Section 102 of Cr.P.C
& POWER OF ATTACHMENT OF POLICE
The details mechanism and procedure as regards criminal law are
embodied in Code of Criminal Procedure. The power of Police and Magistracy are
often deliberated and in the event of perceived ambiguity, the same are decided
by courts of law. The power of police, as regards attaching the property of
accused during investigation as per Section 102 of Cr.P.C is another area of
concern and the applicability or misuse of the said power, occasionally, takes
centre stage. The endeavour herein is to go through the finer points and
circumstances of its applicability, inclusive of safeguards, if any.
Before going further the provision of section 102 may be
reproduced 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 suspicion of the commission of any offence.
(2)
Such police officer, if subordinate to the
officer in charge of a police station, shall forthwith report the seizure to
that officer.
(3)
Every
police officer acting under sub- section (1) shall forthwith report the seizure
to the Magistrate having jurisdiction and
where the property seized is such that it cannot be conveniently transported to
the Court,[or where there is difficulty in securing proper accommodation for
the custody of such property, or where
the continued retention of property in police custody may not be considered necessary for the
purpose of investigation], he may give custody thereof to any person on his
executing a bond undertaking to produce the property before the Court as and
when required and to give effect to the further orders of the Court as to the
disposal of the same.]
[Provided that where the
property seized under sub section (1) is subject to speedy and natural decay
and if the person entitled to the possession of such property is unknown or
absent and the value of such property is less than Five Hundred Rupees, it may
forthwith be sold by auction under the orders of the Superintendent of Police
and the provision of section 457 and 458, shall, as nearly as may be
practicable, apply to the net proceeds of the such sale].
As is evident from above, and as per Section 102 (3) of Cr.P.C,
the police after freezing the bank account ought to have sent a seizure report
to the concerned Jurisdictional Magistrate without any delay and if no such
seizure report was filed by the Police forthwith to the concerned
Jurisdictional Magistrate, nor informed the same to the accused, the same shall
not be in conformity with the section.
The Apex Court in plethora of judgments held that freezing of bank
account pending investigation to follow the mandatory conditions, further,
prohibitory order shall be for a very short duration and for a specific period
and the bank accounts cannot be freezed
endlessly. In such a circumstances,
whether a bank account can be de-freezed to
enable accused to continue with banking operations? This is a moot point.
MADRAS HIGH COURT
ON SECTION 102 Cr.P.C
RELATING TO POWER OF ATTACHMENT BY POLICE
The Madras High Court has dealt with the matter in a case
captioned as Kiruthika Vs The State &
Ors bearing no. Crl.O.P.No.14733 of 2021 where in a petition u/s 482 of Cr.P.C, the prayer was made to defreeze
the account at
Axis Bank Limited.
FACTS OF THE CASE
To put in perspective the above case (Kiruthika), initially, a
case was registered in Crime No.11/2021, for the offences under Sections 67,
67A of IT Act, Sections 294(b), 509 of IPC and Section 4 of Indecent Representation of Women Act,
1986. Later on, alteration report was filed and Section 420 of IPC was also included.
The confession of the accused lead to recovery of articles and the same was produced
before the concerned Magistrate without delay.
In the aforesaid case, it was borne out from record that whereas, the
remand report, remand order, bail order, alteration report, letter of the bank and
copy of the notice issued under Sections 91 and 102 of Cr.P.C to the respondent
bank and the letter of the bank to the police to prove the fact that the
respondent police sent a letter to the bank only on 28.06.2021. It was claimed
that there was no proof to show whether the report was sent to the Court.
As per prosecution, the petitioner and her husband had allegedly collected
a fund of Rs.2.89 Crores from Salem District, created two email IDs, and
created two Youtube channels and made
live streaming PUBG gaming videos with obscene commentary and filthy language
against women and teenage subscribers of the said Youtube Channels got offended on the comments, which were made with
an intention to insult and indecently represent women in social media. The
accused received donations through Gpay, Paytm, there are about 2842 victims in
this case. On 22.06.2021, notice under Sections 160 and 91 of Cr.P.C. was sent
to Google India Private Limited and Legal Department requesting to delete the offending
videos. The IP details for these Youtube
Channels furnished by the Google authorities. The IP address provided by the accused
Youtube Channels were accessed by the
petitioner using her ACT Broadband connection at her residence in Chennai and
using her JIO Mobile Network and uploaded 700 videos in Youtube channel and 33 other videos. They allegedly earned a sum of
Rs.35,62,060.58 illegally between 23.01.2020 to 31.05.2021 from Google Company,
USA. The said money was deposited in Axis Bank A/c. No. which is in the name of the
petitioner. Both the accused collected funds of Rs.2,89,59,405/- from hundreds
of their Youtube followers on false
promise of helping poor and needy people whose livelihood are affected and the
money was received in Kotak Mahindra Bank A/c between the period 01.01.2020 to
June 2021. Bulk of the amount was allegedly retained fraudulently, misused for
their personal needs and the money was spent lavishly. The accused bought two
luxury cars, Audi A6 worth Rs.13 lakhs, Audi R8 worth Rs.47 Lakhs, gold jewels worth
Rs.30 from GRT and silver articles worth Rs.26.85 Lakhs from Tanishq Jewellery.
