Madras High Court
A.K.Ashokan vs State Rep By on 17 September, 2013
Author: P.Devadass
Bench: P.Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.09.2013 CORAM THE HON'BLE MR.JUSTICE P.DEVADASS Criminal O.P.No.22594 of 2013 A.K.Ashokan ... Petitioner Vs. 1.State rep by Sub Inspector of Police, M.4, Police Station, Red Hills, Chennai-52. 2.The Branch Manager, AXIS Bank, Madipakkam Branch, Chennai-91. ... Respondents This Criminal original petition is filed under Section 482 of Cr.P.C to direct the respondents to defreeze the account No.912010030566629 which was frozen by order dated 17.4.2013 on the basis of CSR No.45/2013. For Petitioner : Mr.M.Shankar For Respondents : Mr.C.Emalias, Addl. Public Prosecutor for R-1 - - - - - ORDER
Petitioner seeks defreezing of his bank account No. 912010030566629 maintained in AXIS Bank, Madipakkam Branch, Chennai.
2. One Sivasakthi, complaining of cheating, lodged a complaint against the petitioner. The first respondent took it for enquiry in CSR No.45 of 2013. In this connection, on 17.4.2013, the Inspector of Police wrote to the 2nd respondent to freeze SB account No.912010030566629 maintained by the petitioner in their Bank. Accordingly, it was done. Subsequently, on 20.4.2012, on the said complaint, police registered a case in Crime No.796 of 2013 under Section 420 IPC.
3.The learned counsel for the petitioner submitted that freezing of the bank account could be made for the purpose of investigation. The investigation will arise only after registration of the FIR under Section 154 Cr.P.C. FIR was registered only on 20.4.2013. However, even before that, on 17.4.2013, the police officer freezed the petitioner's bank account. Further, freezing of bank account has not been reported to the jurisdiction Magistrate as required under Section 102(3) Cr.P.C. Thus, freezing of the bank account is illegal. It requires to be defreezed.
4.The learned Additional Public Prosecutor would not dispute that the investigating officer has not reported the freezing of the bank accounts to the Magistrate. However, he would submit that it is an irregularity, it will not vitiate the steps taken by the investigating officer.
5. I have considered the rival submissions and perused the materials on record.
6. When information as to the commission of a cognizable offence is reported to the officer in-charge of the Police Station, he has to register an FIR (See : Section 154, Cr.P.C.). Thereafter, it is his statutory duty to investigate the crime (See : Section 156(1)). As per Section 2(h), Cr.P.C., "investigation" refers to all the actions taken by the Investigating Officer to collect the required evidence in connection with the crime reported. It is to bring home the offence to the offender.
7. In pursuing the investigation, the investigation officer has to take various steps. (See: Section 157, Cr.P.C.) Investigation consists of proceeding to the scene of crime, recording of statement of witnesses (See : Sections 160, 161, Cr.P.C.), search and seizure of documents, material objects etc., arrest of the accused.
8. Right from the Privy Council decision in EMPEROR VS. KHWAJA NAZIR AHMAD, [AIR 1945 PC 18] and the Hon'ble Apex Court's decisions in STATE OF BIHAR VS. J.A.C.SALDANA [1980 (1) SCC 554] and STATE OF HARYANA VS. BAJANLAL [1992 (1) SUPP (SCC) 335] , it is held that in this country the process of investigation is the province of police. It is unrestricted. However, it is subject to the statutory provisions relating to investigation.
9. As stated already, one of the process of investigation, namely, collection of evidence, is seizure of case-properties. There are properties with respect to which an offence has been committed. Another category is property used in the commission of offence. It may be movable or immovable. Close on the heels are stolen properties and properties which create suspicion of commission of an offence.
10. In seizing the properties, the investigating officer has to follow certain procedures. That has been prescribed in Section 102 Cr.P.C. It runs as under :
"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)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, 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:
Provided that where the property seized under sub-section (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of Sections 457, and 458, shall, as nearly as may be practicable, apply to the net proceeds of such sale."
[emphasis supplied by me]
11.In STATE OF MAHARASHTRA VS. TAPAS D.NEOGY [1999 (3) CTC 350 (SC)], it was held that the bank account is the property capable of seizure thus, for the purpose of investigation, if it has some bearing on the crime reported, the investigating officer can seize it under section 102 Cr.P.C. by serving a prohibitory order on the bank to freeze the bank account, prohibiting the (accused) / account holder from operating the account. [Also see: SWARAN SABHAR WAL Vs. COMMISSIONER OF POLICE (1998 Cr.L.J 241), RAJAMANI Vs. INSPECTOR OF POLICE, SALEM,(2003 Cr.L.J., 2902) and RANGANATHAN Vs. STATE (2003 Cr.L.J.2779) ]
12. Section 102(1) describes the categories of properties to be seized. When an officer subordinate to the SHO seized them, he must report his seizure to his superior. Section 102(3) mandates that every seizure of property under Section 102(1) Cr.P.C. shall be reported to the jurisdiction Magistrate.
13. For the purpose of Section 102(1) Cr.P.C. cash on hand and cash at bank in bank account are properties.
14.In R.CHANDRASEKAR VS. INSPECTOR OF POLICE, SALEM [2002 (5) CTC 598], it was held that seizure of bank account by the investigating officer must be reported to the Magistrate as it is a mandatory requirement of law.
15. In Dr.SHASHIKANT D. KARNIK VS. STATE OF MAHARASHTRA [2008 CRL.L.J. 148], it was held that seizure of property under Section 102 Cr.P.C has to be reported to the Magistrate.
16. CHANDRASEKAR (supra) was subsequently followed in PADMINI VS. THE INSPECTOR OF POLICE, DCB, TIRUNELVELI [2008 (3) CTC 657].
17. In VINOSHKUMAR RAMACHANDRAN VALLUVAR VS. THE STATE OF MAHARASHTRA [2011 (1) MWN (Cr.) 497 (FB)(Bom.)], a Full Bench of the Bombay High Court held that the requirement of reporting of freezing of bank account to the Magistrate prescribed under Section 102(3) Cr.P.C is mandatory in nature.
18. In pursuing their investigation under Section 102 Cr.P.C., the Code empowered the police officers to deprive a person of his properties. In this context, the phrase, "shall" employed in Section 102(3) Cr.P.C, is held to be mandatory in nature. Violation of it cannot be an irregularity committed by the investigating officer.
19. Very recently, a learned single judge of this court in Crl.O.P.No.13103 of 2013, etc, on 30.8.2013 [T.SUBBULAKSHMI VS. THE COMMISSIONER OF POLICE, EGMORE, CHENNAI AND OTHERS] also took similar view.
20.Thus, in this case, admittedly the investigating officer in freezing the bank account of the petitioner, has not at all followed the mandatory requirement. He has not reported the freezing of the bank account to the jurisdiction Magistrate. It is vitiated. It is required to be annulled.
21. The respondents are directed to defreeze Account No.912010030566629 maintained by the petitioner in the second respondent bank. Since the account is now defreezed on account of certain technical snag, the investigating officer, if need be, can freeze the bank account strictly following the provisions of Section 102 Cr.P.C. The criminal original petition is disposed of accordingly.
17.09.2013 Index : Yes Internet : Yes vvk Note : Issue order copy on 18.9.2013.
To
1.The Inspector of Police, District Crime Branch, Salem.
2.The Branch Manager, AXIS Bank, Madipakkam, Chennai-91.
3.The Public Prosecutor, High Court, Madras.
P.DEVADASS, J.
vvk ORDER IN Crl.O.P.No.22594 of 2013 17.09.2013