Orissa High Court
M/S. Mahimananda Mishra vs State Of Odisha And Others on 3 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.4113 of 2016
M/s. Mahimananda Mishra .... Petitioner
Mr. J. Pal, Advocate
-versus-
State of Odisha and others ... Opposite Parties
Mr. J. Katikia, AGA
CORAM:
THE CHIEF JUSTICE
ORDER
Order No. 03.2.2023
05. 1. On the previous date i.e. on 20th January 2023, the following
order had been passed:
"1. Mr. Jaydeep Pal, learned counsel for the Petitioner relies
on the judgments in State of Maharastra v. Tapas D Neogy
(1999) 7 SCC 685 and Swaran Sabharwal v. Commissioner
of Police 1990 (68) Company Cases 652 and urges that the
freezing of the Petitioner's Bank accounts by the police is
contrary to Section 102 of Cr.P.C. and is unsustainable in
law.
2. Mr. J. Katikia, learned Additional Government Advocate
seeks time to place certain other judgments which according
to him hold against the Petitioner.
3. At his request, list on 3rd February, 2023."
2. Mr. J. Katikia, learned Additional Government Advocate refers
to the decision of the Allahabad High Court dated 18th April, 2022
in Criminal Misc. Writ Petition No.11201 of 2021 (Amit Singh v.
State of U.P.) and in particularly to paras 13 and 18 of the said
judgment where it has been observed as under:
"(13) sub section (3) of Section 102 Cr.P.C. provides that
every police officer acting under sub-section (1) Cr.P.C.
shall forthwith report the seizure to the Magistrate having
jurisdiction. The main thrust of learned counsel for the
petitioner is that since the police officer acting under sub-
section (1) Cr.P.C., who has seized the account has not
reported the concerned Magistrate about the seizure
forthwith, and thus seizure has become illegal. Sub-section
(3) of Section 102 Cr.P.C. further provides that where the
property seized is such that it cannot be conveniently
transported to the court or where there is difficulty in
securing the custody of the said 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. Therefore the
bank account which has been seized and is in the custody of
the bank is subject to the further orders of the court as to the
disposal of the same, therefore as per scheme of Code the
purpose of information being given to the Magistrate
concerned is to bring it to the knowledge of the Court but no
consequences thereof has been provided. However the
concerned person may move appropriate application for its
release etc. from the court. Knowing it well the petitioner
had also, after release from the Jail on bail, moved an
application before the concerned court to know as to under
which order the account has been seized, so that he may get
the same released through the court. Therefore once the
information in response to the aforesaid application has been
submitted to the concerned court, it is apparent that the
information has been furnished to the concerned court.
Therefore the seizure would not become illegal on this
ground.
xxx xxx xxx
(18) In view of above scheme of the Code the purpose of
information given to the Magistrate regarding seizure of
property by the Police Officer is merely to facilitate its
disposal in accordance with law during pendency of trial or
subsequent thereto. Therefore non reporting of the seizure
forthwith, as provided under Section 102(3) Cr.P.C., shall
not ipso facto render the seizure illegal particularly as no
period is specified and it's consequences have not been
provided. Therefore when on an application moved by the
petitioner, the same has been informed, the petitioner may
move the concerned Magistrate for the custody of the
property i.e. unfreezing of the account of the petitioner,
which may be dealt with in accordance with law and on it's
own merit."
3. The above observations have been made after noticing the
judgment of the Supreme Court of India in State of Maharastra v.
Tapas D. Neogy (1999) 7 SCC 685.
4. The sum total of the above passages is that it would be open to
the Petitioner, whose bank account has been attached, to move the
concerned Magistrate for releasing or de-freezing of the account
from attachment.
5. Mr. Katikia is unable to point out to the Court in what manner
the requirement under Section 102(3) Cr PC has been complied
with in the present case. Although the observations of the High
Court in the above decision are to the effect that the non-reporting
of the attachment to the Magistrate may not be mandatory as no
consequences for the failure to do so have been spelt out, the fact
remains that the attachment is clearly contrary to the requirement
of Section 102(3) Cr PC. Therefore, the Petitioner is fully justified
in contending that the attachment, which is contrary to Section
102(3) Cr PC, should not be allowed to continue.
6. In that view of the matter, it is directed that the Petitioner will
file an appropriate application in the Court of Additional Sessions
Judge, Kujang in G.R. Case No.964 of 2016 renumbered as T.R.
No.36 of 2019 corresponding to Paradip P.S. Case No.180 of 2016
and seek lifting of the attachment of the Petitioner's bank account.
7. After hearing the parties, learned Court below will pass
appropriate orders and impose whatever conditions it deems fit in
acceding to the prayer of the Petitioner regarding de-freezing of
the bank account. The Court clarifies that it has not expressed any
view in the matter.
8. The petition is disposed of in the above terms. A copy of this
order be sent to the concerned Court forthwith.
(Dr. S. Muralidhar)
Chief Justice
M. Panda
