Kerala High Court
Sreekala K vs Central Bureau Of Investigation on 14 February, 2025
2025:KER:12218
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 14TH DAY OF FEBRUARY 2025 / 25TH MAGHA, 1946
WP(CRL.) NO. 1284 OF 2022
PETITIONER:
SREEKALA K., AGED 52 YEARS
W/O.M.K.CHANDRAN, MANJAKKATIL HOUSE,
THIRUVANKULAM.P.O,682035, ERNAKULAM DISTRICT.
BY ADVS.
N.J.MATHEWS
ASHIK K. MOHAMED ALI
MUHAMMED RIFA P.M.(K/771/2022)
RAMSEENA N.(K/001380/2022)
RESPONDENTS:
1 CENTRAL BUREAU OF INVESTIGATION,
CBI:SCB, THIRUVANANTHAPURAM, REPRESENTED BY CBI
PROSECUTOR, HIGH COURT OF KERALA, COCHIN-682031.
2 THE BAR COUNCIL OF KERALA,
BAR COUNCIL BHAVAN, HIGH COURT CAMPUS,
KOCHI-682031, REPRESENTED BY ITS SECRETARY.
3 M/S DHANLAXMI BANK LTD, BAR COUNCIL BRANCH, HIGH
COURT COMLPLEX, COCHIN-682031.
ADDL.4 VIGILANCE AND ANTI-CORRUPTION BUREAU,
CENTRAL RANGE, ERNAKULAM -682017, REPRESENTED BY
SUPERINTENDENT OF POLICE-I, CENTRAL RANGE,
ERNAKULAM.
IMPLEADED VIDE ORDER DATED 26/07/2023 IN IA 2/2023
in W.P(Crl.) 1284/2022.
W.P(Crl.) NO.1284/2022
-: 2 :- 2025:KER:12218
BY ADVS.
SRI.JOHN S.RALPH (AMICUS CURIAE)
SRI.SREELAL WARRIAR (SPECIAL P.P, CBI)FOR R1
SMT.M.U.VIJAYALAKSHMI
SRI.SAIJO HASSAN
SRI.NAGARAJ NARAYANAN
SRI.RAFEEK. V.K.
SMT.AATHIRA SUNNY
SMT.BINCY JOB
SMT.NEEMA NEERACKAL
SRI.AMBADI DINESH L.K.
SRI.SALMAN FARIS
SRI.K.JAJU BABU (SR.)(K/116/1981)
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ORDERS ON 05.09.2024, THE COURT ON 14.02.2025 DELIVERED
THE FOLLOWING:
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"C.R."
C.JAYACHANDRAN, J.
=======================
W.P.(Crl.) No.1284 of 2022
========================
Dated this the 14th day of February, 2025
JUDGMENT
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.
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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 1 st
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 ₹ 7.6 Crores from the Kerala Bar
Council Welfare fund during the period from 2007 to 2017.
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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 ₹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,
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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
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Maharashtra v. Tapas D.Neogy [(1999) 7 SCC 685] was sought
to be distinguished by pointing out that the same was
rendered before the introduction of Section 18A to the
Prevention of Corruption Act and also for the reason that
the impact of the 1944 Ordinance has not been considered in
that decision. Learned amicus would conclude his argument
by stating that when a specific remedy is available under a
special statute, recourse to Section 102 of a general
statute, namely the Cr.P.C., cannot be countenanced in law.
To buttress his arguments, the learned amicus would place
reliance upon a recent judgment of the Hon'ble Supreme
Court in Ratan Babulal Lath v. State of Karnataka [2022(16)
SCC 287].
5. Learned counsel for the petitioner would adopt the
arguments raised by the learned amicus and place heavy
reliance upon Ratan Babulal (supra). Another judgment of
the Hon'ble Supreme Court in OPTO Circuit India Ltd. v.
