Karnataka High Court
Muthoot Finance Limited vs The State Of Karnataka on 27 September, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 27 TH
DAY OF SEPTEMBER, 2024
R
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 104593 OF 2024 (GM-POLICE)
C/W
WRIT PETITION NO. 101584 OF 2024 (GM-RES),
WRIT PETITION NO. 104538 OF 2024 (GM-POLICE),
WRIT PETITION NO. 105010 OF 2024 (GM-POLICE)
IN WRIT PETITION NO. 104593 OF 2024
BETWEEN
MANAPPURAM FINANCE LIMITED,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT 1956,
HAVING REGISTERED OFFICE
AT MANAPPURAM HOUSE,
A.O. VALAPAD, TRISSUR DISTRICT,
KERALA-680 567.
HAVING ONE OF ITS BRANCH AT: GADAG,
REPRESENTED BY AUTHORIZED SIGNATORY
AND AREA HEAD,
MR. PENAKALAPATI HARIKRISHNA.
Digitally signed by
SAROJA
...PETITIONER
SAROJA
HANGARAKI
Location: HIGH (BY SRI. GIRISH V. BHAT, ADVOCATE)
COURT OF
HANGARAKI KARNATAKA
DHARWAD
BENCH
Date: 2024.10.07
13:42:50 +0530
AND
1. THE STATE OF KARNATAKA,
BY ITS SECRETARY, HOME DEPARTMENT,
VIDHANA SOUDHA, BENGALURU-560001.
2. THE SUPERINTENDENT OF POLICE,
GADAG, KARNATAKA-580011.
3. THE CIRCLE INSPECTOR,
GADAG SUB DIVISION
GADAG, KARNATAKA-580011.
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4. THE STATION HOUSE OFFICER/
INSPECTOR OF POLICE,
GADAG RURAL POLICE,
GADAG, KARNATAKA-580011.
...RESPONDENTS
(BY SRI. PRAVEEN K. UPPAR, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTICE
BEARING NO.GAGRAPOTA:CRM:137:2024 DATED 30.07.2024
ADDRESSED TO MANAPPURAM FINANCE LIMITED, THE PETITIONER
HEREIN, BY THE RESPONDENT NO.4, FURNISHED AS ANNEXURE-E;
ISSUE A DIRECTION IN THE NATURE OF MANDAMUS OR ORDER OR
DIRECTION DIRECTING THE RESPONDENT NO.4 NOT TO TAKE ANY
COERCIVE ACTION AGAINST THE PETITIONER BANK AND ITS
OFFICERS IN PURSUANT TO NOTICE BEARING
NO.GAGRAPOTA:CRM:137:2024 DATED 30.07.2024 FURNISHED AS
ANNEXURE-E AND ETC.
IN WRIT PETITION NO.101584 OF 2024
BETWEEN
MANAPPURAM FINANCE LIMITED,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT 1956,
HAVING REGISTERED OFFICE
AT MANAPPURAM HOUSE,
A.O. VALAPAD, TRISSUR DISTRICT,
KERALA-680 567.
HAVING ONE OF ITS BRANCH AT:
OM NAGAR, BELAGAVI,
REPRESENTED BY AUTHORIZED SIGNATORY
AND LEGAL MANAGER,
MR. SATISH S.
...PETITIONER
(BY SRI. GIRISH V. BHAT, ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
BY ITS SECRETARY, HOME DEPARTMENT,
VIDHANA SOUDHA, BENGALURU-560001.
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2. THE SUPERINTENDENT OF POLICE,
GADAG, KARNATAKA-590001.
3. THE CIRCLE INSPECTOR,
HIREBAGEVADI P.S,
BELAGAVI, KARNATAKA-591109.
4. THE STATION HOUSE OFFICER/
INSPECTOR OF POLICE,
HIREBAGEVADI P.S,
HIREBAGEVADI, BELAGAVI,
KARNATAKA-591109.
...RESPONDENTS
(BY SRI. PRAVEEN K. UPPAR, AGA FOR R1-R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTICE
DATED 04-03-2024 ISSUED U/S 91 OF THE CR P C ADDRESSED TO
MANAPPURAM FINANCE LIMITED, THE PETITIONER HEREIN, BY THE
RESPONDENT NO.3, FURNISHED AS ANNEXURE-F; ISSUE A
DIRECTION IN THE NATURE OF MANDAMUS OR ORDER OR
DIRECTION DIRECTING THE RESPONDENT NO.3 NOT TO TAKE ANY
COERCIVE ACTION AGAINST THE PETITIONER BANK AND ITS
OFFICERS IN PURSUANT TO NOTICE DATED 04-03-2024
FURNISHED AS ANNEXURE-F AND ETC.
IN WRIT PETITION NO. 104538 OF 2024
BETWEEN
MANAPPURAM FINANCE LIMITED,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT 1956,
HAVING REGISTERED OFFICE
AT MANAPPURAM HOUSE,
A.O. VALAPAD, TRISSUR DISTRICT,
KERALA-680567,
HAVING ONE OF ITS BRANCH AT
BUILDING NO.3973, 3974
KATHA NO.1228, 1229, 1ST FLOOR, SANJAYA
COMPLEX, KUDLIG BELLARY ROAD,
OPP. ADARSHA KALYANA MANDAPA,
ABOVE AXIS BANK, SANDUR P.O.,
BELLARY DT., K.A. PIN -583119
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R/BY AUTHORIZED SIGNATORY
AND AREA HEAD, MR. BUKKE VIJAYAKUMARNAIK.
...PETITIONER
(BY SRI. GIRISH V. BHAT, ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
BY ITS SECRETARY ,
HOME DEPARTMENT,
VIDHANA SOUDHA,
BENGALURU-560001.
2. THE SUPERINTENDENT OF POLCIE,
RAILWAY STATION APPROACH ROAD,
BSNL COLONY, COWL BAZZAR, BALLARI,
BELLARY, BALLARI, KARNATAKA-583101.
INDIA.
