1. Heard Mr. Indrajit Sinha assisted by Mr. Shashank S. Prasad, Mr. Rishav Kumar and Ms. Anjali Sinha, learned counsel for the petitioner, Mr. Amit Kumar Das assisted by Mr. Saurav Kumar and Ms. Zeenat Malick, learned counsel for the respondent-NIA and Mr. Sumit Prakash, learned counsel for respondent no.6.
2. This petition has been filed for direction upon the respondents to defreeze the bank accounts of the petitioner being account nos.30406000756-State Bank of India, Chandwa Branch, 11450762634 and 37476169280-State Bank of India, Latehar Branch, 30113464338-State Bank of India, Harmu Branch, 11112107708-State Bank of India, Daltonganj Branch and 5342002100000030-Punjab National Bank, Chandwa Branch, pending in the court of the learned Additional Judicial Commissioner-XVI, Ranchi cum Special N.I.A. Court, Ranchi.
3. The FIR being Chandwa P.S. Case No.158 of 2019 was lodged against Maoist Ravindra Ganjhu and others. Thereafter, National Investigation Agency, New Delhi re-registered the case as RC/25/2020/NIA/DLI. The case of the prosecution is that on 22.11.2019 at approx 20:00 hours, the police belonging to the Chandwa Police Station were on a patrolling duty. The vehicle which was TATA Safari, bearing Registration No. JH-19B-0716, stopped at Lukuiya More at Chandwa. The cadres of banned terrorist organization i.e. CPI (Maoist), who were waiting in advance, fired continuously at the police patrolling party and killed 4 police personnel. Later they looted the Arms and Ammunition which were issued by the Government, being one pistol, ten rounds of 9 mm Ammunition, three .303 Rifles, with 150 rounds from the martyred police personnel and thereafter raised slogans of Maowadi Zindabad and escaped from the place of incident. Later, on of the Home Guard namely Dinesh Ram who had escaped un-hurt, went to Chandwa Police Station and filed a complaint against 18 named accused persons and some unknown persons.
4. Mr. Indrajit Sinha, learned counsel for the petitioner submitted that the charge-sheet was submitted on 02.07.2020 against six accused persons and thereafter with compliance to the order dated 22.06.2020, National Investigation Agency (NIA) had re-registered the said Chandwa P.S. Case No.158 of 2019 on 24.06.2020. On 30.04.2021, the NIA submitted its 1st supplementary charge-sheet against Mritunjay Singh @ Sonu Singh and others. He submitted that the accused Mritunjay Singh @ Sonu Singh was one of the partners of M/s Santosh Construction. The petitioner-M/s Santosh Construction is a class 1 Government contractor, working for the last 40 years and the entire accounts of the petitioner is lying with respondent nos. 2 to 6, who are bankers of the accounts in question. He further submitted that the petitioner approached respondent nos. 2 to 6 for transaction then it was informed that as per the instruction of respondent- NIA, entire accounts of the petitioner have been frozen as investigation is going on. The respondent nos. 2 to 6 served a letter with regard to freezing of the accounts dated 11.02.2021 and 08.02.2021 respectively. He also submitted that the petitioner was not communicated of such freezing of bank accounts or served with any such copy of the order of seizure of property. He further elaborated his argument by way of submitting that it is the specific case of the petitioner that because of the illegal and unlawful freezing of the accounts, the petitioner is facing great difficulties in executing the subsisting contracts and has been receiving notices from various statutory authorities/Government departments and other institutions for payment of dues, which was unable to meet. He further submitted that the petitioner is unable to make payments to its employees or labours and in that background, this writ petition has been filed. He also submitted that admittedly, the present proceeding has been initiated against the partner of the petitioner firm under the provisions of the Unlawful Activities (Prevention) Act, 1967 and the investigating agency is the National Investigation Agency, which has taken over the investigation only on account of the fact that the offences alleged purportedly make out a case under the provisions of the Unlawful Activities (Prevention) Act, 1967. He referred Section 25 of the Unlawful Activities (Prevention) Act, 1967 and submitted that if an enactment provides for things to be done in a particular manner, then it should be carried out in the same manner, failing which, it would lead to non-compliance with the due process under law. He submitted that in the case in hand, the due process was not complied with. The power of freezing of the bank account has to be exercised in accordance with the procedure prescribed by Section 25 of the Unlawful Activities (Prevention) Act, 1967. He further submitted that the officer investigating the present case had not recorded reasons to believe that the property of the petitioner represents proceeds of terrorism as per Section 25 of the Unlawful Activities (Prevention) Act, 