Axis Bank and others [2021(6) SCC 707] was also pressed
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into service, to point out that when the special enactment
contains a provision for seizure/attachment/freezing, that
power has to be exercised. Learned counsel would also
submit that, even if a power under Section 102 Cr.P.C. is
presumed, the subject seizure is illegal for want of
compliance of Section 102(3) Cr.P.C., inasmuch as the
seizure has not been reported to the Magistrate concerned.
In this regard, learned counsel would place reliance upon
the judgment of the learned single Judge of this Court in
Nazeer K.T. v. The Manager, Federal Bank [2024(5) KLT 161].
6. Refuting the above submissions made by the learned
amicus, as also, the learned counsel for the petitioner,
learned Special Public Prosecutor (CBI) relies on
Tapas D.Neogy (supra), to argue that a bank account can
be freezed in exercise of the powers under Section 102
Cr.P.C, which legal position is trite. Relying upon
Shento Varghese v. Julfikkar Hussain and others [2024(7)
SCC 23], it was canvassed that the non-compliance of
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Section 102(3) Cr.P.C. cannot render the seizure illegal,
since the purpose of Section 102(3) is only to deal with
the disposal of the article seized. Prior or subsequent
permission of the Magistrate concerned is neither
contemplated, nor required under Section 102(3) Cr.P.C. The
powers of the investigating officer to seize an article in
terms of Section 102 Cr.P.C would remain unaffected and
seizure would remain perfectly legal, even if it is assumed
that the seizure was omitted to be reported to the
Magistrate. On facts, it was pointed out that the seizure
was effected when the case was being investigated by the
Vigilance and Anti Corruption Bureau, and a record
evidencing the reporting of seizure to the Magistrate in
terms of Section 102(3) Cr.P.C., is not seen available in
the files.
7. Learned counsel appearing for the 2 nd respondent/Bar
Council supports the arguments advanced by the learned
Special Public Prosecutor(CBI). It was pointed out that
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huge amounts have been siphoned off by the accused persons,
especially the 1st accused, who was actively abetted by the
petitioner/A2, pursuant to a conspiracy between them. The
existence of amount to the tune of ₹ 96 lakhs in her
accounts, if not otherwise explained, would go a long way
in proving the prosecution allegations.
8. Learned counsel for the 3 rd respondent Dhanlaxmi Bank
would adopt a neutral stand agreeing to abide by the course
directed by this Court.
9. Having referred to the arguments advanced by the counsel
appearing for the respective parties, the following
questions arise for consideration:
1) In respect of an offence under the Prevention
of Corruption Act, whether recourse made to
seize/freeze the accounts, in terms of Section 102
Cr.P.C, is illegal and bad in law, since the
amounts in the account can be attached as per the
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Criminal Law Amendment Ordinance, 1944, as made
applicable to offences under the Prevention of
Corruption Act by virtue of Section 18A of the
said Act?
2) Whether the failure to report the seizure to
the Magistrate concerned in terms of Section
102(3) Cr.P.C. would render the seizure illegal?
10. Question no.1
For a correct appreciation of the question raised, it
is necessary to refer to the purpose, ambit and scope of
Section 102 Cr.P.C, as also, of the Criminal Law Amendment
Ordinance, 1944. Section 102 Cr.P.C. is included in Chapter
VII, which deals with the processes to compel the
production of things. In the last segment of Chapter VII,
with the heading 'Miscellaneous', Section 102(1) is couched
as follows:
"102. Power of police officer to seize certain
property.- (1) Any police officer may seize any
property which may be alleged or suspected to
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have been stolen, or which may be found under
circumstances which create suspician of the
commission of any offence."
It is clear from the above that the power to seize the
property is conferred on the police officer. The property,
which is sought to be seized should be of such a nature
that the same is alleged or suspected to have been stolen
or found under circumstances which create suspicion of the
commission of any offence.
