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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW
Ajai Kumar Srivastava-I, Sangeeta Chandra, JJ.
M/S Brijwasi Sarraf Thru. Its Prop. Namely Sanjeev Kumar Agarwal - Petitioner
Vs.
Union Of India Thru. Secy. Ministry Home Affairs Deptt. Cabinet Secrt. New Delhi And Others - Respondent
Criminal Misc. Writ Petition No. - 7850 of 2023
Decided On : 31-01-2024
Seizure - Freezing of Bank Account - Section 102 Cr.P.C. - 102(3) Cr.P.C. - 451, 457 Cr.P.C. - Summary of Acts and Sections: Section 102 Cr.P.C., Section 102(3) Cr.P.C., Section 451 Cr.P.C., Section 457 Cr.P.C.
Fact of the Case:
The petitioner filed a writ petition seeking to quash the order directing the freezing of their bank account and to allow them to operate the account. The petitioner argued that the seizure made by the Investigating Officer was not reported to the Magistrate having jurisdiction, rendering the seizure unsustainable. The State argued that Section 102(3) Cr.P.C. is not mandatory and the petitioner has statutory remedies under Sections 451 to 457 Cr.P.C.
Finding of the Court:
The court found that the petitioner should have approached the jurisdictional Magistrate seeking appropriate remedy in respect of the property seized. The court held that the present writ petition is not maintainable and lacks merit.
Issues: The issues revolved around the legality of the freezing of the bank account without reporting the seizure to the Magistrate, and the availability of alternative statutory remedies under Sections 451 to 457 Cr.P.C.
Ratio Decidendi: The court emphasized that the petitioner should have sought appropriate remedy in respect of the seized property from the jurisdictional Magistrate. The court also highlighted the availability of alternative statutory remedies under Sections 451 to 457 Cr.P.C. The court concluded that the present writ petition is not maintainable when an alternative remedy is available.
Final Decision: The petition was found to lack merit and was accordingly finally disposed of, leaving it open to the petitioner to avail appropriate remedy as may be available to them in accordance with the law. Any interim order was discharged.
The legal provision in question is Section 451 of the Criminal Procedure Code (Cr.P.C.), which pertains to the procedure for handling property that has been seized by authorities. It grants the Magistrate the authority to make orders regarding the disposal or custody of such property if it is not produced before a court during inquiry or trial. The section also provides that if the person entitled to the property is known, the Magistrate may order its delivery under certain conditions, and if the person is unknown, the Magistrate may detain it and issue a proclamation to establish claims.
In the context of the case, the court emphasized that when property, including a bank account, is seized, the affected party has an effective remedy under Section 457 of Cr.P.C., which allows for the application for interim custody of the seized property. The section provides a mechanism for the person entitled to the property to seek its return or appropriate custody during the investigation or trial process.
The court clarified that the act of freezing a bank account under Section 102 Cr.P.C. is a temporary investigative measure and does not amount to a deprivation of property rights. It is meant to preserve evidence and prevent the dissemination or depletion of suspected property during investigation. Since Section 451 and 457 Cr.P.C. provide a statutory remedy for the affected person to seek custody or release of the property, the petitioner could have availed of these remedies instead of filing a writ petition.
Therefore, if a person’s bank account or property is seized or frozen, their appropriate course of action is to approach the Magistrate under Sections 451 or 457 Cr.P.C. to seek relief. The availability of these remedies renders the writ petition not maintainable when such statutory remedies are accessible and adequate. The court ultimately disposed of the petition, noting that it lacked merit and leaving the petitioner free to pursue the statutory remedies available under the law.
JUDGMENT :
Sangeeta Chandra, Ajai Kumar Srivastava-I, JJ.
1. Heard learned counsel for the petitioner, Sri Amit Jaiswal, learned counsel for the opposite party no.10, Learned A.G.A. for the State Respondents and Sri Sudhir Kumar, Advocate, who has appeared and filed his vakalatnama on behalf of the opposite party no. 11 in the Registry yesterday.
2. The instant writ petition has been filed by the petitioner with the following main reliefs:-
(ii). Issue a Writ, Order or Direction in the nature of mandamus directing the opposite parties no. 9 to de-freeze the current account 407010200000347; IFSC Code IFSC-UTIB0000407 existed in Branch Hawett Road, Lucknow in the Axis Bank Ltd. of the petitioner's firm and the petitioner may be allowed to operate the account as earlier he was able to operate.
(iii). Issue a Writ, Order or Direction in the nature of mandamus commanding opposite parties specifically opposite party no. 10 i.e. Branch Manager, Axis Bank Ltd., Branch Hawett Road Shivaji Marg, 226001, Lucknow, that he may not permit to the opposite parties no. 5 to 9 to deduct any amount from the current account the current account 407010200000347; IFSC Code IFSC- UTIB0000407 existed in Branch Hawett Road, Lucknow in the Axis Bank Ltd. of the petitioner's firm, in any manner, during pendency of the present writ petition.
3. It is submitted by learned counsel the petitioner that seizure made by the Investigating Officer in these cases have not been reported to the Magistrate having jurisdiction, therefore, due to non-compliance of provisions contained under Section 102 (3) of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.) such seizure is not sustainable in the eye of law. His further submission is that freezing of account of the petitioner amounts to deprivation of his right to property as the money in his account belongs to the petitioner.
4. Per contra, learned Additional Government Advocate argued that the question as to whether Section 102 (3) Cr.P.C. is mandatory or directory, is no more resintegra, has already been decided by a Co-ordinate Bench of this Court at Allahabad in Amit Singh v. State of U.P., 2022 SCC OnLine All 1254 that Section 102 (3) Cr.P.C. is not mandatory but it is directory. 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 it's consequences have not been provided. He has also submitted that the petitioner has a statutory remedy as provided under Sections 451 to 457 Cr.P.C. against any seizure made under Section 102 Cr.P.C. Therefore, he prays that the instant writ petition is also liable to be dismissed.
5. An affidavit of service filed today by Sri Vinod Kumar Singh, learned counsel for the petitioner, is taken on record.
6. Learned A.G.A. for the State has produced before this Court written instructions sent by the Sub-Inspector of Police, Cyber Crime Cell Police, Police Station- Amroli, District- Surat City, Gujarat and also from Cyber Police Station, Pune, Maharashtra.
7. Sri S.P. Singh, learned A.G.A. for the State has stated on the basis of said instructions that one Amarnath Awasthi was running a company by the name of Gravity Solutions which had falsely promised the investors of earning 20 to 30 percent profit on invested amount. The investigation has revealed that Rs. 6,01,000/- were transferred online from Yes Bank Account No. 001885800006111 of the accused Amarnath Awasthi to HDFC Bank Account No. 50200026791298 of Messers Jugal Kishore, The Jewellers, Eldeco Green, Gomti Nagar, Lucknow. The investigation has further revealed that out of the am
The main legal point established in the judgment is that when an alternative statutory remedy is available, a writ petition may not be maintainable. The court emphasized the importance of seeking app....
The court established that a bank account can be frozen under suspicion of criminal activity, and failure to report the freeze to the Magistrate does not invalidate the action.
The main legal point established in the judgment is that the procedure for freezing bank accounts under the Unlawful Activities (Prevention) Act, 1967, specifically Section 25, is directory in nature....
The main legal point established in the judgment is the legality of freezing bank accounts under Section 102 Cr.P.C. and the applicability of this provision in the context of the case.
Seizure of assets under S.102 CrPC requires compliance with statutory provisions and cannot be based solely on suspicion.
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