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Muktaben M. Mashru vs State Of Nct Of Delhi & Anr on 29 November, 2019

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 1st October, 2019
Date of Decision: 29th November, 2019

+ CRL.M.C. 4206/2018 Crl.M.A.30311/2018

MUKTABEN M. MASHRU ….. Petitioner
Through: Ms. Nidhi Mohan P., Mr.Soajib
Qureshi and Mr.S. Shriram,
Advocates

versus

STATE OF NCT OF DELHI ANR ….. Respondents
Through: Mr. Mukesh Kumar, APP for
the State with SI Rajeshwar,
PS:Palam Village, Delhi.
Mr. Ajay Burman, Senior
Advocate with Ms. Nishi
Chaudhary and Ms. Sadhvi
Gaur, Advocates for respondent
No.2.

CORAM:
HON’BLE MR. JUSTICE CHANDER SHEKHAR

CHANDER SHEKHAR, J.

1. The petitioner has assailed the order dated 2.8.2018 passed by
learned Additional Sessions Judge, Dwarka Court, New Delhi.
(hereinafter to be referred as „impugned order‟) whereby the learned
Additional Sessions Judge has set aside the order dated 17.3.2018
passed by the learned Metropolitan Magistrate.

Crl.M.C.4206/2018 Page 1 of 24

2. The learned Metropolitan Magistrate, Dwarka Courts, vide
order dated 17.3.2018 allowed the application filed by the petitioner
and directed the Investigating Officer (IO) to defreeze the accounts of
the petitioner Muktaben which had been seized/debit-freezed by the
concerned I.O. under Section 102 of the Code of Criminal Procedure,
1973 (“Cr.P.C”) and dismissed the application filed by respondent
No.2 praying for release of case property i.e. money lying in the bank
accounts debit freezed by the IO during investigation.

3. Aggrieved by the order of the learned Metropolitan Magistrate,
the respondent No.2 filed a criminal revision petition, which was
allowed by the learned Additional Sessions Judge vide the impugned
order, whereby the order of the learned Metropolitan Magistrate was
set aside and the matter was remanded back to the trial Court to decide
the application of the respondent no.2 afresh after conducting inquiry
under Section 457(2) Cr.P.C.

4. Briefly stated, the facts of the case, as per the Status Report, are
that the respondent No.2 had got an FIR No.627/2015, registered
against the grandson of the petitioner for the offence under Sections
498A/406/34 of the Indian Penal Code, 1860 (IPC). According to the
complaint, it was alleged that accused Piyush Bhai Thakkar (husband
of respondent No. 2) had forced and coerced respondent No.2, Pooja
Sharma to hand over an amount of Rs.25lacs awarded to her by the
Haryana Government as well as the amount of Rs.30 lacs kept in a
Fixed Deposit in her name, deposited by her father.

5. During investigation, bank statement of respondent
no.2/complainant was obtained. On analysis of bank statement of

Crl.M.C.4206/2018 Page 2 of 24
respondent No. 2, it was found that on 23.4.2011, Rs.15 lacs were
deposited in the account of complainant vide FD No.91104002159 and
on 30.4.2011, Rs.15 lacs were deposited in the account of complainant
vide FD no. 91104002275. Further, on 18.1.2012, Rs.25 lacs were
deposited in the account of the complainant and that was the same
amount given to her by the Haryana Government.

6. The details of bank account No.20039082561 (SBI Bank) of
accused Piyush Bhai Thakkar was also obtained and analysed. It was
found that on 20.1.2012, amount of Rs.20 lacs was transferred in the
account of accused Piyush Bhai Thakkar from the account of
complainant through cheque bearing No.061691. On the next day,
accused Piyush Bhai Thakkar withdrew the amount of Rs.20 lacs from
his account and after one and a half month, on 12.3.2012 accused
Piyush Bhai Thakkar, opened a joint account in Yes Bank in the name
of the petitioner, who is his maternal grandmother, and himself. On
the same day, accused transferred Rs.25,000/- in this joint account
from his SBI account. Thereafter, on 15.3.2012, accused transferred
Rs.20 lacs in this joint account of Yes Bank from his SBI account
through cheque No.852691.

7. It is further mentioned in the status report that it is evident from
the transactions of the various bank accounts that accused Piyush Bhai
Thakkar dishonestly misappropriated the money of the complainant.
He deposited the amount, which he had taken from the complainant, in
different Banks in different forms, i.e. Fixed Deposit, cash deposit in
joint accounts of his maternal grandmother i.e. the petitioner,
Muktaben and himself.