11. Now, let us look at the Criminal Law Amendment
Ordinance, 1944. The very purpose of introduction of the
said Ordinance of the year 1944 is to provide for
attachment of property in criminal proceedings, as also,
for disposal of such property, upon termination of criminal
proceedings. In case of conviction, the attached property -
to the extent of the value as found in the final judgment
to have been procured by the convicted person by means of
the offence - will be forfeited. If acquitted, such orders
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of attachment of the property will be withdrawn. The
Criminal Law Amendment Ordinance, 1944 applies only to
scheduled offences. Section 3 of the Ordinance enables an
application to be made to the District Judge for attachment
of the money or other property, if the State Government or
the Central Government, as the case may be, believe that
the accused person has procured such money or property by
means of commission of the scheduled offence. Section 3
also provides that the provisions of Order XXVII of the
first schedule to the Code of Civil Procedure, 1908 shall
apply to proceedings for an order of attachment under the
Ordinance. Section 4 provides for ad interim attachment.
Section 5 provides for investigation as to objections to
attachment; and by virtue of Section 5(3), the District
Judge has to pass an order, either making the ad interim
order of attachment absolute or varying or withdrawing the
order. An option is given to the accused to give security
in lieu of such attached property, which, if satisfactory
and sufficient, will enable the accused to get the
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attachment withdrawn. Section 10 provides for the duration
of attachment and stipulates the same to be in force until
the termination of the criminal proceedings. Section 12
casts a duty on the Criminal Courts, trying the scheduled
offence, to record a finding as to the amount of money or
value of other property procured by the accused, by means
of the offence, in case of conviction. Section 13 is
important, which deals with the disposal of the attached
property. As already indicated, in case of acquittal, the
order of attachment shall be withdrawn forthwith; and in
case of conviction, the amount or value, as found to have
been procured by the accused by means of the offence, in
terms of Section 12, shall be forfeited.
12. Juxtaposing the purpose of Section 102 and the
purpose, ambit and scope of the Criminal Law Amendment
Ordinance, 1944, it is explicit that the two provisions
serve two different purposes. While Section 102 provides
for 'seizure' of the property, which is suspected to have
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been stolen or which is found in circumstances creating
suspicion of commission of an offence, the Criminal Law
Amendment Ordinance provides for 'attachment' of the money
or the property, which is believed to have been procured by
the accused, by means of the scheduled offence. While
Section 102 provides a step in aid of investigation, the
Criminal Law Amendment Ordinance only secures the money,
which is alleged to have been procured by the accused, by
means of the scheduled offence, in the form of an
attachment, so that the same can be forfeited, if the
accused is ultimately found guilty of the scheduled
offence. In the case of the former (Section 102 Cr.P.C.),
the property seized, if proved to have a direct connection
or link with the offence alleged, can constitute a piece of
evidence in the hands of the prosecution. However, in the
case of the latter, no such purpose could be served, except
securing the money for the purpose of ultimate disposal on
the culmination of the proceedings. The two operates on two
different fields and one cannot substitute the purpose
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intended to be served by the other. This Court, therefore,
finds that there is no merit in the proposition canvassed
by the learned amicus to the effect that, upon the
introduction of the Criminal Law Amendment Ordinance, 1944
to offences under the Prevention of Corruption Act,
recourse made to Section 102 Cr.P.C to seize/freeze the
account is illegal. The contention will stand rejected.
