The Allahabad High Court observed that non-reporting of seizure of a bank account (seized by police under Section 102 Criminal Procedure Code) forthwith to the magistrate concerned doesn't render such seizure ipso facto illegal.
For the uninitiated, Section 102 of CrPC provides for the power of police officers to seize certain property. As per subsection (1) of Section 102 CrPC, any police officer, may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances that create suspicion of commission of an offence.
The Court also relied upon Amit Singh v. State of U.P. and others, wherein while observing that Section 102 (3) Cr.P.C. is not mandatory, but directory, the Coordinate Bench of this Court dismissed the writ petition. It was also observed that non-reporting of the seizure forthwith, as provided under Section 102 (3) Cr.P.C., shall not ipso facto render the seizure illegal particularly as no period is specified and its consequences have not been specified.
It was observed in the aforementioned decision that -
“The Hon'ble Supreme Court, in the case of Nasiruddin and Others V. Sita Ram Agarwal; has held that it is well settled that the real intention of the legislation must be gathered from the language used. It may be true that the use of the expression ''shall or may' is not decisive for arriving at a finding as to whether statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character. It has further been held that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time frame, the same will be held to be directory unless the consequences, therefore, are specified.”
“The consequences of non-reporting about the seized property have 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 have not been specified, it would be safe to hold that requirement of Section 102(3) Cr.P.C. cannot be termed as mandatory but would be directory in nature.”
The petition was therefore rejected by the Court.