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Padmini v. Inspector Of Police
Factual and Procedural Background
The petitioner is one of the accused in Crime Nos. 7 and 8 of 2007 registered with the first respondent Police. Crime No. 7 of 2007 arose from a complaint by one Muthu Kumar and was registered for offences under Sections 406 and 506(ii) of the Indian Penal Code. During the investigation of both cases, on 5.5.2007 the first respondent communicated with the second and third respondents (two banks) and froze the petitioner’s bank accounts. The petitioner challenged the freezing of his bank accounts by filing this Criminal Original Petition. At the hearing, the petitioner was represented by counsel and the first respondent was represented by the learned Government Advocate (Criminal Side); there was no representation for respondents 2 and 3.
Legal Issues Presented
- Whether the first respondent complied with the mandatory requirements of Section 102 of the Code of Criminal Procedure when freezing the petitioner’s bank accounts (specifically, whether the Police reported forthwith to the Magistrate and gave notice to the petitioner).
- Whether failure to follow the procedure required under Section 102 renders the prohibitory order freezing the bank accounts liable to be quashed.
Arguments of the Parties
Petitioner's Arguments
- The learned counsel for the petitioner contended that Section 102 of the Code of Criminal Procedure mandates that the Police must immediately report the seizure/prohibitory order to the learned Judicial Magistrate having jurisdiction and also give notice to the petitioner; this was not done in the present case.
- The petitioner relied on two judgments of this Court—R. Chandrasekar v. Inspector of Police, Salem and another (2002 (5) CTC 598 : 2003 Cri.L.J 294) and B. Ranganathan v. State and others (2003 Cri.L.J 2779)—to support the submission that non-compliance with Section 102 requires quashing of the police proceedings freezing a bank account.
First Respondent's (Police) Position
- The learned Government Advocate (Criminal Side) for the first respondent conceded that no report was given to the learned Magistrate and no notice was issued to the petitioner as required under Section 102 of the Code of Criminal Procedure.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R. Chandrasekar v. Inspector of Police, Salem and another, 2002 (5) CTC 598 : 2003 Cri.L.J 294 | That the Police must follow the mandatory requirements of Section 102 CrPC: report forthwith to the Magistrate, give notice to the petitioner, and allow operation of the bank account subject to bond/undertaking as contemplated in Clause 3 of Section 102; absence of such notice/prohibitory order service renders the proceeding infirm. | The court relied on this authority to support the proposition that failure to comply with Section 102 warrants quashing of the police proceedings freezing the bank account. |
| B. Ranganathan v. State and others, 2003 Cri.L.J 2779 | That upon seizure of a bank account Police must inform the Magistrate forthwith and give notice to the accused, allowing operation subject to bond/undertaking or hold funds subject to court orders; noncompliance makes the order liable to be set aside. | The court invoked this decision for the same legal proposition that mandatory procedure under Section 102 must be followed and noncompliance results in quashing the order. |
| Ms. Swaran Sabharwal v. Commissioner Of Police, 1988 Cri.L.J 241 (Delhi) | Referenced in the quoted passage as authority for the procedure that must be followed when a bank account is seized (inform Magistrate forthwith; give notice; allow operation subject to undertaking or hold funds). | The court referenced this authority via the earlier judgments noted above to underline the mandatory nature of the procedure; it supported the conclusion that the first respondent's failure justified quashing the order. |
Court's Reasoning and Analysis
The court proceeded from the established factual premise that on 5.5.2007 the first respondent police froze the petitioner’s bank accounts by communications to the banks. The petitioner’s counsel argued that Section 102 CrPC mandates immediate reporting to the Magistrate and service of notice to the accused when a prohibitory order (such as freezing a bank account) is made, and relied on this Court’s earlier decisions. The court recited the relevant holdings from R. Chandrasekar and B. Ranganathan, which emphasize that when a bank account is seized police must inform the Magistrate forthwith and give notice to the accused, permitting operation of the account subject to an undertaking or holding funds subject to court orders; failure to follow this procedure renders the order liable to be quashed. The learned Government Advocate for the Police conceded that no report to the Magistrate and no notice to the petitioner were given as required by Section 102. On that basis, and in light of the cited authorities treating such procedural noncompliance as fatal, the court concluded that the freezing orders could not stand.
