SHENTO VARGHESE v. JULFIKAR HUSEN

The facts in the instant case, which we shall advert to later below, have given rise to following question of law:

What is the implication of non-reporting of the seizure forthwith to the jurisdictional Magistrate as provided under Section 102(3) Cr.P.C.?

more specifically;

Does delayed reporting of the seizure to the Magistrate vitiate the seizure order altogether?

That is the question which needs to be answered in these appeals.

3. Our research indicates that there is no authoritative pronouncement of this Court on this issue. If we turn to the pronouncements of the High Courts, there are decisions¹which have directly confronted this question. Having reviewed these decisions, we find that, broadly, there are two prevailing strands of thought: one set of cases holding that delayed reporting to the Magistrate would, ipso facto, vitiate the seizure order; and the other view being that delayed reporting would constitute a mere irregularity and would not vitiate the seizure order.

4. The former view has been justified on the grounds that:

(a) the obligation [u/S 102(3) Cr.P.C.] to report the seizure forthwith to the Magistrate is mandatory and non-negotiable, breach of which would qualify as an illegality in following the prescribed statutory procedure²;

(b) the employment of the word 'shall' in Section 102(3) makes it clear that non-compliance of the mandatory requirement to report forthwith to the Magistrate goes to the root of the matter³;

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(c) the power to seize has been subjected to procedural requirements prescribed under Section 102(3) - and breach of complying with follow-up procedures would render the exercise of the main power to be without authority and jurisdiction - in that sense, the requirement to report is in the nature of a condition subsequent clause.⁴

5. The latter view has been sustained on the reasoning that:

a) The statutory provision provides no express consequence(s) for non-compliance and therefore, the procedural requirement is merely directory and not mandatory⁵;

b) The power to seize property connected with a crime is plenary and the obligation to intimate is a mere incidental exercise of power - breach of the latter cannot affect the former⁶;

c) the object of reporting is to facilitate disposal of property seized - prejudice caused by delayed reporting, if any, can always be demonstrated at the trial⁷;

d) Neither is there any obligation to seek prior leave before exercising the power to seize nor is there any statutorily provided consequence for non-compliance of the reporting obligation⁸;

e) No prejudice would be caused to the owner of a property by non-reporting of seizure to the concerned Magistrate during the investigation phase.

Therefore, it cannot be a case of illegality but such an omission may only be an irregularity.⁹

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6. In light of conflicting precedents operating across various High Courts, we find it expedient and necessary to settle the conflict and bring in uniformity in adjudication.

LEGISLATIVE HISTORY - A COMPARATIVE ANALYSIS

10 Hereinafter referred to as "1882 Code".

11 Hereinafter referred to as "1898 Code".

12 Hereinafter referred to as "1973 Code".

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7. The responsibility of the police officer to promptly inform the Magistrate about the seizure can be historically traced to the 1882 Code. Oddly enough, this provision was absent in the 1898 Code. In the 1898 Code, however, it was provided that if the seizing officer was below the rank of an officer-in charge of a police station, then such officer was under a duty to give information to his superior regarding the seized property. It appears that the provision as it existed in the 1898 Code was retained as is in the

13 Hereinafter referred to as the "2023 Code".

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1973 Code. Sub-section (3) to Section 102 was inserted by way of an amendment only in the year 1978. This amendment reintroduced the reporting obligations of police officer to the Magistrate, as it originally existed in the 1882 Code. It also empowered the seizing officer to give custody of the seized property to any person, on such person executing a bond undertaking to produce the property before the Court as and when required. There was no provision in the 1973 Code nor the 1898 Code till the insertion of sub-section (3) by an amendment in 1978, empowering the police to take a bond from a person undertaking to produce the property entrusted to him by the police later on before the Court. The law as it existed then was that the bond could be entered before the Court but not in favour of the police. While setting aside the order of forfeiture in regard to the bond in favour of the police, this Court in Anwar Ahmad v State of UP¹⁴, pointed out the lacuna in the 1973 Code and suggested the insertion of a suitable provision. That is why this sub-section (3) empowering the police to execute the bond under certain conditionalities came to be inserted by way of the 1978 Amendment. For the sake of completeness, it may be observed that Section 102 Cr.P.C. in its present form has been retained as is in the 2023 Code, which is scheduled to come into force on 1^stJuly 2024 and replace the 1973 Code.

