The freezing of bank accounts under Section 102 Cr.P.C. is valid despite the existence of specific provisions in the Criminal Law Amendment Act, and failure to report the seizure does not invalidate it.

JUDGMENT :

C. JAYACHANDRAN, J.

1. The petitioner herein is the 3rd accused in Crime No. VC/02/18/CRE of the Vigilance and Anti Corruption Bureau, Central Range, Ernakulam. She is aggrieved by the freezing of Exts P5 and P6 bank accounts in her name, pursuant to Exts P1 and P2 requests made by the Deputy Superintendent of Police, attached to the 4th respondent VACB. The specific ground raised is the non-adherence to the provisions of the Criminal Law Amendment Act, 1944 to freeze/attach the bank accounts of the petitioner. It is also urged that recourse to any of the provisions of the Code of Criminal Procedure is also not made. Another contention urged is that the accounts has been freezed without any enabling orders from a judicial authority. The seriousness of the issues involved impelled this Court to appoint an amicus curiae. Accordingly, Sri. John S. Ralph was appointed as the amicus.

2. Heard the learned amicus; learned counsel for the petitioner; learned Special Public Prosecutor (CBI); the learned counsel for the 2nd respondent Bar Council and learned counsel for the 3rd respondent, Dhanlaxmi Bank.

3. Before addressing the specific issues which have surfaced for consideration, it is noticed that the offences alleged in the subject crime bearing F.I.R No. RC0342022A0001 of the Special Court-I (CBI), Ernakulam are under Sections 109, 120B, 409, 420 and 477A of the Indian Penal Code, read with Sections 13(2) and 13(1)(c) and (d) of the Prevention of Corruption Act. There are 9 accused altogether, of whom the petitioner is the wife of the 1st accused. The gist of the prosecution allegation is that, the 1st accused (petitioner’s husband), while working as the Accountant of the Kerala Bar Council, had misappropriated money to the tune of Rs. 7.6 Crores from the Kerala Bar Council Welfare fund during the period from 2007 to 2017. According to the prosecution, the petitioner had conspired with and abetted the commission of the crime, by siphoning off the amount misappropriated through two of her bank accounts, maintained with the 3rd respondent Dhanlaxmi Bank, to the extent of Rs. 96 lakhs, approximately.

4. Arguments advanced by the learned amicus:

The first point mooted by the learned amicus is that, when there exists a specific provision under the Criminal Law Amendment Ordinance, 1944 for attachment of properties involved in a crime, recourse to freeze the account, purportedly under Section 102 of the Code of Criminal Procedure, is illegal. Learned amicus would elaborate that, by virtue of Section 18 A of the Prevention of Corruption Act, the Criminal Law Amendment Ordinance, 1944 has been made applicable to an offence committed under the said Act; and by virtue of Section 5(6) of the Act, the special Judge is empowered to exercise the powers and functions of a District Judge under the Criminal Law Amendment Ordinance, 1944. According to the learned amicus, the Prevention of Corruption Act is a complete Code; and so is the Ordinance of the year 1944, as regards the procedure for attachment. That being the situation, recourse to Section 102 Cr.P.C. when there exists a special provision in the 1944 Ordinance, as made applicable to the offences under the Prevention of Corruption Act - is illegal. Learned amicus would also submit that, under the 1944 Ordinance, a person aggrieved by the attachment has more protection, since it mandates a judicial Order, coupled with an opportunity of hearing and also to adduce evidence. No such safeguard is available with respect to a seizure under Section 102 of the Cr.P.C. It was specifically pointed out that the impugned order freezing the bank accounts was passed on 13.12.2017, a date before Section 18A was inserted to the Prevention of Corruption Act. According to the learned counsel, even in the absence of Section 10A, the 1944 Ordinance, which was in force, ought to have been followed. The decision of the Hon’ble Supreme Court in State of Maharashtra v. Tapas D. Neogy, (1999) 7 SCC 685 was so