Suprakash Sen vs State

A.K. Dutta, J.—By this application u/s 482 of the Code of Criminal Procedure (hereinafter referred to as Code), the Petitioner has prayed the Court for directing the Police Authorities to unlock and take off/remove the seals of the offices of Sahara India Savings & Investments Corporation Ltd. at Calcutta, at Sararhat, Fait, within P.S. Falta. District 24-Parganas (South), No. 54/1/1, Hazra Road, Calcutta -19, within Gariahat P.S., Calcutta, and at No. 227/2, Acharya Jagadish Chandra Bose Road, Calcutta-20, within Ballygunge P.S.,'' Calcutta, and to return all documents and records taken there from so that the Sahara India can run its aforesaid offices smoothly and carry on its various activities from the aforesaid offices as before for the reasons stated and on the grounds made out therein.

The learned Advocate for the opposite party/State of West Bengal, Mr. R. N. Chakraborty, referring to the F.I.R. in the Case Diary, stated to have been produced by the Investigating Officer, shown during the hearing, has appeared the Petitioner''s application in view of the nature of the allegations made in the F.I.R. and the number of accused involved therein, submitting that 69 accused persons are named in the F.I.R. Since the certified copy of the F.I.R, annexed with the record of this Court shows that the F.I.R, had been lodged by the informant Ratan Sen against 8 named accused persons and others, and not 69 named accused, as submitted by Mr. Chakraborty, the lower Court records were ached for by order dated August 1, 1994, for verifying the aforesaid submissions made by him.

Upon perusal of the Tower Court records and the records of this Court, as also the Xerox copy of the F.I.R. presented by the learned Advocate for the opposite party from the Case Diary, it clearly appears that there is no discrepancy whatsoever in the number of F..I.R. named accessed persons in any of them. The F.I.R. in the lower Court Record, the certified copy of the F.I.R. in the record of this Court, as also the Xerox copy of the F.I.R. furnished by the learned Advocate for the opposite party from the Case Diary during the hearing, would all clearly show that the F.I.R. had been ledged against 8 named accused persons and others.

The submissions of Mr. Chakraborty that: 69 accused persons have been named in the F.I.R., unfortunately, does not appear to be borne out by the records. The Xerox copy of the F.I.R., presented from the Case Diary during the hearing, however, appears to be accompanied by a list of 69 Account Holders of the Sahara India Savings and Investments Corporation Ltd., with their respective account numbers. But the F.I.R. in the lower Court record and the certified copy thereof annexed, with the records of this Court do not appear to be accompanied by any such list clearly suggesting that the said list is not a part of the F.I.R. but subsequently inserted in the records.

On scrutiny of the lower Court records it, however, appears that there is such a list at pp. 34 and 35 thereof which appears to bear the signature of the informant Retan Sen in English, bearing the date June 3, 1994.,, whereas he appears to have put his signature in the original written complaint in Bengali, suggesting that the original written complaint and the after said list are not contemporaneous documents, but subsequently obtained/created. The said list had neither accompanied the F.I.R., the forwarding report of the Investigating Officer, and the seizure list sent to the Court on June 4, 1994, all of which bear the dated initials of the S.D.J.M. concerned with his designation'' stamps thereon. While all other papers/documents sent to the Court by the Investigating Officer from time to time, e.g. forwarding reports, secure lists, memorandum etc. bear dated initials of the S.D.J.M. with his designation stamp thereon, the said list of 69 account holders, curiously and dubiously, does not appear to bear the dated initial of the S.D.J.M. and his designation stamp thereon. With things as they are, there could be little mistaking that the aforesaid list had been subsequently inserted in the lower Court records to make it appear that the informant had named the account holders in the F.I.R, who had allegedly made deposits with the aforesaid Corporation. The aforesaid list must, therefore, be received with a pinch of salt.

Upon hearing the submissions of the learned Counsels for both sides and perusal of the materials in the lower Court records and the record of this Court, it appears that the relevant proceedings, being G.R. Case No. 640 of 1994, arising out of Falta P.S. Case no 40/94, pending before the Sub divisional Judicial Magistrate at Diamond Harbour (hereinafter referred to S.D.J.M.), arose out of an F.I.R. lodged by informant Ratan Sen on June 3, 1994 against 8 named accused persons and others for alleged offences punishable under Sections 420/406/467/468/471/474/1208, Indian Penal Code. In course of the investigation of the relevant case, the Police had seized various documents/articles from the different offices of the Sahera India Savings and Investments Corporation Ltd. (hereinafter referred to as Corporation) at different places. They also appear to have locked and sealed different offices of the Corporation at different places," as stated in the relevant petition.

The Petitioner, accordingly, has sought for directing the Police Authorities to forthwith remove the seals and padlocks from the aforesaid offices of the Corporation at No. 227/2, A. J. C. Bose Road, Calculta-10, No. 54/1/1. Hazra Road, Calcutta-19, and also at Sararat, P.S. Falta, 24-Parganas (South), in order to protect the interest of the depositors and also the staff of the Corporation from suffering any further financial loss on account of non-functioning of the aforesaid offices. It is further submitted that unless the original Share Certificates and Debentures are allowed to be taken out from the aforesaid offices, in order to take necessary steps in the matter of transfer of the aforesaid shares in the name of Sahara India, the financial interest of the Corporation would be seriously affected and no one would be benefited by the non-transfer of the aforesaid shares in the name of the public before the Book Closing date, which is July 31, 1994.

