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8. Learned counsel appearing for the Petitioners submit that, the learned Magistrate without analyzing the scope, ambit and purport of Section 102 of Cr.P.C., and in particular Sub-Section (3) of Section 102 Cr.P.C. being mandatory, and having flouted and / or violated by the Respondent No. 1 after embarking upon to freeze the bank accounts of the petitioners rendered the communication / notice dated 25.10.2010 issued by the Respondents illegal, bad in law and contrary to the mandate Umesh Malani Judgment.WP.2434.18 contained u/Sec. 102(3) of Cr.P.C., and that being the case the impugned order dated 11.07.2016 passed by the learned Magistrate is also rendered illegal, bad in law, perverse and contrary to the settled principles of law. It is submitted that, the issue with regard to the power of police to seize certain property fell for consideration before the Apex Court in the matter of M.T. Enrica Lexie Vs. Doramma, and the apex Court interpreting the scope of the Section 102 of Cr.P.C. held, in no unclear terms that the police during the course of investigation can seize a property if such a property is alleged to be stolen or suspected to be stolen and if the object of crime is under investigation or has direct link with commission of offence for which the police officer is investigating into. Property not suspected of commission of offence which is being investigated into by the police officer cannot be seized u/s. 102 Cr.P.C. The Hon'ble Supreme Court further emphasized that under Section 102 of the Code, a police officer can seize such property which is covered by Section 102(1) of Cr.P.C. and no other property.

17. The question that arises for consideration in the present Writ Petition is whether freezing of the bank accounts of the Petitioners under Section 102 of the Cr.PC. by the Investigating Agency/Officer during the course of investigation without intimating the Magistrate is legally sustainable?

18. The main contention of the learned counsel for the Petitioners is that, it is mandatory for the investigating agency/officer to make Umesh Malani Judgment.WP.2434.18 compliance of the mandate as required under sub-Section (3) of Section 102 of the Cr.PC, and since there is no compliance of the mandate contained under sub-Section (3) Section 102 of the Cr.PC., according to the learned counsel for the Petitioners, the proceedings of freezing of the accounts of the Petitioners are liable to be quashed. In the context of the aforesaid contention of the learned counsel for the Petitioners, it is necessary to see the provision of Section 102 of the Cr.PC which deals with the power of police officer to seize certain property. The provision of Section 102 of the Cr.PC. reads as under :-

17. Re-reading of Section 102 of the Cr.P.C. shows that what is permitted to be done is the seizure of the property by the Police Officer. Now, as per the view of the Supreme Court, bank accounts can be seized under Section 102 of the Cr.P.C. There is no doubt about that, and, since they are bank accounts, the seizure means their attachment by the police and the attachment order of the bank accounts will have the effect of stopping the account holder from operating those bank accounts. But in any case when the powers are to be exercised by the police officer under Section 102 of the Cr.P.C. and they are so exercised, there is nothing like giving oral instructions of stopping the operation of the account or written instructions not to allow operations of the accounts. If such instructions are given either oral or in writing then they are to be regarded as attachment of the account. Therefore, what is stated in the aforesaid affidavit of Mr. Pardeshi, as quoted above, is an attempt to escape from the consequences of non compliance to the Section 102 of Cr.P.C. No other provision of the Cr.P.C. was shown to us by Mr. Mhaispurkar which empowers the police officer, firstly, to issue orders oral or written of stopping the operation of account before attachment or seizure and then pass second order of attachment of account. There is nothing like empowering the police officers to issue ad interim or temporary order of stopping the operation and then final order of attachment of the account. If they issue any order of stopping operation of the account, it has to be treated as action under Section 102 of the Cr.P.C. resulting in seizure i.e. attachment of the account, and, if that is so the compliance to all the three requirements, is a must.

REVATI MOHITE DERE, J.) in paragraph 5 of the aforementioned case has observed as under :-

Umesh Malani Judgment.WP.2434.18

5. Perused the papers as well as the impugned order.

An F.I.R. was lodged as against the petitioner's wife and daughter on 30.03.2017, with Hingna Police Station, Nagpur for the alleged offence punishable under Section 406 read with Section 34 of the I.P.C. Pursuant thereto, C.R. No.88/2017 was registered with the said police station as against the petitioner's wife and daughter. During investigation, on 06.11.2017, the police froze two bank accounts of the petitioner, one with the State Bank of India and the other with the Union Bank of India, i.e. after almost eight months of the registration of the offence. Admittedly, charge-sheet has not been filed in the said case till date, nor is the petitioner an accused in the said case. On 13.11.2017, the petitioner preferred an application before the learned Magistrate and sought de-freezing of the bank accounts maintained with the Union Bank of India and the State Bank of India. It appears from the affidavit filed by the State that there were cash deposits of Rs.1,30,000/- (Union Bank of India) and Rs.1,46,000/- (State Bank of India) in the accounts of the petitioner maintained with the Union Bank of India and the State Bank of India. Section 102 of Cr.P.C. stipulates that 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. It is pertinent to note that under Section 102(3) of Cr.P.C., every police officer acting under sub-section (1) of Section 102, shall forthwith report the seizure to the Magistrate having jurisdiction. It may be noted that the offence was registered in the said case on 30.03.2017; whereas, the petitioners two bank accounts came to be frozen on 06.11.2017. Admittedly, no report as contemplated under Section 102(3) of Cr.P.C. was forwarded to the Magistrate till the filing of this petition and till notice was issued by this Court on 13.11.2017. It appears that the report was filed only on 27.11.2017, i.e. much later. It is, therefore, evident that there is non- compliance of sub-section 3 of Section 102 of Cr.P.C., inasmuch as, no report was forwarded forthwith to the learned Magistrate, informing the action taken under Umesh Malani Judgment.WP.2434.18 Section 102 of Cr.P.C. Even otherwise, there are no allegations as against the petitioner and that the F.I.R. is lodged only as against his wife and daughter. Admittedly, no notice was served on the petitioner before the petitioner's bank accounts were frozen.