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8. The Notes on Clauses appended to the 1978 Bill had set out the following reasons for inserting sub section (3) to Section 102 Cr.P.C.:

"Clause 10- Section 102 is being amended (1) to provide that the police officer shall forthwith report the seizure of any property under sub-section (1) to the Magistrate, as there is a lacuna in the Law and (2) to give effect to the observations of the Supreme Court made in Anwar Ahmad vs. the State of U.P. (AIR 1976 SC 680) that the police should be given the power to get a bond from the person to whom the property seized is entrusted, particularly in cases where a bulky property like elephant or car, is seized and the Magistrate is living at a great distance and it is difficult to produce the property seized before the Magistrate."

9. The reason cited for inserting the amendment was to overcome a 'lacuna' in the law. What could have been the lacuna in the law that impelled the insertion of this amendment?

10. In our view, the answer to this question can be derived by referring to the provisions in Chapter XXXIV of the 1973 Code which is titled as 'Disposal of Property'. Section 457 Cr.P.C. sets out the procedure to be followed by police upon seizure of the property. Sub section (1) begin with the words: 'Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial…..". Similarly, we may refer to Section 459 Cr.P.C. which empowers the Magistrate with the power to auction/sell seized property in certain situations. It begins with the words: 'If the person entitled to the possession

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of such property is unknown or absent and the property is subject to speedy and natural decay, or if the Magistrate to whom its seizure is reported is of opinion that……".

11. Both, Section 457 Cr.P.C. and Section 459 Cr.P.C. contemplates the act of seizure by police to be reported to the Magistrate so that necessary steps could be taken for its custody and disposal. However, the provision [Section 102(1) Cr.P.C.] which conferred substantive power on the police to seize property linked to a crime, did not impose on such officers a consequent duty to report the seizures made to the Magistrate. Section 523 in the 1882 Code had coupled the power to seize property linked to the crime and the duty to report forthwith the seizure to the Magistrate in the same provision. Since the relevant provisions in the 1898 Code and the 1973 Code provided only for the substantive power to seize and did not impose any duty on such seizing officer to report to the Magistrate, there arose a need for amendment. That appears to us to be the lacuna in the law which was sought to be overcome. In fact, there are several decisions which indicate that the purpose of reporting to the Magistrate is to ensure an order of the disposal of the seized property either on superdari, or otherwise, during the pendency of the case/investigations under Section 457 Cr.P.C. This further reinforces our view regarding the lacuna which was sought to be fixed. Therefore, the

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main object underlying the amendment appears to be a mere gap-filling exercise and an attempt to fix a basic omission in legislative drafting.

12. It is in this background that we must consider whether 'seizure orders' can be set at naught for non-compliance with the procedural formality of reporting such seizure forthwith to the Magistrate.

13. This requires us to consider whether validity of the seizure order is contingent on compliance with the reporting obligation? In our view, the validity of the power exercised under Section 102(1) Cr.P.C. is not dependent on the compliance with the duty prescribed on the police officer under Section 102(3) Cr.P.C. The validity of the exercise of power under Section 102(1) Cr.P.C. can be questioned either on jurisdictional grounds or on the merits of the matter. That is to say, the order of seizure can be challenged on the ground that the seizing officer lacked jurisdiction¹⁵to act under Section 102(1) Cr.P.C. or that the seized item does not satisfy the definition of 'property'¹⁶or on the ground that the property which was seized could not have given rise to suspicion concerning the commission of a crime, in order for the authorities to justify the seizure.¹⁷The pre-requisite for exercising powers under Section 102(1) is the existence of a direct link between the tainted property and the alleged offence. It is essential that the

