Antony Joseph v. Director General of Police (State Police Chief), Police Headquarters, Trivandrum; Inspector of Police, Gandhi Nagar Police Station, Kottayam; Sub Inspector of Police, Gandhi Nagar Police Station, Kottayam; Manager, Axis Bank, Palakkad Branch, Palakkad; Manager, Axis Bank, Chandranagar Branch, Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **WEDNESDAY, THE 17[TH] DAY OF NOVEMBER 2021 / 26TH KARTHIKA, 1943** **WP(C) NO. 12266 OF 2021** ## **PETITIONER:** **ANTONY JOSEPH AGED 46 YEARS** **S/O.JOSEPH, DOOR NO.6/511, IT COLONY, KUPPIYODU, CHANDRA NAGAR, PALAKKAD, PIN-678 007.** **BY ADV N.K.MOHANLAL** ## **RESPONDENTS:** - **1 DIRECTOR GENERAL OF POLICE (STATE POLICE CHIEF), POLICE HEAD QUARTERS, TRIVANDRUM, PIN-695 004.** - **2 INSPECTOR OF POLICE, GANDHI NAGAR POLICE STATION, KOTTAYAM, PIN-686 008.** - **3 SUB INSPECTOR OF POLICE, GANDHI NAGAR POLICE STATION, KOTTAYAM, PIN-686 008.** - **4 MANAGER, AXIS BANK, PALAKKAD BRANCH, PALAKKAD, PIN-678 014.** - **5 MANAGER, AXIS BANK, CHANDRANAGAR BRANCH, PALAKKAD, PIN-678 013.** **BY ADVS.** **JACOB SEBASTIAN** - **K.V.WINSTON** **SR.PP - SRI. RENJITH T.R.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **15.11.2021, THE COURT ON 17.11.2021 DELIVERED THE FOLLOWING:** W.P(C).12266/21 2 ## **JUDGMENT** Petitioner is the accused in crime 18/2021 Gandhinagar police station, registered on 05.01.2021 alleging offences punishable under Sections 415, 416, 419 and 420 IPC. The summary of the allegations going by Ext.P6 FIR is that the petitioner, who is the accused, with the intention of taking wrongful gain, offered the informant Sumesh K. Sivadas to arrange a job in Kuwait and with such a promise collected an amount of Rs.5,95,000/- from him during the period between 11.06.2018 and 27.06.2018; even after long time neither a job was arranged nor the amount was refunded, and thus the above said offences were committed. It is also stated that he was made to deposit the amount in the given account of the Axis Bank at Chandranagar, Palakkad belonging to the accused, the petitioner. On the basis of the statement given by Sumesh K. Sivadas the crime was registered. According to the petitioner, that crime was registered on a private complaint preferred by the said Sumesh before Court, which was forwarded to Gandhinagar police station for registering the crime under Section 156(3) of the Cr.P.C. Then he moved this Court with W.P(C).12266/21 3 B.A. 8186 of 2020 seeking anticipatory bail and obtained an interim order on 18.02.2021 whereunder the Court directed that he shall not be arrested without serving notice under Section 41A of the Cr.P.C. But the respondents, in gross and willful violation of the order and misusing and abusing their official powers, committed house trespass into the residence of the petitioner, harassed him, intimidated his wife and child, illegally arrested him and abducted him, handcuffed him and looted an Innova car, a laptop and other valuables and documents and he was produced before the Magistrate on 30.05.2021, who remanded him to judicial custody. According to the learned counsel, the said acts of the official respondents 2 and 3 are illegal and in gross violation of the interim order passed by this Court. Also they had not taken into consideration the Ext.P1 affidavit filed by the said Sumesh intimating the settlement reached with the petitioner on payment of the sum of Rs.5,95,000/-. He was detained in custody and thereafter his various accounts in Axis Bank, Chandranagar branch in Palakkad and savings bank account in Pathadippalam branch of the Federal Bank were frozen. Everything was done violating all norms of law, with the intention to defeat his interest. Eventhough he had issued a W.P(C).12266/21 4 lawyer notice citing the decision in **Madhu K. v. Sub Inspector of Police, Marayamuttom and others [2020 (5) KHC 35]** , the respondents have not responded. According to him, everything was done illegally and arbitrarily. The accounts were frozen with malafide intention of causing him damage, that the police did not issue notice before freezing the accounts. They cannot freeze an account without the order of the Court and therefore it is clearly misuse and abuse of the powers vested in them. Moreover, even though there are two other crimes, i.e crime No.459 of 2020 of Thrikkakkara police station crime; another crime of Ponkunnam police station, they are not expected to freeze the account. By order of this Court in Crl.M.C. 3226 of 2020, this Court has stayed the proceedings in Thrikkakara police station crime; he has also filed separate Crl.M.C. 3702 of 2020 for quashing the FIR of Ponkunnam police station. In the circumstances, he seeks the following reliefs: - i. issue a writ of mandamus or any other appropriate writ or order directing respondents 1 to 3 to defreeze forthwith the bank accounts of the petitioner in the bank of respondents 4 and 5 or freeze such amount or account as is related to subject matter involved in crime 18/2021 of Gandhinagar police W.P(C).12266/21 5 station; and - ii. issue a writ of mandamus or any other appropriate writ or order directing the 1[st] respondent to take appropriate disciplinary action against respondents 2 and 3 for illegally and arbitrarily freezing the bank accounts of petitioner and direct further to prosecute and punish respondents 2 and 3 and other police officials accompanying them for travelling interdistrict in private vehicle without uniform and violating the Covid-19 protocol. 