Recently, The Jammu & Kashmir and Ladakh HC stated that if no prejudice is caused to the owner of a property by non-reporting of seizure to Magistrate, it cannot be a case of illegality but only be an irregularity.
The bench of Justice Sanjay Dhar was dealing with the petition challenging the order passed by a Special Judge, whereby the application of the petitioner for defreezing of her bank account has been partly allowed and she has been permitted to operate salary transactions from her account but at the same time, the amount That stood to the credit of her bank account on the date of freezing of her account has been allowed to remain frozen.
In this case, a preliminary verification was conducted by the respondent relating to fake recruitment orders in respect of 33 candidates as Junior Assistants and Orderlies in the office of Advocate General, Srinagar.
After conducting the preliminary verification, the respondent registered FIR for offenses under Section 13(D) of the Prevention of Corruption Act read with Sections 420, 467, 468, 471, 120-B of IPC and 66 IT Act.
During the investigation of the case, the bank statement of account pertaining to main accused Mohammad Yaqoob Bhat was obtained which revealed that an amount of Rs.1.00 crore has been credited into his bank account out of which Rs.48.00 lacs has been credited by the candidates figuring in the fake appointment order.
It was also revealed that 20 candidates were introduced to the main accused Mohammad Yaqoob Bhat by the petitioner and many other candidates have paid the amount in cash to the petitioner and transferred the amount into her account.
Accordingly, the account of the petitioner was seized. The petitioner filed an application before the Special Judge seeking defreezing of her bank account.
The trial court permitted the petitioner to operate the account to the extent of salary transactions whereas a further direction was issued that the amount that was lying in the account of the petitioner at the time of its seizure shall remain frozen.
The issues for consideration before the bench were:
- Whether the order passed by the Trial Court is justifiable or not?
- What would be the effect of the non-furnishing of the report to the concerned Magistrate about the seizure of the petitioner’s bank account in the case?
High Court opined that whether the non-adherence to the provisions contained in Section 102(3) of the Cr. P. C would cause prejudice to the owner of the property or a person who is interested in the said property will be a question of fact, which has to be determined on a case-to-case basis.
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The bench further stated that if non-adherence to the said provision in a particular fact situation results in prejudice to the owner/person interested in the seized property, the same would be fatal to the act of seizure but in a case where no prejudice would be caused to the owner/person interested by non-adherence to this provision, the same may not render the seizure of the property illegal.
High Court noted that In a case where the subject matter of the seizure is not going to be devalued or its delayed disposal would not result in prejudice to the owner/interested person, the provisions of Section 102(3) of the Cr. P. C would not be Mandatory and non-adherence to the said provision would not render the seizure illegal.
The bench referred to the case of Amit Singh v. State of UP and observed that “once the consequences of non-adherence to the provisions of law are not given in the Statute, it is to be inferred that the said Statute is directory in nature. It is also clear that if no prejudice is caused to the owner of a property By non-reporting of seizure to the concerned Magistrate, 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.”
In the end, High Court stated that the petitioner immediately, after the seizure, approached the Special Judge seeking defreezing of his bank account and, as such, it is not a case where because of non-reporting of the seizure to the Magistrate, the The petitioner was deprived of her right to approach the Magistrate for seeking disposal of the property in her favour. Thus, the seizure of the bank account of the petitioner, in the facts and circumstances of the case, cannot be termed as illegal.
In view of the above, the bench dismissed the competition.
Case Title: Ruqaya Akhter v. UT through Crime branch
Bench: Justice Sanjay Dhar
Case No.: CRM(M) No.223/2022
Counsel for the petitioner: Mr. Bhat Fayaz
Counseling for the respondent: Ms. Asifa Padroo