Crl.M.C.4206/2018 Page 3 of 24

8. Upon interrogation, the husband of respondent No.2 failed to
produce any proof regarding the money and hence, for the recovery of
the misappropriated amount of the complainant, six joint bank
accounts of accused Piyush Bhai Thakkar and Petitioner bearing
No.913010041032178, 915010058850066, 914040008866743,
914040036492088, 9143030037694035 916030004596825 of Axis
Bank were debit freezed during investigation.

9. The respondent No.2 has alleged that she was harassed, tortured
and subjected to cruelty at the hands of her husband. It was further
alleged that she was made to hand over the amount of Rs. 25 Lacs
which she was awarded by the Haryana government as well as the
F.D. amount of Rs.30 lacs, which had been deposited by her father,
forcibly to her husband, the co-accused in the FIR.

10. On the other hand, the case of the petitioner is that she is an old
widowed lady and the maternal grandmother of co-accused Piyush
Bhai Thakkar. It is alleged that the co-accused was named as a joint
account holder in the said accounts in order to help her in the smooth
functioning of the debit and credit operations of the said accounts in
view of her old age. It is claimed by the petitioner that the money kept
in the freezed accounts is the hard-earned money and streedhan of the
petitioner and nobody has any ownership upon that money.

11. Learned counsel for the petitioner submitted that the respondent
no.2 had filed a complaint at CAW Cell, Dwarka, South-West Delhi
against her husband, mother-in-law and her brother-in-law and the
CAW Cell issued summons to them to appear before the concerned
officer but the CAW never issued any summon to the petitioner. Even,

Crl.M.C.4206/2018 Page 4 of 24
in the case filed under Section 12 of the Protection of Women from
Domestic Violence Act, 2005 against the husband of respondent No.2,
the mother-in-law and the brother-in-law, the petitioner is not named
as a party to the case. Learned counsel for the petitioner further
submitted that the petitioner is not an accused in the FIR No.627/2015,
registered under Sections 498-A/406/34 of the IPC.

12. It is further submitted by the learned counsel for the petitioner
that under the garb of an ex parte order, the respondent No.2 and her
family members, along with police officials of P.S. Palam Village,
Delhi, reached Ahmedabad, Gujarat and ransacked the matrimonial
home and confiscated almost all the present articles of jewellery and
cash, despite the fact that it was repeatedly claimed that none of the
items belonged to the respondent No.2 and that she had already taken
with her all the articles of jewellery and cash belonging to her on
5.6.2015 at the time of leaving the matrimonial home.

13. It is further alleged by the learned counsel for the petitioner that
respondent No.2 had started to pressurize the co-accused Piyush Bhai
Thakkar to demand his share in the properties from all his relatives.

14. The learned counsel for the petitioner has addressed the
arguments, mainly on the point that the freezing of the six bank
accounts jointly held in the petitioner‟s name is an abuse of process of
law and would violate the interest of justice and by itself lacks
legality. The learned counsel for the petitioner stated that the IO had
not applied his mind and had seized the six bank accounts on
23.2.2016, without following the mandatory due procedure laid down
in Section 102 Cr.P.C.

Crl.M.C.4206/2018 Page 5 of 24

15. Learned counsel for the petitioner also submitted that learned
Sessions Court, while passing the impugned order, had not applied its
mind that under Section 102 (3) of Cr.P.C., IO was required to inform
forthwith the concerned Court after seizing the bank accounts which is
a mandatory requirement of law and failure to do so would vitiate the
order of seizing of bank accounts.

16. Learned counsel for the petitioner, to buttress her arguments,
has relied upon the judgment of the Division Bench of this Court in
Swaran Sabharwal v. Commissioner of Police, 1987 SCC OnLine Del
221 and also the judgment passed by the Division Bench of the
Bombay High Court in Shashikant D. Karnik v. State of Maharashtra,
2007(109) BOMLR 934, wherein it was held that the requirement of
Section 102 Cr.P.C. is necessary to be complied with and non-
compliance of the same renders the order illegal and perverse. Learned
counsel for the petitioner has also relied upon the judgment of the
Madras High Court titled as T. Subbulakshmi Anr. v. The
Commissioner of Police Ors., 2013 SCC OnLine Mad 2629, which
reiterates that the seizure has to be reported forthwith to a magistrate
which is a necessary requirement and if the requirement is not
fulfilled, then the seizure cannot be legally sustained.

