The Jammu & Kashmir and Ladakh High Court has ruled that since no provision in the Criminal Procedure Code provides for consequences of non-adherence to Section 102(3), it is therefore not mandatory in nature.
The single-judge bench of Justice Sanjay Dhar held that it can be inferred that the said provision is not mandatory and only directory in nature even though the word 'shall' has been used in the provision.
Brief Facts of the Case
The petitioner herein has challenged order by Special Judge, Anti-Corruption whereby her application for defreezing of her bank account has been partly allowed and she has been permitted to operate salary transactions from her account but at the same time the amount that stood to the credit of her bank account on the date of freezing of her account has been allowed to remain frozen.
Post, a preliminary verification conducted by the respondent relating to fake recruitment orders in respect of 33 candidates as Junior Assistants and Orderlies in the office of Advocate Genera, an FIR for offences under Section 13(D) of Prevention of Corruption Act read with Sections 420, 467, 468, 471, 120-B of IPC and 66 IT Act has been registered against the petitioner and investigation followed in into the same.
An alleged scam was unvieled and resultantly, the petitioner's bank accounts were freezed. Special Judge rejected her two petitions seeking defreezing of the accounts. Later, the trial court after hearing the parties permitted the petitioner to operate the account to the extent of salary transactions whereas a further direction was issued that the amount that was lying in the account of the petitioner at the time of its seizure shall remain frozen.
The petitioner has challenged order, primarily, on the ground that the requirements of Section 102(3) of the Cr. P. C have not been adhered to by the respondent before freezing the account of the petitioner, inasmuch as the matter has not been reported to the concerned Magistrate.
High Court's Observation
The Court at the outset noted that there is nothing in the objections filed by the respondent to indicate that the matter regarding freezing of bank account of the petitioner has been at any point in time reported by the respondent to the concerned Magistrate though the petitioner has taken a specific plea in her petition in this regard.
The Court framed the question of law for its consideration as to what would be the effect of non-furnishing of the report to the concerned Magistrate about the seizure of petitioner’s bank account in the instant case.
Noting that the provision mandates that a police officer after seizing any property, has to forthwith report the seizure to the Magistrate having jurisdiction and in case it is not convenient to transport the seized property to the court, he may give custody thereof to any person on his executing a bond undertaking to produce the property as and when required, the Court stated that there has been divergence of opinion of different High Courts as to whether the provisions contained in Section 102(3) of the Cr. P. C are mandatory or directory in nature.
Deliberating on the same the Court noted that the purpose of reporting the seizure to the Magistrate is to enable the Magistrate to pass orders as regards the disposal of the seized property and opined that whether the non-adherence to the provisions contained in Section 102(3) of the Cr. P. C would cause prejudice to the owner of the property or a person who is interested in the said property will be a question of fact, which has to be determined on a case-to-case basis.
"If non-adherence to the said provision in a particular fact situation results in prejudice to the owner/person interested by of the seized property, the same would be fatal to the act of seizure but in a case where no prejudice would be caused to the owner/person interested by non-adherence to this provision, the same may not render the seizure of the property illegal."
The Court examplified the above as well.
"In a case where the property seized is subject to speedy decay or in a case where the property will get devalued if its disposal is not decided immediately, the owner/interested person will certainly get prejudiced by not informing the Magistrate about its seizure, but in a case where nature of the property is such that its delayed disposal will not affect its value, the non-adherence to the provisions contained in Section 102(3) of the Cr. P. C may not be fatal to the seizure of the property."
Thus, in a case where the subject matter of the seizure is not going to be devalued or its delayed disposal would not result in prejudice to the owner/interested person, the provisions of Section 102(3) of the Cr. P. C would not be mandatory and nonadherence to the said provision would not render the seizure illegal, the Court ruled.
Additionally, the provisions of the Criminal Procedure Code do not provide for consequences of non-adherence to the provisions of Section 102(3) of the Cr. P. C and therefore it can be inferred that the said provision is not mandatory in nature even though the word “shall” has been used in the provision, the Court observed.
"Once the consequences of non-adherence to the provisions of law are not given in the Statute, it is to be inferred that the said Statute is directory in nature. It is also clear that if no prejudice is caused to the owner of a property by non-reporting of seizure to the concerned Magistrate, it cannot be a case of illegality but such an omission may only be an irregularity. The seizure of bank account, having regard to the nature of property involved, on account of its non-reporting to the concerned Magistrate, therefore, would not render its seizure illegal."
As far as the present case was concerned, the Court was of the view that the petitioner has immediately, after the seizure, approached the Special Judge seeking defreezing of his bank account and, as such, it is not a case where because of non-reporting of the seizure to the Magistrate, the petitioner was deprived of her right to approach the Magistrate for seeking disposal of the property in her favour. Thus, the seizure of the bank account of the petitioner, in the facts and circumstances of the case, cannot be termed as illegal.
CASE TITLE: RUQAYA AKHTER vs UT THROUGH CRIME BRANCH
CASE DETAILS: CRM(M) No.223/2022
CORAM: Justice Sanjay Dhar
Advocates for Petitioner: Mr. Bhat Fayaz, Advocate
Advocates for Respondent: Ms. Asifa Padroo, AAG
Social media is bold.
Social media is young.
Social media raises questions.
Social media is not satisfied with an answer.
Social media looks at the big picture.
Social media is interested in every detail.
social media is curious.
Social media is free.
Social media is irreplaceable.
But never irrelevant.
Social media is you.
(With input from news agency language)
If you like this story, share it with a friend! We are a non-profit organization. Help us financially to keep our journalism free from government and corporate pressure.
0 Comments