Allahabad High Court
Soni Devi vs State Of U.P. & 2 Others on 12 October, 2017
Bench: Sudhir Agarwal, Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 34
Case :- WRIT - C No. - 7473 of 2015
Petitioner :- Soni Devi
Respondent :- State Of U.P. & 2 Others
Counsel for Petitioner :- Satyendra Kumar Mishra
Counsel for Respondent :- C.S.C.,Anadi Krishna Narayana
Hon'ble Sudhir Agarwal,J.
Hon'ble Ajit Kumar,J.
1. Heard Sri Satyendra Kumar Mishra, learned counsel for petitioner, Sri Amit Srivastava, Advocate, holding brief of Sri Anadi Krishan Narayana, Advocate and learned Standing Counsel for respondents.
2. Grievance of petitioner is that she had opened a bank account bearing No. 37830100003500 in her name in respondent-Bank and there she deposited Rs. 3,50,000/- in the form of fixed deposit and maturity period for the same was 444 days. After maturity period was over and petitioner wanted to withdraw money, respondent-Bank refused the same on the ground that account has been freezed. Petitioner, therefore, has come up before this Court for release of money which she had put in a fixed term deposit.
3. In the counter affidavit filed by Bank, stand taken is that bank account of petitioner has been frozen under orders of police dated 06.06.2012 and said letter which is alleged to be an order in purported exercise of power under Section 102 Cr.P.C., has been filed as Annexure No. 1 to counter affidavit.
4. Rival submissions fall for consideration. Before proceeding further in the matter, it is necessary to examine the powers of police in respect of seizure of property as has been conferred upon it by virtue of Section 102 Cr.P.C. 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 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 the 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 provisions of sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale."
5. From bare reading of aforesaid provision, it is clear that a police officer for seizing the property which may be suspected to have been stolen or which may be found under particular circumstances to create suspicion regarding commission of an offence, shall pass an order of seizure of property and after passing order of seizure shall immediately communicate to Magistrate about act of seizure and thereafter, procedure is for Magistrate to further take care of property by issuing appropriate orders.
6. From the perusal of documents which has been filed as Annexure No. 1 to counter affidavit, we do not find any whisper of any order having been passed in exercise of power under Section 102 Cr.P.C. by concerned police officer nor there is any communication thereof to Magistrate concerned. The documents seems to be a simple letter of request not to permit any meddling with account of petitioner during investigation. Thus, there was not even any request for seizure of account.
7. In the case of State of Maharashtra Vs. Tapan D. Neogy [(1999) 7 SCC 685], Supreme Court has held that in case of bank account it can be treated as property and during investigation it can be seized by police by exercising power under Section 102 Cr.P.C. However, Supreme Court has held that for this purpose either police officer shall pass an order of seizure or shall issue a direction to Bank to prohibit operation of account. Thus, it is clear that police officer during investigation can pass an order for seizure of account in the first instance or even can make a direction to Bank to prohibit operation of account as may be necessary during the investigation but in both cases, police officer has to pass a positive order.
8. From the perusal of letter which has been relied upon by petitioner for seizing bank account of petitioner and withholding of credit of fixed deposit receipt, it is absolutely clear that there was no order passed by police officer to seize the account or to prohibit operation of account because it merely made a request that meddling with account should not be done.
9. We fail to understand that what actually meddling with account means. It can either be seizure or its operation can be prohibited. There is no averment in the entire counter affidavit as to in what manner meddling of account was there which was sought to be prohibited.
10. Branch Manager of concerned Bank instead of making a request for an order of seizure immediately, it appears, acted upon request letter on his own and seized the account which the Banking Regulations do not permit in the absence of any order to that effect either by police or by competent authority.
11. In view of above, we hold that seizure or withholding of fixed deposit money of petitioner on its maturity by Bank is absolutely an illegal act and cannot be sustained in law and has resulted in utter harassment to the widow lady.
12. We, therefore, direct the Bank to immediately credit the amount of fixed deposit of petitioner in her account and permit her to withdraw the same.
13. Accordingly, this writ petition is allowed with a cost which we quantify to Rs. 25,000/- to be paid to petitioner by the bank in first instance and same shall be recovered from the concerned Bank Manager who has committed default.
Order Date :- 12.10.2017
Shubham
