Non-reporting of seizure of property forthwith by police officer to jurisdictional Court would not vitiate the seizure order; Act of seizure would not get vitiated by virtue of delay: Supreme Court
Justices Pamidighantam Sri Narasimha & Aravind Kumar [10-05-2024]

Read Order: SHENTO VARGHESE v. JULFIKAR HUSEN & ORS [ SC- CRIMINAL APPEAL NOS. 2531-2532 OF 2024]

LE Correspondent

New Delhi, May 14, 2024: While clarifying that the expression ‘forthwith’ means as soon as possible, the Supreme Court has clarified that in deciding whether the police officer has properly discharged his obligation under Section 102(3) Cr.P.C., the Magistrate would have to examine whether the seizure of property was reported forthwith. The Top Court made it very clear that the act of seizure of property would not get vitiated by virtue of delay.

The facts of the case were such that the Respondents-accused was said to have placed an order for purchase of forty-seven Kerala Model Gold Chains from the Appellant-first informant, who worked as a deliveryman in a company called ‘PR Gold’. In consideration for the supply of gold chains, the Respondents had agreed to provide gold bars of equivalent value. The allegations in the complaint suggested that the exchange took place and thereafter, the Appellant learnt that gold bars handed over to him were fake. On this basis, the Appellant approached the police and lodged the first information report. 

The police started the investigation and noticed that certain amount to the tune of Rs.19,83,036/- were deposited in the bank accounts of Accused 1 and 3. The investigating officer wrote to the bank and ordered for freezing of their bank accounts. The order of freezing was reported to the Magistrate. The Respondents unsuccessfully approached with an Application under Section 457 before the jurisdictional Magistrate for taking custody of the seized bank accounts. The Respondents then approached the High Court by filing an original petition under Section 482 Cr.P.C. and sought for de-freezing of the bank accounts. 

The High Court vide the impugned order allowed the application of the Respondents-accused for de-freezing of the bank accounts, and therefore set at naught the seizure order on the sole ground that the order of seizure was not forthwith reported to the Magistrate.

The Division Bench of Justice Pamidighantam Sri Narasimha and Justice Aravind Kumar was considering the implication of non-reporting of the seizure forthwith to the jurisdictional Magistrate as provided under Section 102(3) of the CrPC. Another issue before the Bench was whether delayed reporting of the seizure to the Magistrate vitiate the seizure order altogether. It was noticed that there is no authoritative pronouncement of this Court on this issue. 

Referring to the 36 decisions of the High Courts, the Bench noticed that broadly, there are two prevailing strands of thought: one set of cases holding that delayed reporting to the Magistrate would, ipso facto, vitiate the seizure order; and the other view being that delayed reporting would constitute a mere irregularity and would not vitiate the seizure order.

The Bench was of the view that the obligation to report the seizure to the Magistrate is neither a jurisdictional pre-requisite for exercising the power to seize nor is the exercise of such power made subject to compliance with the reporting obligation. Contrast this with Section 105E Cr.P.C., 1973 which provides for similar power of seizure and attachment of property. While Section 105E(1) confers the substantive power to make seizure under circumstances provided in that section, sub-section (2) of Section 105E declares that the order passed under Section 105E(1) ‘shall have no effect unless the said order is confirmed by an order of the said Court, within a period of thirty days of its being made’. 

“In that sense, the order of seizure, for it to take effect and have legal force, is subjected to a further statutory requirement of the seizure order being confirmed by an order of Court. It is only upon passing of the confirmation order within the stipulated period does the order of seizure take effect. Until then, it remains an order in form but without having any legal force” , the Bench said.

While further affirming that the delay in reporting the seizure to the Magistrate may, subject to proof of prejudice, at best, dent the veracity of the prosecution case vis-à-vis the date, time and occasion for seizure of the property. Since the proof of prejudice on part of the accused and the explanation for delay on part of the prosecution can only be demonstrated at trial, the effect of non-compliance becomes an issue to be adjudicated at the time of appreciation of evidence. Reliance was placed upon HN Rishbud v. State of Delhi wherein it has been opined that even illegalities in the investigation (including illegality in search and seizures) is no ground for setting aside the investigation in toto.

The Bench was of the view that the line of precedents which have taken the position that ‘seizure orders’ are vitiated for delay in compliance with the reporting obligation are declared to be manifestly erroneous and are accordingly, overruled.

The Top Court explained that in deciding whether the police officer has properly discharged his obligation under Section 102(3) Cr.P.C., the Magistrate would have to, firstly, examine whether the seizure was reported forthwith. In doing so, it ought to have regard to the interpretation of the expression, ‘forthwith’. If it finds that the report was not sent forthwith, then it must examine whether there is any explanation offered in support of the delay. If the Magistrate finds that the delay has been properly explained, it would leave the matter at that. However, if it finds that there is no reasonable explanation for the delay or that the official has acted with deliberate disregard/ wanton negligence, then it may direct for appropriate departmental action to be initiated against such erring official. 

“We once again reiterate that the act of seizure would not get vitiated by virtue of such delay, as discussed in detail herein above”, the Bench said.

After going through the facts of the instant case, the Top Court held that the reasoning adopted by the High Court couldn't be sustained. The Bench was not in the favour to direct freezing of the bank accounts afresh since undisputedly by virtue of the impugned order, the bank accounts of the respondents had been defreezed and resultantly, the Respondents would have operated the accounts and amount of Rs.19,83,036 which had been frozen would have been withdrawn. 

“The ends of justice would be met and the interest of prosecution would be served if the Respondents are called upon, forthwith, to execute a bond undertaking to deposit the amount (which has been thus far withdrawn from the seized bank accounts) before the jurisdictional Court in the event the Court were to return a finding of guilt against the accused persons.”

Allowing the appeal in part, the Bench held that the Respondents would have to undertake to deposit the amount within four weeks from the date on which the Court passes an order of conviction. The bond executed would stand discharged if the accused persons are acquitted at the end of trial, the Bench added.