STATE OF MAHARASHTRAversusAVINASH

                            [2017] 8 S.C.R. 896


A                      STATE OF MAHARASHTRA
                                     v.
                                 AVINASH
                     (Criminal Appeal No. 1580 of2017)
B                          SEPTEMBER 07, 2017
        [N. V. RAMANA AND DR. D.Y. CHANDRACHUD, JJ.J
          Administration of justice - Abuse of process of law - FIR
    alleging that the complainant had been fraudulently induced to part
C   with Rs 2. 74 crores by way of investment - Pursuant thereto,
    offences registered under various provisions of /PC and uls. 3, MPID
    Act, 1999 - Respondent arrested but granted bail in terms of the
    undertaking filed by him - His bank accounts attached uls.102,
    CrPC - Application by respondent before Division Bench in High
    Court praying for quashing of FIR and de-freezing his bank
D   accounts, subsequently withdrawn - Application by respondent
    before Single Judge in High Court for de-freezing his bank accounts
    - Single Judge directed lifting of the restraint on the operation of
    bank accounts of the respondent - Plea of appellant-State that as
    the respondent withdrew his application before the Division Bench,
E   it was an abuse of process to seek and obtain similar relief before
    Single Judge - Held: On facts, the filing of application before Single
    Judge for quashing the FJR and for de-freezing the bank accounts
    constituted a manifest abuse of process - Single Judge was not
    apprised of the fact that the earlier application seeking virtually
    the same relief had not been pressed before the Division Bench and
F   had been withdrawn - Order of Single Judge set aside -
    Maharashtra Protection of Interest of Depositors (In Financial
    Establishments) Act, 1999- ss.3, 4, 5, 7 and 14 - Code of Criminal
    Procedure, 1973 - ss.102, 482 - Penal Code, 1860 - ss. 406, 420,
    506 and 120B.
G         Maharashtra Protection of Interest of Depositors (Jn
    Financial Establishments) Act, 1999 - ss. 4, 5, 7 and 14 - Overriding
    power - Effect of - FIR alleging that respondent fraudulently
    induced the complainant to part with Rs 2.74 crores by way of an
    investment - Pursuant thereto, offences registered under various
    provisions of /PC and uls. 3, MPID Act, 1999 - Bank accounts of
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                                     896
           STATE OF MAHARASHTRA v. AVINASH                            897


respondent attached uls.102, CrPC - Whether bank accounts of A
the respondent could have been frozen by taking recourse to the
provisions of CrPC notwithstanding the special provisions contained
in the MPJD Act - Held: Jn terms of the view taken in the present
case, it is not necessary to address the said question of law - Code
of Criminal Procedure, 1973 - s.102.
                                                                      B
      Allowing the appeal, the Court
       HELD: The High Court was moved in an application under
 Section 482 of the CrPC, with a specific prayer for de-freezing
 his bank accounts. This prayer, together with the other reliefs
.(including that for quashing the FIR) was not pressed and the c
 application was disposed of as withdrawn on 29 June 2016 by the
 Division Bench. In this background, the filing of another
 application before the Single Judge on 1 July 2016 for quashing
 the FIR and for de-freezing the bank accounts constituted a
 manifest abuse of process. The Single Judge was evidently not
 apprised of the fact that the earlier application seeking virtually D
 the same relief had not been pressed before the division bench
 and had been withdrawn. Consequently, there is merit in the
 submission urged on behalf of the State. The Single Judge ought
 not to have entertained the application under Section 482 in
 respect of the same relief which had been given up earlier before E
 the Division Bench of the High Court on 29 June 2016. In terms
 of the view taken in the present case, it is not necessary to address
 the question of law adverted to by the High Court. [Paras 12 and
 13) [902-F-H; 903-A-B)
     CRIMINAL APPELLATE ruRISDICTION : Criminal Appeal                F
No.1580of2017.             ·
      From the final Judgment and Order dated 18.08.2016 passed by
the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in
Criminal Application (APL) No.459of2016.
       Ms. Deepa Kulkarni, Nishant Ramakantrao Katneshwarkar, Advs.   G
for the Appellant.
     Arjun Vinod Bobde, Ms. Richa Rahlan, Ms. Praneeta Sharma,
Amarendra Kumar Singh, Anand Mishra, Advs. for the Respondent.