1967 and without prior approval in writing of the Director General of National Investigation Agency, the Investigating Officer issued the orders of seizing/freezing the bank accounts of the petitioner. The procedure of serving a copy of order of seizure of the property was also not followed. The Designated Authority was not informed by the Investigating Officer within 48 hours of the seizure of such property/freezing the accounts of the petitioner. He further submitted that freezing of the account had to be treated as seizure of cash and ought to have been released within a period of 48 hours beginning with the time when it was frozen, as the matter involving the cash/amount in the bank was not before the Designated Authority and no such authority has passed an order allowing the retention beyond 48 years and the mandate of Section 25 of the information given to the Designated Authority about the seizure by the NIA within 48 hours and the power of revocation/confirmation of the seizure within 60 days was not complied with. The petitioner was also denied the opportunity of making representation and preferring an appeal if aggrieved by the order of the Designated Authority. He further submitted that the case of the petitioner is fully covered in view of the judgment of the Hon'ble Supreme Court in the case of Opto Circuit India Ltd. v. Axis Bank and others, reported in 2021 SCC OnLine SC 55 which was a case under the Prevention of Money Laundering Act, 2002 and the freezing of the bank accounts was the subject matter of adjudication, wherein, the Hon'ble Supreme Court has rejected the plea regarding invocation of the provisions of Section 102 Cr.P.C.
5. Paragraphs 10, 11 and 14 of the said judgment are quoted herein below:
'10. The scheme of the PMLA is well intended. While it seeks to achieve the object of preventing money-laundering and bring to book the offenders, it also safeguards the rights of the persons who would be proceeded against under the Act by ensuring fairness in procedure. Hence a procedure, including timeline is provided so as to ensure that power is exercised for the purpose to which the officer is vested with such power and the adjudicating authority is also kept in the loop. In the instant case, the procedure contemplated under Section 17 of the PMLA to which reference is made above has not been followed by the officer authorised. Except issuing the impugned Communication dated 15-5-2020 to AML Officer to seek freezing, no other procedure contemplated in law is followed. In fact, the impugned communication does not even refer to the belief of the authorised officer even if the same was recorded separately. It only states that the officer is investigating the case and seeks for relevant documents, but in the tabular column abruptly states that the accounts have to be 'debit freezed/stop operations'. It certainly is not the requirement that the communication addressed to the Bank itself should contain all the details. But what is necessary is an order in the file recording the belief as provided under Section 17(1) of the PMLA before the communication is issued and thereafter the requirement of Section 17(2) of the PMLA after the freezing is made is complied with. There is no other material placed before the Court to indicate compliance with Section 17 of the PMLA, more particularly recording the belief of commission of the act of money-laundering and placing it before the adjudicating authority or for filing application after securing the freezing of the account to be made. In that view, the freezing or the continuation thereof is without due compliance with the legal requirement and, therefore, not sustainable.
11. Mr S.V. Raju, learned Additional Solicitor General made a subtle attempt to contend that the power of seizure is available under Section 102 CrPC, which has been exercised and as such the freezing of the account would remain valid. We are unable to appreciate and accept such contention for more than one reason. Firstly, as noted, it has been the contention of Respondent 4 that the PMLA is a standalone enactment. If that be so and when such enactment contains a provision for seizure which includes freezing, the power available therein is to be exercised and the procedure contemplated therein is to be complied with. Secondly, when the power is available under the special enactment, the question of resorting to the power under the general law does not arise. Thirdly, the power under Section 102 CrPC is to the police officer during the course of investigation and the scheme of the provision is different from the scheme under the PMLA. Further, even sub-section (3) to Section 102 CrPC requires that the police officer shall forthwith report the seizure to the Magistrate having jurisdiction, the compliance with which is also not shown if the said provision was in fact invoked. That apart, the impugned Communication dated 15- 5-2020 does not refer to the power being exercised under the Code of Criminal Procedure.
