Gauhati High Court
Irina Konwar vs The State Of Assam And 7 Ors on 15 February, 2021
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/6
GAHC010216182019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6672/2019
IRINA KONWAR
W/O SRI ANANDA SAGAR DAS, OF GARGAON COLLEGE QUARTER NO. 4,
P.S. SIMALUGURI, DIST. SIVASAGAR, ASSAM
VERSUS
THE STATE OF ASSAM AND 7 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
HIGHER EDUCATION DEPTT. DISPUR, GUWAHATI-6, ASSAM
2:THE DIRECTOR
HIGHER EDUCATION ASSAM
KAHILIAPARA
GUWAHATI-19
3:THE PRINCIPAL
GARGAON COLLEGE
P.O. SIMALUGURI
DIST. SIVASAGAR
ASSAM
4:THE TREASURY OFFICER
NAZIRA
DIST. SIVASAGAR
ASSAM
5:THE STATE BANK OF INDIA
GARGAON BRANCH
SIMALUGURI
REP. BY ITS BRANCH MANAGER/SENIOR MANAGER
DIST. SIVASAGAR ASSAM
Page No.# 2/6
6:THE STATE BANK OF INDIA
NAZIRA BRANCH NAZIRA
REP. BY ITS BRANCH MANAGER/SENIOR MANAGER
DIST. SIVASAGAR ASSAM
7:THE OFFICER IN CHARGE OF SIMALUGURI POLICE STATION
P.S. SIMALGURI
DIST. SIVASAGAR ASSAM
8:BIJAY DOWARAH
S.I OF POLICE
SIMALGURI P.S. STATION
P.S. SIMALGURI DIST. SIVASAGAR
ASSAM I/O OF SIMALGURI P.S. CASE NO. 76/201
Advocate for the Petitioner : MR. J I BORBHUIYA
Advocate for the Respondent : SC, HIGHER EDU
BEFORE
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
ORDER
15.02.2021 Heard Mr. J. I. Borbhuiya, the learned counsel for the petitioner. Also heard Mr. G. Pegu, the learned Government Advocate, Assam for the respondent No. 7 and Mr. S. Bhuyan, the learned counsel for the respondent Nos. 1 and 2.
The petitioner is the Assistant Professor, Zoology Department, Gargaon College, Simaluguri (under suspension) in the district of Sivasagar. The petitioner is maintaining two SBI Savings Bank Account bearing Nos. 11671521246 and 306260667520 in the Nazira Branch and Gargaon Branch of State of Bank of India respectively. As submitted by Mr. Borbhuiya both these accounts were freezed at the time of investigation of Simaluguri P. S. Case No. 76/2019 U/S 406/420 IPC by the Officer-in-Charge, Simaluguri Police Station wherein the petitioner is one of the named accused persons. The said Simaluguri P. S. Case No. 76/2019 was initiated on the basis of the FIR dated 27.05.2019 lodged by Dr. Dilip Kumar Deka and Dr. Pawan Kumar Gogoi, the President/Secretary of Sanchay Aru Rindan Sanchay Page No.# 3/6 Samitee of Gargaon College. The allegations in the FIR are misappropriation of the society fund. The petitioner was arrested and thereafter released on bail by this court. Being aggrieved by the action of freezing two Saving Accounts, the petitioner has come before this court seeking for necessary direction for defreezing the accounts.
The learned counsel for the petitioner specifically raised an issue that the police official during the investigation failed to abide by the provisions stipulated under Section 102 of the Cr.P.C. and as such the action of freezing the SBI Savings Accounts of the petitioners are illegal and liable to defreeze the same.
In view of the issue raised before this court, Mr. Pegu was directed to take necessary instruction from the concerned police officials as to whether there was any violation of the provision under Section 102 of the Cr.P.C. The respondent No. 8 being the investigating officer filed an affidavit on 06.02.2021 wherein a specific mention was made that the procedure under Section 102 of the Cr.P.C. could not be duly followed. Mr. Borbhuiya in view of the admission made in the affidavit by the respondent No. 8 sought for a direction to defreeze the said accounts of the petitioner. The said prayer is objected vehemently by Mr. Pegu on the ground that the petitioner may be allowed to withdraw her subsistence allowance so deposited in the accounts in view of her suspension presently but not beyond that.
From the contention of both the learned counsel, it is found that admittedly there was violation of the provision under Section 102 of the Cr.P.C. which is reproduced below:
102. Power of police officer to seize certain property.
(1) Any police officer, may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.
(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.
(3) 1 Every police officer acting under sub- section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, [or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation], Page No.# 4/6 he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.