17. It was further submitted by the learned counsel for the petitioner
that while passing the impugned order, the Sessions Court failed to
appreciate that the petitioner is an old-aged widow lady and is in need
of immediate funds and the six bank accounts were seized without
following the mandatory due procedure laid down in Section 102
Cr.PC.

Crl.M.C.4206/2018 Page 6 of 24

18. Learned counsel for the petitioner also submitted that the
investigating authorities should not be allowed to circumvent
mandatory procedures prescribed under criminal law. In this regard,
reliance has been placed upon the judgment of the Supreme Court in
Sukhdev Singh v. State of Haryana, (2013) 2 SCC 212, wherein it was
held that no law can be interpreted in a way so as to frustrate the very
basic rule of law. It is a settled principle of criminal jurisprudence that
the provisions have to be strictly construed.

19. Learned counsel for the petitioner lastly submitted that while
exercising the revision jurisdiction, the learned Additional Sessions
Judge vide the impugned order has wrongly interfered with the order
of the Metropolitan Magistrate dated 17.03.2018. The order of the
Metropolitan Magistrate has followed the law laid down in Swaran
Sabharwal v. Commissioner of Police (supra) and the Magistrate has
rightly set aside the seizure of the bank accounts by the IO and the
order did not warrant any interference whatsoever. There is no
question of adjudication under Section 457(2) Cr.P.C. since the bank
account is admittedly of the petitioner and not of the respondent No.2.
Reliance has been placed upon the judgment of the Gujarat High
Court in Chetanbahai Vasantbhai Mistary v. State of Gujarat Anr.,
2003 SCC Online Guj 277.

20. Per Contra, the learned Senior Counsel for the respondent No.2
submitted that the petitioner himself had moved an application for de-
freezing of the accounts on 2.3.2016 immediately after the freezing of
the bank accounts and later, the said application was withdrawn on
12.5.2016. Hence, this shows that the learned Metropolitan Magistrate

Crl.M.C.4206/2018 Page 7 of 24
was well aware of the debit-freezing of the accounts of Axis Bank. In
this regard, reliance has been placed upon the judgment of the Punjab
Haryana High Court in Narottam Singh Dhillon and Anr. v. State of
Punjab, 2007 SCC OnLine PH 20, to elucidate their arguments that
the provisions of Section 102 (3) Cr.P.C. cannot be termed as
mandatory, but would be directory in nature and also relied upon the
judgment of the Bombay High Court in Vinodkumar Ramachandran
Valluvar v. State of Maharashtra, 2011 SCC Online Bom 402,
wherein it was held that the freezing of the bank account is an act in
investigation and it does not deprive any person of his liberty or his
property. Section 102 Cr.P.C. does not require issuance of notice to a
person before or simultaneously with the action of attaching his bank
account.

21. The learned Senior Counsel for the respondent No.2 has further
contended that the present petition deserves to be dismissed on the
ground that the money freezed by the IO is the hard-earned money of
respondent No.2 awarded to her for participation in various national
and international tournaments and the same has been dishonestly
misappropriated by the husband of the respondent No.2 in connivance
with the petitioner by depositing the money, belonging to the
respondent No.2 into a number of joint accounts held by the petitioner
and the husband of respondent No.2 with different banks in different
forms i.e. fixed deposit, cash deposit etc.

22. As far as, the reliance placed upon the judgment of the Punjab
Haryana High Court in Narottam Singh Dhillon and Anr. (supra) by
the respondent No.2 is concerned, the learned counsel for the

Crl.M.C.4206/2018 Page 8 of 24
petitioner has stated that the case appears to be standing on its own
facts and that it is not a normal case of seizure of accounts. Therefore,
the law laid down in that case cannot be applied to every case because
of its peculiar nature. Furthermore, The Madras High Court in the case
of T. Subbulakshmi Anr. V. The Commissioner of Police Ors.,
(supra) has noted that the judgment of the Punjab Haryana High
Court was passed under the Prevention of Corruption Act and the
same stands on an entirely different footing and hence cannot be made
applicable to the facts of the present case.