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properties sought to be seized under Section 102(1) of the Cr.P.C. must have a direct or close link with the commission of offence in question.¹⁸

14. As stated hereinbefore, the obligation to report the seizure to the Magistrate is neither a jurisdictional pre-requisite for exercising the power to seize nor is the exercise of such power made subject to compliance with the reporting obligation. Contrast this with Section 105E Cr.P.C., 1973 which provides for similar power of seizure and attachment of property. While Section 105E(1) confers the substantive power to make seizure under circumstances provided in that section, sub-section (2) of Section 105E declares that the order passed under Section 105E(1) 'shall have no effect unless the said order is confirmed by an order of the said Court, within a period of thirty days of its being made'. In that sense, the order of seizure, for it to take effect and have legal force, is subjected to a further statutory requirement of the seizure order being confirmed by an order of Court. It is only upon passing of the confirmation order within the stipulated period does the order of seizure take effect. Until then, it remains an order in form but without having any legal force.

15. We find that there are certain other provisions¹⁹in the 1973 Code which place similar obligation(s) on the police officer to report their actions

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to the jurisdictional Magistrate. For example, Section 157 Cr.P.C. provides that 'if, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence……he shall forthwith send a report of the same to a Magistrate'. As in the case of Section 102(3) Cr.P.C., Section 157 Cr.P.C. does not provide for any consequence in the event there is failure to promptly comply with the reporting obligation. It would be helpful to understand how this Court has elucidated on the effect of such non-compliance in the context of Section

157 Cr.P.C. since the provision is nearly pari materia with Section 102(3).

16. It is now too well settled that delay in registration of FIR is no ground for quashing of the FIR itself.²⁰It follows as a corollary that if delay in registration of FIR is no ground to quash the FIR, then delay in forwarding such FIR to the Magistrate can also afford no ground for nullification of the FIR. In fact, this Court has gone to the extent of holding that unless serious prejudice is demonstrated to have been suffered as against the accused, mere delay in sending the FIR to the Magistrate by itself will not have any deteriorating effect on the case of the prosecution.²¹If prejudice is demonstrated and the prosecution fails to explain the delay, then, at best, the effect of such delay would only be to render the date and time of lodging the

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FIR suspect and nothing more.²²Drawing from this analogy, the delay in reporting the seizure to the Magistrate may, subject to proof of prejudice, at best, dent the veracity of the prosecution case vis-à-vis the date, time and occasion for seizure of the property. Since the proof of prejudice on part of the accused and the explanation for delay on part of the prosecution can only be demonstrated at trial, the effect of non-compliance becomes an issue to be adjudicated at the time of appreciation of evidence. Moreover, this Court has consistently held that even illegalities in the investigation (including illegality in search and seizures) is no ground for setting aside the investigation in toto²³.

17. In the background of the aforesaid discussion, therefore, the line of precedents which have taken the position that 'seizure orders' are vitiated for delay in compliance with the reporting obligation are declared to be manifestly erroneous and are accordingly, overruled. The relevant question to be determined was not whether the duty of the police to report the seizure to the Magistrate is mandatory or directory. Instead, what ought to have been inquired into was whether the exercise of the seizure power was subjected to compliance of reporting obligation, as illustrated in Section 105E Cr.P.C.

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18. Merely because we have held that non reporting of the seizure forthwith by the police officer to the jurisdictional court would not vitiate the seizure order, it would not mean that there would be no consequence whatsoever as regards the police officer, upon whom the law has enjoined a duty to act in a certain way. Since there is an obligation cast on the officer to report the seizure forthwith, it becomes necessary to understand the meaning of the expression forthwith as used in Section 102(3) CrPC. For, without a clear understanding of the said expression, the Magistrate would not be in a position to determine whether the obligation cast on the police officer has been properly complied with. In this background, the expression

'shall forthwith report the seizure to the Magistrate' occurring in sub- section (3) of the Section 102 requires to be examined.

