Orissa High Court

Afr Sasee Bhoosan Pattanayak vs State Of Odisha And Ors on 29 August, 2023

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                       CRLMC No. 2044 of 2023

                (An application under section 482 of Cr.P.C.)
                                  ---------------

AFR    Sasee Bhoosan Pattanayak                     ......       Petitioner

                                    -Versus-

       State of Odisha and Ors.      .......           Opposite Parties

       Advocate(s) appeared in this case:-
       _______________________________________________________

         For Petitioner           : M/S. B.Sahoo, R.Behera,
                                    S.G.Das, R.Nayak Advocates.

          For Opp. Parties     : Mr. S.N.Das
                                 Additional Standing Counsel
       _______________________________________________________
       CORAM:
            JUSTICE SASHIKANTA MISHRA

                               JUDGMENT

th 29 August, 2023

SASHIKANTA MISHRA, J.

The petitioner is an accused in G.R. Case No.

782/2021 pending in the Court of learned SDJM, Keonjhar

for the alleged commission of offences under Sections

385/387/506/411 of IPC. In course of investigation, his

bank account was seized and frozen by the Investigating

Officer. He filed an application under Section 457 of Cr.P.C.

defreezing of the said account. By order dated 14.11.2022,

learned SDJM rejected his petition on the ground that it

would hamper the interest of prosecution during trial. The

petitioner carried the matter in Revision before the Court of

Session being Criminal Revision No.20 of 2022. Learned

Sessions Judge, after considering the facts of the case held

that the property in question though was seized by police

was not reported to the Magistrate. Taking note of the

language used in Section 457 of Cr.P.C. the Court below

held the revision to be not maintainable since seizure of the

bank account by the Investigating Officer had not been

reported to the Magistrate.

3. Mr. R. Behera, learned counsel appearing for the

petitioner submits that one important aspect has been

ignored by the both the Courts below in that though the

property was seized by the Investigating Officer, the same

was not reported to the Magistrate, which is a mandatory

requirement as per sub-Section 3 of Section 102 of Cr.P.C.,

which the Revisional Court should have taken note of. Mr.

S.N. Das, learned Additional Standing counsel submits that

there are conflicting decisions of different High Courts of the

country as to if the provision under sub-section 3 of Section

102 of Cr.P.C. is mandatory or not.

4. Having considered the rival submissions, this Court

finds from the materials on record that the property in

question that is, four bank accounts standing in the name

of the petitioner were seized by the Investigating Officer

during investigation and frozen as per his instructions.

Such fact does not appear to have been reported to the

Magistrate that is, learned SDJM, Keonjhar. It would be

apposite at this stage to refer to Section 102 of Cr.P.C.

which reads 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 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."

5. In view of the language used and in particular, the

word 'shall' in the afore quoted provision, this Court is of the

view that the provision is mandatory in nature in that every

seizure made by the Investigating Officer during

investigation has to be reported to the Magistrate. If this is

not done a situation as obtaining in the present case would

emerge whereby the accused would be rendered remediless

against seizure of the property which has not been reported

to the Magistrate. In case of Maa Kuanri Transport &

others -Vrs.- State of Odisha reported in 2021 (I) ILR-

CUT-227, this Court held as follows:

"13. Another aspect that needs consideration in this context is non-compliance of the mandatory provision under Sub-Section (3) of Section 102 of Cr.P.C. It has been argued by Mr. Das, learned Senior Counsel that as per Sub-Section (3) of Section 102, the Magistrate. In the instant case, such requirement of the statute was not complied with inasmuch as the fact of seizure of the bank accounts was not reported to the Magistrate so as to allow him to give custody thereof to any person. In the instant case, only upon the petition under Section 457 Cr.P.C. being filed by the petitioner, learned S.D.J.M. called for a report from the I.O. regarding seizure whereupon it was intimated that the same is required for the purpose of investigation. Mr. Das has relied upon a decision of Chhatisgarh High Court in the case of Shree Mahalaxmi Associates v.State of Chattisgarh, reported in MANU/CG/0749/2020: AIR Online 2020 CHH 1211, wherein it was held that the Magistrate in question could not have rejected the prayer of the petitioner therein without considering whether there was compliance of the provisions contained in Sub-Section (3) of Section 102. This Court is in respectful agreement with the above view and further holds that from the use of the word 'Shall' in Sub- Section (3) it is evident that the police officer is mandated to report the seizure of the property to the Magistrate."

Again in the case of Datum Micro Credit -Vrs.- State Bank

of India & others, [decided on 23.12.2022 in W.P.(C) No.

5451 of 2022] this Court has been pleased hold that

"10. From a bare perusal of Section 91 of Cr.P.C, it is clear that the I.I.C. of Golanthara P.S has no jurisdiction insofar as issuing instructions towards freezing the bank account of the present Petitioner. In the summons issued under Section 91 of Cr.P.C., the investigation officer summons the person to produce the document or other things. On the summons issued under Section 91 of Cr.P.C., account cannot be freezed. That apart, the I.I.C. of Golanthara P.S failed to comply with the procedure as contemplated under Section 102(3) of Cr.P.C. From the materials available on record, it can be further inferred that the Opposite Party No.3 has failed to inform the freezing of the petitioner's account to the concerned jurisdictional Magistrate till date."

XXX XXX XXX XXX

13. Recently, in the case of Manish Khandelwal & Ors. v. State of Maharashtra, the Court rejected the contention that non-compliance of the procedure laid down under Section 102 Cr.P.C. is only an irregularity and will not vitiate freezing of the bank accounts. It was held that in case the mandatory provision under Section 102 Cr.P.C. has not been followed then it would entail the consequence of giving directions to defreeze the bank account. The duty of reporting to Magistrate about any seizure of bank account is cast upon the I.O as freezing of the bank account prevents the person from operating the bank account pursuant to investigation. If there is any violation in following the procedures under Section 102 Cr.P.C., freezing of account cannot be legally sustained."

6. In such view of the matter, this Court holds that

learned Sessions Judge ought to have considered the matter

from this angle and entertained the revision by calling for a

report from the I.O. as regards seizure/ freezing of the bank

account instead of rejecting the Revision at the threshold

leaving the petitioner remediless thereby. The provision does

not place any embargo on the Court to do so, rather if such

a course is adopted, it would entail due compliance of the

requirement of Section 457.

7. For the foregoing reasons therefore, the CRLMC is

allowed. The impugned order passed by learned sessions

Judge is hereby quashed. The matter is remitted to learned