Section 102 of the Code of Criminal Procedure cannot be used in pmla cases
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.102 OF 2021
(Arising out of SLP (Criminal) No.4171 of 2020)
OPTO Circuit India Ltd. Versus
Axis Bank & Ors.
3 Judge bench , through the J U D G M E N T of A.S. Bopanna, J., held that
12. Mr. S.V. Raju, learned Additional Solicitor General
made a subtle attempt to contend that the power of
seizure is available under Section 102 of the Code of
Criminal Procedure, which has been exercised and as
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such the freezing of the account would remain valid. We
are unable to appreciate and accept such contention for
more than one reason. Firstly, as noted, it has been the
contention of Respondent No.4 that PMLA is a standalone enactment. If that be so and when such enactment
contains a provision for seizure which includes freezing,
the power available therein is to be exercised and the
procedure contemplated therein is to be complied.
Secondly, when the power is available under the special
enactment, the question of resorting to the power under
the general law does not arise. Thirdly, the power under
Section 102 CrPC is to the Police Officer during the
course of investigation and the scheme of the provision is
different from the scheme under PMLA. Further, even
subsection (3) to Section 102 CrPC requires that the
Police Officer shall forthwith report the seizure to the
Magistrate having jurisdiction, the compliance of which is
also not shown if the said provision was in fact invoked.
That apart, the impugned communication dated
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15.05.2020 does not refer to the power being exercised
under the Code of Criminal Procedure.
13. The action sought to be sustained should be with
reference to the contents of the impugned
order/communication and the same cannot be justified
by improving the same through the contention raised in
the objection statement or affidavit filed before the Court.
This has been succinctly laid down by this Court in the
case of Mohinder Singh Gill & Another vs. The Chief
Election Commissioner, New Delhi & Ors. (1978) 1
SCC 405) as follows;
8. The second equally relevant matter is that when a
statutory functionary makes an order based on
certain grounds, its validity must be judged by the
reasons so mentioned and cannot be supplemented
by fresh reasons in the shape of affidavit or otherwise.
Otherwise, an order bad in the beginning may, by the
time it comes to court on account of a challenge, get
validated by additional grounds later brought out. We
may here draw attention to the observations of Bose
J. in Gordhandas Bhanji:
(1) Public orders, publicly made, in exercise of a
statutory authority cannot be construed in the light of
explanations subsequently given by the officer making
the order of what he meant, or of what was in his
mind, or what he intended to do. Public orders made
by public authorities are meant to have public effect
and are intended to effect the actings and conduct of
those to whom they are addressed and must be
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construed objectively with reference to the language
used in the order itself.
Orders are not like old wine becoming better as they
grow older:
In fact, in the instant case such contention of having
exercised power under Section 102 CrPC has not been
put forth even in the counter affidavit, either in this
appeal or before the High Court and has only been the
attempted ingenuity of the learned Additional Solicitor
General. Such contention, therefore, cannot be accepted.
In fact, in the objection statement filed before the High
Court much emphasis has been laid on the power
available under PMLA and the same being exercised
though without specifically referring to the power
available under Section 17 of PMLA.