JUDGMENT
R.K. Dash, J.
1. A short but interesting question that arises for consideration is whether the Director General of Police, Vigilance, Cuttack, has power under Section 102 of the Code of Criminal Procedure, 1973 to freeze the accounts of the petitioner and his family members in verious banks while investigating the case under the Prevention of Corruption Act initiatated against the petitioner.
2. Undisputed factual position giving rise to the present proceeding may briefly be stated thus:
The petitioner is an officer in the rank of Superintending Engineer (Electrical). He has two Savings Bank accounts one in the Syndicate Bank, Balasore and the other in the State Bank of Travancore Nayapali (IRC), Bhubaneswar. His wife Alka Rath and two sons Ansuman Rath and Sanchinshankar Rath have separate Savings Bank accounts in their names in the State Bank of Travancore, Nayapali (IRC), Bhubaneswar and Bank of India, Naya Sarak, Cuttack. Vigilance case has been initiated against the petitioner under the Prevention of Corruption Act on the allegation of acquisition of disproportionate assets to the tune of about ten lacs. On the strength of a search warrant issued by the Chief Judicial Magistrate, Balasore, petitioner’s residential houses at Balasore and other places were searched. The Director General of Police, Vigilance, addressed letters to Syndicate Bank Balasore, State Bank of Travancore, Nayapali (IRC), Bhubaneswer and to Bank of India, Naya Sarak, Cuttack (O. Ps. 2 to 4) stating therein that if there are lockers and Savings Bank accounts in the names of the petitioner, his wife and sons, the same may be ceased and withdrawal of any amount may not be allowed.
3. It urged by the petitioner that the investigating officer does not have power under any statute to freeze the amounts of the petitioner and his family members. Since opp. parties 2 to 4 have been asked not to allow withdrawal from the accounts, the petitioner by filing the present writ application has sought for a direction that the aforesaid Banks be ordered to allow the petitioner and his family members for free and normal Banking transaction of their accounts.
4. Counter affidavits are filed on behalf of Director General of Police, Vigilance, Cuttack and Syndicate Bank, Balasore, opp. parties 1 and 3 respectively.
It is urged by the opp. party No. 1 that in course of investigation of Vigilance P. S. Case No. 18 dated 8-4-1993 under the Prevention of Corruption Act, bank accounts of the petitioner and his family members have been freezed in exercise of power under Section 102, Cr PC.
5. For better appreciation, it is necessary to refer to Section 102, CrPC which reads as under :
“(1) Any police officer may seize any property which may be alleged or expected 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 fortwith report the seizure to that officer.
(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, 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.
6. A bare reading of the aforesaid provisions indicates that power has been conferred upon a police officer to seize any property suspected to be stolen or found, under circumstances which create suspicion of commission of any offence. Further, police officer has also the power to give custody of the property so seized to any person on his executing bond undertaking to produce the same before the Court as and when required. But law is totally silent that in exercise of power under Section 102, Cr PC he can direct a bank not to allow the depositor to transact the account. A similar question came up for consideration before the Gauhati High Court in the case of Purbanchal Road Service, Gauhati v. The State : 1991 Crl LJ 2798, as to whether Inspector of C. B. I. has power to direct banks not to allow a depositor to withdraw money from his accounts. Interpreting Section 102, Cr PC the Court held thus :
“…………the word ‘seize’ used in Section 102, Cr PC means actual taking possession in pursuance of a legal process. Therefore, prohibiting a bank with which the accused has an account and a locker, not to pay any amount out of the account of the accused to the accused and not to allow the accused to take away property from the locker is not seizure under Section 102, Cr PC as the ‘seizure’, as contemplated under Section 102, Cr PC is an act of taking possession of the property in fact, and as such no such order can be passed by a police office.”
7. We concur with the view of the Gauhati High Court and hold that order of the Director General of Police, Vigilance, Cuttack (opp. party No. 1) to the banks (O. Ps. 2 to 4), not to allow the petitioner and his family members to withdraw any amount from their accounts is illegal and arbitrary and, therefore, the same cannot be approved. Consequently, we direct the opp. parties 2 to 4 to allow the petitioner and his family members for free and actual transaction of their accounts.
8. With the above direction, the writ application is disposed of. No costs.
D.P. Mohapatra, A.C.J.
9. I agree.
