Telangana High Court
Mohammad Hafizullah vs The State Of Telangana And 4 Others on 18 July, 2022
Author: Lalitha Kanneganti
Bench: Lalitha Kanneganti
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION No. 1330 OF 2020
O R D E R:
This Writ Petition is filed questioning the action of the respondent police in directing freezing of the 1st petitioner's bank account bearing No. 50100120673870 by the 4th respondent and the 2nd petitioner's two savings bank accounts bearing Nos. 180601512309 and 125101500267 by the 5th respondent at the behest of the 3rd respondent just because a crime is registered against the petitioners as arbitrary, illegal and consequently, direct the respondents to release the 1st petitioner's bank account bearing No. 50100120673870 by the 4th respondent and the 2nd petitioner's two savings bank accounts bearing Nos. 180601512309 and 125101500267 by the 5th respondent forthwith from freezing the accounts.
2. Sri T.P. Acharya, learned counsel for the petitioners submits that the 1st petitioner is an employee of TechMojo Solutions Private Limited. It is submitted that basing on a complaint given by the employer TechMojo regarding illegal, fraudulent access and unauthorised use of company's confidential information by the 1st petitioner and others on 01.11.2019, the 3rd respondent registered Crime No. 217 of 2 2019 under Sections 66 and 72 of the IT Act against the petitioners and conducted investigation. It is submitted that the 1st petitioner along with Sri Mahesh Keerthigari and Sai Ram Karri were arrested on 13.11.2019 and was produced before the Hon'ble Magistrate and subsequently, the 1st petitioner was enlarged on bail. Learned counsel submits that during January 2020, the petitioners came to know that their bank accounts were freezed and on enquiry, they were informed that the 3rd respondent had communicated that the respondent police informed them to freeze the accounts. Learned counsel submits that registering a crime itself is not a ground to freeze the accounts till the allegations are proved. He submits that since the accounts of the petitioners were freezed, they are facing lot of financial crisis which amounts to violation of fundamental right. Hence, the petitioners approached this Court.
It is submitted by the learned counsel that all the allegations are made with an intention to cause disrepute to the petitioners and nothing has been established by the complainant. Learned counsel submits that the bank has adopted a very arbitrary approach while freezing the accounts of the petitioners without bothering to scrutinize the entries and nature of transactions. He submits that before exercising the 3 power under Section 102 Cr.P.C., the police officer has to assess the need to freeze the bank account and after formation of an opinion, supported by reasons he can freeze. According to him, in the instant case, no reasons are stated and with an ulterior motive, he has bypassed the law and seized the accounts of the petitioners. He submits that the action of the 3rd respondent in not informing the magistrate forthwith is also in gross violation of Section 102(3) Cr.P.C. and the entire action of the 3rd respondent is liable to be set aside. It is submitted that before freezing the account, no notice is given to the petitioners. Hence, the petitioners having no other alternative have come up before this Court.
Learned counsel submits that Section 102(1) Cr.P.C. gives power to police authorities to freeze / seize if suspicion arises and the 3rd respondent has seized the account of the petitioner, however, he has failed to provide any written reasonable justification for freezing the account. He submits that the 3rd respondent has failed to comply with the procedure of seizure / freezing enumerated in Section 102(3) Cr.P.C. wherein the report needs to be forthwith forwarded to the Magistrate. He relied on the judgment of this Court in A.P. Products v. State of Telangana (W.P.No. 13363 and 10565 of 4 2020) and submits that the Magistrate has to be informed within reasonable time without any undue delay. He submits that so far, the report is not submitted. The learned counsel also relied on the order passed by this Court in Meridian Educational Society v. The State of Telangana (W.P.No. 21106 of 2021) and submits that if there is any violation in following the procedure under Section 102 Cr.P.C., freezing of account cannot be legally-sustained. He has also relied on the judgment of the High Court of Karnataka at Bengaluru in Writ Petition Nos. 13516-13518 (GM-Police) wherein the Court has opined that unless and until there is a strong suspicion against the petitioner therein, the police would not be justified in freezing the account belonging to the petitioner. For, such freezing of account adversely affects the right to life under Article 21 of the Constitution of India but in order to balance the conflicting interests of the petitioner, with the interest of the Investigating Agency and the interest of the complainant, in the interest of justice, Respondents 1 and 2 are directed to de-freeze the account belonging to the petitioner, provided the petitioner submits a bond of Rs.20,00,000/- before the Sessions Judge before whom the present case is pending.