3. THE STATION HOUSE OFFICER/
INSPECTOR OF POLICE,
SONDUR CIRCLE POLICE STATION,
SONDUR, BELLARY DISTRICT,
KARNATAKA-583119.
...RESPONDENTS
(BY SRI. PRAVEEN K. UPPAR, AGA FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTICE
DATED 26.07.2024 ISSUED U/S 94 OF THE BNSS ADDRESSED TO
MANAPPURAM FINANCE LIMITED, THE PETITIONER HEREIN, BY THE
RESPONDENT NO.3, FURNISHED AS ANNEXURE-F; ISSUE DIRECTION
WRIT OF MANDAMUS OR ORDER OR DIRECTION DIRECTING THE
RESPONDENT POLICE 3 NOT TO PROCEED WITH THE NOTICE DATED
26.07.2024 AND FURNISHED AS ANNEXURE-F AND ETC.
IN WRIT PETITION NO. 105010 OF 2024
BETWEEN
MUTHOOT FINANCE LIMITED,
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT 1956,
HEAD OFFICE AT MUTHOOT CHAMBERS,
OPP. SARITHA THEATRE COMPLEX,
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BANERJEE ROAD, KOCHI-682018,
HAVING ONE OF ITS BRANCH AT:
OLD BUS STAND ROAD,
NEAR NATIONAL INSURANCE,
SUNDATTI- BELAGUM -591126,
REP. BY ITS AUTHORIZED OFFICER
AND CHIEF MANAGER
SRI AJUMON P. GEORGE.
...PETITIONER
(BY SRI. GIRISH V. BHAT, ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
BY ITS SECRETARY, HOME DEPARTMENT,
VIDHANA SOUDHA, BENGALURU-560001.
2. THE STATION HOUSE OFFICER,
DHARWAD CEN POLICE STATION,
BELAGAVI ROAD, SP OFFICE CAMPUS,
DHARWAD DISTRICT-580008.
...RESPONDENTS
(BY SRI. PRAVEEN K. UPPAR, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE
INTERFERENCE BY THE RESPONDENTS IN PETITIONERS BUSINESS
FOR FORCEFULLY SEIZING THE GOLD ARTICLES PLEDGED BY IT
CUSTOMER IS ARBITRARY AND IS IN VIOLATION OF FUNDAMENTAL
RIGHTS GUARANTEED UNDER ARTICLE 14 AND 19(1)(G) OF THE
CONSTITUTION OF INDIA IN THE INTEREST OF JUSTICE AND
EQUITY; ISSUE A WRIT OF MANDAMUS OR ANY OTHER
APPROPRIATE WRIT, ORDER OR DIRECTION TO BE ISSUED TO THE
RESPONDENTS TO NOT SEIZE THE GOLD ARTICLES FROM THE
PETITIONER BUT CAN ONLY EXAMINE THE SAME BY SUMMONING IT
FOR THE PURPOSE OF INVESTIGATION IN CRIME NO.33/2024
REGISTERED BY THE 2ND RESPONDENT OR IN ANY OTHER CASES AS
MENTIONED IN ANNEXURE D, IN THE INTEREST OF JUSTICE AND
EQUITY; ISSUE A WRIT IN THE NATURE OF CERTIORARI AND SET
ASIDE NOTICE DATED 17.08.2024 ISSUED BY THE RESPONDENT
NO.2 VIDE ANNEXURE-D AND ETC.
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THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 27.09.2024, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
CAV ORDER
(PER: HON'BLE MR. JUSTICE H.P. SANDESH)
Heard the respective petitioner's counsel and also the
learned AGA for respondents.
2. These petitions are arising on account of
issuance of notice by the Investigating Officer for
production of articles which are at the instance of
receivers of the same i.e., petitioners and common
question is involved in the same and hence, all the
matters are taken together for common disposal.
3. The petitioner in W.P.No.104593/2024 filed the
Writ Petition praying this Court to quash the notice bearing
No. GAGRAPOTA: CRM: 137: 2024 dated 30.07.2024
addressed to the petitioner by the respondent No 4 vide
Annexure E and also to issue a direction in the nature of
mandamus directing the respondent No.4 not to take any
coercive action against the petitioner bank and its officers
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in pursuant to notice at Annexure E and grant such other
relief.
4. The factual matrix of the case of the petitioner
is that the fourth respondent has registered an FIR in
Cr.No.137/2024 for the offences under Section 309(4) of
BNS on 22.07.2024 and the respondent No.4 has issued
the notice to the petitioner seeking them to place the gold
articles pledged in the name of Sanjay S/o. Basappa
Koppad/accused before the police authorities in the police
station. Hence, aggrieved by the notice, the present
petition is filed.
5. The case of the complainant is that on
03.07.2024 when he was proceeding towards Betageri, a
person came in the motorcycle and he told that he is a
police and assaulted him and snatched the gold articles
from his neck and also in the pant i.e., 15 gram chain
along with locket worth Rs.1,05,000/- and also a bracelet
worth Rs.2,80,000/-, a mangalya sara weighing 28 grams
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worth Rs.2,00,000/- in all robbed the gold worth
Rs.5,85,000/- in total 85 grams.
6. The petitioner relies upon Annexure-A the
resolution, Annexure-B authorization letter so also FIR and
complaint produced as Annexures-C and D and so also
Annexure-E that is questioned before this Court.
7. It is contended that in the similar
circumstances, this Court has directed the respondent-
police authorities not to take coercive steps in
W.P.No.100269/2024 and the copy of order and judgment
is produced as Annexures-F and F1 and so also the order
passed in W.P.No.103829/2024 reiterating the position of
law as per Annexure-G. It is also contended that in
W.P.No.10754/2023 vide order dated 06.06.2023
produced as Annexure-H and so also relied upon the order
passed in W.P.No.22441/2022 disposed of on 15.11.2023
wherein held that the Investigating Officer cannot seize
the gold articles and only summon it for investigation. The
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grounds urged in the petition that the purported
transaction transpired as per the banking norms and the
Petitioner has been licensed by the Reserve Bank of India
to do the business and petitioner has complied with all the
applicable laws. So also relied on Section 94 of Bharatiya
Nagarik Suraksha Sanhita (for short, 'BNSS'). The ground
urged in the petition that the investigation that has been
carried out by the respondents is vague and is not in
accordance of law and lacks the preliminary investigation
done and investigation officer is merely acting as a
recovery agent and prayed this Court to quash Annexure-
E.