23. Section 102 of the Cr.P.C. defines and deals with the powers of
the police officer to seize the property, especially where the allegation
of commission of an offence is alleged. Section 102 of the Cr.P.C.
provides that the police officer may seize any property which may be
alleged or suspected to have been stolen or which may be found under
the circumstances which create suspicion of commission of any
offence. All movable properties can be seized by a police officer under
Section 102 of the Cr.P.C. The basic requirements for the application
of the Section 102 of the Cr.P.C. are that the properties sought to be
seized or frozen, must be the stolen properties or they should have
been found to have some nexus with the alleged offence which is
under investigation of the police officer concerned.

24. In the case of Nemichand Jain v. The Superintendent of
Central Excise and Land Customs, Silchar (Cachar) Anr., AIR
1963 Manipur 35, it was held that every property seized must be
included in the list prepared by the police officer and no property can

Crl.M.C.4206/2018 Page 9 of 24
be detained without including it in the list. The police officer should
also report the matter forthwith to a Magistrate.

25. In the case of Swaran Sabharwal v. Commissioner of Police,
(supra), it has been held that where the bank account is seized, the I.O.
should inform the concerned Magistrate forthwith regarding the
prohibitory order and also give notice to the accused and allow
him/her to operate the bank account subject to his/her executing a
bond undertaking to produce the amounts in court as and when
required or to tell him/her subject to such orders as the court may
make regarding the disposal of the same. An order under Section 102
Cr.P.C., without doing so, would be set aside. Relevant portions of the
said judgment read as under:

“10. We may further point out that no justification seems
to exist for “seizing” the amounts in the bank account.
All that the respondents seem to want to establish from
the bank account is that some funds were transferred by
the petitioner’s husband to her. This can be proved at any
time by comparison of the two account and since the
entries in the accounts are always available, no purpose
seems to be served by restarting the operation of the bank
account. Since, as we point out below, it is not the case of
the moneys in the bank constitute “case property”, i.e.,
the property involved in the commission of the crimes
with which Ram Swarup is charged, the seizure of the
monies by the issue of a prohibitory order cannot be
upheld.

11. Again even if the provisions of section 102 are held
applicable, the respondents have not followed the
requirements of the section. Reading that provision, by
adapting in to the case of seizure of a bank account, the
police officer should have done two things: he should
have informed the concerned magistrate forthwith

Crl.M.C.4206/2018 Page 10 of 24
regarding the prohibitory order. He should have also give
notice of the seizure to the petitioner and followed her to
operate the bank account subject to her executing a bond
undertaking to produce the amounts in court as and when
required or to hold them subject to such orders as the
court may make regarding the disposal of the same. This
was not done. Even a copy of the prohibitory orders was
not given to the petitioner. The police did not seek the
directions of the Magistrate trying the offence. Not only
that, when the petitioner herself approached the
Magistrate who was trying the petitioner’s husband under
the official Secrets Act, her request to be allowed to
operate the account was opposed by the police
contending that the bank account was not “case property”
and that the petitioner’s remedies lay elsewhere than in
the court of the Magistrate. The Magistrate accepted the
plea of the police and dismissed the application of the
petitioner and directed to seek remedy elsewhere before
the appropriate authority. The petitioner having lost
before the Magistrate, had no other recourse except to
file a writ petition praying for the setting aside of the
prohibitory order.”

26. In the case of State of Maharashtra v. Tapas D Neogy, (1999)
7 SCC 685, it was held that the bank account, or postal account of the
accused or any of his relations is property within the meaning of
Section 102 of the Cr.P.C. and the police officer, in the course of
investigation, can seize or prohibit operation of the said account, if
such assets have direct link with the commission of offence.

27. It is held in the case of R Chandrasekhar v. Inspector of Police
Station, 2003 Cr LJ 294(295) that the provisions of Section 102 of the
Cr.P.C. are mandatory and where the mandatory provisions of Section
102 of the Cr.P.C. are not complied with, the police officer does not
report to the concerned Magistrate about the seizure, the notice and

Crl.M.C.4206/2018 Page 11 of 24
copy of the prohibitory order are not sent on the person whose bank
account has been seized, the order of the police officer for seizure of
the bank account would be set aside.

28. Similarly, In B Ranganathan v. State, 2003 Cr LJ 2779 (Mad),
it was held as under:

“In case of seizure of a bank account, the police should
do two things; he should inform the concerned
Magistrate forthwith regarding the prohibitory order.
He should also give notice of the seizure to the accused
and allow him/her to operate the bank account subject
to his/her executing a bond undertaking to produce the
amounts in court as and when required or to hold them
subject to such orders as the court may make regarding
the disposal of the same”.

