S.102(3) CrPC Requiring Police Officer To Forthwith Report Seizure Of Property To Magistrate Only Directory In Nature: JKL High Court

The Jammu and Kashmir and Ladakh High Court recently held that since the provisions of CrPC do not provide for consequences of non-adherence to Section 102(3) it can be inferred that the said provision is not mandatory in nature even though the word “shall ” has been used in the provision.

The provision stipulates that A police officer, after seizing any property, has to forthwith report the seizure to the Magistrate having jurisdiction and in case it is not convenient to transport the seized property to the court, he may entrust it to any person on his executing a bond to produce the property as and when required.

Justice Sanjay Dhar was hearing a plea in terms of which the petitioner had challenged an order of the Anti-Corruption Judge whereby it had declined her application to the extent of defreezing of her bank account, frozen on account of allegations of her being involved in the fake recruitment scam in the office of Advocate General J&K.

The petitioner premised her challenge on the ground that the requirements of Section 102(3) of the CrPC have not been adhered to by the respondent before freezing the account as the matter has not been reported to the concerned Magistrate as mandated under law.

The moot question that fell for adjustment before the bench was as to what would be the effect of non furnishing of the report to the concerned Magistrate about the seizure of petitioner’s bank account in the instant case.

At the outset, the Court noted that there has been a divergence of opinion of different High Courts about the question. While the High Courts of Madras, Bombay and Delhi have taken a view that Section 102(3) is mandatory in nature, however, A contrary view has been taken by the Punjab & Haryana High Court and by a Division Bench of the Allahabad High Court.

Meticulously analyzing the intent behind Sec 102(3) of CrPC, Justice Dhar observed that the purpose of reporting the seizure to the Magistrate is to enable the Magistrate to pass orders as regards the disposal of the seized property and only if the non-adherence to The said provision in a particular fact situation results in prejudice to the owner/person interested by of the seized property, the same would be fatal to the act of seizure and not vice versa.

The court further added that since the code does not provide for consequences of non-adherence to the provisions of Section 102(3) of the Cr. P. C the word “shall” has been used in the provision cannot be construed to be mandatory but only directory in nature.

The bench in order to fortify the stand relied on a Judgment of Allahabad High Court in Amit Singh vs. State of UP (Criminal Misc. Writ petition No.11201 of 2021 decided on 18.04.2022) wherein the court observed,

“The consequences of non-reporting about the seized property have not been provided under the section. Since the consequences have not been specified, it would be safe to hold that requirement of S ection 102(3) Cr.PC cannot be termed as mandatory but would be directory in nature”

Observing that since no prejudice has been caused to the owner of a property by non-reporting of seizure to the concerned Magistrate in the instant matter, it cannot be a case of illegality but such an omission may only be an irregularity.

“The seizure of bank account, having regard to the nature of property involved, on account of its non-reporting to the concerned Magistrate, therefore, would not render its seizure illegal”, the bench underscored.

Accordingly the bench found the competition devoid of any merit and dismissed the same.

Case Title: Ruqaya Akhter Vs UT Through Crime Branch.

Citation: 2023 LiveLaw (JKL) 9

Coram: Justice Sanjay Dhar

Counsel For Petitioner: Mr Bhat Fayaz

Counsel For Respondent: Ms Asifa Padroo

Click Here To Read Order

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