8. The State has filed statement of objections
contending that a case has been registered for the offence
punishable under Section 309(4) of BNSS. It is contended
that one Mahadevappa states in his complaint that his wife
was not keeping well and he was suffering financial
constraints therefore he took ornaments of his wife for the
purpose of obtaining loan on 03.07.2024. When he was
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proceeding on his bike towards Betageri at about 08.20
p.m., he stopped his two wheeler for answering the nature
call. Suddenly 2 persons came from Betageri side one
person assaulted the complainant and robbed the golden
chain belonging to the complainant and also robbed other
ornaments and threatened with dire consequences. Hence,
he lodged a complaint on 22.07.2024. Based on the
complaint, the accused was arrested on 28.07.2024 and
he gave voluntary statement stating that the golden
ornaments which were robbed from the complainant were
pledged on three occasion and obtained gold loan of Rs.3
lakhs i.e., on 06.07.2024, 10.07.2024 and 13.07.2024 he
kept gold ornaments with the petitioner company. It is
also contended that the accused is a habitual offender and
involved in other 12 cases and out of which, 8 cases are
pertaining robbery and rest of them are registered for the
offences punishable under Section 307, 386 of IPC. It is
also contended that the accused was taken to police
custody for conducting the panchanama and recovery of
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gold ornaments. While conducting the panchanama the
accused tried to escape and for which the police
authorities have registered Crime No.142/2024. It is also
contended that as per the statement made by the
accused, the Investigating Officer visited the petitioner
company with letter as per Annexure-E for the purpose of
securing the details of gold loan obtained by the accused
by pledging the gold ornaments pertaining to
victims/complainant. Immediately the petitioner
approached this Court by filling the present Writ Petition.
The petitioner having become unsuccessful before the
learned Single Judge also approached the Division Bench
of this Court by filing W.A.No.100363/2024 and the said
Writ Appeal disposed of on 19.08.2024 granting protection
to the petitioner. The same is produced as Annexure-R1.
It is contended that petitioner ought to have enquired the
accused as the accused obtained loan by pledging
ornaments on 3 different dates within span of 8 days i.e.,
on 06.07.2024, 10.07.2024 and finally on 13.07.2024 and
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he obtained loan totally for a sum of Rs.3 lakhs and when
the Investigation Officer tried to recover the said gold
ornaments pertaining to the victim, the petitioner has not
co-operated with the course of investigation and filed the
present Writ Petition. The relief sought by the petitioner is
not in accordance with law and prayer sought in the
petition would amount to interfering in the domain of the
investigating agency and the Investigating Officer has to
make appropriate enquiry into the information given by
the informant and the same is registered in First
Information Report and collection of documents as well as
material objects to submit a final report, the recovery is
necessary and as per Section 102 of Code of Criminal
Procedure, 1973 (for short, 'Cr.P.C.') the Court cannot
control or interfere with investigation by the police. The
first information is very clear that accused has been
arrested and he made voluntary statement. Hence, the
Investigating Officer has to conduct panchanama and
recovery has to be made under Section 102 of Cr.P.C. It
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is also contended that based upon the statement of
witnesses and the confession statement made by the
accused, the Investigating Officer has to conduct the
panchanama and seize the material objects and the same
shall be proved in accordance with Section 27 of the
Indian Evidence Act as the same is discovered based upon
the confession statement.
9. It is also contended that Writ Petition is not
maintainable and criminal law set in motion by registering
the case and gold ornaments belongs to the victim has to
be recovered and there cannot be any order granting the
relief as sought. It is also contended that the person has
to make an application under Section 451 of Cr.P.C. for
interim custody and also procedure as explained under
Section 457 of Cr.P.C. and he can seek for the relief under
the same. It is also contended that the Hon'ble Supreme
Court in the case of M.T. Endrica Lexie and another vs.
Doramma and others1 referring the provisions of Section
1
(2012) 6 SCC 760
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102 of Cr.P.C. held that 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. The police officer
can seize such property which is by Section 102(1) and no
other.
10. Learned AGA would also contend that the
petitioner institution received property on 3 different dates
within a span of one week and advanced loan of Rs.3 lakhs
would at least taken note of Section 411 of IPC (317 of
BNS) and it would have taken note of the purpose of
section is to discourage the people from benefiting from
the criminal activity like that. So they cannot be hand-in-
glove with the criminals. Hence, the petitioners are not
entitled to any relief.
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11. In W.P.No.101584/2024 is also filed by the
same petitioner wherein it is stated that the 4th respondent
registered a crime in Crime No.149/2023 for the offence
punishable under Sections 380 and 454 of IPC on
14.11.2023 making an allegation that the accused stolen
92 grams of gold and cash of Rs.25,500/- and mobile
worth Rs.8,000/- and issued Section 91 notice to the
petitioner to place the gold articles pledged in the name of
accused/Suleman Hajrat Sab Kashimanavar before the
police authorities in the police station and hence filed the
petition seeking similar grounds referring Annexures-A to
G and prayed this Court to quash the notice dated
04.03.2024 issued under Section 91 of Cr.P.C. i.e.,
Annexure-F and also a writ of mandamus directing the
respondent No.3 not to take any coercive action against
the petitioner in pursuance of Annexure-F.
