code. The learned Judge held that the order could not be passed under the then section 550 and emphasized on the unidentifiable nature of the moveable property said to be in possession of the accused. The argument accepted was that the actual money was already parted with and the amount was living with the Bank as its own money which could be paid back to the accused whenever demanded. The learned Judge considered that actual physical possession could not be taken and hence no property belonging to the accused was with the Bank. In other words, according to the learned Judge, unless an identifiable moveable property was in the possession of the accused, the same could not be seized u/s 550 of the then Code. In that decision, with which we respectfully differ, the learned Judge did not consider the impact of the expressions ''seizure'' and ''property'' upon the subsequent sections of the then Code as contained in Chapter XXXIV dealing with the disposal of property, namely, sections 457 and 453 of the present Criminal Procedure Code. We have already pointed out that the Magistrate would have the power of confiscation of the Bank account and unless the said account is preserved nothing would be left out for confiscation. Therefore, the expression ''property'' has got to be given the extended meaning which we propose to give to that expression used in section 102 of the Criminal Procedure Code.

The learned counsel further relied on Gian Chand and others v. The State of Punjab (1962) Supp. 1 S.C.R. 364, with reference to the expression ''seized'' as used in the Sea Customs Act, 1878. It was held that a seizure under the authority of law involved a deprivation of possession. In the facts of that case, it was held that the police seized the goods and the appellants lost possession there of and as such, a subsequent seizure from the police was not the seizure from the appellants. It is thus manifest that the expression ''seized'' was defined in a particular situation that arose in that case, which may not be applicable to the instant case.

In our opinion, therefore, the chose in actions claimed by the petitioner is his personal property within the meaning of section 102 and its seizure was obviously made by getting the prohibitory order issued by the Bank. In this view of the matter no exception could be taken to the order made by the Investigating Officer. Annexures P3 and P4 could not be stated to be ultra vires. It is not a case of the abuse of the process of the Court, nor ends of justice are being defeated in any manner. The petition is without any merit and the same is dismissed.