29. It is held in the case of Shashikant D Karnik (dr) v. State of
Maharashtra, (supra) that before issuing orders of stopping the
operation of account, notice is also required to be given to the accused.
Further, every police officer acting under sub-section (1) is required to
forthwith report the seizure or attachment of accounts to the
Magistrate having jurisdiction.

30. In the matter of Smt. Lathifa Abubakkar v. State of Karnataka,
2012 Cr LJ 3487 (Kar), the Court held that in a case relating to
freezing of Bank Account, no materials were produced by the bank to
show that the bank account of petitioner accused had any nexus with
commission of any offence. No notice of seizure to the petitioner was
issued to enable her to operate bank account subject to her executing
bond undertaking to produce amount in court as and when required.
The seizure of bank account was also not reported to the Magistrate

Crl.M.C.4206/2018 Page 12 of 24
having jurisdiction. It was held that in the circumstances, there was
non-compliance with the mandate contained in Section 102 of the
Code. Thus, the freezing of the bank account of the petitioner was
improper.

31. In the case of T. Subbulakshmi Anr. V. The Commissioner
of Police Ors., (supra), it was held that if there is any violation in
following the procedures under Section 102 Cr.P.C., the freezing of
the bank account cannot be legally sustained. Freezing of bank
account is an act of investigation by the police and therefore, duty is
cast upon the I.O. under Section 102 Cr.P.C. to report the same to the
Magistrate forthwith as freezing prevents a person from operating his
bank account.

32. Further, in the case of Uma Maheswari Anr. v. State rep. by
Inspector of Police, 2013 SCC OnLine Mad 3829, the Court held that
reporting of the freezing of the bank accounts is mandatory. Failure to
do so will vitiate the freezing of the bank account. It shall be reported
„forthwith‟ to the jurisdiction magistrate. The phrase „shall‟ employed
in Section 102(3) Cr.P.C is held to be mandatory in nature and
violation of it goes to the root of the matter. The relevant portions of
the aforesaid judgment reads as under:

“33. 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:

“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

Crl.M.C.4206/2018 Page 13 of 24
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.”

xxxxxxxx

41. In pursuing investigation under Section
102 Cr.P.C., the Code empowered the police officers

Crl.M.C.4206/2018 Page 14 of 24
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 goes
to the root of the matter.

xxxxxxx

44. The Investigation Officer has suspected that the
moneys swindled were secreted by the accused persons
in their Bank accounts. Thus, he took steps to freeze
the Bank accounts.

45. We have elaborately seen that such freezing of the
Bank accounts shall be reported to the jurisdiction
Magistrate. When it is to be reported has been stated
in Section 102(3) Cr.P.C. It is stated therein that it
shall be reported “forthwith” to the jurisdiction
Magistrate. The reporting of the freezing of the Bank
accounts is mandatory. Failure to do so will vitiate the
freezing of the bank account. In this back drop of the
matter, the word “forthwith” shall mean ‘immediately’,
‘without delay’, ‘soon’.

46. In this case, the freezing of the Bank accounts were
done on 30.04.2013 and on 3.5.2013. However, the
Investigation Officer has reported this to the learned
XI Metropolitan Magistrate, Saidapet only on
27.6.2013. This will not be reporting of the freezing of
the Bank account to the Magistrate forthwith. Thus,
there is breach of mandatory requirement of law. Thus,
the freezing of the Bank accounts is vitiated.”

33. Recently, in the case of Manish Khandelwal Ors. v. State of
Maharashtra, 2019 SCC Online Bom 1412, decided on 30.7.2019, the
Court rejected the contention that non-compliance of the procedure
laid down under Section 102 Cr.P.C. is only an irregularity and will
not vitiate freezing of the bank accounts. It was held that in case the
mandatory provision under Section 102 Cr.P.C. has not been followed

Crl.M.C.4206/2018 Page 15 of 24
then it would entail the consequence of giving directions to defreeze
the bank account. The duty of reporting to Magistrate any seizure of
bank account is cast upon the IO as freezing of the bank account
prevents the person from operating the bank account pursuant to
investigation. If there is any violation in following the procedures
under Section 102 Cr.P.C., freezing of account cannot be legally
sustained.