12. In W.P.No.104538/2024, the same petitioner
has filed this Writ Petition to quash the notice dated
26.07.2024 issued under Section 94 of BNSS as per
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Annexure-F and similar writ of mandamus directing the
respondent No.3 not to proceed with the notice and similar
grounds are urged in the petition. The petitioner relies
upon Annexures-A to G. The allegation against the
accused that between the period from 01.07.2023 to
15.07.2023 committed the offence and FIR registered on
15.07.2024 and allegation is that he had stolen gold
ornaments worth 233 grams and issued notice to produce
gold ornaments under Section 91 of Cr.P.C.
13. The counsel for petitioner also relied upon the
list of authorities passed by this Court in
W.P.No.22441/2022, W.P.No.22227/2023, W.P.
No.10976/2024, W.P.No.4079/2024, W.P.No.100269/2024
and W.P.No.19163/2023 to contend that in these
petitions, the Co-ordinate Benches of this Court preventing
the Investigating Officer in seizing the same and directing
to produce the gold articles whenever ordered.
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14. The petitioner in W.P.No.105010/2024 prayed
this Court to declare that interference by the respondents
in petitioner's business in forcefully seizing the gold
articles pledged by its customers is arbitrary and is in
violation of fundamental rights guaranteed under Article
14 and 19(1) (g) of the Constitution of India and also
prayed to issue writ of mandamus or any other
appropriate writ, order or direction to be issued to the
respondents not to seize the gold articles from the
petitioner but can only examine the same by summoning it
for the purpose of investigation in Crime No.33/2024
registered by the 2nd respondent and produced Annexure-
A certificate of incorporation, Annexure-B the authorization
letter, FIR as Annexure-C wherein an allegation is made
that the accused asked 180 days and admitted his guilt
and given the letter on 12.09.2022 that he had
misappropriated the amount and complaint is filed and
based on the complaint, case is registered and matter is
under investigation and as per Annexure-D, notice is
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issued that accused was in-charge Manager at Kittur Rani
Channamma Urban Credit Souhard Sahakar Bank Ltd.,
Morab branch he had misappropriated an amount of
Rs.66,58,603/- and out of the said amount, he had
purchased the gold ornaments and pledged the same for
an amount of Rs.4,00,000/- and the same pertains to
Crime No.33//2024 and demanded the petitioner to
cooperate and produce the gold ornaments as per
Annexure-D. The counsel also relied upon the judgment of
this Court passed in W.P.No.10754/2023 as per Annexure-
E and so also Annexure-F order passed in
W.P.No.20228/2024 and in W.P.No.13958/2023,
W.P.No.100347/2024 as Annexure-H and prayed this
Court to grant the relief as sought.
15. Learned AGA has filed objections in one matter
and would contend that similar question is involved in all
the matters and adopted the statement of objections filed
in one of the matters and contend that the relief sought
cannot be granted as petition not maintainable. The
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victims not made as parties to the petitions since articles
belongs to them. In first case, there are 12 cases against
him. Voluntary statement of accused are admissible if
recoveries are made at the instance of the accused and
hence, exercising of power under Section 103 of Cr.P.C. is
necessary. Under Section 159 of Cr.P.C., it is the domain
of the Investigating Officer and if relief granted, it
amounts to interference in the investigation. In the
second case, committed default in payment and gold
pledged earlier auctioned and in spite of once again
allowed to pledge and on third occasion pledged in the
name of relative of the accused.
16. The counsel for petitioner in
W.P.No.105010/2024 relies upon the judgment of the
Hon'ble Apex Court in the case of Bharat Sanchar Ningam
Limited vs. Suryanarayanan and another2 and contend
that it is held in paragraph 14 normal rule of practice and
restoring the property to whose custody it was taken.
2
(2020) 12 SCC 637
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However, discussion was made that the Court is merely
required to determine the source from which the property
was seized. The counsel also relied upon the judgment of
the Hon'ble Apex Court in the case of Shabna Abdulla vs.
Union of India and others3and relied upon paragraph 17
wherein it is held that the Division Bench of the High Court
while passing the impugned judgment and order should
have followed the view taken by another Division Bench of
the same High Court specifically when the grounds of
detention and the grounds of challenge were identical in
both the cases. In the event, the Division Bench of the
High Court was of the view that the earlier decision of the
Coordinate Bench of the same High Court was not correct
in law, the only option available to it was to refer the
matter to a larger Bench.
17. The counsel also relied upon the judgment of
the Hon'ble Apex Court in the case of Official Liquidator
3
2024 SCC OnLine SC 2057
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vs. Dayanand and others4 and relied upon paragraph 90
wherein it is discussed that the learned Single Judges and
Benches of the High Courts refuse to follow and accept the
verdict and law laid down by coordinate and even larger
Benches by citing minor difference in the facts as the
ground for doing so. Therefore, it has become necessary
to reiterate that disrespect to the constitutional ethos and
breach of discipline have grave impact on the credibility of
judicial institution and encourages chance litigation. It
must be remembered that predictability and certainty is an
important hallmark of judicial jurisprudence developed in
this country in the last six decades and increase in the
frequency of conflicting judgments of the superior judiciary
will do incalculable harm to the system inasmuch as the
courts at the grass roots will not be able to decide as to
which of the judgments lay down the correct law and
which one should be followed and prayed this Court to
grant the relief as sought.
4
(2008) 10 SCC 1
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18. Having considered the grounds which have
been urged in all the petitions and perused the judgment
relied upon and decision of the Co-ordinate Bench of this
Court, this Court has to analyze the material on record
whether this Court can exercise the writ jurisdiction and
grant the similar reliefs sought in all the petitions to quash
the respective Annexures and whether the mandamus can
be issued as sought preventing the Investigating Officer
not to take any coercive action against the petitioners.
19. Having considered the material on record, it is
very clear that petitioners are the finance institutions and
they have advanced the loan amount pledging the gold
ornaments in all the cases and their contention is that they
are the bonafide receivers and hence, there cannot be any
recovery and they are ready to obey the conditions that
may be imposed. It is also the contention that Co-
ordinate Bench of this Court granted the relief as sought in
the similar circumstances and hence, this Court has to
grant the relief.
