The Allahabad High Court has dismissed a petition observing that non-reporting of the seizure forthwith, as provided under Section 102(3) CrPC, shall not render such seizure illegal, particularly as no period is specified and its consequences have not been provided.
The division bench of Justice Ashwani Kumar Mishra and Justice Rajnish Kumar passed this order while hearing a petition filed by Amit Singh.
The writ petition had been filed by the petitioner for de-freezing the bank account of the petitioner in Bank of India, Branch Panki, Kanpur Nagar and to allow the petitioner to operate his bank account.
Subsequently by way of amendment, the petitioner has also prayed for quashing the order dated 18.03.2021, contained to the writ petition by means of which the account of the petitioner has been frozen by the respondent no 2 i.e Station House Officer, Police Station – Kalyanpur, District-Kanpur Nagar in relation to Case under Sections 420, 467, 468, 471, 120-B IPC, Police Station – Kalyanpur, District- Kanpur Nagar.
The counsel for the petitioner submitted that the account of the petitioner has been seized in violation of the provisions made under Section 102 of the Code of Criminal Procedure. The mandatory requirements of Section 102(3) CrPC has not been followed and the respondent no 2 has not informed the magistrate concerned regarding seizure of the bank account, forthwith. Therefore, the constitutional right of property envisaged under Article 300A of the Constitution of has been infringed. Thus, the impugned order is liable to be quashed and the respondents be directed to de-freeze the account of the petitioner and allow him to operate the account.
The counsel for the respondents vehemently opposed the submissions of the counsel for the petitioner.
It was further contended by AGA that on an application moved by the petitioner before the magistrate concerned, it has been informed that the bank account has been seized. Therefore the requirement of Section 102(3) CrPC stands fulfilled and if there was any delay, that may not give any benefit to the petitioner at this stage to get the account de-freezed on this technical ground.
However, the petitioner may move an application before the concerned Court for defreezing of his account which may be considered by the concerned court in accordance with law.
The Court noted,
“The First Information Report case Crime under Sections 420, 467, 468, 471, 120-B IPC was lodged at Police Station – Kalyanpur, District-Kanpur Nagar by the respondent no 5/Radhelal Goel alleging therein that some person impersonating him as Radhelal sold the land by executing Power of Attorney in favour of other persons, who has nothing to do with the said land, whereas the land is recorded in the revenue records in the name of Radhelal son of Ram Milan.
During course of investigation, the name of petitioner surfaced in commissioning of the alleged crime and he was arrested on 15.03.2021.
The Court observed that, during investigation the Investigating Officer found that the sale consideration received on account of aforesaid fraudulent transfer of land in question was deposited in the account of the petitioner in Bank of India, Branch Panki, Kanpur Nagar.
Therefore the respondent no 2 requested the respondent no 4 to freeze the account of the petitioner in his bank with immediate effect. It was further requested that no transaction be allowed in future without permission of the court or police officer.
The Court further observed that after the petitioner was enlarged on bail by means of order dated 19.05.2021 and released from Jail, he approached the Chief Metropolitan Magistrate, Kanpur Nagar with a prayer to clarify as to on the basis of which order the account of the petitioner has been seized so that he may get the same released through the court. The said application was moved on 03.09.2021.
The respondent no 2 by means of the report dated 19.09.2021 informed the court that the account of the petitioner has been seized in connection with the case Crime No 1504 of 2020 (Supra).
Thereafter, the petitioner approached the court by means of the writ petition with the aforesaid prayers.
The Court held,
“In view of submissions of the counsel for the parties the main issue which falls for our consideration is as to whether Section 102(3) CrPC is mandatory or directory in nature? It is well settled that nonobservance of a mandatory condition is fatal to the validity of the action. However, non-observance would not matter if the condition is found to be
merely directory. In other words, it is not that every omission or defect entails the drastic penalty of invalidity. Whether the provision is mandatory or directory can be ascertained by looking at the entire scheme and purpose of the provision and by weighing the importance of the condition, the prejudice to private rights and the claims of the public interest, therefore, it will depend upon the provisions of the statute and mere use of word ‘shall’ would itself not make the provision mandatory.
In view of above scheme of the Code the purpose of information given to the Magistrate regarding seizure of property by the Police Officer is merely to facilitate its disposal in accordance with law during pendency of trial or subsequent thereto.
Therefore non-reporting of the seizure forthwith, as provided under Section 102(3) CrPC, shall not ipso facto render the seizure illegal particularly as no period is specified and it’s consequences have not been provided. Therefore when on an application moved by the petitioner, the same has been informed, the petitioner may move the concerned Magistrate for the custody of the property i.e unfreezing of the account of the petitioner, which may be dealt with in accordance with law and on it’s own merit.
In the case we have considered the issue in detail and are of the view that sub-Section (3) of Section 102 Cr.P.C is directory in nature and once the court has been informed of freezing of bank account on an application moved by the petitioner, the requirement of statute stands fulfilled. Deprivation of property (freezing of bank account) otherwise being as per law, the argument that Article 300-A of Constitution is violated cannot be accepted.
The Court further held that,
In view of the discussions made above the court is of the considered opinion that there is no infringement of Constitutional right of property of the petitioner under Article 300-A of the Constitution of India.
Article 300-A of the Constitution of India only provides that no person shall be deprived of his property save by authority of law. The alleged deprivation of property (freezing of bank account) since is found to be in accordance with applicable law i.e. Code of Criminal Procedure, the action complained of is clearly in consonance with Article 300-A of the Constitution of India. Petitioner’s plea of violation of Article 300-A of Constitution of India cannot be pressed to impeach the act of freezing of bank account after such act is held to be as per applicable law i.e the Code of Criminal Procedure.
The bank account of the petitioner has been got freezed in exercise of powers given under Section 102 Cr.P.C and the Code of Criminal Procedure restricts the release of such bank account only to an order passed by the Magistrate, which is not the case here. The provisions of the Code thus cannot be by-passed on the plea that Article 300-A of Constitution of India is violated. Merely because the freezing of bank account is not reported forthwith and reported only on an application moved by the petitioner, it cannot be said that there is infringement of right of property given under Article 300-A of the Constitution of India.
“The plea of the petitioner in this regard is misconceived and not sustainable. The writ petition consequently lacks merit and is dismissed,” the order reads.