Madras High Court
Mohideen vs The Branch Manager on 24 January, 2023
1 W.P.(MD)NO.12244 OF 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.01.2023
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.12244 of 2022
Mohideen ... Petitioner
Vs.
1. The Branch Manager,
Union Bank of India,
Anuradha Building, 51B, Salai Street,
P.B.No.25, Sindupoondurai,
Tirunelveli – 627 859.
2. C.S.Patel,
Police Sub Inspector,
Cyber Crime Police station,
Rajkot City, Gujarat.
(R-2 is suo motu impleaded
vide order dated 12.07.2022) ... Respondents
Prayer: Writ petition filed under Article 226 of the
Constitution of India, to issue a Writ of Mandamus, directing
the respondent to de-freezing the petitioner's bank account
bearing No.336002011000253 on the respondent bank
enabling him to operate the bank account by considering his
representation dated 13.01.2022 and legal notice dated
17.02.2022.
For Petitioner : Mr.R.Mathava Selvam
For R-1 : Mr.C.Karthick
For R-2 : No appearance.
***
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2 W.P.(MD)NO.12244 OF 2022
ORDER
Heard the learned counsel appearing for the writ
petitioner and the learned Standing counsel appearing for the
first respondent bank.
2. Even though the second respondent has been
served and their name is printed in the cause list, there is no
appearance on their behalf.
3. The petitioner is said to be a Central Government
employee. His grievance is that the salary account has been
frozen by the first respondent. Seeking de-freezing of the
petition mentioned bank account, this writ petition came to be
filed.
4. When the matter was taken up for hearing, the
learned Standing counsel appearing for the bank informed
that they have not unilaterally taken any action and that they
very well acted on the instructions given by the second
respondent. Thereupon, the second respondent was impleaded
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3 W.P.(MD)NO.12244 OF 2022
and notice was also ordered to be issued. The notice has since
been served. However, the second respondent has not chosen
to appear before this Court to justify their stand. When the
matter was taken up for hearing, the learned Standing counsel
appearing for the bank produced a copy of the communication
issued by the second respondent under Sections 91 and 102 of
Cr.P.C. The said communication reads as follows:-
Sub/Case Ashvat No.366/2021 dated 01.01.2022
NOTICE UNDER SECTION 91 & 102 OF CRPC AND
UNDER SECTION 65-B OF INDIAN EVIDENCE ACT 1872
To
The Compliance Officer,
Union Bank of India,
EmailId:-
[email protected];[email protected];
Sub:- Provide Information related to fraudulent Accounts
and seize account.
Dear Sir,
I undersigned, C S.Patel Police Sub Inspector, Cyber Crime Police
Station, Rajkot City, Gujarat State, India would like to bring to your notice that
someone has misused banking services for making fraudulent credit transactions
in your Bank accounts. We have found following Account holder.
Account Number
336002011000253
As we are inquiring this case are requested to provide transaction
details for said period and accounts.
(1) Scanned copies of account opening forms and documents given at the time of
account opening.
(2) Transaction statements from 01.07.2021 to till date.
(3) All other traceable details like mobile numbers used for communications or
any authentication, Email addresses for transactions.
(4) Latest KYC check/verification reports with details of responsible official to
make KYC inquiry / verification at any point during operation of these accounts.
(5) Full Beneficiary details available at your side which can help in
investigation.
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4 W.P.(MD)NO.12244 OF 2022
You are requested to mark this account as “Debit Freeze”until our
next directions or court order.
Thanking you,
(C S Patel),
Police Sub Inspector
Cyber Crime police station,
Rajkot City Gujarat
5. The petitioner's counsel relied on the decision
reported in (2002) 5 CTC 598 ( R.Chandrasekar V.
Inspector of Police, Fair Land Police Station Salem and
the Dy. Superintendent of Police, C.B.C.I.D. ). In
paragraph Nos.7 and 8 of the said decision reads as follows:-
“7. No doubt, under Section 102 of
Cr.P.C., a police officer in the course of
investigation can prohibit the operation of the
bank account, as the bank account is property
provided it is found under circumstances
creating suspicion that an offence has been
committed. Section 102 of Cr.P.C. runs as
follows;-
'102. Power of police officer to seize
certain property;-
1. Any police officer may seize any
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5 W.P.(MD)NO.12244 OF 2022
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, 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.'
8. Section 102 empowers a police
officer to seize any property, which may be
alleged or suspected to have been stolen or
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6 W.P.(MD)NO.12244 OF 2022
which can be found under circumstance which
create suspicion of commission of any offence.
In other words, when a property not found
under circumstance creating suspicion of an
offence having been committed, Section 102 of
Cr.P.C. does not apply.”
6. In the case on hand, no doubt the second
respondent had mentioned that he had come across certain
suspicious activities in the petition mentioned account. But the
second respondent has not justified before this Court what led
him to come to the said conclusion. Unless the second
respondent satisfied this Court that the amount deposited in
the petition mentioned bank account is traceable to some
crime, this Court will not be justified in interfering in the
matter.
7. A learned Judge of this Court in the decision
reported in 2013 SCC OnLine Mad 2629
( T.Subbulakshmi V. Commissioner of Police ) had held as
follows:-
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7 W.P.(MD)NO.12244 OF 2022
“ 27.From the dictum laid down in the
judgments relied on by the learned senior counsel
for the petitioners it is clear that the bank
account is a property within the meaning of
Section 102 of Cr.P.C and sub-section (3) to
Section 102 requires the reporting of seizure of
the property to the concerned Magistrate
forthwith, which is mandatory in nature.
Moreover, the freezing of bank account is an act
of the investigation and therefore, the duty is cast
upon the Investigating Officer under Section
102(3) of Cr.P.C. to report the same to the
Magistrate, since the freezure of the bank
account prevents the person from operating the
bank account pursuant to an investigation by the
Police in a criminal case registered against him.
If there is any violation in following the
procedures under Section 102 of Cr.P.C., the
freezing of the bank account cannot be legally
sustained. Since in the case on hand the 2nd
respondent-Police has not reported the freezing
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8 W.P.(MD)NO.12244 OF 2022
of the bank accounts of the petitioners herein to
the concerned Magistrate forthwith, which is
mandatory under Section 102(3) of Cr.P.C., the
proceedings of the 2nd respondent-Police in
freezing of the bank accounts of the petitioners
herein are not legally sustainable.”
8. It is seen therefrom that the report must be
forwarded at the earliest to the jurisdictional Magistrate. It is
not known if the second respondent has complied with the
aforesaid statutory requirement. The petitioner's counsel also
asserts that till date the petitioner has not been served with
any notice or prohibitory order. No order has been received by
the bank from any jurisdictional Magistrate. In these
circumstances, the prohibitory order has to be necessarily set
aside. The petitioner is permitted to operate the petition
mentioned account. This writ petition stands allowed. No
costs.
24.01.2023
NCS : Yes / No
Index : Yes / No
Internet : Yes/ No
PMU
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9 W.P.(MD)NO.12244 OF 2022
To:
The Branch Manager,
Union Bank of India,
Anuradha Building, 51B, Salai Street,
P.B.No.25, Sindupoondurai,
Tirunelveli – 627 859.
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10 W.P.(MD)NO.12244 OF 2022
G.R.SWAMINATHAN,J.
PMU
W.P.(MD)No.12244 of 2022
24.01.2023
https://www.mhc.tn.gov.in/judis