14. This Court has time and again emphasised that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner alone and in no other manner. Among others, in a matter relating to the presentation of an election petition, as per the procedure prescribed under the Patna High Court Rules, this Court had an occasion to consider the Rules to find out as to what would be a valid presentation of an election petition in Chandra Kishore Jha v. Mahavir Prasad [Chandra Kishore Jha v. Mahavir Prasad, (1999) 8 SCC 266] and in the course of consideration observed as hereunder:
'17. ... It is a well-settled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner.'
Therefore, if the salutary principle is kept in perspective, in the instant case, though the authorised officer is vested with sufficient power; such power is circumscribed by a procedure laid down under the statute. As such the power is to be exercised in that manner alone, failing which it would fall foul of the requirement of complying with due process under law.
We have found fault with the authorised officer and declared the action bad only insofar as not following the legal requirement before and after freezing the account. This shall not be construed as an opinion expressed on the merit of the allegation or any other aspect relating to the matter and the action initiated against the appellant and its Directors which is a matter to be taken note of in appropriate proceedings if at all any issue is raised by the aggrieved party.'
6. Mr. Indrajit Sinha, learned counsel for the petitioner further relied upon the judgment in the case of Manish Khandelwal and others v. State of Maharashtra through economic offences and others, reported in 2019 SCC OnLine Bom 1412.
7. Paragraphs 17, 18 and 22 of the said judgment are quoted herein below:
'17. The question that arises for consideration in the present Writ Petition is whether freezing of the bank accounts of the Petitioners under Section 102 of the Cr.P.C. by the Investigating Agency/Officer during the course of investigation without intimating the Magistrate is legally sustainable?
18. The main contention of the learned counsel for the Petitioners is that, it is mandatory for the investigating agency/officer to make compliance of the mandate as required under sub-Section (3) of Section 102 of the Cr.P.C., and since there is no compliance of the mandate contained under sub-Section (3) Section 102 of the Cr.P.C., according to the learned counsel for the Petitioners, the proceedings of freezing of the accounts of the Petitioners are liable to be quashed. In the context of the aforesaid contention of the learned counsel for the Petitioners, it is necessary to see the provision of Section 102 of the Cr.P.C. which deals with the power of police officer to seize certain property. The provision of Section 102 of the 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, 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 Polcie and the provisions of Sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.'
22. From the ratio laid down in the judgments cited by the learned counsel for the Petitioners, it is clear that the bank account is a property within the meaning of section 102 of the Code, and sub-section (3) of section 102 requries the reporting of seizure of the property to the concerned Magistrate forthwith, which is mandatory in nature. The Madras High Court in T. Subbulakshmi's case (supra) has taken a similar view. Paragraph 27 of the judgment is relevant and is reproduced herein under:-
'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 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. By way of relying upon the aforesaid judgments, Mr. Indrajit Sinha, learned counsel for the petitioner submitted that the impugned act of freezing the petitioner's account cannot be justified and in view of the that this Court is competent enough to pass the order of defreezing the bank account of the petitioner, as prayed in this petition.
