RE: Legal Opinion regarding the Bank 1 dated 20 February, 2007.
We refer to your letter dated 22 February 2007 on the above subject.
We have perused the instructions contained in your letter and the Bank 1 dated 20 February 2007 (“the Bank 1”) referred to us.
You have requested us to provide our legal opinion as to what steps BANK 2 needs to comply/check during:
a) Showing customer’s documents to Joint Force Team (“JFT”).
b) Providing customer’s documents to JFT for taking away
c) Freezing A/Cs or balance or transactions.
In paragraph 2 of the Bank 1, it is stated that investigation team of JFT who are investigating corruption related crimes in different Banks shall be considered to be empowered by Bank 1under section 5 of the Money Laundering Act 2002. Section 5 of the 2002 Act states as follows:
5. (1) Bank 1or a person authorised by Bank 1shall be entitled to investigate any crime, under this Act, or any other correlated matter and for the purpose of this investigation if he needs to enter any place then he shall enter that place by following the prescribed method.
(2) In order to investigate a crime under this Act, Bank 1or a person authorised by Bank 1can exercise the same power that an officer, in charge of a police station, can exercise when investigating any crime under the Code of Criminal Procedure.
We need to look at the relevant laws under the Code of Criminal Procedure to understand what powers the Investigation Team of JTF are given by the Bank 1. The relevant laws for producing documents for investigation of offences by a Police Officer is stated in section 94 of the Code of Criminal Procedure, 1898 which provides as follows:
“(1) Whenever any Court, or any officer in charge of a police-station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order:
Provided that no such officer shall issue any such order requiring the production of any document or other thing which is in the custody of a bank or banker as defined in the Bankers’ Books Evidence Act, 1891 (XVIII of 1891), and relates, or might disclose any information which relates, to the bank account of any person except, –
(a) for the purpose of investigating an offence under sections 403, 406, 408 and 409 and sections 421 to 424 (both inclusive) and sections 465 to 477A (both inclusive) of the Penal Code, with the prior permission in writing of a Sessions Judge; and
(b) in other cases, with the prior permission in writing of the High Court Division.”
Therefore, it is apparent that section 94(1) of the Code of Criminal Procedure contains restrictions relating to disclosure of any document or other thing, which is in the custody of a bank or banker and relates or might disclose any information, which relates to the bank account of any person. This means that if the investigation team of JFT, which has the same power that an officer in charge of a police-station has under the Code of Criminal Procedure, are investigating an offence under sections 403, 406, 408 and 409 and sections 421 to 424 (both inclusive) and sections 465 to 477A (both inclusive) of the Penal Code 1860, then they would need the prior permission in writing of a Sessions Judge. If the investigation team of JFT are investigating any other offence then they would need the prior permission in writing of the High Court Division. If the investigation team of JFT does not have the relevant permission of the relevant court, BANK 2 may inform the investigation team that BANK 2 is unable to provide them the requested information because if BANK 2 provides such information without the investigation team having the relevant permission, it will be subjected to legal action by its client. If JFT investigation team do have the relevant permission of the relevant court and JFT investigation team has issued a written order to BANK 2 to reveal information, then BANK 2 shall have to reveal the customer’s information to the investigation team and if they require to take the information outside the Bank, then BANK 2 shall have to allow them.
In paragraph 3 of Bank 1, Bank 1has instructed the Banks that, if any first class magistrate or metropolitan magistrate as the case maybe, under the power granted in section 15 Ka of the Emergency Power Ordinance, gives a freezing order or attachment order in relation to the bank account of a suspected person, who is under investigation or against whom litigation is pending, then the bank shall have to comply with that order immediately. We have perused section 15 Ka of the Emergency Power Ordinance and have found that first class magistrates or metropolitan magistrates have been given the power to give such freezing orders or attachment orders under this section. Therefore, if a first class magistrate or metropolitan magistrate as the case maybe, gives a freezing order or attachment order in relation to the bank account of a suspected person, then BANK 2 is bound to follow that order immediately.
If you have any further query, please do not hesitate to contact the undersigned.
For: “The Lawyers & Jurists”