19. The meaning of the word 'forthwith' as used in Section 102(3) has not received judicial construction by this Court. However, this Court has examined the scope and contours of this expression as it was used under the Maintenance of Internal Security Act, 1971; Preventive Detention Act, 1950; Section 157(1) of the Cr.P.C.; and Gujarat Prevention of Anti-Social Activities Act, 1985 in the case of Sk. Salim v. State of West Bengal²⁴, Alla

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China Apparao and Others v. State of Andhra Pradesh²⁵ and Navalshankar Ishwarlal Dave v. State of Gujarat²⁶.

20. This Court, in Rao Mahmood Ahmad Khan v. Ranbir Singh²⁷, has held that the word 'forthwith' is synonymous with the word immediately, which means with all reasonable quickness. When a statute requires something to be done 'forthwith' or 'immediately' or even 'instantly', it should probably be understood as allowing a reasonable time for doing it²⁸.

21. The expression 'forthwith' has been defined in Black's Law Dictionary, 10th Edition as under:

"forthwith, adv. (14c) 1. Immediately; without delay. 2. Directly; promptly; within a reasonable time under the circumstances; with all convenient dispatch"

Wharton's Law Lexicon, 17^thEdition describes 'forthwith' as extracted:

Forthwith, When a defendant is ordered to plead forthwith, he must plead within twenty four hours. When a statute or rule of Court requires an act to be done 'forthwith', it means that the act is to be done within a reasonable time having regard to the object of the provision and the circumstances of the case [Ex parte Lamb, (1881) 19 Ch D 169; 2 Chit. Arch. Prac., 14^th Edition]

22. From the discussion made above, it would emerge that the expression 'forthwith' means 'as soon as may be', 'with reasonable speed and

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expedition', 'with a sense of urgency', and 'without any unnecessary delay'. In other words, it would mean as soon as possible, judged in the context of the object sought to be achieved or accomplished.

23. We are of the considered view that the said expression must receive a reasonable construction and in giving such construction, regard must be had to the nature of the act or thing to be performed and the prevailing circumstances of the case. When it is not the mandate of the law that the act should be done within a fixed time, it would mean that the act must be done within a reasonable time. It all depends upon the circumstances that may unfold in a given case and there cannot be a straight-jacket formula prescribed in this regard. In that sense, the interpretation of the word 'forthwith' would depend upon the terrain in which it travels and would take its colour depending upon the prevailing circumstances which can be variable.

24. Therefore, in deciding whether the police officer has properly discharged his obligation under Section 102(3) Cr.P.C., the Magistrate would have to, firstly, examine whether the seizure was reported forthwith. In doing so, it ought to have regard to the interpretation of the expression, 'forthwith' as discussed above. If it finds that the report was not sent forthwith, then it must examine whether there is any explanation offered in support of the delay.

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If the Magistrate finds that the delay has been properly explained, it would leave the matter at that. However, if it finds that there is no reasonable explanation for the delay or that the official has acted with deliberate disregard/ wanton negligence, then it may direct for appropriate departmental action to be initiated against such erring official. We once again reiterate that the act of seizure would not get vitiated by virtue of such delay, as discussed in detail herein above.

25. Having clarified the applicable legal position above, we now proceed to consider the facts in instant case.

26. The Respondents-accused is said to have placed an order for purchase of forty-seven Kerala Model Gold Chains from the Appellant-first informant, who worked as a deliveryman in a company called 'PR Gold'. In consideration for the supply of gold chains, the Respondents had agreed to provide gold bars of equivalent value. The allegations in the complaint suggest that the exchange took place on 20.12.2022. Shortly thereafter, the Appellant learns that gold bars handed over to him were fake. On this basis, the Appellant approached the police and lodged the first information report. On registration of the first information report, the police initiated investigation and during such investigation, it was noticed that certain monies to the tune of Rs.19,83,036/- were deposited in the bank accounts of Accused 1 and 3. On 09.01.2023, the investigating officer wrote to the bank

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and ordered for freezing of their bank accounts. The order of freezing was reported to the Magistrate on 27.01.2023. The Respondents had unsuccessfully approached²⁹the jurisdictional Magistrate for taking custody of the seized bank accounts. The Respondents then approached the High Court by filing an original petition under Section 482 Cr.P.C. and sought for de-freezing of the bank accounts. The High Court vide the impugned order has allowed the application of the Respondents-accused for de-freezing of the bank accounts, and therefore set at naught the seizure order on the sole ground that the order of seizure was not forthwith reported to the Magistrate.

