Magistrate has powers u/s.451 and 457 of Cr.P.C. to order de-freezing of bank account seized by police

Questions may often arise as to the legal remedy which a person can resort to, upon being aggrieved by the seizure of his bank account which reveals no nexus with the alleged offence.

In case the seizure is illegal and the account freezed lacked direct link with the offences alleged, the legal remedy open to the aggrieved is to approach the concerned Magistrate under Section 451 or 457 of the CrPC as the case may be, and seek to get the account de-freezed. But if the freezing is per se contrary to the provisions of law and could be assailed as illegal without reference to factual disputes involved in the matter, nothing precludes the affected person from approaching this Court for appropriate relief.[Para No.23]

    If a Police Officer wants to depart from the normal procedure of getting a warrant or such permission from the concerned Magistrate, he must then have to draw a search memorandum in writing containing sufficient grounds for his belief as to how the assets in the account are associated with the alleged offences and also as to how an emergent freezing of account would be justified in the circumstances of the case on hand. He must forward the same to the nearest Magistrate forthwith as required under Section 165(5). If there is breach in this respect, it is to be considered as being irregular than illegal. All that the Magistrate has to decide on the motion made for defreezing of the account is whether the seizure complained of is illegal and the account did have any direct/close nexus or link with the offences in question. In other words, despite there could be complaint of irregularity in the matter of seizure also, once the Magistrate is satisfied that the account seized nevertheless has got direct or close link with the offences in question, then it is not a case where the account could be ordered to be de-freezed at the request of the aggrieved. This will not, however, preclude the Magistrate from reporting the violation if any, committed by the erring Police Officer, to his departmental head for initiating necessary disciplinary action.[Para No.24]

Opinion expressed by High Court; while deciding bail application, can not be cited as a precedent in any other case

The appellant was the Secretary of the Mohammedpur Bujurg Kisan Sewa Sahkari Samiti Limited, Vikas Khand, Laksar, District Haridwar. While declining to grant bail, the High Court, by its order dated 20 February 2020, has come to the conclusion that the appellant falls under the definition of a “public servant”, as contained in Section 2(c)(viii) of the Act.[Para No.3]

    Assailing the finding of the High Court, Mr Aditya Singh, learned counsel appearing on behalf of the appellant, submitted that in pursuance of the earlier order of the High Court dated 27 January 2020, the Inspector, Vigilance Signature Not Verified Establishment, Dehradun, who is the investigating officer, filed an affidavit Digitally signed by ARJUN BISHT Date: 2020.08.24 18:25:18 IST Reason:

clarifying that the Society does not receive any financial assistance or aid from the State government. On this basis, learned counsel submitted that the 1 Act appellant does not fulfill the description of a “public servant” within the meaning of Section 2(c) of the Act.[Para No.4]

   In our view, it is not appropriate at the present stage to enter into a finding on whether or not the appellant fulfills the description of “public servant” as contained in Section 2(c) of the Act. Similarly, we are of the view that the issue whether the cooperative society is ‘State’ within the meaning of Article 12 of the Constitution did not arise for consideration before the High Court, and should not have been decided. This also is an issue on which no final opinion should be rendered at this stage in the context of adjudicating upon an application for bail. We, therefore, clarify that the impugned order of the High Court shall not be construed as an expression of any conclusive opinion nor will it be cited as a precedent in any other case.[Para No.6]