IMPORTANT POINT
Provisions of Section 102(3) of Cr. P.C. are not mandatory in nature.

JUDGMENT

The petitioner has challenged order dated 24.03.2022 passed by Special Judge, Anti-Corruption, Kashmir, Srinagar, whereby application of the petitioner for defreezing of her bank account has been partly allowed and she has been permitted to operate salary transactions from her account but at the same time the amount that stood to the credit of her bank account on the date of freezing of her account has been allowed to remain frozen.

2. It appears that a preliminary verification was conducted by the respondent relating to fake recruitment orders in respect of 33 candidates as Junior Assistants and Orderlies in the office of Advocate General, Srinagar. After conducting the preliminary verification, the respondent registered FIR No.56/2021 for offences under Section 13(D) of Prevention of Corruption Act read with Sections 420, 467, 468, 471, 120-B of IPC and 66 IT Act and started investigation of the case. During the investigation of the case, the bank statement of account pertaining to main accused Mohammad Yaqoob Bhat was obtained which revealed that an amount of Rs.1.00 crore has been credited into his bank account with effect from 01.01.2018 to 20.07.2021 out of which Rs.48.00 lacs has been credited by the candidates figuring in the fake appointment order. It was also found that an amount of Rs.29.00 lacs has been credited into the said account by certain employee of Advocate General’s office including the petitioner herein who is working as Ward and Watch in the Advocate General’s office at Srinagar. It was also revealed that 20 candidates were introduced to main accused Mohammad Yaqoob Bhat by the petitioner and many other candidates have paid amount in cash to the petitioner and transferred amount into her account No.12966 and account No.9063. It has also been found that an amount of Rs.12.90 lacs has been transferred from the account of petitioner to the account of main accused and that an amount of Rs.4.72 lacs has been retained by her as her share in the illegal transactions. Accordingly, account No.12966 of the petitioner was seized on 10.12.2021 and as on said date, a credit balance in her account was Rs.4,60,818.40/.

3. The petitioner filed an application on 19.02.2022 before the learned Special Judge seeking defreezing of her bank account. It is pertinent to mention here that prior to that, another application was made by the petitioner before the said Court but without any success. The learned trial court after hearing the parties permitted the petitioner to operate the account to the extent of salary transactions whereas a further direction was issued that the amount that was lying in the account of the petitioner at the time of its seizure shall remain frozen.

4. The petitioner has thrown challenge to the aforesaid order, primarily, on the ground that the requirements of Section 102(3) of the Cr. P. C have not been adhered to by the respondent before freezing the account of the petitioner, inasmuch as the matter has not been reported to the concerned Magistrate.

5. I have heard learned counsel for the parties and perused the material on record.

6. There is nothing in the objections filed by the respondent to indicate that the matter regarding freezing of bank account of the petitioner has been at any point in time reported by the respondent to the concerned Magistrate though the petitioner has taken a specific plea in her petition in this regard. The question that falls for consideration is as to what would be the effect of non-furnishing of the report to the concerned Magistrate about the seizure of petitioner’s bank account in the instant case. Before answering this question, it would be apt to refer to the provisions contained in Section 102 of the Cr. P. C. It reads 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 circumstances which create suspi