34. In view of the aforesaid premises, it would be quite relevant to
reproduce the relevant extracts of the order of the learned
Metropolitan Magistrate, dated 17.3.2018, which are as follows:-

“It is thus settled position of law that mandatory
requirement of section 102 of CrPC is that the police
officer shall forthwith report the seizure of the
property to the magistrate and if the same is not
done, the order is illegal.

In the case, an application was filed on behalf of
complainant on 21.01.2016 for calling of status
report. In the said application, she had prayed for
seizure of the accounts of accused Piyush and his
maternal grandmother/ accused Muktaben. Status
report to the said application was filed by the IO
wherein he stated that a cheque of Rs. 20 lacs was
encashed in the bank account of accused Piyush. In
the said report, it was not mentioned that the account
of the accused was seized. Thereafter, IO was again
called with report and one report was filed on
15.02.2016. In the said report, 1O had mentioned as
to how the accused Piyush had got prepared FD in
the name of Muktaben from the amount taken by the
complainant. Thereafter, vide order dated
15.02.2016 Court notice was issued to the accused.
Notice was again directed to be issued vide order
dated 22.02.2016 and on 02.03.2016, Proxy counsel

Crl.M.C.4206/2018 Page 16 of 24
appeared for the accused. The matter was adjourned
from 02.03.2016 to 19.03.2016. Thereafter, on
02.03.2016 itself, an application was filed on behalf
of Muktaben for de-freezing of her bank accounts.
Copy of this application was supplied to
complainant and this application was also adjourned
for 19.03.2016 and Ld. Predecessor of this Court
called the 1O vide order dated 19.03.2016 to file
report and the applications were adjourned from
19.03.2016 to 27.04.2016. Thereafter, from
27.04.2016, applications were adjourned for
04.05.2016. On 11.05.2016 one application was
filed by Muktaben for withdrawal of the application
for de-freezing of her bank accounts and vide order
dated 12.05.2016, the application seeking unfreezing
was disposed of as withdrawn.

The application of the complainant for status report
for freezing of bank account was adjourned and
fresh notice was issued to IO for filing status report.
In the meantime, the charge sheet was filed and vide
order dated 03.12.2016 the application of the
complainant was disposed of by the ld. Predecessor
with the following observations:

“Charge sheet has been filed.

Application is disposed off accordingly.”

It is clear from the record that the IO had never
intimated the Court about freezing of the accounts of
accused Muktaben and only through the application
filed by Muktaben on 02.03.2016, this Court got
information that the account was freezed by the bank
official on the request of the 1O vide letter dated
23.02.2016 and the petitioner/accused Muktaben
was informed about the debit freezing of the account
vide letter dated 24.02.2016 issued by the authorized

Crl.M.C.4206/2018 Page 17 of 24
signatory of Axis Bank, Vastrapur Branch,
Ahmadabad.

Before disposing of the applications in hand, the IO
was asked to submit his report in respect to the
procedure followed by him for the freezing of
account. In the report, he has stated that on
23.02.2016 he got the Axis bank account debit
freezed and accused had come to know about the
same on that day only and thereafter he had filed an
application for de-freezing of account and in the
charge sheet filed on 03.12.2016, it has been
mentioned that the account of Muktaben was debit
freezed.

It is thus clear from the record that the IO had not
intimated this Court about the freezing of the
accounts from date of request given to the bank i.e.
23.02.2016 till the filing of the charge sheet.

Ld. Counsel for the complainant has argued that
applicant Mukat Ben has admitted that part of the
amount has been deposited by accused Piyush in her
account, during recording of her statement by this
Court. It has been submitted that de-freezing of
accounts in favour of Muktaben would cause grave
injustice to the Complainant whose hard-earned
money has been misappropriated by accused persons

This Court has considered the argument of Ld.
Counsel and perused the record.

It is a matter of record that during hearing of the two
applications, accused applicant Muktaben was
examined by this Court in respect of her savings and
bank accounts maintained by her. Accused /
applicant Mukatben has stated that she did not have
much knowledge about her bank accounts but she

Crl.M.C.4206/2018 Page 18 of 24
had total Rs.30 lacs amount with her. She has also
stated that the amount of Rs.19 lacs in the freezed
accounts have been deposited by accused Piyush.

The statement of accounts of the Complainant shows
that there has been withdrawal of huge amount and
cheques were issued in favour of Piyush drawn on
the account of complainant. Further, FDs of about
23 Lacs prepared in the name of Muktaben were
also encashed by her and the amount was later on
withdrawn from the account. There is no
explanation of such huge transactions in the account
of applicant.