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898           SUPREME COURT REPORTS                           [2017] 8 S.C.R.


A          The Judgment of the Court was delivered by
           DR. D.Y. CHANDRACHUD, J. 1. Leave granted.
          2. This appeal arises from a judgment of a Single Judge of the
   Bombay High Court at its Nagpur Bench dated 18 August 2016 by which
   a criminal application filed by the respondent has been allowed and a
 B direction for the de-freezing of his bank accounts has been issued.
          3. On 9 May 2014, a First Information Report was lodged against
   the Directors of a company by the name of Wasankar Wealth
   Management Ltd alleging that the complainant Vivek Pathak had been
   fraudulently induced to part with an amount of Rs 2. 74 crores by way of
 C an investment.On the basis of the information received, offences were
   registered under Sections 420, 406, 506 and 120 B of the Penal Code
   and Section 3 of the Maharashtra Protection of Interest of Depositors
   (In Financial Establishments) Act, 1999 (' MPID Act'). During the course
   of investigation, the respondent was arrested, together with other
 D accused. The bank accounts of the re~pondent were attached in exercise
   of powers conferred by Section I 02 of the Code of Criminal Procedure,
    1973.
         4. On 11 January 2016, the Special Judge, MPID Act allowed an
   application for bail submitted by the respondent. The respondent
 E submitted an undertaking before the Special Judge in the following terms:
           "Undertaking on behalf ofApplicant
           1. The applicant seeks release on bail in crime no. 156/2014. The
             applicant undertakes before this Hon'ble Court that out of an
             amount ofRs. 14,26,36,300/. The applicant has already deposited
 F         , an amount of 2 crores.
           2. Out of the remaining amount of 12,26,36,300/- the applicant
             undertakes to deposit an amount of Rs. 1.5 crores before the
             151h day of each month starting from 15.2.2016.
           3. The applicant undertakes that the last instalment of
 G           1,76,36,00/- will be paid so as to cover the entire amount of
             Rs.14,26,36,300/-.
           4. The applicant also undertakes to pay the liability of interest till
             the entire amount is deposited in this court.

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               STATE OF MAHARASHTRA v. AVINASH                                   899
                   [DR. D.Y. CHANDRACHUD, J.]

         5. The applicant undertakes that if possible and for which every A
           effort will be made, the applicant shall try to find a purchase for
           the attached properties so that the entfre amount is repaid even
           before early.
         6. The applicant undertakes that in any case if any default of the
           aforesaid undertaking is committed by the applicant the               B
           prosecution shall be at liberty to forth with make an application
           to this court for cancelling the bail granted to the applicant.
           The applicant undertakes to abide by the present undertaking
           and also abide all such conditions which this Hon 'ble Court impose
           against the applicant which releasing him on bail."                   c
          Consequently and in terms of the undertaking filed by him, the
    respondent was released on bail in the following terms :
          "ApplicantAvinash s/o RameshjiBhute be released on bail on his
           executing P.R. Bond for Rs. 1,00,000/-which one solvent surety D
           in the like amount on following conditions:
         I. He shall deposit Rs. 1.2 crores before 15'h day of each month
            staring from 15.2.2016 as per his undertaking Exh.9.
         2. He shall deposit accumulated interest at the time of last
            instalment.                                                          E
         3. He shall attend Crime Branch, E.0.W., Nagpur on every
            Wednesday and Thursday for the purpose of interrogation in
            between 11.00 a.m. to 5.00 p.m. until orders and shall cooperate
            the investigating officer in investigation.
                                                                                 F
           Breach of any of the conditions shall entail automatic cancellation
           of the bail and the applicant shall have to surrender before this
           Court."
           5. On 9 February 2016, the respondent applied for modification of
    the conditions of bail imposed by the Special Judge in his order dated 11 G
    January 2016. The respondent prayed that in lieu of the condition requiring
•   him to deposit a sum of Rs 1.5 crores each month, he may be permitted
    to offer security of immovable property. The modification which he
    sought was in the following terms :

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900            SUPREME COURT REPORTS                           [2017] 8 S.C.R.


