BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03/07/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.O.P.(MD).No.4892 of 2007, Crl.O.P.(MD).No.3710 of 2007 and M.P.(MD)No.2 of 2007 J.Alice Mary ... Petitioner in both the petitions Vs 1.The Inspector of Police, Suchindram Police Station, Kanyakumari District. 2.The Branch Manager, Indian Bank, Azhagappapuram Branch, Kanyakumari District. ... Respondents in
Crl.O.P.No.4892 of 2007
1.The Inspector of Police,
Suchindram Police Station,
Kanyakumari District.
2.The Branch Manager,
State Bank of Trivancore,
Mylady Branch,
Kanyakumari District. … Respondents in
Crl.O.P.No.3710 of 2007
Prayer in Crl.O.P(MD)No.4892 of 2007: Petition filed under Section 482 of the
Code of Criminal Procedure, to direct the respondents herein to permit her to
operate the petitioner’s S.B.A/c.No.16280 in the second respondent’s Bank.
Prayer in Crl.O.P(MD)No.3710 of 2007: Petition filed under Section 482 of the
Code of Criminal Procedure, to call for the records of the second respondent
herein, relating to the proceedings AGM/1/CN1/DCP/Gen/54 dated 01.06.2005 and
quash the same.
!For Petitioner : Mr.K.P.Krishnadoss
For Respondents: Mr.P.Rajendran
Government Advocate (Crl. Side)
for R1.
Mr.N.Murugesh for R2.
:COMMON ORDER
Crl.O.P(MD)No.4892 of 2007 has been filed to direct the respondents herein
to permit her to operate the petitioner’s S.B.A/c.No.16280 in the second
respondent’s Bank.
2. Crl.O.P(MD)No.3710 of 2007 has been filed to call for the records of
the second respondent herein, relating to the proceedings AGM/1/CN1/DCP/Gen/54
dated 01.06.2005 and quash the same.
3. The background facts absolutely necessary for the disposal of these
petitions would run thus:
The police registered the case in Cr.No.343 of 2005 for the offences
punishable under Sections 468, 471, 420 I.P.C and 12(b) of Indian Passport Act,
1967, as against one Jeyarajan, the husband of the petitioner. The police in
the course of investigation, freezed the bank accounts of the petitioner, even
though she is not an accused. The main grievance of the petitioner is that the
police without adhering to Section 102 Cr.P.C., simply freezed the accounts and
thereby violated the mandatory provisions of law and accordingly, the freezed
accounts should be defreezed so as to enable the petitioner to operate her Bank
accounts freely. In support of the contention, the learned counsel for the
petitioner, would cite the following decisions:
(i) Rajamani v. The Inspector of Police and 2 others reported in 2004-1-
L.W.(Crl.)38.
(ii) R.Chandrasekar v. Inspector of Police, Salem reported in 2003 CRL.L.J
294.
4. Placing reliance on the aforesaid precedents, he would develop his
argument to the effect that once, it is found that the procedural formalities
have not been complied with, then the order should be set aside, whereas the
learned Government Advocate (Criminal Side) would submit that earlier, the
police has not sent any communication to the learned Magistrate or to the
account holder, namely the petitioner relating to freezing of the account and
now then, they remedied it. But, so far no proof has been furnished relating to
such remedial measure taken by the police.
5. I carefully perused the aforesaid decisions of this Court which would
show that in both the matters, the Court was fully satisfied that there was no
nexus between the freezing of the account and the criminal case which were under
investigation. But, here the facts are different. The petitioner happened to
be the wife of the accused and she has chosen to approach this Court on the
ground that she is living separately from her husband who is the accused and
that her Bank accounts are nothing to do with it. Simply because, the Bank
accounts stand in the name of the wife, the petitioner herein, and not in the
accused’s name, the Court cannot jump to the conclusion that the amounts in the
petitioner’s accounts are not tainted money.
6. The learned Counsel for the petitioner would highlight that the case in
Cr.No.343 of 2005 relating to Crl.O.P.No.3710 of 2007 is relating to Passport
case and it is nothing to do with the embezzlement of money. Whereas the
learned Government Advocate (Criminal Side) would submit that while recording
the confession in Cr.No.343 of 2005, the accused himself voluntarily confessed
about his involvement in the case registered by Coimbatore police which is
relating to embezzlement.
7. Relating to Crl.O.P.No.4892 of 2007, the learned Counsel for the
petitioner would submit that no formal order to freeze the petitioner’s Bank
accounts was issued by the police at all. Hence, in such circumstance, relating
to Crl.O.P.No.4892 of 2007, what I would observe is that if really, there is no
freezing order relating to the Bank accounts, I am at loss to understand why
there should be a Criminal Original Petition to be filed at all. If at all, the
account holder is aggrieved, he should approach the Consumer Forum.
8. Relating to Crl.O.P.No.3710 of 2007, it is obvious and clear that the
police has come forward with a specific allegation that it is a tainted money
and the husband passed on the embezzled money to the wife and before this Court,
no records placed to show that the accused is having independent source of
income to account for such huge amounts in her bank accounts. But, the fact
remains that the police failed to comply with the mandates contained in Section
102 Cr.P.C and such a conduct on the part of the police officer is erroneous, as
envisaged in the aforesaid decisions. But, in my considered opinion, this Court
cannot simply permit the petitioner to take away the accounts and hamper the
investigation. Technicalities are hand maids of justice and mere non-compliance
would not enure to the benefit of the accessory to thwart justice.
9. When there are serious allegations of embezzlement and the police also
prima facie could show that the money in that Bank accounts is tainted money,
the Court cannot countenance that there is no nexus between the money in the
Bank and the embezzlement. It is for the learned Magistrate to deal with the
issue. The petitioner has been handicapped by the inaction of the police as she
was not served with notice. Hence, in these circumstances, the following
direction is issued:
10. The police officer if not already informed the Magistrate as well as
the petitioner, he shall do it immediately within a week from the date of
receipt of a copy of this order. Thereupon, the petitioner on receipt of the
notice, shall be entitled to approach the learned Magistrate for getting the
Bank account defreezed by setting out reasons and thereupon, it is open for the
Magistrate to pass suitable orders whether to defreeze it or not. The learned
Magistrate on receipt of a petition from the petitioner for defreezing the
account, shall dispose of it within a period of fifteen days.
11. With the above direction, both the petitions are disposed of.
Consequently, M.P(MD).No.2 of 2006 in Crl.O.P.(MD)No.3710 of 2007 is closed.
rsb
To
1.The Inspector of Police,
Suchindram Police Station,
Kanyakumari District.
2.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.