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3. A counter-affidavit has been filed on behalf of the respondent police by the Assistant Commissioner of Police, Cyber Crime Police Station, Cyberabad. Learned Government Pleader for Home Sri Srikanth Reddy submits that the investigation conducted so far in the subject crime revealed that petitioner No.1 had taken data unauthorisedly from the complainant company and used the same for wrongful gain by sending mails to customers by striking deals with othe sites like Bitstarz and received 40% commission. It is submitted that this data list of e-mail IDs. To which they had sent mails to, matches 100% with the data in the complainant company database. According to the learned Government Pleader, the ill- gotten revenues obtained for sending customers to other competitor sites is credited to ICICI accounts held by petitioner No.2. It is submitted by the learned Government Pleader that some of the money from ICICI bank accounts of petitioner No.2 has been transferred to petitioner No.1's HDFC Account. It is submitted that the petitioners have been planning to leave the country and are in constant touch with M/s Y-Axis and their immigration agent Swati Sripada to process immigration applications. Hence, it has become necessary to freeze the accounts of the petitioners.
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4. The grievance of the petitioners is that the respondent police have freezed the accounts of the petitioners. According to the petitioners, there is no substance in the complaint and in view of the law laid down by the Karnataka High Court, the petitioners are entitled for defreezing the account. Further, the procedure was not followed by police and intimation was not given to Magistrate as contemplated under the provisions of the Cr.P.C.
5. The first and foremost issue that has to be decided is about the maintainability of the Writ Petition. The account has been freezed in connection with a crime and the police under Section 102(3) Cr.P.C. have to file a report before the Magistrate. In this case, the police have filed the report before the Magistrate and there is no irregularity in complying with the said provision. For seeking interim custody of any of the properties, the only provision under the Cr.P.C. is Section 451. The petitioners have relied on the judgment rendered by the Karnataka High Court wherein it was held that freezing of account also affects right to life of the petitioners, as such, they can maintain a Writ Petition.
6. Though there are no fetters in entertaining a writ petition under Article 226 of the Constitution of India, whenever 7 a person complains of violation of his fundamental right or statutory right, one of the self imposed restraint is when there is statutorily engrafted adequate and efficacious alternative remedy available to such person to redress his grievance the court do not entertain the writ petition but relegate the party to avail such remedy before invoking extraordinary jurisdiction of this Court.
7. The writ remedy is no doubt an extraordinary remedy and in every case just because a case is made out on action / inaction of an authority vested with power, the Writ Court will not entertain the writ petition and the affected party has to avail the remedy available under law. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai2, the Hon'ble Apex Court has observed that under Article 226 of the Constitution, the High Court having regard to the facts and circumstances has discretion to entertain or not to entertain a Writ Petition but the High Court has imposed certain restrictions one of which is that if an effective alternative remedy is available, the High court would not normally exercise 1 2005(3) ALD 233(LB) 2 (1998) 8 SCC 1 8 the jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies; namely where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
8. In the light of the law laid down by this Court and the Apex Court referred to supra, when there is a statutorily- engrafted adequate and efficacious alternative remedy available to the person, who complains, to redress his grievance, the Court do not entertain the writ petition but relegate the party to avail such remedy before invoking extraordinary jurisdiction of this Court. In this case, the effective alternative remedy available to the petitioners is to file an Application under Section 451 Cr.P.C. which is an effective alternative remedy, but not a Writ Petition invoking Article 226 of the Constitution of India. In the judgments that are relied on by the petitioners, the maintainability of the writ petition was neither questioned nor answered. Hence, those judgments are not applicable to the facts of this case.
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9. Learned counsel submits that without issuing any notice to the petitioners, the accounts have been freezed. At this stage, it is appropriate to look at Section 102 Cr.P.C. which reads 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].
The investigating officer basing on the material and investigation done so far emerging from the transactions done from the bank account which created suspicion of commission of offence has exercised the discretion. Further, such discretion exercised by the officer cannot be found fault with nor this Court can interfere with the investigation process. Issuance of 10 prior notice is not contemplated under Section 102 Cr.P.C. and this issue is no more res integra. Section 451 Cr.P.C. or Section 102 Cr.P.C. do not make any distinction between an accused or any other person. When the account of a person who is not an accused is seized, still he has to go before the Court below and file an Application under Section 451 Cr.PC.
10. In this case, it is alleged that the innocent people are trapped in the form of software loans and other loans. Police after seizing the account as contemplated under Section 102 Cr.P.C. has intimated the same to the Court as such there is no procedural illegality. Writ Petition filed under Article 226 of the Constitution of India is not maintainable as there is an effective alternative remedy available under Section 451 Cr.P.C.
11. Hence, the Writ Petition is disposed of directing the petitioners to avail the appropriate alternative remedy available to them under law. There shall be no order as to costs.
12. The Miscellaneous Applications, if any shall stand automatically closed.
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LALITHA KANNEGANTI, J 18th July 2022 ksld 11 12