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20. On the other hand, it is the contention of the
State that if such a relief is granted, it is nothing but
interfering with the domain of the Investigating Officer and
the Investigating Officer has got power under Section 102
to seize the stolen articles and also under Section 27 of
the Evidence Act recovery has to be made at the instance
of the accused. If any grievance of the petitioners, they
can approach the Court by filing an application under the
provisions of Section 451 to 459 of Cr.P.C. and hence, the
relief cannot be granted.
21. Before considering the issue involved in all the
matters which are similar in nature, this Court would like
to refer Section 91 of Cr.P.C. under which a notice was
issued by the Investigating Officer and so also Section 94
of new enactment BNSS which invoked in other cases.
22. Section 91 of Cr.P.C. reads as follows:
"91. Summons to produce document or
other thing.- (1) Whenever any Court or any officer
in-charge of a police station considers that the
production of any document or other thing is necessary
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or desirable for the purposes of any investigation,
inquiry, trial or other proceeding under this Code by or
before such Court or officer, such Court may issue a
summons, or such officer a written order, to the person
in whose possession or power such document or thing is
believed to be, requiring him to attend and produce it,
or to produce it, at the time and place stated in the
summons or order.
(2) Any person required under this section merely to
produce a document or other thing shall be deemed to
have complied with the requisition if he causes such
document or thing to be produced instead of attending
personally to produce the same.
(3) Nothing in this section shall be deemed.-
(a) to affect Sections 123 and 124 of the Indian
Evidence Act, 1872 (1 of 1872), or the
Bankers' Books Evidence Act, 1891 (13 of
1891), or
(b) to apply to a letter, postcard, telegram or
other document or any parcel or thing in the
custody of the postal or telegraph authority."
23. Section 94 of new enactment BNSS reads as
follows:
94. Summons to produce document or other
thing.--(1) Whenever any Court or any officer in charge of a
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police station considers that the production of any
document, electronic communication, including
communication devices, which is likely to contain digital
evidence or other thing is necessary or desirable
for the purposes of any investigation, inquiry, trial or other
proceeding under this Sanhita by or before such Court or
officer, such Court may issue a summons or such officer
may, by a written order, either in physical form or in
electronic form, require the person in whose possession or
power such document or thing is believed to be, to attend
and produce it, or to produce it, at the time and place stated
in the summons or order.
(2) Any person required under this section merely to
produce a document, or other thing shall be deemed to have
complied with the requisition if he causes such document or
thing to be produced instead of attending personally to
produce the same.
(3) Nothing in this section shall be deemed--
(a) to affect sections 129 and 130 of the Bharatiya
Sakshya Adhiniyam, 2023 or the Bankers' Books
Evidence Act, 1891; or
(b) to apply to a letter, postcard, or other document
or any parcel or thing in the
custody of the postal authority.
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24. Having read the old Criminal Procedure Code
and also BNSS, Section 91 and 94 are similar and
summoning of document or other thing and new Section
94 of BNSS is replica of old Code.
25. This Court would also like to refer Section 102
of Cr.P.C. giving power to police office to seize certain
property which reads as follows:
"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.
1
[(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
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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:]
3
[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.]"
26. So also Section 106 of BNSS which explains
power of police officer to seize certain property which
reads as follows:
"106. 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.
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(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, 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
503 and 504 shall, as nearly as may be practicable,
apply to the net proceeds of such sale."
27. Having considered the respective proviso, it is
very clear that 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
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suspicion of the commission of any offence. Section 102(1)
is very clear that police office may seize which was stolen
in connection with the crime and even suspicious of the
commission of any offence and under Section 102(2) is
very clear that if subordinate to the officer in-charge of a
police station, shall forthwith report the seizure to superior
officer. The other clause has been inserted in the year
1978 and also it is very clear that the police officer who
acted under sub-section (1) of Section 102 shall forthwith
report the seizure to the Magistrate having jurisdiction and
he may give custody thereof to any person of his
executing a bond undertaking to produce the property
before the Court as when required and to give effect to the
further orders of the Court. So also further proviso which
was inserted by Act No.25 of 2005 with effect from
23.06.2006 which is clear that where the property seized
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
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Rs.500/-, 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.
Having considered the said proviso, it is clear that the
domain of the Investigating Officer to seize any article
upon property suspected to have been stolen and in the
case on hand also committed robbery and stolen and
pledged with the petitioner and the same is not in dispute
and also in connection with the crime and the investigation
is on and it is the domain of the Investigating Officer to
seize the same and report to the superior if he is a
subordinate officer and also report the seizure to the
Magistrate having jurisdiction to dispose of the same and
it is subject to speedy and natural decay. Hence, it is
clear that powers are vested with the Investigating Officer
to seize the same. This Court would also like to rely upon
Section 59 of Cr.P.C. and it is to be noted that that no
person who has been arrested by a police officer shall be
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discharged except on his own bond, or on bail, or under
the special order of a Magistrate. Hence, it is clear that
powers are vested with the Investigating Officer and no
courts shall also interfere with the domain of the
Investigating Officer.
28. This Court would also like to rely upon Section
27 of the Indian Evidence Act which deals with the
information received from the accused has to be proved
which reads as follows:
27. How much of information received from accused
may be proved
Provided that, when any fact is deposed to as
discovered inconsequence of information received from a
person accused of any offence, in the custody of a police-
officer, so much of such information, whether it amounts
to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved.
29. Having read Section 27 of the Evidence Act, it is
very clear that when any fact is deposed to as discovered
inconsequence of information received from a person
accused of any offence, in the custody of a police-officer,
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so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby
discovered, may be proved and in order to prove the
same, the Court has to take note of the discovery of fact
and also to take note of the voluntary statement made by
the accused and the same is not violation of Article 14 of
the Constitution of India and the Court has to take note of
evidentiary value of the statement made by the accused
and recovery and discovery of the fact. The fact as
understood in the Evidence Act includes physical as well as
psychological fact or mental condition and it leads to
discovery of evidence to hear the accused had given the
stolen article is also a discovery of fact and it is the
responsibility of the Investigating Officer to state in
evidence about authorship of concealment/sale of material
object if done by accused and point out jewellary shop
who purchased gold and the said conduct is admissible
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under Section 27 of the Evidence Act as held in the
judgment of Ramachandran Vs. State of Kerala5.