13. An incidental issue, which requires to be considered is
with respect to the power of the investigating officer to
seize/freeze bank accounts by virtue of the powers under
Section 102 Cr.P.C. The issue is not res integra. The
position has been settled by the Hon'ble Supreme Court by
virtue of the judgment in Tapas D.Neogy (supra). After
taking note of the dichotomy in the views expressed by the
various High Courts on the issue, the Hon'ble Supreme Court
held that the term 'property' cannot be given a narrow
interpretation. The Supreme Court observed that, if there
can be no seizure under Section 102 Cr.P.C, of the bank
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account of the accused, then, the money deposited in a
bank, which is ultimately held in the trial, to be the
outcome of illegal gratification, could be withdrawn by the
accused and the Courts would be powerless to get the said
money, which has a direct link with a commission of
offence. The Supreme Court ultimately held that the bank
account of the accused is a property, within the meaning of
Section 102 Cr.P.C and the police officer in the course of
investigation can seize or prohibit the operation of the
said account. The dictum laid down in Tapas D.Neogy (supra)
was reiterated by the Hon'ble Supreme Court in Teesta Atul
Setalvad v. State of Gujarat [2018(2) SCC 372]. In Teesta
(supra), the observations of the Hon'ble Supreme Court in
Tapas D.Neogy (supra) were quoted in extenso and
ultimately, the Supreme Court held in paragraph no.16 of
the judgment that there cannot be any room to countenance a
challenge to the action of seizure of bank account of any
person, which may be found under circumstances creating
suspicion of the commission of an offence.
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14. Learned amicus canvassed that Tapas D.Neogy (supra)
does not reflect the correct proposition of law, since it
did not consider the impact of the Criminal Law Amendment
Ordinance, 1944. As already held above in this judgment,
the purpose of attachment under the 1944 Ordinance and
seizure under Section 102 Cr.P.C are different altogether,
wherefore, the 1944 Ordinance cannot impact or substitute
the purpose, ambit and scope of Section 102 Cr.P.C. Nor
should the introduction of Section 18A to the Prevention of
Corruption Act making the 1944 Ordinance applicable to
offences under the Act would impact the dictum laid down in
Tapas D.Neogy (supra) on the scope and ambit of Section 102
Cr.P.C. Those arguments will therefore stand repelled.
15. Before concluding the point, this Court should also
refer to a recent judgment of the Hon'ble Supreme Court in
Ratan Babulal Lath v. State of Karnataka [2022(16) SCC
287], on which heavy reliance has been placed, not only by
the learned counsel for the petitioner, but also by the
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learned amicus. To appreciate the contention, the short
order in Ratan Babulal Lath (supra) is extracted hereunder:
"1. Leave granted. The only question which we
are examining is whether the attachment of bank
account of the appellant is sustainable in
exercise of powers under Section 102 CrPC.
2. The counter-affidavit of the respondent seeks
to suggest that they are in the process of
filing an application under Section 18-A of the
Prevention of Corruption Act, 1988, since the
earlier authorisation issued by the Government
under Section 3 of the Criminal Law (Amendment)
Ordinance, 1944 was not in the form of the
government order.
3. Be that as it may, on that account, it is not
possible to sustain the freezing of the bank
account of the appellant taking recourse to
Section 102 CrPC as the Prevention of Corruption
Act is a Code by itself."
16. A perusal of the order would indicate that, no dictum,
as such - so as to create a binding precedent for future
governance - is seen laid down in this Order. Paragraph
no.1 of the Order speaks about 'attachment' of the bank
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account and the question which is seen posed is whether
such 'attachment' is sustainable in exercise of the powers
under Section 102 Cr.P.C. The same has been answered in the
negative. A perusal of paragraph no.2 of the Order would
indicate that the respondents in that case are filing an
application under Section 18A of the Prevention of
Corruption Act, which would obviously indicate that the
issue therein was the 'attachment' of the money or
property, which was suspected to be ill-gotten. It is in
that context that the Hon'ble Supreme Court held in Ratan
Babulal (supra) that a bank account cannot be freezed by
taking recourse to Section 102 Cr.P.C. In other words, in
a case where the prosecuting agency wants to attach the
property, recourse should be made to the 1944 Ordinance,
which has been made applicable to the offences under the
Prevention of Corruption Act, by virtue of Section 18 A.
