Kerala High Court
Munisha A.P vs The Union Of India on 3 December, 2024
Author: C.S.Dias
Bench: C.S.Dias
WP(C) NO. 5766 OF 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 3RD DAY OF DECEMBER 2024 / 12TH AGRAHAYANA, 1946
WP(C) NO. 5766 OF 2024
PETITIONER/S:
MUNISHA A.P.
AGED 27 YEARS
W/O. MOHAMMED NAMSHEER, THAIVALAPPIL HOUSE, ELATHUR
P.O., KOZHIKODE DISTRICT, PIN - 673303
BY ADVS.
K.RAKESH
RAJESH BABU CHELAT
RESPONDENT/S:
1 THE UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME
AFFAIRS, NORTH BLOCK, CENTRAL SECRETARIAT, NEW
DELHI, PIN - 110001
2 RESERVE BANK OF INDIA
REPRESENTED BY ITS GOVERNOR, HEAD OFFICE, MUMBAI,
MAHARASTRA, PIN - 400029
3 THE STATE POLICE CHIEF
POLICE HEAD QUARTERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM, PIN - 695014
4 THE STATION HOUSE OFFICER
HUMAYUN NAGAR POLICE STATION, HYDERABAD CITY,
TELANGANA, E MAIL: [email protected], PIN
- 500028
5 THE STATE BANK OF INDIA
ELATHUR BRANCH, KOZHIKODE DISTRICT, REPRESENTED BY
ITS BRANCH MANAGER/AUTHORISED OFFICER, PIN - 673303
WP(C) NO. 5766 OF 2024
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BY ADVS.
DEEPA NARAYANAN
T.SETHUMADHAVAN (SR.)(S-310)
OTHER PRESENT:
GP SRI SUNIL KUMAR KURIAKOSE
SRI JITHESH MENON
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 03.12.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 5766 OF 2024
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C.S.DIAS, J.
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WP(C) No.5766 of 2024
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Dated this the 3rd day of December, 2024
JUDGMENT
The writ petition is filed to direct the 5 th respondent to lift the freezing of the petitioner's bank account bearing No.32996885334.
2. The petitioner's case is that, she is the bank account holder of the above account with the 5th respondent bank. The 5th respondent has frozen the petitioner's bank account without any reason. The petitioner has not been served with any notice or afforded an opportunity of being heard before the freezing was done. The freezing of the bank account is per se illegal and arbitrary. Therefore, this writ petition.
3. Heard; the learned counsel for the petitioner, the learned DSGI for the 1 st respondent, the learned Government Pleader for the 3 rd respondent and the learned Standing Counsel for the 5 th respondent. Even though, notice was served on the 4th respondent by e- WP(C) NO. 5766 OF 2024 4 2024:KER:90980 mail, there is no appearance for him.
4. When the writ petition came up for consideration on 14.02.2024, this Court directed the 5 th respondent bank to confine the freezing of the petitioner's bank account to the amount requisitioned by the Police and not more, and enable the petitioner to operate her bank account beyond the said requisite amount.
5. In Dr.Sajeer v. Reserve Bank of India [2024 (1) KLT 826] this Court has categorically held as follows:
" a. The respondent Banks arrayed in these cases, are directed to confine the order of freeze against the accounts of the respective petitioners, only to the extent of the amounts mentioned in the order/requisition issued to them by the Police Authorities. This shall be done forthwith, so as to enable the petitioners to deal with their accounts, and transact therein, beyond that limit.
b. The respondent - Police Authorities concerned are hereby directed to inform the respective Banks as to whether freezing of accounts of the petitioners in these Writ Petitions will require to be continued even in the afore manner; and if so, for what further time, within a period of eight months from the date of receipt of a copy of this judgment.
c. On the Banks receiving the afore information/intimation from the Police Authorities, they will adhere with it and complete necessary action - either continuing the freeze for WP(C) NO. 5766 OF 2024 5 2024:KER:90980 such period as mentioned therein; or withdrawing it, as the case may be.
d. If, however, no information or intimation is received by their Banks in terms of directions (b) above, the petitioners or such among them, will be at full liberty to approach this Court again; for which purpose, all their contentions in these Writ Petitions are left open and reserved to them, to impel in future."
6. I am in complete agreement with the principles laid down in Dr.Sajeer's case. Nevertheless, it is apposite to scrutinise the issue in the context of the applicable statutory provisions and the precedents on the said question of law.
7. The intimation from the police, in most of the cases, refers to Section 102 of the Cr.P.C., which is undoubtedly the relevant provision for seizure of property. It is also noteworthy, that Section 106 of the Bharatiya Nagarik Suraksha Sanhita, 2023, is pari materia with Section 102 of the Cr.P.C. It is profitable to refer to Section 102 of the Cr.P.C, which reads thus:
"Section 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 WP(C) NO. 5766 OF 2024 6 2024:KER:90980 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."
8. A reading of Section 102, makes it clear that the police has the power to seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create WP(C) NO. 5766 OF 2024 7 2024:KER:90980 suspicion of the commission of any offence.
9. The Honourable Supreme Court in State of Maharashtra v. Tapas D Neogy [(1999) 7 SCC 685] has held that the bank account of the accused or any of his relatives can be treated as "property" for the purpose of Section 102 of the Code.
10. Later, in Teesta Atul Setalvad v. State of Gujarat [(2018) (2) SCC 372], the Supreme Court also held that the Investigating Officer can issue instruction to seize the suspected bank accounts, subject to his submitting a report to the Magistrate concerned, as mandated in sub-section (3) of Section 102.
