A.K. Ashokan vs State

P. Devadass, J.—Petitioner seeks defreezing of his bank account No. 912010030566629 maintained in AXIS Bank, Madipakkam Branch,

Chennai. One Sivasakthi, complaining of cheating, lodged a complaint against the petitioner. The first respondent took it for enquiry in CSR No.

45 of 2013. In this connection, on 17.4.2013, the Inspector of Police wrote to the 2nd respondent to freeze SB account No. 912010030566629

maintained by the petitioner in their Bank. Accordingly, it was done. Subsequently, on 20.4.2012, on the said complaint, police registered a case in

Crime No. 796 of 2013 u/s 420 IPC.

The learned counsel for the petitioner submitted that freezing of the bank account could be made for the purpose of investigation. The

investigation will arise only after registration of the FIR u/s 154 Cr.P.C. FIR was registered only on 20.4.2013. However, even before that, on

17.4.2013, the police officer freezed the petitioner''s bank account. Further, freezing of bank account has not been reported to the jurisdiction

Magistrate as required u/s 102(3) Cr.P.C. Thus, freezing of the bank account is illegal. It requires to be defreezed.

The learned Additional Public Prosecutor would not dispute that the investigating officer has not reported the freezing of the bank accounts to

the Magistrate. However, he would submit that it is an irregularity, it will not vitiate the steps taken by the investigating officer.

I have considered the rival submissions and perused the materials on record.

When information as to the commission of a cognizable offence is reported to the officer in-charge of the Police Station, he has to register an

FIR (See: Section 154, Cr.P.C.). Thereafter, it is his statutory duty to investigate the crime (See: Section 156(1)). As per Section 2(h), Cr.P.C.,

investigation"" refers to all the actions taken by the Investigating Officer to collect the required evidence in connection with the crime reported. It is

to bring home the offence to the offender.

In pursuing the investigation, the investigation officer has to take various steps. (See: Section 157, Cr.P.C.) Investigation consists of proceeding

to the scene of crime, recording of statement of witnesses (See: Sections 160, 161, Cr.P.C.), search and seizure of documents, material objects

etc., arrest of the accused.

Right from the Privy Council decision in AIR 1945 18 (Privy Council) and the Hon''ble Apex Court''s decisions in State of Bihar and Another

Vs. J.A.C. Saldanha and Others, and State of Haryana and others Vs. Ch. Bhajan Lal and others, , it is held that in this country the process of

investigation is the province of police. It is unrestricted. However, it is subject to the statutory provisions relating to investigation.

As stated already, one of the process of investigation, namely, collection of evidence, is seizure of case-properties. There are properties with

respect to which an offence has been committed. Another category is property used in the commission of offence. It may be movable or

immovable. Close on the heels are stolen properties and properties which create suspicion of commission of an offence.

In seizing the properties, the investigating officer has to follow certain procedures. That has been prescribed in Section 102 Cr.P.C. It runs as

under:

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:

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.

(emphasis supplied by me)

In State of Maharashtra Vs. Tapas D. Neogy, , it was held that the bank account is the property capable of seizure thus, for the purpose of

investigation, if it has some bearing on the crime reported, the investigating officer can seize it u/s 102 Cr.P.C. by serving a prohibitory order on the

bank to freeze the bank account, prohibiting the (accused)/account holder from operating the account. [Also see: Ms Swaran Sabharwal Vs.

Commissioner of Police, , Rajamani Vs. The Inspector of Police, Shevapet Police Station, The Inspector of Police, Suramangalam Police Station

and The Dy. Superintendent of Police, CBCID, and B. Ranganathan Vs. State, Indian Overseas Bank and Allahabad Bank, ]

Section 102(1) describes the categories of properties to be seized. When an officer subordinate to the SHO seized them, he must report his

seizure to his superior. Section 102(3) mandates that every seizure of property u/s 102(1) Cr.P.C. shall be reported to the jurisdiction Magistrate.

For the purpose of Section 102(1) Cr.P.C. cash on hand and cash at bank in bank account are properties.

In R. Chandrasekar Vs. Inspector of Police, Fair Land Police Station Salem and The Dy. Superintendent of Police, C.B., C.I.D., , it was held

that seizure of bank account by the investigating officer must be reported to the Magistrate as it is a mandatory requirement of law.

In Dr. Shashikant D. Karnik Vs. The State of Maharashtra, , it was held that seizure of property u/s 102 Cr.P.C. has to be reported to the

Magistrate.

Chandrasekar (supra) was subsequently followed in Padmini Vs. The Inspector of Police, DCB, Tirunelveli [2008 (3) CTC 657].

In Mr. Vinoskumar Ramachandran Valluvar Vs. The State of Maharashtra, , a Full Bench of the Bombay High Court held that the requirement

of reporting of freezing of bank account to the Magistrate prescribed u/s 102(3) Cr.P.C. is mandatory in nature.

In pursuing their investigation u/s 102 Cr.P.C., the Code empowered the police officers to deprive a person of his properties. In this context,

the phrase, ""shall"" employed in Section 102(3) Cr.P.C., is held to be mandatory in nature. Violation of it cannot be an irregularity committed by the

investigating officer.

Very recently, a learned single judge of this court in Crl.O.P.No. 13103 of 2013, etc, on 30.8.2013 [T. Subbulakshmi Vs. The Commissioner

of Police, Egmore, Chennai and Others] also took similar view.

Thus, in this case, admittedly the investigating officer in freezing the bank account of the petitioner, has not at all followed the mandatory

requirement. He has not reported the freezing of the bank account to the jurisdiction Magistrate. It is vitiated. It is required to be annulled. The

respondents are directed to defreeze Account No. 912010030566629 maintained by the petitioner in the second respondent bank. Since the

account is now defreezed on account of certain technical snag, the investigating officer, if need be, can freeze the bank account strictly following the

provisions of Section 102 Cr.P.C. The criminal original petition is disposed of accordingly.