9. Per contra, Mr. Amit Kumar Das, learned counsel appearing for respondent no.1-National Investigation Agency submitted that the prayer seeking of defreeze the bank account of the petitioner could not have been made directly before this Court by way of filing the petition under Article 226 of the Constitution of India and such petition at the first instance is required to be filed before the trial court who could appreciate the same on the basis of records and materials available before that court. He further submitted that on 22.11.2019 approx at 20:00 hours, the patrolling police party of Chandwa Police Station has stopped a vehicle at Lukuiya More at Chandwa. The cadres of banned terrorist organization i.e. CPI (Maoist), who were waiting in advance, fired continuously at the police patrolling party and killed 4 police personnel and later they looted the Arms and Ammunition from the martyred police personnel and shouted the slogans of Maowadi Zindabad and escaped from the spot and one of the police personnel who escaped un-hurt, lodged the FIR against 18 named accused persons and some unknown persons. He also submitted that the charge- sheet was submitted on 02.07.2020 under the sections of the Indian Penal Code, Arms Act, Criminal Law Amendment Act against 6 accused persons and thereafter the Central Government seeing the gravity of offence, handed over the investigation to the NIA and the NIA has conducted the investigation and submitted 1st supplementary charge-sheet against 34 accused persons. The charge-sheet was submitted against one Mritunjay Kumar Singh @ Sonu Singh also and the case is under further investigation under Section 173(8) Cr.P.C. The NIA conducted searches at several places in Latehar district of Jharkhand and during one of the search at the house premises of suspect namely Mritunjay Kumar Singh @ Sonu Singh, Son of Santosh Kumar Singh, huge cash amounting to Rs.2,64,42,000/- was seized and during investigation, it was revealed that Mritunjay Kumar Singh @ Sonu Singh is one of the 7 partners of M/s Santosh Construction. On being asked about the source of seized amount, Mritunjay Kumar Singh @ Sonu Singh stated that the cash was income earned from the vehicles belonging to M/s Santosh Construction and the money was withdrawn from the bank accounts of M/s Santosh Construction. He further submitted that Mritunjay Kumar Singh @ Sonu Singh was arrested by the NIA on 03.02.2021 and subsequently he was examined. During examination, he revealed that he is one of 7 partners of M/s Santosh Construction since 2012 and other partners of M/s Santosh Construction are Santosh Kumar Singh, Pratima Devi, Aruna Devi, Akhilesh Kumar Singh, Amresh Kumar Singh and Lal Bipin Nath Sahdev. He also submitted that Mritunjay Kumar Singh @ Sonu Singh has stated that the cash was income earned from the vehicle belonging to M/s Santosh Construction and Santosh Kumar Singh and Mritunjay Kumar Singh @ Sonu Singh and the money was withdrawn from the bank account of M/s Santosh Construction. He further submitted that the NIA has followed the process of law and accordingly wrote to the Bank authorities to freeze the bank accounts of the petitioner-M/s Santosh Construction as accused Mritunjay Kumar Singh @ Sonu Singh and associate partners Santosh Kumar Singh and Pratima Devi are operating the accounts in question. He further submitted that on being asked about the break up of Rs.2.64 Crores, he further stated that Rs.1.68 Crores was withdrawn by him from the bank accounts of M/s Santosh Construction from May 2020 to 9th October, 2020, Rs.10,80,000/- was earned from the vehicles pertaining to Mritunjay Kumar Singh @ Sonu Singh and Santosh Kumar Singh. He further submitted that to channelize the illegal money, huge money were transferred from one bank account of the firm/partner to another bank account of firm/partners and several other accounts of various persons. He also submitted that the NIA has followed all due process of law under the sections of the Cr.P.C. The retention of the seized properties was done under the order of the Special NIA court and the order is annexed at Annexure-1 of the counter affidavit. He further submitted that the petitioner has filed a petition under Section 457(1) Cr.P.C. for releasing the cash amount of Rs.2,64,42,000/-. He further submitted that in the entire crime, other than the special Acts, Indian Penal Code is also involved. He relied in the case of Teesta Atul Setalvad v. State of Gujarat, reported in (2018) 2 SCC 372.