11. Subsequently, another issue arose with respect to cases in which there was a delay in reporting the seizure to the Magistrate. This led to divergent views being expressed by different High Courts. The issue was set at rest by the Honourable Supreme Court in Shento Varghese v. Julfikar Husen and others [2024 SCC OnLine SC 895] in the following lines:
"22.From the discussion made above, it would emerge that the expression 'forthwith' means 'as soon as may be', 'with WP(C) NO. 5766 OF 2024 8 2024:KER:90980 reasonable speed and expedition', 'with a sense of urgency', and 'without any unnecessary delay'. In other words, it would mean as soon as possible, judged in the context of the object sought to be achieved or accomplished.
23. We are of the considered view that the said expression must receive a reasonable construction and in giving such construction, regard must be had to the nature of the act or thing to be performed and the prevailing circumstances of the case. When it is not the mandate of the law that the act should be done within a fixed time, it would mean that the act must be done within a reasonable time. It all depends upon the circumstances that may unfold in a given case and there cannot be a straight-jacket formula prescribed in this regard. In that sense, the interpretation of the word 'forthwith' would depend upon the terrain in which it travels and would take its colour depending upon the prevailing circumstances which can be variable.
24. Therefore, in deciding whether the police officer has properly discharged his obligation under Section 102(3) Cr. P.C., the Magistrate would have to, firstly, examine whether the seizure was reported forthwith. In doing so, it ought to have regard to the interpretation of the expression, 'forthwith' as discussed above. If it finds that the report was not sent forthwith, then it must examine whether there is any explanation offered in support of the delay. If the Magistrate finds that the delay has been properly explained, it would leave the matter at that. However, if it finds that there is no reasonable explanation for the delay or that the official has acted with deliberate disregard/wanton negligence, then it may direct for appropriate departmental action to be initiated against WP(C) NO. 5766 OF 2024 9 2024:KER:90980 such erring official. We once again reiterate that the act of seizure would not get vitiated by virtue of such delay, as discussed in detail herein above."
12. Therefore, it is no longer open for any person to contend that the delay in complying with Section 102 Cr.P.C would vitiate the seizure as such. This gives rise to an ancillary question, as to the impact of non-compliance of Section 102(3), by the failure on the part of the police officer concerned to report the seizure of bank account to the jurisdictional Magistrate.
13. In my considered view, this question has to be addressed in the light of Article 300A of the Constitution of India, which stipulates that no person shall be deprived of his property except by authority of law. The authority of law in the cases under consideration is conferred by Section 102 Cr.P.C. Therefore, abject violation of the procedure prescribed therein will definitely affect the validity of the seizure. While on the subject, it will be profitable to refer the well considered judgment rendered by a learned single Judge of this Court in Madhu K v. Sub Inspector of Police WP(C) NO. 5766 OF 2024 10 2024:KER:90980 and others [2020 (5) KLT 483], wherein the practice of certain police officers of directing freezing of accounts without reporting to the Magistrate concerned was deprecated. This Court has directed in the judgment that the police officer acting under Section 102 Cr.P.C cannot be permitted to arrogate to himself an unregulated and unbridled power to freeze the bank account of a person on mere surmise and conjuncture, since such unguarded power may bring about drastic consequences affecting the right to privacy as well as reputation of the account holder. The other relevant portion of that judgment reads as under:-
"If it finds that the report was not sent forthwith, then it must examine whether there is any explanation offered in support of the delay. If the Magistrate finds that the delay has been properly explained, it would leave the matter at that. However, if it finds that there is no reasonable explanation for the delay or that the official has acted with deliberate disregard/wanton negligence, then it may direct for appropriate departmental action to be initiated against such erring official. We once again reiterate that the act of seizure would not get vitiated by virtue of such delay, as discussed in detail herein above."
14. The above discussion leads to the WP(C) NO. 5766 OF 2024 11 2024:KER:90980 conclusion that, while delay in forthwith reporting the seizure to the Magistrate may only be an irregularity, total failure to report the seizure will definitely have a negative impact on the validity of the seizure. In such circumstances, account holders like the petitioner, most of whom are not even made accused in the crimes registered, cannot be made to wait indefinitely hoping that the police may act in tune with Section 102 of Cr.P.C. and report the seizure as mandated under Sub-section (3) at some point of time.
In the above conspectus, this writ petition is disposed off by passing the following directions, in addition to the directions in Dr.Sajeer (supra):
(i) The jurisdictional police officers shall inform the concerned banks whether the seizure of the bank account has been reported to the jurisdictional Magistrate and if not, the time limit within which the seizure will be reported.
If no intimation as to the compliance or the proposal to comply with Section 102 of the Cr.P.C. is received by the bank within one month of receipt of a copy of this judgment, the WP(C) NO. 5766 OF 2024 12 2024:KER:90980 bank shall lift the debit freeze or remove the lien, as the case may be, on the petitioner's bank account.
(ii) In order to enable the Police to comply with the above direction, the bank, as well as the petitioner, shall forthwith serve a copy of this judgment to the jurisdictional officer and retain proof of such service.
The writ petition is ordered accordingly.
Sd/-
C.S.DIAS, JUDGE rkc/03.12.24 WP(C) NO. 5766 OF 2024 13 2024:KER:90980 APPENDIX OF WP(C) 5766/2024 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE COMMUNICATION RECEIVED BY THE 5TH RESPONDENT FROM THE 4TH RESPONDENT DATED, 6-4-2023