Writ petitions challenging bank account freezing under Section 106 BNSS not maintainable; approach Magistrate under Section 503 BNSS.

JUDGMENT :

M.A. ABDUL HAKHIM, J.

1. Since same reliefs are sought in both these Writ Petitions, these Writ Petitions are disposed of by a common judgment.

2. The Petitioner in W.P.(C) No.28966/2025 is the son of the Petitioner in W.P.(C) No.28204/2025. The prayers in these Writ Petitions are to quash Exts.P1 Communications passed by the Respondent No.2 in V.C.No.09/2025/EKM directing the Respondent No.3 to freeze the bank accounts of the Petitioners mentioned in Exts.P1, to issue a Writ of Mandamus commanding the Respondent No.3 to remove the freeze on the bank accounts of the Petitioners and allow them to use the accounts and to declare that the Bank has no right to freeze the accounts of the Petitioners otherwise than provided under Section 106 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Ext.P1 in W.P.(C) No.28204/2025 is dated 24.05.2025 and Ext.P1 in W.P.(C) No.28966/2025 is dated 22.05.2025. The allegation in Exts.P1 in both the Writ Petitions is that during the course of investigation in the said Vigilance Crime, it has come to light that the bank accounts of the Petitioners are suspected to be involved in the commission of the offence; that the action is taken to prevent the dissipation of suspected proceeds of crime and to aid in the ongoing investigation.

3. In both the Writ Petitions, the Respondent No.2 has filed Statements opposing the prayers in the Writ Petitions.

4. I heard the learned Senior Counsel for the Petitioners, Sri.Sasthamangalam S. Ajith Kumar, instructed by Advocate Sri. Sreejith S. Nair, and the learned Special Government Pleader, Sri. P. Narayanan.

5. The learned Senior Counsel for the Petitioners submitted that in order to invoke Section 106 BNSS, the Police Officer must have a suspicion that the property sought to be seized is involved in the commission of any offence. In the V.C.No.09/2025/EKM registered under Section 7(a) of the Prevention of Corruption Act, 1988, r/w Section 61(2) of the Bharatiya Nyaya Sanhita, 2023, the Petitioner in W.P.(C)No.28204/2025 is made an accused as Accused No.3 on the allegation that he approached the de facto complainant therein and attempted to act as a broker in the deal to give a bribe to the Accused No.1 in the said Crime, who is the Assistant Director of the Enforcement Directorate of Kochi. Though the said Petitioner was arrested on 16.05.2025, he was granted bail by the Special Judge, Muvattupuzha, as per Ext.P3 Order dated 22.05.2025. Though the said Petitioner submitted Ext.P4 request to unfreeze the account to the Respondent No.2, the Respondent No.2 issued Ext.P5 reply refusing to unfreeze the account of the said Petitioner. The Petitioner in W.P.(C) No.28966/2025 is not an accused in the said Crime and there is no allegation against the said Petitioner. The learned Senior Counsel cited the decision of the Hon'ble Supreme Court in  M.T. Enrica Lexie v. Doramma, (2012) 6 SCC 760, in which it is held that the property alleged to have been stolen or suspected to have been obtained after the commission of the crime and the object of the power to freeze the bank account is to ensure the preservation of the proceeds of crime to prevent it from being laundered to safer places and that a property not suspected of commission of the offence which is being investigated into by the Police Officer cannot be seized. There is no allegation in the case at hand to connect the bank accounts of the Petitioner with the Crime. There could not be any suspicion with respect to those accounts. Even about one year after registration of the Crime and seizure of those accounts, the Respondent No.2 could not bring out anything in the investigation to have any sort of suspicion with respect to those accounts. At any rate,