Holding and Implications
Holding: The Criminal Original Petition was allowed and the court quashed the proceedings of the first respondent dated 5.5.2007 freezing the petitioner’s bank accounts in the second and third respondents (the banks).
Implications: The direct consequence is that the prohibitory freeze imposed on the petitioner’s bank accounts by the communications of 5.5.2007 is set aside. The court clarified that the order was quashed on a procedural/technical ground and expressly permitted the first respondent to initiate fresh proceedings in future if necessary, provided the mandatory provisions of Section 102 CrPC are followed. The opinion does not purport to lay down any new legal principle beyond applying the existing authorities cited.
1. The petitioner is one of the accused in Crime Nos. 7 and 8 of 2007 on the file of the first respondent Police. On the Complaint of one Muthu Kumar the case in Crime No. 7 of 2007 has been registered for offences under Sections 406 and 506(ii) of the Indian penal Code.
2. During the course of investigation of both the cases, the first respondent by a communication dated 5.5.2007 to the second respondent herein and by another communication dated 5.5.2007 to the third respondent herein, has freezed the Bank Accounts of the petitioner. Challenging the same, the petitioner has come forward with this Criminal Original Petition.
3. Heard the learned counsel for the petitioner and the learned Government Advocate (Criminal Side) for the first respondent and there is no representation for the respondents 2 and 3.
4. The main contention of the learned counsel for the petitioner is that as required under Section 102 of the Code of Criminal Procedure, it is mandatory for the first respondent to give immediate report to the learned Judicial Magistrate having jurisdiction and also to give notice to the petitioner. Since the same has not been done in this case, according to the learned counsel, the proceedings of the first respondent, freezing the Bank Accounts of the petitioner are liable to be quashed.
5. The learned counsel relies on a judgment of this Court in R. Chandrasekar v. Inspector of Police, Salem and another, 2002 (5) CTC 598: 2003 Cri.L.J 294, and another judgment of this Court in B. Ranganathan v. State and others, 2003 Cri.L.J 2779.
6. In the former judgment, a learned Judge of this Court in paragraph 11 has held as follows:
“The respondents/Police has also not followed the mandatory requirements of Section 102 of the Code of Criminal Procedure. The Police Officer shall forthwith report the same to the Magistrate and also give notice to the petitioner and allow him to operate the Bank Account subject to executing a bond undertaking to produce the amount in Court, as and when required as contemplated in Clause 3 of Section 102, but not given any such notice. Even the copy of prohibitory order was not served to the petitioner.”
7. In the latter judgment, a learned Judge in paragraph 21 has held as follows:
“Yet another legal aspect pointed out on the part of the petitioner by his counsel is the procedure that is to be adopted on seizure of Bank Account. In case of seizure of a Bank Account, the Police Officer 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 abond 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. An order under Section 102, without doing so is liable to be set aside, as held in Ms. Swaran Sabharwal v. Commissioner Of Police. of Police, 1988 Cri.L.J 241 (Delhi). This procedure that is to be followed and felt mandatory has also not been followed by the first respondent.”
8. The learned Government Advocate (Criminal Side) would fairly concede that no such report was given to the learned Magistrate as required under Section 102 of the Coe of Criminal Procedure and no notice was also issued to the petitioner. Since it has been well settled by this Court in the above two judgments that in case where such mandatory provision has not been followed, then the entire proceeding is liable to be quashed.
9. In view of the above position, this Criminal Original Petition is allowed and the proceedings of the first respondent dated 5.5.2007 freezing the Bank Accounts of the petitioner in the second and third respondents-Banks are hereby quashed. Since this order quashing the proceedings is passed on a technical ground, I make it clear that if need be in future, the first respondent may initiate fresh proceedings after following the mandatory provisions as indicated above.
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