However, as discussed above, the IO had not
informed this Court under Section 102 Cr.P.C
regarding seizure of the accounts which is a
mandatory requirement of law and failure to do so
vitiates the order of freezing of the bank accounts.

In view of aforesaid discussion, this Court is of the
considered view that the order of IO of debit-
freezing of bank accounts of accused / applicant
Muktaben is in clear violation of mandatory
requirement of law and therefore. the accounts of
Muktaben seized/debit-freezed on the request of IO
are directed to be de-freezed. Application of accused
Muktaben is therefore allowed and application of
complainant stands dismissed accordingly.”

35. It would also be quite appropriate, for better appreciation of
facts, to reproduce the relevant portion of the impugned order of the
Revision Court, which are as follows:-

“20. After hearing both the parties, the short point
which is required to be determined in the present
revision petition is whether the conduct of IO in not
reporting the seizing of six Axis Bank Accounts of the

Crl.M.C.4206/2018 Page 19 of 24
respondent no.2 to the Ld.Magistrate makes the order
unlawful or not?

21. Although it is true that as per Section 102 (3)
Cr.P.C., IO is required to forthwith report any seizing of
property made during the course of investigation to the
Ld.Magistrate. However, the irregularity committed by
10 in the present case, in not reporting the attachment of
six Axis Bank accounts of respondent no.2 to
Ld.Magisrate will not make the order of attachment
passed by IO dated 23.02.2016 to be unlawful/ invalid. I
am supported in my reasoning by Section 466 C.P.C.
which is reproduced as under:–

“466 Cr.P.C – Defect or error not to make
attachment unlawful–No attachment made under
this Code shall be deemed unlawful, nor shall any
person making the same be deemed a trespasser,
on account of any defect or want of form in the
proceedings relating thereto.”

22. Secondly, I agree with the submission put forward by
Ld.counsel for revisionist/complainant that provision
under Section 102 (3) Cr.P.C. is not mandatory but is
directory in nature and if IO had not reported the
attachment of Bank Accounts to the Ld.Magistrate
promptly, then it will not make the order of
seizing/attachment dated 23.02.2016 to be invalid.

23. In the judgment relied upon by the Ld.counsel for
revisionist/complainant of Hon’ble Punjab and Haryana
High Court delivered in Narottam Singh Dhillion and
another’s case (supra), the Hon’ble Punjab and Haryana
High Court, after discussing the various judgments relied
upon by Ld.counsel for respondents i.e. R.Chandrasekar’s
case (supra), and Tapas D.Neogy’s case (supra) and after
relying upon the judgment of the Hon’ble Supreme Court

Crl.M.C.4206/2018 Page 20 of 24
of India delivered in Nasiruddin and other’s case (supra)
had come to the conclusion in para 12 as follows:-

“12.Applying the above noted test to the contents
of the provisions of Section 102(3) Cr.P.C., it can
be seen that after laying down the requirement of
reporting further itself provides for exception in
cases where the property seized I such that it
cannot transported to the court etc… The
consequences of non-reporting about the seized
property have also not been provided under the
Section. In addition, the requirement of reporting
in the manner, as stated, is on the part of a public
functionary and in view of the law laid down by
the Hon’ble Supreme Court, as noticed above, the
same is required to be held to be directory unless
the consequences thereof are specified. Since the
consequences therefore, have not been specified, it
would be safe to say that requirement of Section
102 (3) Cr.P.C. cannot be termed as mandatory but
would be directory in nature”.

24. Therefore, Section 102 (3) Cr.P.C. is not mandatory
in nature and non-compliance of the same by IO does
not make the order to be invalid/illegal.

25. Thirdly, even otherwise, in the present case, the
information to Ld.Magistrate about seizure of Bank
Accounts was given promptly in the form of application
filed by respondent no.2 on 02.03.2016 before the
Ld.Magistrate and through this application,
Ld.Magistrate came to be informed regarding seizing of
six Axis Bank Accounts of respondent no.2 by IO on
23.02.2016.

26. Further, the Ld.Magistrate also came to know about
freezing/seizing of six Axis Bank Accounts of
respondent no.2 through the charge sheet which was
filed before the Ld.Magistrate on 25.11.2016.