27. The reasoning adopted by the High Court cannot be sustained in the light of aforestated discussion. This takes us to the consequential question, namely, whether at this distance of time, we ought to direct freezing of the bank accounts afresh? The answer has to be in the negative, since undisputedly by virtue of the impugned order, the bank accounts of the respondents has been defreezed and resultantly, the Respondents would have operated the accounts and amount of Rs.19,83,036/- which had been frozen would have been withdrawn. The ends of justice would be met and the interest of prosecution would be served if the Respondents are called upon, forthwith, to execute a bond undertaking to deposit the amount (which has been thus far withdrawn from the seized bank accounts) before the jurisdictional Court in

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the event the Court were to return a finding of guilt against the accused persons. The Respondents would have to undertake to deposit the amount within four weeks from the date on which the Court passes an order of conviction. It is needless to say that the bond executed would stand discharged if the accused persons are acquitted at the end of trial.

28. With these observations, appeals are allowed in part.

ANNEXURE 'A'

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9. R. Chandrasekar v. Inspector of 2003 Criminal Law Madras HC Police, Salem Journal 294

10. Lathifa Vs. State of Karnataka 2012 Cri. L.J. 3487 Karnataka High Court

11. B. Ranganathan v. State and Ors 2003 Crl.L.J 2779 Madras HC

12. Shashikant D. Karnik Vs. The State II(2007)BC337 Bombay HC of Maharashtra

13. Karthika Agencies Export House vs W.P.No.17953 of 2021 Madras High The Commissioner of Police Court

14. S. Ganapathi v. State and Ors. Crl.O.P.No.800 of 2014 Madras HC

15. R. Sivaraj Vs. State of Tamil Nadu Criminal O.P.Nos.576 Madras HC and 577 of 2013

16. Shri. Vilas S/o. Prabhakar Dange Criminal Writ Petition Bombay HC Vs. State of Maharashtra No. 1033/2017

17. Purbanchal Road Service, Gauhati 1991CRILJ2798 Gauhati High VS State Court

18. S. T. Cleopatra VS Commissioner W.P.No.17953 of 2021 Madras HC of Police, Chennai City, Vepery,

Chennai

19. Kiruthika v. State rep. by Crl.O.P.No.14733 of Madras HC Inspector of Police and another 2021

20. Dr.Shashikant D. Karnik Vs. State 2008 CRL.L.J. 148 Bombay HC Of Maharashtra

21. Ali Trading and Anr v The State of WA 296/2019 Gauhati HC Assam

22. 2B. Kavitha v. Inspector of Police & Crl.OP. NO. 14824/2019 Madras HC 4ors

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CASES WHERE THE COURT HAS HELD THE REPORTING

CONDITIONS ARE DIRECTORY AND NOT ILLEGAL

23. Dattasai (Kisan Seva Kendra) VS 2022 6 ALD 702 Telangana State of Telangana HC

24. M/S SJS Gold Pvt. Ltd. Thru. Criminal Misc. Writ Allahabad Director Sunil Jaihind Salunkhe & Petition No. - 3511 Of High Court Anr V. State of UP 2022

25. Amit Singh v. State of U.P. And Criminal Misc. Writ Allahabad Anr. Petition No. - 11201 Of High Court

202

26. Ruqaya Akhter Vs Ut Through CRM(M) No.223/2022 The Jammu Crime Branch & Kashmir

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….…………………………….J.

(Pamidighantam Sri Narasimha)

…….………………………….J.

(Aravind Kumar)

New Delhi,

May 13, 2024

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