The Order of the Hon'ble Supreme Court in Ratan Babulal
(supra), as understood above, is only to that effect; and
it does not lay down a dictum that a bank account cannot be
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seized or freezed by a police officer, in exercise of the
powers under Section 102 Cr.P.C. If the petitioner seeks to
contend so, it could possibly be argued that the dictum
laid down in Ratan Babulal (supra) is per incuriam,
inasmuch as it has not considered the dictum laid down in
Tapas D.Neogy (supra), reiterated in Teesta Atul Setalvad
(supra) by two benches of co-ordinate strength. In the
circumstances, the arguments advanced based on Ratan
Babulal (supra) will also stand repelled.
17. While winding up Question No.1, it is noticed that OPTO
Circuit India Ltd. (supra), relied on by the petitioner,
cannot govern the instant facts, for, OPTO Circuit was
dealing with a case under the Prevention of Money
Laundering Act, 2002, which contains a specific provision
under Section 17 for search and seizure. It is in that
circumstance that the Hon'ble Supreme Court held that
recourse cannot be made to Section 102 Cr.P.C, Prevention
of Money Laundering Act being a special enactment, with an
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enabling provision.
18. In the result, the first question raised is answered
against the petitioner and in favour of the prosecution.
19. Question No.2
The question revolves on the fulcrum of there being a
complete failure to report the seizure in terms of Section
102(3) Cr.P.C - as distinguished from the delay in
reporting seizure under Section 102(3) Cr.P.C. Whether such
failure would result in the seizure becoming vitiated and
thus illegal, is the question posed.
20. Necessarily, we have to refer to the recent judgment of
the Supreme Court in Shento Varghese v. Julfikar Husen and
Others [2024(7) SCC 23]. The questions which fell for
consideration in that judgment are as follows:
"2. The facts in the instant case, which we
shall advert to later below, have given rise
to the following question of law:
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What is the implication of non-reporting of
the siezure forthwith to the jurisdictional
Magistrate as provided under Section 102(3)
CrPC?
more specifically:
Does delayed reporting of the seizure to
the Magistrate vitiate the seizure order
altogether?"
21. The divergent views and the reasons therefore of the
various High Courts have been taken note of by the Supreme
Court in paragraph nos.4 and 5. A comparative analysis of
the legislative history is undertaken in paragraph no.6. It
is relevant to note that the responsibility to report to
the Magistrate about the seizure was originally there in
the 1882 Code, which was, however, absent in the 1898 Code.
Thereafter, in the 1973 Code, the provision was
reintroduced, which aspects have been taken note of by the
Supreme Court in paragraph no.7 of Shento Varghese (supra).
As noted in paragraph no.8, Section 102(3) was inserted by
an amendment of the year 1978, which also empowered the
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seizing officer to give custody of the seized property to
any person, upon executing a bond, undertaking to produce
the property before the Court, as and when required. In
paragraph no.10, the Supreme Court referred to the 'Notes
on Clauses' appended to the 1978 amendment Bill. Two
reasons have been stated in the Notes on Clauses. The first
is, there is a lacuna in the law and the second is, to give
effect to the observations of the Supreme Court in Anwar
Ahmad v. State of U.P [(1976) 1 SCC 154]. Elaborating on
the lacuna in the law and the observations in Anwar Ahmad
(supra), the Supreme Court held in paragraph no.14 that the
purpose of reporting to the Magistrate is only to ensure
disposal of the seized property. Thereafter, in paragraph
no.15, the Hon'ble Supreme Court again raises the question
whether seizure orders can be set at naught for
non-compliance with the procedural formality of reporting
such seizure to the Magistrate forthwith. Raising the
question as above, the Supreme Court answered the same in
paragraph no.16 in the negative, holding that the validity
