044-NLR-NLR-V-78-U.-D.-SAMARAWEERS_suspect-Petitioner-and-1-THE-OFFICER-IN-CHARGE-C.-F.-B.-.pdf
SIRIMAHE.J.—Samaraweerav. The Officer-in-Charge, C.F.B. <& Attorney-General 385
Present : Sirimane, J., and Colin-Thome, J.
U.D. SAMARAWEERA—suspect Petitioner and(1) THE OFFICER-IN-CHARGE, C.F.B. (Colombo)
THE ATTORNEY-GENERAL, RespondentsS. C. Application No. 562/76—M. C. Colombo No. 45109/1
Administration of Justice Law—Power of Magistrate to “ freeze ” aBank account—A.J.L. S. 74 (1)
Relationship between Bank and Depositor—Can depositor of stolenmoney confer on the Bank a better title.
Where in the course of a Police investigation into a complaint ofcheating and/or criminal misappropriation, the Magistrate madean order “ freezing ” the account of the suspect petitioner.
Held : That while there is no provision in law granting aMagistrate a general power to order the freezing of a BankAccount yet by virtue of the provisions of S. 74 (1) of the Adminis-tration of Justice Law, No. 44 of 1973 which imposes a duty onthe Magistrate inter alia to assist the conduct of an investigationby making and issuing appropriate orders and processes, the ordermade by the Magistrate “ freezing ” the Account is appropriate, inview of the powers conferred on Magistrates by sections 96 and133 (1) of the Administration of Justice Law.
Held further . that while undoubtedly the relationship betweenthe Bank and the Petitioner was that of debtor and creditor andthe depositor is lawfully entitled to the money he had deposited,yet that does not mean that a depositor who deposits stolen propertyto which he is not entitled can confer on the Bank a better title tosuch money than his own. Stolen property or the proceeds thereofremain the same wherever it is, whether in a Bank or elsewhereprovided however it can be clearly identified as such. If it wereotherwise it would mean that a robber who robs one Bank candeposit the stolen money in- another Bank and thus put it beyond thereach of the law and enjoy the fruits of his crime.
Application in Revision.
S. A. Pullenayagam with A. Chinniah for Petitioner.
Sarath Silva, Senior State Counsel for Respondents.
September 9, 1976. Sirimane, J.—
This is an application to revise an order made by the learnedMagistrate of Colombo on 13th July 1976, in the course of aPolice investigation into a complaint of cheating and/or mis-appropriation, “ freezing ” the Bank account of the Petitionerat the People’s Bank, Kandy.
The facts shortly (as stated in the affidavit filed on behalf ofthe respondents) are that on a complaint of cheating in respectof 4,117 yards of grey sheeting (valued Rs. 45,778) made byone Mohamed Ali of Pettah against the Petitioner the Policeinvestigations revealed that the Petitioner had on 2.7.76 broughtan order purporting to be issued by Messrs. Leatherates
1*— A 27298—3,251 (6/77)
386 SIRIMANK, J.—Samaraweerav. TheOJJicer-in-Chargc, C.F.B. cfc Attorney-General
Limited of Ratmalana for the above quantity of grey sheeting,received delivery of the same and removed it in a lorry. Lateron the same day the Petitioner sold the said quantity of greysheeting to Messrs. Asian Traders of Pettah for a sum ofIts. 30,282.60. On 5.7.76 the Petitioner opened a new currentaccount No. 100713 at the People’s Bank, Kandy, depositing a sumof Rs. 25,000 out of the Rs. 30,282.60 he had received as theproceeds of sale of the grey sheeting. The Petitioner was arrestedby the Police on 9.7.76 at the People’s Bank, Kandy, when he wasabout to obtain a draft for Rs. 6,600 from the monies he haddeposited. It was in these circumstances that the learnedMagistrate, on the application of the Police, made an orderdirecting the Bank to “ freeze ” the said account until the dis-posal of the case.