30. This Court would like to reply upon the recent
judgment of the Apex Court in the case of Babu
Sahebagouda Rudragoudar and others Vs. State of
Karnataka6, wherein the Apex Court invoking Section 27
read with Section 60 of the Evidence Act held that,
recovery at instance of accused, there must be compliance
of necessary requirements on part of the Investigating
Officer. For invoking Section 27, not only the statement
under Section 27 must be recorded in presence of two
independent witnesses, but recovery based on such
statement should also be made in presence of two
independent witnesses. Thereafter, such statement being
basically a memorandum of confession of the accused
recorded during interrogation, confessional part of such
statement is inadmissible and only the part which
5
2009 CRI.L.J 168
6
(2024) 8 SCC 149
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distinctly leads to discovery of fact is admissible in
evidence. Thus, while proving such statement before the
Trial Court, the Investigating Officer, held, must narrate
what the accused stated to him. Held, the Investigating
Officer essentially testifies about the conversation held
between himself and the accused which taken down into
writing leading to the discovery of incriminating facts.
Under Section 60 of the Evidence Act, oral evidence, held,
must be direct and no secondary/hearsay evidence, held,
can be given in case of oral evidence, except for the
circumstances enumerated in the section itself.
31. The Apex Court in paragraph No.65 of its
judgment relied upon the judgment of the Apex Court in
the case of Mohd. Abdul Hafeez Vs. State of A.P7
wherein it is held that, if evidence otherwise, confessional
in character is admissible under Section 27 of the Evidence
Act, it is obligatory upon the Investigating Officer to state
and record who gave the information; when he is dealing
7
(1983) 1 SCC 143
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with more than one accused, what words were used by
him so that a recovery pursuant to the information
received may be connected to the person giving the
information so as to provide incriminating evidence against
that person.
32. The Apex Court in paragraph No.66 of its
judgment relied upon the judgment of the Apex Court in
the case of Subramanya Vs. State of Karnataka8
wherein it is held that, if, it is say of the investigating
officer that the accused-appellant while in custody on his
own free will and volition made a statement that he would
lead to the place where he had hidden the weapon of
offence, the site of burial of the dead body, clothes etc.
then the first thing that the investigating officer should
have done was to call for two independent witnesses at
the police station itself. Once the two independent
witnesses would arrive at the police station thereafter in
their presence the accused should be asked to make an
8
(2023) 11 SCC 255
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appropriate statement as he may desire in regard to
pointing out the place where he is said to have hidden the
weapon of offence, etc. When the accused while in custody
makes such statement before the two independent
witnesses (panch-witnesses) the exact statement or rather
the exact words uttered by the accused should be
incorporated in the first part of the panchnama that the
investigating officer may draw in accordance with law. This
first part of the panchnama for the purpose of Section 27
of the Evidence Act is always drawn at the police station in
the presence of the independent witnesses so as to lend
credence that a particular statement was made by the
accused expressing his willingness on his own free will and
volition to point out the place where the weapon of offence
or any other article used in the commission of the offence
had been hidden. Once the first part of the panchnama is
completed thereafter the police party along with the
accused and the two independent witnesses
(panchwitnesses) would proceed to the particular place as
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may be led by the accused. If from that particular place
anything like the weapon of offence or bloodstained
clothes or any other article is discovered then that part of
the entire process would form the second part of the
panchnama. This is how the law expects the investigating
officer to draw the discovery panchnama as contemplated
under Section 27 of the Evidence Act. If we read the
entire oral evidence of the investigating officer then it is
clear that the same is deficient in all the aforesaid relevant
aspects of the matter." (emphasis supplied)
33. Having read the above said judgment, it is very
clear that if discovery statement is made by the accused,
the same should be made in the presence of two
independent witnesses and the Investigating Officer must
state what the information he has got from the accused.
Hence, this judgment is applicable to the case on hand
since the Investigating Officer instead of invoking Section
27 of the Evidence Act, he caused notice to produce the
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same and ought to have been recovered at the instance of
the accused since the Investigating Officer must narrate
what the accused stated to him and recovery is also made
at his instance.
34. In the case on hand, it is nothing but discovery
of fact at the instance of the accused that he had stolen
and pledged the articles with the petitioners and also
recovery has to be made on the information given by the
accused himself. Even Section 27 does not lay down the
statement made to the police officer who records it in the
presence of independent witnesses. The Court seeks
corroboration in such cases, as a matter of auction and not
a matter of a real. In the case on hand, it has to be noted
that voluntary statement were made before the
Investigating Officer that they had pledged the same with
the petitioners in all the cases.
35. It is also brought to the notice of this Court by
the learned AGA that within a span of 8 days, the accused
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pledged the same in 4 occasions and got the amount of
Rs.3 lakhs in the first case. Hence, it is clear that it is the
duty of the petitioners who run financial institutions also
should not encourage the thief to pledge repeatedly and it
is their duty to enquire into the matter and should not be
hand in glove with the accused and having responsibility to
cooperate with the Investigating Officer for investigation
and assist for recovery at the instance of the accused.
36. The Apex Court in the case of State (N.C.T. of
Delhi) vs. Navjoth Sandhu9 was of the view that
referring the judgment in Pullukuri Kotayya vs.
Emperor10 and held that Kotayya's case is an authority
for the proposition that 'discovery of fact' cannot be
equated to the object produced or found. It is more than
that. The discovery of fact arises by reason of the fact that
the information given by the accused exhibited the
9
2005 CRI.L.J.3950
10
AIR 1947 PC 67
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knowledge or the mental awareness of the informant as to
its existence at a particular place.
37. This Court would also like to refer the judgment
in the case of Himachal Pradesh Administration vs.