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of the power under Section 102(1) Cr.P.C is not dependent
on the compliance of the duty of reporting under Section
102(3) Cr.P.C. It was re-iterated in paragraph no.18 of
Shento Varghese (supra) that, the obligation to report the
seizure to the Magistrate is neither a jurisdictional
pre-requisite to exercise the power of seizure; nor is such
exercise subject to compliance of the obligation to report
under Section 102(3) Cr.P.C. The powers under Section 102
Cr.P.C has been juxtaposed with the powers under Section
105E Cr.P.C, which also speaks of a power to seize,
however, with a condition subsequent that such seizure
shall have no effect, unless confirmed by an order of the
court within 30 days. Reference is also made to Section 157
Cr.P.C. to hold that the delay in reporting the seizure to
the Magistrate may, at best, dent the veracity of the
prosecution case viz-a-viz the date, time and occasion for
seizure of the property. Since the proof of prejudice on
the part of the accused and explanation for delay on the
part of the prosecution can be demonstrated only at trial,
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the effect of non-compliance becomes an issue to be
adjudicated, after appreciating the evidence. Ultimately,
in paragraph no.21 of Shento Varghese (supra), the Supreme
Court overruled the line of precedents, which held that
seizure orders are vitiated for delay in complying with the
obligation/duty under Section 102(3). According to the
Supreme Court, whether the duty under Section 102(3) to
report the seizure to the Magistrate is mandatory or
directory was not the right question to be posed. The right
question was whether the exercise of the power to seize was
subject to the compliance of the duty to report. In
paragraph no.28, Supreme Court held that, the deliberate
disregard or negligence to comply with Section 102(3) may
invite appropriate departmental action against the erring
official, simultaneous with re-iterating that the act of
seizure will not get vitiated by virtue of such delay.
22. An analysis of the judgment in Shento Varghese (supra)
would make it explicit that the power to seize under
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Section 102(1) Cr.P.C. is independent and unbridled by the
duty to report such seizure to the Magistrate concerned
under Section 102(3) Cr.P.C. As held by the Hon'ble Supreme
Court, the requirement of reporting under Section 102 is
neither a condition precedent, nor one subsequent, to
exercise the power of seizure under Section 102(1) Cr.P.C.
The purpose of reporting the seizure as per Section 102(3)
Cr.P.C is only to enable disposal of the property seized.
If that legal position is trite, this Court is of the
opinion that, even the failure to report the same cannot
ipso facto affect the validity of the seizure. Of course,
during trial, it will be open for the accused to show
prejudice, if the seizure is not reported in terms of
Section 102(3) Cr.P.C., only confining to the veracity of
such seizure as regards the time and place of the articles
seized. However, non-reporting of seizure under Section
102(3) Cr.P.C. cannot automatically lead to the legal
consequence of such seizure getting vitiated and thus
illegal.
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23. It is true that the learned single Judge held in
Nazeer K.T. v. The Manager, Federal Bank [2024(5) KLT 161]
in paragraph no.7 that abject violation of the procedure
prescribed in Section 102(3) Cr.P.C will definitely affect
the validity of the seizure, which was so held bearing in
mind Article 300 A of the Constitution. It was re-iterated
in paragraph no.8 that the delay in reporting the seizure
to the Magistrate can only be an irregularity, but total
failure to report will have a negative impact on the
validity of the seizure. Despite holding so, the learned
single Judge did not choose to hold that the seizure in
question therein was vitiated by such non reporting.
Instead, an opportunity was granted to the police officer
concerned to report the seizure within a period of one
month from the date of receipt of a copy of the Judgment.