A           "It is therefore, prayed that this Hon'ble Court be pleased to relax
            the condition directing the applicant to deposit Rs. 1.5 crores before
            the JSth day of every month and if this Court finds. It is necessary,
            in lieu of payment of amount in cash, the applicant be permitted to
            offer his immovable property i.e. MIDC Leasehold Plot No. D-
             12, D-13 & D-67 situated at Mouza Sonegaon (Seem), Nagpur
 B
            MIDC, Hingana Road, Nagpur as a Secretary by making the same
            free from all encumbrances within a period of90 days by lifting
            restrictions imposed upon the applicant by this Court vide order
            dated 9.10.2015, passed in Misc. Criminal application No. 24721
            2015."
 c          6. The application for modification of the conditions of bail was
      numbered as Miscellaneous Criminal Application 350of2016. The Special
      Judge rejected the application for modification by an order dated I July
      2016.
             7. The respondent instituted Criminal Application 178 of 2016
· D before the Nagpur bench of the Bombay High Court under Section 482
    of the Code of Criminal Procedure 1973 in which he sought the following
    reliefs:
            "a) quash the FIR No. 156/2014, registered by Ambazari Police
                Station under Sections 420, 409, 406, 506, 120-B ofIPC and
 E              Section 3 of RBI Act and Section 24 ( 1) and 27 of SEBI Act
                pursuant to the report lodged by the non applicant no. 2 in so
                far as the applicant is concerned and to;
            b) quash the action of the non applicant no. I of freezing the bank
                accounts of the applicant and defreeze the same and to;
 F          c) direct the non applicant no. 1 not to take any further coercive
                steps against the applicant and to stay further proceedings
                against the applicant."
          Besides a prayer for quashing the FIR, the respondent specifically
   sought relief for de-freezing his bank accounts. On 29 June 2016 the
 G Criminal Application was withdrawn on the request of the respondent
   with liberty reserved him to apply for discharge in the event that the
   charge-sheet is filed. The order of the Division Bench reads thus:
            "Learned Senior Counsel appearing for the applicant seeks leave
            to withdraw the petition with liberty to apply for discharge in the
 H          event the Charge-sheet is filed against the present applicant.
            STATE OF MAHARASHTRA v. AVINASH                                 901
                [DR. D.Y. CHANDRACHUD, J.]

       The Application is disposed of as withdrawn with liberty as prayed A
     · for."
       8. Criminal Application 459 of 2016 was lodged on 1 July 2016,
soon after the earlier criminal application was dismissed as withdrawn,
in order to assail the order of the Special Judge dated 1 July 2016, to
allow the respondent to offer security of his immovable property in lieu    B
of a cash deposit and for de-freezing his bank accounts. The prayers
sought before the High Court were as follows :
       "a) quash and set aside the order passed by the Special Court,
          Nagpur in Misc.Criminal Application No.350/2016 on 1/07/
          2016, and be pleased to relax the condition imposed by the        C
          Special Court, Nagpur directing the applicant to deposit Rs.1.5
          crores before the l 51h day of every month and to;
       b) In lieu of payment of amount in cash, applicant be permitted to
           offer his immovable property i.e. MIDC Leasehold Plot No.D-
           12, D-13 and D-67 situated at Mouza Sonegaon (Seem}, D
           Nagpur MIDC, Hingana Road, Nagpur as a Security by
           making the same free from all encumbrances within a period
           of Three months by lifting restrictions imposed upon the
           applicant by the Special Court, Nagpur vide order dated
           09.10.2015, passed in MiscCriminalApplication No.2472/2015
                                                                          E
           and to;
       c) defreeze all the bank accounts of the applicant and he be
          permitted to operate the same and to ;... "
        9. By a judgment dated 18 August 2016 the Single Judge of the
 Bombay High Court allowed the Criminal Application and directed that F
 the restraint on the operation of the bank accounts of the respondent be
 lifted. The Single Judge held that the MPID Act stipulates a special
 procedure in Sections 4,5 and 7, different from the procedure contained
 in Section 102 of the Cr P C. In view of the overriding effect given to
 the MPID Act by Section 14, it has been held that the procedure envisaged G
·in Section 102 of the Cr P C cannot be availed of. However, while
 allowing the application for de-freezing of accounts, liberty has been
 granted to the Investigating officer to follow the procedure prescribed in
 law for attaching the properties of the respondent.
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902             SUPREME COURT REPORTS                          [2017] 8 S.C.R.