In this case, the fact reveals that investigation was completed in
the meanwhile and charge sheet filed and
the case was taken on file in C.C.No.2946 of 2021 by the learned XI
Metropolitan Magistrate, Saidapet, Chennai. The letter addressed to the Bank
Manager, Axis Bank was intimated to the Court at the time of remanding the
petitioner on 16.06.2021 complied with the mandatory condition under Section
102 Cr.P.C. Further, out of 2842 victims across India, 25 victims could be
contacted, their statements were recorded and filed in the final report. Now in
the bank account of the petitioner, Rs.1,01,32,874.22/- was available, which is
disputed. It is held that the ownership of the said money cannot be decided
without recording of evidence, only on completion of trial proceedings, the
genuineness or otherwise can be decided.
LAW
In Teesta
Atul Setalvad vs. State of Gujarat reported in (2018) 2 SCC 372 it is held by hon’ble Supreme Court that the power of
Investigating Officer, investigating any offence can issue prohibitory orders
in respect of the bank accounts in exercise of power under Section 102 Cr.P.C
cannot be questioned, if the two (2) pre-conditions
for applicability of Section 102(1) Cr.P.C. are complied with. The
pre-conditions are:
(i)
it must be a property,
(ii)
secondly, in respect of the said property, there must be suspicion
of commission of any offence.
On the facts above
submitted, it is clear that the amount lying in the bank account is a case
property.
The case in Crime No.11 of 2021 was registered on 14.06.2021, the
petitioner was arrested on 15.06.2021 and on 16.06.2021, the petitioner was
produced for remand. After her arrest, the petitioner disclosed the business
module, bank transactions and other particulars. The petitioner was the Admin
for the two Youtube Channels, The
transcript of the Youtube channels produced, the particulars of payment
received from the Google Company, the particulars of donations received from
the subscribers in the account in Kotak Mahindra Bank and the statement of
account produced. From the statement of account, it is seen that around
Rs.2,89,59,405/- was transferred to the account of the petitioner in Axis Bank
A/c. but now only Rs.1,01,32,874.22/- was available. The letter dated
15.06.2021 sent by the Senior Manager & Operations Head of concerned branch
Axis Bank, Chennai was produced to the concerned Magistrate during the remand
of the petitioner, as are evident from the Court seal and Magistrate Initial
dated 16.06.2021. The aforesaid letter was sent along with Statement of Account
for A/c. for the period from 01.01.2020 to 31.12.2020 and 01.01.2021 to
14.06.2021 and other relevant documents.
The Apex Court in the case of Teesta Atul Setalvad [supra], held that Section
102 Cr.P.C. does not contemplate issuance of any notice to the account holder,
for the purpose of investigation, no notice to the suspect can be expected
under law. Section 102 Cr.P.C. is an important step towards investigation, in
view of settled legal position, the accused cannot have any say in the
investigation and notice to the suspect is out of question. The intention of
the investigating agency is not required to be revealed to suspect at that
crucial stage, else message of alert would be received by the suspect creating
huge room for manipulation or destruction of evidence. The intention of the investigating
agency is not required to be revealed to suspect at that crucial stage, else
message of alert would be received by the suspect creating huge room for
manipulation or destruction of evidence.
It is held in the case that the seizure/freezing of the account
and its intimation was sent to the Jurisdictional Magistrate immediately on
16.06.2021 during the remand of the petitioner, hence, the mandatory provision
under Section 102(3) Cr.P.C. is complied with. Now, investigation stands completed
and from the list of witnesses, it is seen that various documents clearly state
that they used to play PUBG game videos through the Youtube channel of the accused, they admit of making donations, for
helping the poor people during Covid 19 situation. Further, it is seen that
from the amount received as donation from their subscribers, less than Rs.2 Lakhs
was paid as donation by the accused and with regard to the balance amount, the
accused are to give reasons. Though, it is claimed by the prosecution that 2842
victims across India were cheated and victimized but only 25 victims could be
accessed by the prosecution. The petition (Supra) is therefore dismissed by Madras
High Court. It was however further directed that as regards the freezing of
account of the accused, the prohibitory orders cannot be kept in force
endlessly. As the investigation is completed and charge sheet is filed, it is open to the petitioner to apply
for de-freezing the bank account, if
they give satisfactory explanations to the concerned Magistrate, to show that
freezing of account in its entirety is no more necessary for the purpose of
investigation as provided under Section 102(3) Cr.P.C. Thereafter, it is for
the concerned Court to consider the plea of the accused in accordance with law,
after hearing the petitioner and the respondent police on the facts and
circumstances of the case and thereafter, to pass appropriate orders.
CONCLUSION
Though, the power u/s 102 of Cr.P.C is quite an extra-ordinary
power, available to the police so that such power could be exercised by police
in extra-ordinary situation. It is clearly held in the above cited cases that
there is no mandate to notify the accused about attachment of the case property
during investigation. In fact, if the same is to be done, the very purpose of
effective investigation shall suffer. Therefore, no such rights could be
claimed by the accused. Though, during remand of accused, the Magistrate should
be apprised of the attachment. It is however, made clear by the court that the
attachment and issue of attachment after filing of charge sheet should not be
allowed, endlessly, and if cogent reasons could be shown by the accused, then,
the concerned courts of Magistrate may pass appropriate order of de-freezing
the account and as such issues are held to the domain of trial court,
therefore, the high court shall be loath in passing orders u/s 482 of Cr.P.C,
unless, there are likelihood of miscarriage of justice and such orders are
necessary with a view to secure abuse of process of courts.
--------
Anil K Khaware
Founder & Senior Associate
Societylawandjustice.com
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