10. Paragraphs 17, 18, 24, 25 and 26 of the said judgment are quoted herein below:
'17. The sweep and applicability of Section 102 of the Code is no more res integra. That question has been directly considered and answered in State of Maharashtra v. Tapas D. Neogy. The Court examined the question whether the police officer investigating any offence can issue prohibitory orders in respect of bank accounts in exercise of power under Section 102 of the Code. The High Court, in that case, after analysing the provisions of Section 102 of the Code had opined that bank account of the accused or of any relation of the accused cannot be held to be 'property' within the meaning of Section 102 of the Code. Therefore, the investigating officer will have no power to seize bank accounts or to issue any prohibitory order prohibiting the operation of the bank account. This Court noted that there were conflicting decisions of different High Courts on this aspect and as the question was seminal, it chose to answer the same. In para 6, this Court noted thus:
'6. A plain reading of sub-section (1) of Section 102 indicates that the police officer has the power to seize any property which may be found under circumstances creating suspicion of the commission of any offence. The legislature having used the expression 'any property' and 'any offence' have made the applicability of the provisions wide enough to cover offences created under any Act. But the two preconditions for applicability of Section 102(1) are that it must be 'property' and secondly, in respect of the said property there must have been suspicion of commission of any offence. In this view of the matter the two further questions that arise for consideration are whether the bank account of an accused or of his relation can be said to be 'property' within the meaning of sub-section (1) of Section 102 CrPC and secondly, whether circumstances exist, creating suspicion of commission of any offence in relation to the same.'
18. After analysing the decisions of different High Courts, this Court in para 12, expounded the legal position thus:
'12. Having considered the divergent views taken by different High Courts with regard to the power of seizure under Section 102 of the Code of Criminal Procedure, and whether the bank account can be held to be 'property' within the meaning of the said Section 102(1), we see no justification to give any narrow interpretation to the provisions of the Criminal Procedure Code. It is well known that corruption in public offices has become so rampant that it has become difficult to cope up with the same. Then again the time consumed by the courts in concluding the trials is another factor which should be borne in mind in interpreting the provisions of Section 102 of the Criminal Procedure Code and the underlying object engrafted therein, inasmuch as if there can be no order of seizure of the bank account of the accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of the illegal gratification, could be withdrawn by the accused and the courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the accused as a public officer.
We are, therefore, persuaded to take the view that the bank account of the accused or any of his relations is 'property' within the meaning of Section 102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into. ... In the aforesaid premises, we have no hesitation to come to the conclusion that the High Court of Bombay committed error in holding that the police officer could not have seized the bank account or could not have issued any direction to the bank officer, prohibiting the account of the accused from being operated upon.'
After this decision, there is no room to countenance the challenge to the action of seizure of bank account of any person which may be found under circumstances creating suspicion of the commission of any offence.
24. Keeping these principles in mind and the material on record, it is noticed that the prosecution has alleged that the two Trusts are run by the private appellants and other accused. They were actively involved in collecting huge funds as donation in the name of providing legal assistance to the 2002 Gujarat Riot Victims. Such donations received by the two Trusts had never reached the victims, the members of the Gulberg Society in respect of which grievance has been made in the subject FIR. Further, substantial discrepancies have been noticed from the bank accounts, copies of audited account statements and balance sheet. The final account did not tally with the accounts, as submitted. The appellants did not offer credible explanation in that regard, much less satisfactory. According to the respondents, the conduct of the appellants of non-cooperation during the investigation strengthens the suspicion of the commission of an offence.
They provided incorrect information. It is also a case of non- disclosure and suppression of material facts. These circumstances create suspicion of the commission of offence under investigation. It is alleged by the respondents that the appellants deliberately and intentionally did not disclose that they have already opened new accounts and transferred huge sums of money after knowing that stated bank accounts of the appellants were seized on 21-1-2014 by the investigating agency. The details of the two newly opened accounts were not forthcoming. Further, in the proceedings filed before different courts, incorrect plea has been taken by the appellants, suggestive of the fact that their accounts were not compliant and duly scrutinised by the competent authority.
25. Suffice it to observe that as the investigating officer was in possession of materials pointing out circumstances which create suspicion of the commission of an offence, in particular, the one under investigation and he having exercised powers under Section 102 of the Code, which he could, in law, therefore, could legitimately seize the bank accounts of the appellants after following the procedure prescribed in sub- section (2) and sub-section (3) of the same provision. As aforementioned, the investigating officer after issuing instructions to seize the stated bank accounts of the appellants submitted report to the Magistrate concerned and thus complied with the requirement of sub-section (3).