2. I heard the learned counsel for the petitioner, the learned Senior Public Prosecutor and also the learned counsel for respondents 4 and 5. 3. According to the learned counsel, the petitioner is a heart patient and the malafide acts of respondents 2 and 3 are very much patent. The act of freezing the accounts was done without reporting the matter to the Magistrate. Moreover, he was arrested violating the interim order passed by this Court in the bail application and the averments in the counter affidavit filed in the connected Contempt Court proceedings that they were not aware of or they had not received the interim order, etc. are false. In fact he had sent e-mail and also whatsapp messages to the phones of the official respondents; W.P(C).12266/21 6 they were acting to satisfy their personal grudge against the petitioner. From Ext.P1 it is clear that the defacto complainant in crime 18 of 2021 of Gandhinagar police station had received the amount; still it is not known as to how the accounts were frozen. They travelled to Palakkad with utmost speed and frozen the accounts without any bonafides. The police at Gandhinagar had no right to freeze the accounts at Palakkad and the entire procedural requirements were violated. His wife and girl child were also intimidated and he is unable even to meet his treatment expenses. 4. On the other hand, the learned Senior Public Prosecutor has opposed the application. Inviting my attention to the counter affidavit filed by the Circle Inspector and Sub Inspector in the connected contempt case, he said that more than Rs.6 crores have been cheated by the petitioner for which nearly 14 cases have been registered against him. All were done offering that he would arrange employment abroad and therefore the malafides of the petitioner is very much patent. According to the learned Public Prosecutor, investigations in all cases have been handed over to the Crime Branch. The police also have received information that he has committed W.P(C).12266/21 7 similar type of offences in Coimbatore district also and therefore it is not appropriate to approach this Court under Article 226 of the Constitution for defreezing the accounts. 5. The learned counsel for respondents 4 and 5 said that they have no objection in defreezing the accounts, if the Court gives a direction to that effect. 6. Even though the learned counsel for the petitioner vehemently contended and pressed for an order at least to defreeze the account covered in Gandhinagar police crime, the Public Prosecutor has opposed the prayer. The power of the police to freeze a bank account of a suspect in a crime is now beyond the area of dispute. The Hon'ble Supreme Court in **State of Maharashtra v. Tapas D. Neogy [(1999) 7 SCC 685]** held in unambiguous terms that plain reading of sub-section (1) of Section 102 of the Cr.P.C. indicates that the police officer has the power to seize any property which may be found under circumstances creating suspicion of the commission of any offence. The bank account of the accused or any of his relations falls within the meaning of 'property' under Section 102 of the Cr.P.C. and a police officer in course of investigation can seize or prohibit the operation of W.P(C).12266/21 8 the said account if such assets have direct links with the commission of the offence which the police officer is investigating into. That means, now the petitioner cannot be heard to say that a police officer has no right to freeze an account of a suspect or an accused if there are reasons to believe that he has involved in the commission of the crime and the amount so obtained was deposited in a particular account. 7. Now the immediate question is whether the police officials should have given notice before freezing an account. I have no doubt that the learned counsel even though vehemently pointed out that it was illegal to freeze the accounts without giving notice to the petitioner, no provision of law could be pointed out by the counsel which insists that such an act of freezing the account should be preceded by issue of notice. Secondly, it is neither practical nor feasible to give any such notice. If it is insisted that notice should be given before freezing the account, that will enable the suspect to alienate or transfer credit the amount in deposit from the account. Therefore such a proposition is not acceptable. To top it all, the Hon'ble Supreme Court has in **Teesta Atul Setalwad and others v. State of Gujarat and others (2017 KHC 6866** ) held that no such W.P(C).12266/21 9 notice need be given before freezing an account. According to the Supreme Court, an Investigating Officer in the course of investigation can seize or prohibit the