Let me now proceed to consider the prayer made by the Petitioner in the background of the nature of the allegations made in the F.I.R. which gave rise to the relevant proceedings. On perusal of the F.I.R. on record the allegations made therein do not all seem to be specified but, on the contrary, appear to be too vague to be proceeded with for the reasons I shall presently state. The informant appears to have stated therein that he and many other villagers of Falta locality have been regularly depositing money to the Agents of the Corporation named therein. Strangely, however, he has not named a single villager therein who had allegedly made deposits to the Agents, as stated by him. He has neither stated what amounts had been deposited by him and the said ''many other villagers'' from time to time, and when and how such deposits had been made by them. There is not the merest whisper by him on what terms and conditions the deposits had allegedly been made by him and others, as alleged, and how the repayments had to be made therefor by the Corporation on maturity of such deposits, if any. He has, curiously, neither indicated the account number of his own deposit or the relevant particulars thereof for which deposits had allegedly been made by him.

The informant had further stated that the deposits made by him and the other villagers of the locality through the Agents had not been entered in the daily Pass Books given to them by the Authority concerned. But there is not the faintest whisper within the four corners 6f the F.I.R. what are the amounts deposited by him and others, which had not been entered in the Pass Books, as alleged. It is sought to be alleged in the F.I.R. that the Agents named and the Corporation have misappropriated the monies deposited by the informant and others, and have forged/ fabricated documents therefor. But there is no slightest whisper in the F.I.R. what is the amount misappropriated and what are the documents which have been forged/ fabricated, as alleged. There is no whisper either in the F.I.R. whether the alleged deposits made by the informant and others have since matured or not, and whether the matured amounts, if any, have been refused to be paid by the concerned Corporation. If the alleged deposits have not matured, and if there is no refusal to pay back the matured amounts, there could scarcely be any cause for any such complaint, the way made.

It would further seem significant and observable to note from the F.I.R. that .the informant has stated therein with more than usual clarity and in no unambiguous terms that it is their strong impression/inference/guess that the owners of the Corporation, the employees and the Agents thereof have been utilizing/investigating the monies deposited by them in some other organisation by forging/fabricating papers therefor, and have thus misappropriated the monies. But no case could be said to be made out on more impression/inference/guess/surmise/ conjecture in the absence of any specific and definite allegation as to the alleged offence.

Having regard to the nature of the aforesaid allegations made in the F.I.R., as indicated above, there seems little reason why the different offices of the aforesaid Corporation should be allowed to remain locked and scaled for an indefinite period on the basis of such-like lone F.I.R., to the prejudice'' of the Corporation and to the detriment to all concerned, including the depositors thereof; more particularly when there is no provision in the Code empowering the Police to lock and seal the offices of the Corporation for the purpose of investigation of the relevant case. The Police has indeed the power to course of investigation under the provisions of Section 165 of the Code. But the said provision does not provide for a general search but provides for a search for a particular thing which would be necessary for the purpose of investigation and which should be specified in writing so far as possible at the time when the search is taken out. As observed by a Division Bench of this Court in Paresh Chandra Sen Gupta Vs. Jogendra Nath Roy Chowdhury and Another, a general search means a search not in respect of specific documents or things which the officer considered were necessary or desirable for the purpose of investigation in hand but a roving enquiry for the purpose of discovering documents or things which might involve persons in criminal liability, as sought to be made by the Investigating Officer concerned in the relevant proceedings by seizing various documents from the different offices of the Corporation and by locking and sealing its offices at different places, the way he did. The licking and sealing of the different offices of the Corporation by the Investigating Officer cannot thus be held to be justified in the facts and circumstances indicated above.

In view of the discussions above, I direct the concerned Police Authorities to remove the padlocks, seals, etc. on the different offices of Sahara India Savings and Investments Corporation Ltd., which has been locked and sealed in course of the investigation of the aforesaid relevant case so as to enable the Corporation to carry on its day-to-day business. The Petitioner''s prayer for return of the seized documents cannot be entertained at this stage. The Petitioner shall, however, be allowed to take out the original Share Certificates and Debentures from the concerned offices in the presence of the Investigating Officer lV, the purpose of taking necessary steps _for transfer of the same In the name of the Corporation, as prayed for, to prevent financial loss to it, by keeping Xerox copies thereof in its offices, giving lists thereof to the Investigating Officer. The Corporation shall fully co-operate with the Investigating Agency. The Petitioner may also obtain Xerox copies of the documents seized by the Police during the investigation, as may be required, for enabling it to carry on its day-to-day business.

The Petitioner, at this stage, undertakes through his learned Advocate Mr. Balai Chandra Roy to provide separate almirahs inside the offices to keep the documents seized by the Police in course of the investigation, which may be locked and sealed by the Investigating Officer, if so required.

The Petitioner''s application u/s 402 of the Code of Criminal Procedure is, accordingly, disposed of with the directions given above.

The learned Advocate for the opposite party/State prays for stay of operation of this order, which be rejected on due consideration for the reasons recorded in the order.

On the submissions made by the learned Advocates for both sides, the Criminal Section is directed to supply them certified copies of this order at an early date on their filing applications therefor. On submissions made by them, let plain copies of the operative part of this order be handed over to their learned Advocates, in the meantime, duly counter-signed by the Assistant Registrar (Court) on usual undertaking.

Let the lower Court records, called for, be sent down to the Court below forthwith.