Crl.M.C.4206/2018 Page 21 of 24

27. Therefore, in the facts of the present case, even
compliance of Section 102 (3) Cr.P.C. was made as
Ld.Magistrate had got the information promptly about
seizing of six Axis Bank Accounts of respondent no.2,
although not through IO but from respondent no.2
herself and the purpose of Section 102 (3) Cr.P.C. stood
achieved.

28. In the light of above discussion, Ld.Magistrate
committed grave illegality by dismissing the application
of revisionist/complainant solely on the ground that IO
had not complied with the provision of Section 102 (3)
Cr.P. C. Accordingly the revision petition is allowed.
Impugned order is accordingly, set aside.

29. The matter is remanded back to the Ld.Trial Court
to decide the application of revisionist/complainant
afresh after conducting inquiry under Section 457 (2)
Cr.P.C.”

36. Now reverting back to the present petition, taking into
consideration the oral as well as the written submissions of both the
parties and also taking into consideration the material on record as
well as the legal position, more specifically in view of the judgments
discussed hereinabove, this Court has no hesitation to hold that the
reporting of the freezing of bank accounts is “mandatory”. Failure to
do so, apart from other conditions, will vitiate the freezing of bank
account, which should be „forthwith‟ reported to the concerned
Magistrate and non-compliance of this mandatory requirement goes to
the root of the matter. If there is any violation in following the
procedures under Section 102 of the Cr.PC, the freezing of the bank
accounts cannot be legally sustained.

Crl.M.C.4206/2018 Page 22 of 24

37. The Revision Court has wrongly held that Section 102(3) Cr.PC
is not mandatory in nature and non-compliance of the same by the IO
does not make the order to be invalid/illegal. The view taken by the
Revision Court, is based upon the wrong premise, is erroneous and
hence cannot be sustained. The judgments relied upon by learned
counsel for respondent No.2, in view of the facts of the present case as
well as in view of the judgments discussed hereinabove, are neither
relevant nor pari materia to the facts of this case.

38. It is an admitted fact that the IO had not informed the concerned
Magistrate forthwith regarding the prohibitory order and also did not
give any notice to the petitioner and the co-account holder, Piyush
Bhai Thakkar, allowing her/him to operate the bank account, subject
to her/his executing a bond undertaking to produce the amounts in
court, as and when required or to tell her/him, subject to such orders as
the Court may make regarding the disposal of the same.

39. In view of the aforesaid discussions and considering the law
laid down in various decisions as discussed hereinabove, more
specifically the judgment of the Bombay High Court in the matter of
Manish Khandelwal Ors. v. State of Maharashtra(supra), the
Madras High Court in the matter of Uma Maheswari Anr. v. State
rep. by inspector of police (supra) as well as of this Court in the
matter of Ms. Swaran Sabharwal vs Commissioner of Police (supra),
I have no hesitation to hold that the conclusion arrived at by the
Revision Court in its impugned order dated 2.8.2018 is untenable in
law, hence, is liable to be set aside and is accordingly set aside and the
order dated 17.3.2018 of the Metropolitan Magistrate is liable to be

Crl.M.C.4206/2018 Page 23 of 24
upheld to its original position, however, to protect the interest of the
respondents, it would be appropriate to impose a condition to the
effect that before de-freezing the accounts of the petitioner, the
petitioner and the co-account holder, Piyush Bhai Thakkar, both shall
execute bonds before the Trial Court thereby undertaking to produce
the amount in the Court, as and when required by the Court and also to
the extent, that if any such order is made by the Court regarding
disposal of the same, the same shall be complied with jointly and
severally by them.

40. Accordingly, it is held that the order of the IO debit-freezing the
bank accounts of petitioner Muktaben is in clear violation of
mandatory requirement of law and, therefore, the accounts of
Muktaben seized/debit-freezed on the request of the IO are directed to
be de-freezed, subject to the condition that before de-freezing the
accounts of the petitioner, the petitioner and the co-account holder,
Piyush Bhai Thakkar, both shall execute bonds before the trial court
thereby undertaking to produce amount in the Court, as and when
required by the Court and also to the extent that if any such order is
made by the Court regarding disposal of the same, the same shall be
complied with jointly and severally by them.

41. The petition is accordingly allowed and disposed of in the
above terms. Pending application is also disposed of.

CHANDER SHEKHAR, J.

NOVEMBER 29, 2019
tp

Crl.M.C.4206/2018 Page 24 of 24

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