A        I0. The principal submission which has been urged on behalf of
  the State is that there was a manifest abuse of the process by the
  respondent and that in consequence, he was disentitled to any relief. In
  particular, it was urged that the respondent had sought relief specifically
  for the de-freezing of accounts in the earlier criminal application. Once
B such a prayer was not pressed when the application was withdrawn
  before the Division Bench, it was urged that it was manifestly an abuse
  ofprocess to seek and obtain similar relief before a learned Single Judge
  of the High Court.
         11. On the other hand, learned counsel appearing on behalf of the
C respondent attempted to support the order passed by the Single Judge
  by submitting that the bank accounts could not have been frozen by
  taking recourse to the provisions of the CrPCin view of the special
  provisions contained in the MPID Act.
              12. The MPID Act is intended to secure the interests of small
      depositors. The respondent initially filed an undertaking before the Special
D     Judge toset out the manner in which he would secure an amount of
      Rs 14,26,36,300/-.Besides an amount of Rs.2 crores which he had
      deposited, therespondent undertookto deposit an amount of Rs l .5 crores
      every month commencing from 15 February 2016. He was released on
      bail by the Special Judge on 11January2016 by requiring him to deposit
 E    an amount of Rs 1.5 crores each month, commencing from 15 February
      2016. The respondent applied for modification of the condition of deposit
      in Miscellaneous Criminal Application No 350 of 2016 which was
      dismissed on I July 2016. The High Court was then moved in an
      application (Criminal Application No 178 of20 l 6)under Section 482 of
      the Cr P C, with a specific prayer for de-freezing his bank accounts.
 F    This prayer, together with the other reliefs (including that for quashing
      the FIR) was not pressed and the application was disposed of as
      withdtawn on 29 June 2016 by the Division Bench. In this background,
      the filing of another application before the learned single Judge on 1 July
      2016 for quashing the FIR and for de-freezing the bank accounts
 G    constituted a manifest abuse of process. The learned Single Judge was
      evidently not apprised of the fact that the earlier application seeking
      virtually the same relief had not been pressed before the division bench
      and had been withdrawn. Consequently, we find merit in the submission
      urged on behalf of the State of Maharashtra. The learned single Judge
      ought not to have entertained the application under Section 482 in respect
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               STATE OF MAHARASHTRA v. AVINASH                               903
                   [DR. D.Y. CHANDRACHUD, J.]

of the same relief which had been given up earlier before the Division A
Bench of the High Court on 29 June 2016.
        13. In the view which we have taken, it has not become necessary
.to address the question oflaw adverted to by the High Court. We keep
 the question open.
       14. We accordingly allow the appeal and set aside the impugned B
judgment and order of the learned Single Judge dated 18 August 2016.
In consequence, criminal application 459 of2016 filed by the respondent
before the Nagpur bench of the Bombay High Court shall stand dismissed.

                                                                             c
Divya Pandey                                               Appeal allowed.