24. Inasmuch as law is settled by Shento Varghese (supra)
that (1) the purpose of reporting the seizure to the
Magistrate concerned under Section 102(3) is only confined
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to the disposal of the said property in terms of Section
457 or Section 459 and (2) the validity of the power
exercised under Section 102(1) Cr.P.C is not dependent on
compliance of the duty to report under Section 102(3)
Cr.P.C., the non-compliance thereof cannot affect the
validity, as such, of such seizure, is the opinion of this
Court. True that the same may impinge upon the right of the
property holder to seek disposal in terms of Sections 451,
457 or 459, if the seizure of the property is not forthwith
reported to the Magistrate. However, it is not synonymous
to say that the impingement of that right of the property
holder tantamounts to the seizure becoming illegal and
vitiated for non-compliance of Section 102(3) Cr.P.C. This
Court, by holding so, does not undermine the important duty
of the police officer to report the seizure to the
Magistrate concerned. Needless to say that, it is the
sublime duty of the police officer to do so in terms of
Section 102(3) Cr.P.C., as otherwise, the right of the
property holder gets seriously affected to seek disposal of
2025:KER:12218
the property. This Court only holds that the seizure, as
such, is not vitiated for that reason, for, if the seizure
is vitiated as illegal, then, the article seized in terms
of Section 102(1) Cr.P.C. cannot be propounded as a piece
of evidence on the part of the prosecution, during trial.
Say for example, in the instant case, if the prosecution
could establish that the money in the accounts of the
petitioner is the ill-gotten wealth of her husband/A1, or
for that matter, the misappropriated money, the same, by
itself, constitutes a piece of evidence of such
misappropriation. It may have the trappings of the recovery
of the embezzled money. However, if the legal position
goes to hold that the seizure itself is illegal, the
prosecution cannot let in that important piece of evidence,
causing serious jeopardy and prejudice, especially when the
power under Section 102(1) Cr.P.C. to seize an article is
not circumscribed or subjected to the duty to report under
Section 102(3) Cr.P.C.
2025:KER:12218
25. In view of the authoritative pronouncement of the
law on the point in Shento Varghese (supra), this Court is
not inclined to grant reliefs sought for, treating the
seizure/freezing of accounts as illegal. Instead, I am
impelled to follow the course ultimately adopted in
Nazeer K.T. (supra).
26. In the circumstances, the challenge against
seizure/freezing of the petitioner's account will stand
repelled, however, subject to the following directions to
the investigating officer:
a) to trace out the document, if any, reporting
the seizure to the special court concerned in
terms of Section 102(3) Cr.P.C. and to produce
the same before the court which is seisin of the
matter; or
b) to report such seizure to the special court
within one month from the date of receipt of a
copy of this judgment.
2025:KER:12218
27. It is clarified that it will be open for the petitioner
to file necessary application as per the relevant provision
of the Code, either seeking custody of the property or
disposal of the same, which, if filed, will be dealt with
in accordance with law by the learned special judge.
28. The valuable service rendered by the learned Amicus is
appreciated.
The Writ Petition is disposed of as above.
Sd/-
C.JAYACHANDRAN, JUDGE
vdv
APPENDIX OF WP(CRL.) 1284/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE REQUEST DATED
13.12.2017 ADDRESSED TO THE DYSP, VACCB,
CENTRAL RANGE, ERNAKULAM TO THE 3RD
PETITIONER.
Exhibit P2 TRUE COPY OF THE COMMUNICATION DATED
27.11.2017 ADDRESSED BY THE 2ND
RESPONDENT TO THE 3RD RESPONDENT
Exhibit P3 TRUE COPY OF THE PROCEEDINGS OF THE
SECRETARY, REGIONAL TRANSPORT AUTHORITY,
KOTTAYAM DATED 5.7.2019
Exhibit P4 TRUE COPY OF THE DEMAND NOTICE DATED
21.11.2018 ISSUED BY THE REGIONAL
TRANSPORT OFFICER, IN RELATION TO
ARREARS OF VEHICLE TAX FOR HER STAGE
CARRIER WITH REGISTRATION NO.KL05-H-5340
Exhibit P5 TRUE COPY OF THE STATEMENT OF ACCOUNT IN
RELATION TO THIS PARTICULAR ACCOUNT FOR
THE PERIOD 1.7.2007 TO 30.06.2020
Exhibit P6 TRUE COPY OF THE STATEMENT OF ACCOUNTS
IN RELATION TO THIS PARTICULAR ACCOUNT
FOR THE PERIOD 1.7.2007 TO 20.07.2020.