Section 102 of the Cr.P.C. stipulates that every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the court as and when required and to give effect to the further orders of the court as to the disposal of the same.
Let me consider the affect of non compliance of the provision of Section 102 of Cr.P.C. by the investigating agency.
(i) In the case of Manish Khandelwal and ors -vs- State of Maharastra reported in 2019 SCC Online Bom 1412 decided on 30.07.2019, the court rejected the contention that non compliance of the procedure laid down under Section 102 Cr.P.C. is only an irregularity and will not vitiate freezing of the bank accounts. It was held that in case the mandatory provision U/S 102 Cr.P.C. has not been followed then it would entail the consequence of giving direction to defreeze the bank account. The duty of reporting to Magistrate any seizure of bank account is cast upon the I.O. as freezing the bank account prevents the person from operating the bank account pursuant to investigation. If there is any violation in following the procedure U/S 102 Cr.P.C. freezing of account cannot be legally sustained.
(ii) In the case of Uma Maheswari and Another -Vs- State Rep by Inspector of Police (Crime) reported in 2013 SCC online 3829, the court held that reporting of the freezing of the bank accounts is mandatory. Failure to do so will vitiate the freezing of the bank accounts. It shall be reported forthwith to the jurisdictional Magistrate. The phrase "shall" employed in Section 102(3) Cr.P.C. is held to be mandatory in nature and violation of it goes to the root of the matter.
Page No.# 5/6
(iii) In the case of B. Ranganathan -Vs- State reported in 2003 Crl. L. J. 2779 (Mad) it was held that in case of seizure of a bank account, the police should do two things; he should inform the concerned Magistrate forthwith regarding the prohibitory order. He should also give notice of the seizure to the accused and allow him/her to operate the bank account subject to his/her executing a bond undertaking to produce the amounts in court as and when required or to hold them subject to such orders as the court may make regarding the disposal of the same.
(iv) In the case of Smti Lathifa Abubakar -Vs- State of Karnataka , report in 2012 Crl. LJ 3487 (Kar), the court held that in a case relating to freezing of bank account, no materials were produced by the bank to show that the bank account of petitioner accused had any nexus with commission of any offence. No notice of seizure to the petitioner was issued to enable her to operate bank account subject to her executing bond undertaking to produce amount in court as and when required. The seizure of bank account was also not reported to the Magistrate having jurisdiction. It was held that in the circumstances there was non- compliance with the mandate contained in Section 102 Cr.P.C. Thus, the freezing of the bank account of the petitioner was improper.
(v) In the case of Teesta Atul Setalvad -Vs- State of Gujarat reported in (2018) 2 SCC 372 it was held that once the investigation is complete and police report is submitted to the court concerned, it would be open to the appellants to apply for defreezing of the bank accounts and persuade the court concerned that the said bank accounts are no more necessary for the purpose of investigation, as provided U/S 102(3). It will be open to the court concerned to consider that request in accordance with law after hearing the investigating agency including to impose conditions as may be warranted in the fact situation of the case.
Here in this case, it is submitted by the learned counsel for the petitioner that the petitioner due to such act of freezing the bank accounts had faced with hardship. The said Page No.# 6/6 hardship in my considered opinion is required to be taken into consideration even if the petitioner is charge-sheeted. Moreover, the petitioner cannot be deprived of her subsistence allowance and the arrear salary deposited in the said bank account. Further the bank accounts as held by the Apex Court in catena of decisions is the "property" of the person against whose name the said account stands. So before freezing it is mandatory to inform the jurisdictional Magistrate once the police officer seized any property. A duty is cast under Section 102, sub-Section 3 of the Cr.P.C. on the investigating officer to report such act of seizure of the bank account pursuant to an investigation by the police and while doing so if there is any violation under Section 102 of the Cr.P.C. such seizure shall required to be held as illegal. Accordingly, in view of the specific admission on the part of the respondent No. 8 regarding non observance of the requisites U/S 102 Cr.P.C., I accordingly hold that the act of freezing the savings accounts of the petitioner was illegal. In the present case in hand the investigation in the said police case had already been completed and the petitioner had already been charge-sheeted. The bank accounts were already freezed but without following the requirement of law.
The petitioner shall appear before the learned CJM, Sivasagar and file a petition seeking for defreezing her bank accounts. The learned CJM shall accordingly pass an appropriate order keeping in view the findings of this court after hearing the investigating agency, if required. Further the hardship faced by the petitioner shall also be considered and the learned CJM shall pass an appropriate order if necessary, by imposing conditions on the petitioner.
With the said observation, this writ petition stands disposed of.
Interim order if any stands vacated.
JUDGE Comparing Assistant