Shri Om Prakash11 wherein it is held that the Court will
have exercise necessary caution and care so as to assure
to the credibility of the information furnished and the fact
discovered and even in the case of Navjot Sandhu
referred supra, the Apex Court held that the other fact
under Section 27 which indirectly relates.
38. In the case on hand, it has to be noted the fact
is discovered at the instance of the accused and made the
voluntary statement that they pledged all the articles with
the petitioners and the Investigating Officer ought to have
invoked Section 102 of Cr.P.C. to seize the same and
report the same to his superior officers if he is subordinate
and as per the new insertion of proviso, the Investigating
11
AIR 1972 SC 975
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Officer has to report the same to the concerned
jurisdictional Magistrate but instead of invoking Section
102 of Cr.P.C., the Investigating Officer has committed an
error in issuing notice invoking section 91 of Cr.P.C. and
Section 94 of BNSS.
39. The relief sought in the petition is against the
statute i.e., old Section 91 of Cr.P.C. and also new Section
94 of BNSS as in all the matters offences were taken place
prior to the coming into force of BNSS and also
subsequent to the new enactment and powers are vested
with the Investigating Officer to invoke the same either
under Section 102 of Cr.P.C. as well as Section 106 of
BNSS.
40. This Court would also like to rely upon the
judgment of the Apex Court in the case of State of
Maharashtra vs. Tapas D Neogi12 with regard to scope
of Section 102 and police powers to seize the property. It
12
(1999) 7 SC 685
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is held in paragraph 4 that a plain reading of sub-
section(1) of Section 102 indicates that the Police 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 pre-
conditions for applicability of Section 102(1) are that it
must be `property' and secondly, in respect of the said
property there must have suspicion of commission of any
offence.
41. This Court would like to rely upon the judgment
of the Apex Court in the case of Shento Varghese Vs.
Julfikar Husen and others13 wherein also discussed with
regard to Section 102(1) and 102(2) and held that seizure
of property by the police officer are requisite for exercising
the power under Section 102(1), held that the existence of
13
(2024) 7 SCC 23
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direct link between the tented property and the alleged
offence and held it is essential that property sought to be
seized under Section 102 (1) must be direct or close link
with the commission of offence in question wherein also
even new enactment of BNSS Section 106(1) also
discussed in paragraph 17 by relying upon the earlier
judgment of Tapas D Neogi.
42. Having read these judgments of the Hon'ble
Apex Court, it is very clear that it is essential that the
property sought to be seized under Section 102(1) must
have direct or close link with the commission of offence in
question. In the case on hand also when the accused
persons were apprehended and they have made voluntary
statement that stolen articles were pledged with the
petitioners, there is a clear, direct and close link with the
commission of offence in question. Under such
circumstances, the Investigating Officer has to invoke
Section 102(1) and new Section 106(1) to seize the
property when the direct link between the tented property
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and the alleged offences are committed and instead of
invoking the said provisions, invoked Section 91 which is
erroneous and ought to have invoked Section 102(1) and
new Section 106(1) of BNSS.
43. If the Investigating Officer complied with the
proviso under Section 102 of Cr.P.C., again question arises
with regard to under what provision the property has to be
disposed of, this Court would like to rely upon Section 451
to 459, the procedure for disposal of the seized articles
during the pendency of the trial as well as after the
disposal of the case. I would like to rely upon Sections
451, 452, 453 and 457 of Cr.P.C. which read as follows:
"451. Order for custody and disposal of
property pending trial in certain cases.- When any
property is produced before any Criminal Court during
any inquiry or trial, the Court may make such order as
it thinks fit for the proper custody of such property
pending the conclusion of the inquiry or trial, and, if
the property is subject to speedy and natural decay, or
if it is otherwise expedient so to do, the Court may,
after recording such evidence as it thinks necessary,
order it to be sold or otherwise disposed of.
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"452. Order for disposal of property at
conclusion of trial.-- (1) When an inquiry or trial in
any Criminal Court is concluded, the Court may make
such order as it thinks fit for the disposal, by
destruction, confiscation or delivery to any person
claiming to be entitled to possession thereof or
otherwise, of any property or document produced
before it or in its custody, or regarding which any
offence appears to have been committed, or which has
been used for the commission of any offence.
(2) An order may be made under sub-section (1)
for the delivery of any property to any person claiming
to be entitled to the possession thereof, without any
condition or on condition that he executes a bond, with
or without securities, to the satisfaction of the Court,
engaging to restore such property to the Court if the
order made under sub-section (1) is modified or set
aside on appeal or revision.
(3) A Court of Session may, instead of itself
making an order under sub-section (1), direct the
property to be delivered to the Chief Judicial
Magistrate, who shall thereupon deal with it in the
manner provided in sections 457, 458 and 459.
(4) Except where the property is livestock or is
subject to speedy and natural decay, or where a bond
has been executed in pursuance of sub-section (2), an
order made under sub-section (1) shall not be carried
out for two months, or when an appeal is presented,
until such appeal has been disposed of.
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(5) In this section, the term "property" includes,
in the case of property regarding which an offence
appears to have been committed, not only such
property as has been originally in the possession or
under the control of any party, but also any property
into or for which the same may have been converted
or exchanged, and anything acquired by such
conversion or exchange, whether immediately or
otherwise."
"453. Payment to innocent purchaser of
money found on accused.-- When any person is
convicted of any offence which includes, or amounts
to, theft or receiving stolen property, and it is proved
that any other person bought the stolen property from
him without knowing or having reason to believe that
the same was stolen, and that any money has on his
arrest been taken out of the possession of the
convicted person, the Court may, on the application of
such purchaser and on the restitution of the stolen
property to the person entitled to the possession
thereof, order that out of such money a sum not
exceeding the price paid by such purchaser be
delivered to him."