26. Although both sides have adverted to statement of accounts and vouchers to buttress their respective submissions, we do not deem it necessary nor think it appropriate to analyse the same while considering the matter on hand which emanates from an application preferred by the appellants to defreeze the stated bank accounts pending investigation of the case. Indisputably, the investigation is still in progress. The appellants will have to explain their position to the investigating agency and after investigation is complete, the matter can proceed further depending on the material gathered during the investigation. The suspicion entertained by the investigating agency as to how the appellants appropriated huge funds, which in fact were meant to be disbursed to the unfortunate victims of 2002 riots will have to be explained by the appellants. Further, once the investigation is complete and police report is submitted to the court concerned, it would be open to the appellants to apply for defreezing of the bank accounts and persuade the court concerned that the said bank accounts are no more necessary for the purpose of investigation, as provided in sub-section (3) of Section 102 of the Code. It will be open to the court concerned to consider that request in accordance with law after hearing the investigating agency, including to impose conditions as may be warranted in the fact situation of the case.'
By way of relying the said judgment, Mr. Amit Kumar Das, learned counsel for respondent no.1 submitted that the procedure under Section 102 Cr.P.C. has been complied with and this Court may not interfere with in light of the judgment passed by the Hon'ble Supreme Court in the case of Teesta Atul Setalvad (supra).
11. In view of the above submissions of the learned counsel appearing for the parties, the Court has gone through the materials on the record and finds that the case has been registered under Sections 147, 148, 149, 442, 302, 353 & 379 of the Indian Penal Code, Section 27 of the Arms Act, Sections 17(1) & 17(2) of the Criminal Law (Amendment) Act and Section Sections 10, 13, 17 & 18 of the Unlawful Activities (Prevention) Act, 1967.
It appears that the Indian Penal Code is also involved in this case. There is no doubt that Section 25 of the Unlawful Activities (Prevention) Act provides procedure of seizing the property. The petitioner has filed a petition before the learned court for release of the cash amount of Rs.2,64,42,000/- under Section 457(1) Cr.P.C. and the attachment order has been passed by the competent authority of the NIA i.e. Deputy Superintendent of Police, NIA, BO Raipur. Some of the amount has already been withdrawn from the account in question, which has been revealed during the investigation which has been noted in this judgment (supra).
The Allahabad High Court in Criminal Miscellaneous Writ Petition No.11201 of 2021 in the case of Amit Singh v. State of U.P. and others, which was decided on 18.04.2022 held in paragraphs 14 to 22, which are quoted herein below:
"14. In view of submissions of learned counsel for the parties the main issue which falls for our consideration is as to whether Section 102(3) Cr.P.C. is mandatory or directory in nature? It is well settled that non-observance of a mandatory condition is fatal to the validity of the action. However, non- observance would not matter if the condition is found to be merely directory. In other words, it is not that every omission or defect entails the drastic penalty of invalidity. Whether the provision is mandatory or directory can be ascertained by looking at the entire scheme and purpose of the provision and by weighing the importance of the condition, the prejudice to private rights and the claims of the public interest, therefore, it will depend upon the provisions of the statute and mere use of word ''shall' would itself not make the provision mandatory.
The Hon'ble Supreme Court in the case of State of Haryana Versus Raghuveer Dayal (Supra) has held that the use of word 'shall' is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, on consequences to flow from such construction would not so demand.
15. The Hon'ble Supreme Court, in the case of Nasiruddin and Others Versus Sita Ram Agarwal; AIR 2003 Supreme Court 1543, has held that it is well settled that the real intention of the legislation must be gathered from the language used. It may be true that the use of the expression ''shall or may' is not decisive for arriving at a finding as to whether statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act.
It is also equally well settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character.