Learned Counsel for the Petitioner strongly urged that therewas no provision of law empowering a Magistrate to make suchan order. He drew our attention to the provisions of the CriminalJustice Commission Act, which specially grants such a power tothe Commission and submitted that in the absence of a specialprovision of law enabling a Magistrate to make such an order,the order made by the learned Magistrate in this case was illegal.Learned Senior State Counsel referred to section 74(1) of theAdministration of Justice Law the relevant part of which reads :
“ 74. (1) Every Magistrate to whom application is madein that behalf shall assist the conduct of an investigationby making and issuing appropriate orders and processesof court, and may, in particular”
Whilst I agree with learned Counsel for the Petitioner thatthere is no provision in law granting a Magistrate a generalpower to order the freezing of a Bank account, still a Magistrateis required by the provisions of Section 74(1) referred to above,to “ assist the conduct of an investigation by making and issuingappropriate orders and processes…. ”. One must thereforeexamine the facts of a particular case and see whether an order,such as the one made by the learned Magistrate in this case, isan “ appropriate order Such order must of course be an orderthat the Magistrate is empowered by law to make and not anyorder. The facts of the instant case reveal that the sum ofRs. 25,000 deposited to open the Bank account in question was ad-mittedly the proceeds of the sale of the grey sheeting which"the ^prosecution alleges is stolen property within the meaningof Section 393 of the Penal Code. Section 262 of the Adminis-
SIMMANE, J.—iSamaraweerav. The Officer-in-Charge, G.F.B. & Attorney-General 387
tration of Justice Law which provides for the disposal of propertywhen a trial is concluded defines the term “ property ”, in sub-section (3) thereof, regarding which an offence- appears to havebeen committed, to include also “ any property into or for which
the same may have been converted or exchangedSo that
if in the course of an investigation it appears to a Magistratethat stolen property has been converted into cash, (as allegedin this case) it is open to him to order its production so that anappropriate order may be made in respect of such property atthe conclusion of the case in terms of Section 262 referred toabove. The provisions of Section 133(1) of the Administrationof Justice Law reads : —
“133. (1) Whenever any court considers that the produc-tion of any document or other thing is necessary or desirablefor the purposes of any proceeding by or before such courtit may issue a summons to the person in whose possessionor power such document or thing is believed to be, requiringhim to attend and produce it or to produce it at the timeand place stated in the summons’.
The provisions of Section 96 of the Administration of JusticeLaw relating to search and production are also relevant. Thesesections empower a Court to order production of anything whichit considers necessary or desirable for any proceeding beforesuch Court, or to order the search and production of stolenproperty or of property unlawfully obtained deposited in anyplace. Where a Magistrate is empowered to order productionof property he can certainly exercise the lesser power requiringthat such property be kept safely, without being actually pro-duced in Court, pending thet conclusion of the case and his fur-ther orders if he is satisfied that the property is in safe custodyand will be available when necessary. This in effect is what thelearned Magistrate has done by the order he made in the instantcase.
Learned Counsel for the Petitioner contended that once thePetitioner deposited the Rs. 25,000 to his credit in the Bank,the money became the sole property of the Bank and the relation-ship thereafter between the Bank and the Petitioner was thatof debtor and creditor. He cited the case of Regina vs. Davenport(1958—1 W. L. R. 569). That is undoubtedly so when the moneydeposited in the Bank is the money to which the depositor islawfully entitled. But that does not mean that a depositor whodeposits stolen money to which he is not entitled can- confer onthe Bank a better title to such money than his own. Stolen pro-perty or the proceeds thereof remain the same wherever it is,whether in a Bank or elsewhere provided however it can be
388
Ediriauriya v. Ediriauriya
clearly identified as such. In this connection learned Counsel forthe Petitioner submitted that money is not goods within thedefinition of “ goods ” in the Sale of Goods Ordinance(Cap. 84) and the provisions of that Ordinance will not apply.We are here not concerned with the Sale of Goods Ordinancebut with money which is movable property and admittedly theproceeds of alleged stolen property. If it were otherwise itwould mean that a robber who robs one Bank can deposit thestolen money in another Bank and thus put it beyond the reachof the law and enjoy the fruits of his crime. I might mentionthat the Bank to which the order freezing the money wasdirected has not complained.
I am therefore of the view that although there is no specialprovision of law conferring a general power on a Magistrate tomake orders freezing the Bank account of any person, still thefacts of a particular case (such as the instant one) may be socompelling as to warrant the making of such an order in view ofthe powers conferred on Magistrates by Sections 74 (1), 96, 133(1) and 262 of the Administration of Justice Law referred toabove. Considering the particular circumstances of this case andfor the reasons above stated I am of the view that the order madeby the learned Magistrate in this case was a lawful and appro-priate order and the application of the Petitioner is thereforerefused.
Colin-Thome, J.—I agree.
Application refused.