The Madras High Court today made it clear that police cannot attach the properties of offenders directly and it is only the state or central government which can proceed with it as per the Criminal Law Amendment Act.
Justice P N Prakash stated this while allowing petitions filed by V Sundaram and Mallika charged with cheating the public by failing to give attractive returns as promised from a chit firm they had founded in Kancheepuram.
In this regard, the Deputy Superintendent of Police (Kancheepuram) had written to the Sub-Registrar there not to register their properties.
The judge said the DSP's act was an arbitary exercise of power and violative of Article 14 of the Constitution (equality before law).
He said that if a person is involved in an offence under Section 406 or 420 of IPC and the victim is a private person, provisions of Criminal Law Amendment Ordinance, 1944, can be invoked in Tamil Nadu to attach the properties. Under Section 3,it was only the state government or the Centre that can initiate action by approaching the District Judge of the area where the accused ordinarily resides or carries on business.
"The police officer can at the most submit a report to the state government or central government requesting the state government to initiate action under the Ordinance and he cannot arrogate to himself the power to issue such veiled threats to the Sub-Registrar."
The prosecution case was that the duo had been running an unregistered chit fund company and had collected about Rs 1.66 crore as subscriptions from 35 persons between December 2010 and May 2013 and then defaulted in making repayments.
Police completed investigation and filed final report before the Chief Judicial Magistrate, Chengelpet, which was taken on file and the trial is pending.
After doing so, the DSP (Economic Offences Wing), Kancheepuram, the Investigating Officer, wrote to the Sub Registrar of the town on January 8, 2015 on the encumberance.
The two accused then moved the court.
The Judge concurred with submissions of the Court- appointed Amicus Curaie Abudu Kumar Rajarathinam and said the Criminal Law Amendment Act introduced by Tamil Nadu government in 1997 empowers the state or central government to initiate proceedings even in respect of properties of private persons. The police officer has no role in this.
After referring to judgements of Bombay and Kerala High Courts, he said the DSP, by couching the communication in camouflaged language, had indirectly attached properties of the accused via the backdoor, which was not permissible. If he wanted to safeguard the depositors' interest, he should have sent a report to the government to act under the Section 3.
The Judge then set aside the order passed by the DSP to the Sub Registrar.