It has further been held that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time frame, the same will be held to be directory unless the consequences therefor are specified. The relevant paragraphs 38 and 39 are extracted below:-
"38. The court's jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of the provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot re-write or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well settled that the real intention of the legislation must be gathered from the language used. It may be true that use of the expression "shall or may" is not decisive for arriving at a finding as to whether the statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character.
39. Yet there is another aspect of the matter which cannot be lost sight of. It is a well-settled principle that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time- frame, the same will be held to be directory unless the consequences therefor are specified. In Sutherland's Statutory Construction, 3rd Edn., Vol. 3, at p. 107 it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again, at p. 109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow non-compliance with the provision.
At p. 111 it is stated as follows:
"As a corollary of the rule outlined above, the fact that no consequences of non-compliance are stated in the statute, has been considered as a factor tending towards a directory construction.
But this is only an element to be considered, and is by no means conclusive.'
16.The consequences of non reporting about the seized property have not been provided under the section. In addition, the requirement of reporting in the manner, as stated, is on the part of a public functionary and in view of the law laid down by the Hon'ble Supreme Court, as noticed above, the same is required to be held to be directory unless the consequences thereof are specified. Since the consequences have not been specified, it would be safe to hold that requirement of Section 102(3) Cr.P.C. cannot be termed as mandatory but would be directory in nature.
17. The Scheme for disposal of property under the Code is provided under Chapter XXXIV of the Cr.P.C. Section 451 provides that when any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial. Section 452 provides the order for disposal of property at conclusion of trial. Section 457 (1) provides that whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. Sub-section (2) provides that if the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.
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 ipsofacto 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.
19. The Delhi High Court, in the case of Ms.Swaran Sabharwal Versus Commissioner of Police (Supra), quashed the prohibitory order on the ground that the moneys in the bank does not constitute "case property". In the case of Dr. Shashikant D. Karnik Versus The State of Maharashtra (Supra), the Bombay High Court allowed the petition on the ground that all the three requirements of Section 102 Cr.P.C. have not been complied. It appears that in this case a direction was issued not to permit operation of the bank accounts of petitioner therein and his family without seizure therefore the court was of the view that there can not be an interim order and thereafter it's continuation. The authorities had also failed to ascertain, by the time it was decided, as to whether there was any connection of it with the alleged crime.
The court has only mentioned that sub-section (3) of Section 102 lays down a mandate without any finding as to whether it is mandatory or directory. The Court without any provision has also observed that there is a fourth requirement of law that notice is required to be given before stopping the operation of the account. In the absence of any specific stipulation in the statute or necessary consequence flowing from the scheme contained in the Act, we are not inclined to subscribe to such a view.
20. In the present case we have considered the issue in detail and are of the view that sub-Section (3) of Section 102 Cr.P.C. is directory in nature and once the court has been informed of freezing of bank account on an application moved by the petitioner, the requirement of statute stands fulfilled. Deprivation of property (freezing of bank account) otherwise being as per law, the argument that Article 300-A of Constitution is violated cannot be accepted. Contrary view taken by learned Single Judges of the High Courts of Delhi, Madras and Telangana in the judgments in Ms Swaran Sabharwal Versus Commissioner of Police, 1990 (68) Comp Cas 652 Delhi (DB); Muktaben M.Mashru Vs. State of N.C.T. of Delhi and Another; Crl M.C. 4206 of 2018, decided on 29.11.2019; Tmt.T. Subbulakshmi Vs. The Commissioner of Police; Crl. O.P. No.13103 of 2013 decided on 30.08.2013; Uma Maheshwari Vs. The State Rep. By Inspector of Police, Central Crime Branch, Egmore, Channai; Criminal O.P. No.15467 of 2013 decided on 20.12.2013; The Meridian Educational Society Vs. The State of Telangana; Writ Petition No.21106 of 2021 decided on 04.10.2021 without considering and dealing with the provisions and scheme of the Code cannot be relied upon. Therefore these judgments can not be of any help to the petitioner. The Judgment, in the case of Chief Information Commissioner and another Versus State of Manipur and another (Supra), relied by learned counsel for the petitioner, is also not applicable in the facts and circumstances of the present case.