"457. Procedure by police upon seizure of
property.- (1) Whenever the seizure of property by any
police officer is reported to a Magistrate under the
provisions of this Code, and such property is not
produced before a Criminal Court during an inquiry or
trial, the Magistrate may make such order as he thinks
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fit respecting the disposal of such property or the
delivery of such properly to the person entitled to the
possession thereof, or if such person cannot be
ascertained, respecting the custody and production of
such property.
(2) If the person so entitled is known, the
Magistrate may order the property to be delivered to
him on such conditions (if any) as the Magistrate thinks
fit and if such person is unknown, the Magistrate may
detain it and shall, in such case, issue a proclamation
specifying the articles of which such property consists,
and requiring any person who may have a claim thereto,
to appear before him and establish his claim within six
months from the date of such proclamation."
44. Having considered the provisions which have
been referred, it is clear that if any such gold articles are
seized at the instance of the accused, then even the victim
as well as the person deprived of the possession can seek
the interim custody during the pendency of the case under
Section 451 of Cr.P.C. and Section 452 is clear that after
the disposal of the case the Court can take a decision to
return the seized articles in the crime connected and so
also Section 453 is very clear with regard to if any
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conviction is made if bonafide person lost the property,
even Court can give a direction to pay back the said
money to the bonafide loser of the value of the articles
which directly connected to the crime and so also Section
457 is also very clear that procedure has to be adopted if
no one claims the possession, then the Court can issue
proclamation and dispose of the same. When such being
the case, the very contention of the petitioner's counsel
that the Investigating Officer has to be prevented in
seizing of the property and taking any coercive action
cannot be granted as sought by the petitioners. Though
the Coordinate Benches have granted such relief and those
orders are not in compliance of Section 102(1) as well as
Section 27 of the Evidence Act as well as the procedure for
releasing of the property which was seized under Sections
451 to 459 of Cr.P.C. It has to be noted that under Section
27 the property has to be seized at the instance of the
accused when he discloses the fact and when there is a
recovery and discovery of the particular fact and thing
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when there is incriminating evidence available against the
accused who indulged in stealing of the property belongs
to the victim and the same has to be recovered at the
instance of the accused and the same amounts to an
incriminating evidence against the accused. If the
Investigating Officer is not allowed and prevented in doing
such statutory act and the same is the domain of the
Investigating Officer, it affects the right of the victim who
lost the property and also it is nothing but preventing of
collecting incriminating evidence against the accused.
Hence, such orders cannot be passed by the Court even if
such order has been passed, it will be against the statute.
Though the petitioners have relied upon the judgment, the
same cannot be a precedent since statute has not been
discussed. The counsel appearing for the petitioners had
relied upon the judgment of the Apex Court with regard to
judicial propriety in passing such an order and when such
orders are passed without any discussion of the statutory
provisions and the same does not amount to any judicial
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propriety and thus judgments relied upon not applicable to
the facts of the case on hand. Hence, I do not find any
merit in the petitions to pass such preventive order
against the Investigating Officer and the same is the
domain of the Investigating Officer which is nothing but
interfering with the powers vested with the Investigating
Officer under Section 102 and 59 of Cr.P.C., the Court
cannot prevent by passing such orders against
Investigating Officer.
45. Having perused the principles laid down in the
judgment relied upon by the learned AGA appearing for
the State in the case of M.T. Enrica Lexie referred supra,
the Apex Court in the said judgment discussed with regard
to Section 102 and held that seizure of property involved
in crime and kinds of property liable to be seized under
Section 102 are: (i) stolen or suspected to be stolen
property, (ii) object of crime, and (iii) property which has
direct link with commission of crime and held that under
Section 102, the police officer can seize such property
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which is covered by Section 102(1) and also categorically
held in paragraph 14 that 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. Hence, this
judgment is aptly applicable to the existing power under
Section 102 and the same has not been done by the
Investigating Officer in these cases instead adopted the
mode of issuing notices by invoking Section 91 of Cr.P.C.
and new Section 94 of BNSS and the same cannot be done
in the circumstances referred above as held by the Apex
Court. This Court cannot prevent the power of the
Investigating Officer and the same is the domain of the
Investigating Officer to seize the same and it appears the
same is done in view of the orders passed by this Court
referred by the petitioners' counsel. The Coordinate
Benches have not been dealt with Section 102 of Cr.P.C.,
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Section 27 of Evidence Act and also the procedure as
contemplated under Sections 451 to 459 of Cr.P.C. for
release of seized articles which are having direct link with
the commission of offence for which the police officer is
having domain to investigate the same.
46. It is important to note that under the new BNSS
under Section 531 of BNSS, there is a saving clause while
repealing the old Code if any offences are taken place prior
to the new BNSS, Cr.P.C. is applicable, if any offences are
committed subsequent to new BNSS, new BNSS is
applicable for the enquiry, investigation and trial. Hence,
it is made clear that in the case on hand, the offences
which have been taken place prior to the new BNSS and
Cr.P.C. is applicable and if any offence is taken place
subsequent to the new BNSS and new BNSS is applicable
but there is no any major changes with the powers vested
with the Investigating Officer under Section 102 and also
under new Section 106 of BNSS and the same is
parimateria to Section 102 of Cr.P.C. and when such
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powers are vested with the Investigating Officer, the
petitioners are not entitled for the relief as sought. Hence,
there is no any merit in the writ petitions to quash the
notice which have been sought in the respective petitions
and there is no merit to grant relief as sought.
47. In view of the discussions made above, I pass
the following:
ORDER
Writ Petitions are dismissed.
The concerned Investigating Officers are directed to
proceed in accordance with law under Section 102 of
Cr.P.C. and also under Section 106 of BNSS to seize the
property through the accused and invoking Section 27 of
Indian Evidence Act and new Bharatiya Sakshya
Adhiniyam, 2023 as the offences are earlier to new
Bharatiya Sakshya Adhiniyam, 2023 and subsequent to
the new Bharatiya Nagarik Suraksha Sanhita, 2023 and it
requires proof.
Sd/-
(H.P. SANDESH)
JUDGE
NAA
List No.: 1 Sl No.: 101