Telangana High Court
Hassan Bin Omar vs The State Of Telangana And 7 Others on 10 June, 2022
Author: Lalitha Kanneganti
Bench: Lalitha Kanneganti
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION No. 36177 OF 2021
O R D E R:
This Writ Petition is filed seeking the following relief:
" .... to issue any writ, order or direction more particularly one in the nature of writ of mandamus declaring the action of respondents more particularly Respondents 2 to 4 in freezing of the petitioner ICICI bank account i.e. current bank account bearing No. 024205006577 of ICICI Bank at Nayapul X Road, Charminar Branch, Hyderabad with respect to Cr.No. 155 of 2019, on the file of Police Station Hanamkonda as illegal, arbitrary and contrary to law and also in violation of Articles 14 and 21 of the Constitution of India and consequently, direct the Respondents 2 to 4 to defreeze the petitioner's bank account i.e. current bank account bearing No. 024205006577 of ICICI Bank at Nayapul X Road, Charminar Branch, Hyderabad with respect to Cr.No. 155 of 2019, on the file of Police Station Hanamkonda..."
2. Sri Katika Ravinder Reddy, learned counsel for the petitioner submits that based on the complaint of the 7th respondent Respondents 2 and 3 have lodged Crime No. 155 of 2019, dated 25.05.2019 on the file of Police Station Hanamkonda for the offences under Sections 363 read with 511, 420, 354, 506, 354(c) read with Section 34 IPC. It is submitted that in the said crime, Respondents 5, 6 and 8 were also arrayed as accused. It is submitted that in the complaint, the 7th respondent alleged that Respondent No.5 is friend of her 2 brother and he developed acquaintance with her and due to that, he committed rape and also blackmailed her and demanded money from her. It is further alleged that as per the demands of the Respondents 5 and 6, the 7th respondent used to deposit money in two bank accounts belonging to Respondent No.8. Learned counsel submits that the 8th respondent is a client of the petitioner who used to purchase cars from the petitioner and used to deposit the amounts via bank transfers. He submits that the petitioner is only related to the business and nothing to do with the alleged allegations levelled in the complaint but the police without looking into the same had given a letter to the 4th respondent seeking information about the petitioner's bank accounts. It is submitted that in the bank transactions, it was found that there were many transactions from the account of Respondent No.8 to the account of the petitioner. It is also stated that the 3rd respondent therefore, directed the 4th respondent to furnish the petitioner's bank account. It is also submitted that the 4th respondent vide letter dated 03.09.2021 informed that the petitioner's bank account bearing No. 024205006577 of ICICI Bank was kept in debit freeze.
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It is submitted by the learned counsel that all the allegations are made with an intention to cause disrepute to the petitioner 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 petitioner company without bothering to scrutinize the entries and nature of transactions. He submits that before exercising the 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 petitioner. 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 petitioner. Hence, the petitioner having no other alternative has 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 4 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 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 5 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.
3. Heard learned Government Pleader for Home Sri Srikanth Reddy.
4. The grievance of the petitioner is that the respondent police have freezed the account of the petitioner. According to the petitioner, there is no substance in the complaint and in view of the law laid down by the Karnataka High Court, the petitioner is 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 6 said provision. For seeking interim custody of any of the properties, the only provision under the Cr.P.C. is Section 451. The petitioner has 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 petitioner, as such, he 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 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 1 2005(3) ALD 233(LB) 7 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 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 2 (1998) 8 SCC 1 8 this Court. In this case, the effective alternative remedy available to the petitioner 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 petitioner, the maintainability of the writ petition was neither questioned nor answered. Hence, those judgments are not applicable to the facts of this case.
9. Learned Counsel submits that the petitioner is not arrayed as an accused in the crime and further, without issuing any notice to the petitioner, the account has 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 9 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 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. 10
11. Hence, the Writ Petition is disposed of directing the petitioner to avail the appropriate alternative remedy available to him 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 10th June 2022 ksld 11 12