21. In view of the discussions made above this court is of the considered opinion that there is no infringement of Constitutional right of property of the petitioner under Article 300-A of the Constitution of India. Article 300-A of the Constitution of India only provides that no person shall be deprived of his property save by authority of law. The alleged deprivation of property (freezing of bank account) since is found to be in accordance with applicable law i.e. Code of Criminal Procedure, the action complained of is clearly in consonance with Article 300-A of the Constitution of India.
Petitioner's plea of violation of Article 300-A of Constitution of India cannot be pressed to impeach the act of freezing of bank account after such act is held to be as per applicable law i.e. the Code of Criminal Procedure.
22. The bank account of the petitioner has been got freezed in exercise of powers given under Section 102 Cr.P.C. and the Code of Criminal Procedure restricts the release of such bank account only to an order passed by the Magistrate, which is not the case here. The provisions of the Code thus cannot be by-passed on the plea that Article 300-A of Constitution of India is violated. Merely because the freezing of bank account is not reported forthwith and reported only on an application moved by the petitioner, it cannot be said that there is infringement of right of property gi
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ven under Article 300-A of the Constitution of India. The plea of the petitioner in this regard is misconceived and not sustainable. The writ petition consequently lacks merit and is dismissed. No order is passed as to costs.' 12. The petitioner has already moved an application for release of the cash amount and the said cash was also withdrawn from the account in question. Sub-section (3) of Section 102 Cr.P.C. is directory in nature and once the court has been informed of freezing of bank account on an application moved by the petitioner, the same is deemed to be fulfilled. Section 451 of Cr.P.C. enables the trial Court to grant interim custody pending trial. Similarly, Section 457 also vests power in the Magistrate to deal with the property as deemed proper and necessary. An accused whose property is seized by the police officer can file application to grant interim custody. This is an effective and efficacious remedy. For ready reference, Section 457 of Cr.P.C. is quoted herein below: '457. Procedure by police upon seizure of property. (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.' 13. In the judgment relied by the learned counsel for the petitioner in the case of Opto Circuit India Ltd. (supra), the matter was related to Prevention of Money Laundering Act and there was no allegation of terror funding in that case. However in the case in hand, there is a direct allegation and huge amount was recovered from one of the partner of the petitioner construction company and there was transaction of huge amount from the petitioner-company and on the application of the Deputy Superintendent of Police, NIA, all the bank accounts was freezed by the bank. Thus, this case is not helping the petitioner. 14. In the judgment relied by the learned counsel for the petitioner in the case of Manish Khandelwal (supra), the petitioner of that case has approached the concerned court for defreezing the bank account and after availing the alternative remedy and complying all the provisions of law, the petitioner of that case had filed the petition before the Hon'ble Bombay High Court, whereas, in the case in hand, the petitioner has not filed any petition for defreezing the bank account and it has filed a petition for releasing the seized cash amount and for defreezing the bank account, the petitioner has directly filed this petition before this Court under Article 226 of the Constitution of India. Thus, this case is also not helping the petitioner. 15. The petitioner has already approached the trial court for release of the cash amount under Section 457 Cr.P.C. and it appears that the petitioner approached the trial court seeking to grant interim custody of the property seized and, therefore, when an alternative remedy is available, the writ petition is not maintainable. This Court sitting under Article 226 of the Constitution of India, power is very wide and all pervading wherever and whenever, by the conduct/decision of a public authority rights of a person are infringed and at the same time, the constitutional Courts are slow in entertaining the writ petitions where statutory scheme envisages certain procedures and aggrieved party has statutorily engrafted remedies. 16. In view of the above facts, there is no substance in this petition and the same deserves to be and is hereby dismissed. However, the petitioner is at liberty to avail appropriate remedy as available to it under the Code of Criminal Procedure as well as the other provisions of the Act. On filing of such application by the petitioner, the concerned court will decide the same, in according to law. It is made clear that this Court has not expressed any opinion on the merits of the case. 17. Accordingly, this petition stands disposed of in view of the above terms.