operation of a bank account if such accounts have direct link with the commission of the offence for which the police officer is investigating into. 8. Here, it is evident that the petitioner was arrested on 29.05.2020. It is a disputed question of fact as to whether notice, as insisted by this Court, to be issued under Section 41A of the Cr.P.C. was communicated by the petitioner and whether the Sub Inspector and Circle Inspector were aware of such an order passed by the Court in the bail application. But that is a matter to be decided in the connected proceedings that is, Cont. Case (C) 950 of 2021. Here, for more than three reasons, I am of the opinion that the first relief sought for by the petitioner cannot be granted. Firstly, on his own showing nearly six accounts, three accounts of Axis Bank, Gandhinagar branch and two accounts of Axis Bank Palakkad main branch and an account of the Federal Bank, Pathadippalam branch were frozen by the police after the initiation of criminal proceedings against the petitioner. We do not know the amounts in deposit in those accounts. Even though W.P(C).12266/21 10 the petitioner claims that Rs.5.95 lakhs is in credit in one account, we do not know which is that account. On the basis of the contention that the petitioner has reached a settlement with the defacto complainant in crime 18/2021 of Gandhinagar police station, without understanding the particulars, the Court cannot pass any order defreezing the account. 9. Secondly, on his own contention there are two other cases registered against him, one in Thrikkakara police station and another in Ponkunnam police station. 10. The learned Public Prosecutor has highlighted the statement of the Investigating Officers. According to him, Ponkunnam police station crime relates to committing of visa cheating worth Rs.3,83,39,000/-, which is being investigated by the Crime Branch, Thiruvananthapuram unit. Similarly, crime No.459 of 2020 of Thrikkakara police station is in respect of committing financial fraud worth Rs.2,74,17,931/-. This along with Gandhinagar police station crime, where an amount of Rs.5,95,000/- is involved, the total financial fraud allegedly committed by the petitioner comes to Rs.6,63,51,931/-. We do not know what are the amounts frozen by the W.P(C).12266/21 11 police in the six accounts described by the petitioner in paragraph 8 of the statement of facts. Therefore, without getting the details an order for defreezing the accounts cannot be passed on the mere reason that the matter stands settled with the defacto complainant in Gandhinagar police station crime. 11. Moreover, the police have already reported the freezing of accounts to the jurisdictional court. Therefore, it is only appropriate for the petitioner to approach the jurisdictional Magistrate with a petition under Section 451 of the Cr.P.C. for defreezing the accounts, **Madhu K.** v. **Sub** if any, which is the proper remedy. In the decision **Inspector of Police [2020 (5) KHC 35]** also this Court has relegated the question to be decided by the jurisdictional Magistrate. Again, as indicated earlier, numerous disputed questions are here; all the material papers are not produced before this Court, we do not know what is the amount in credit in each account also. It is also certain that large number of crimes have been registered against the petitioner. Without conducting an enquiry, no relief can be granted to the petitioner. Therefore, proper remedy is to approach the jurisdictional court and the accounts cannot be defrozen by exercising inherent W.P(C).12266/21 12 jurisdiction of this Court under Article 226 of the Constitution. Thus, the first relief cannot be granted. 12. The second relief also cannot be granted by this Court. This Court cannot sit over judgment as to the question whether the police officials had been acting illegally and arbitrarily. Such a relief is superfluous and cannot be granted. 13. In the result, the writ repetition is dismissed. When the judgment was pronounced, the learned counsel for the petitioner submits that he intends to file an application under Section 451 of the Cr.P.C. If such an application is filed, the learned Magistrate shall dispose of the same with utmost expedition. **Sd/-** **K.HARIPAL JUDGE** okb/15.11. //True copy// P.S. to Judge W.P(C).12266/21 13 ## **APPENDIX OF WP(C) 12266/2021** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|A TRUE COPY OF AFFIDAVIT SUBMITTED BY DEFACTO| ||COMPLAINANT IN CRIME NO.18/2021 BEFORE JFCM| ||COURT I, ETTUMANOOR DATED 30.05.2021.| |Exhibit P2|A TRUE COPY OF LEGAL NOTICE DATED 02.06.2021| ||ISSUED BY PETITIONER TO RESPONDENTS 2 AND 3| ||DEFACTO COMPLAINANT AND ANOTHER PERSON.| |Exhibit P3|A TRUE COPY OF LEGAL NOTICE DATED 04.06.2021| ||ISSUED BY PETITIONER BY E-MAIL TO RESPONDENTS| ||2 AND 3.| |Exhibit P4|A TRUE COPY OF EMAIL LETTER DATED 07/06/2021| ||ISSUED BY 4TH RESPONDENT TO PETITIONER.| |Exhibit P5|A TRUE COPY OF EMAIL LETTER DATED 04/06/2021| ||ISSUED BY 5TH RESPONDENT TO PETITIONER| |Exhibit P6|A TRUE COPY OF THE FIR IN CRIME 18/2021 OF| ||GANDHINAGAR POLICE STATION| |Exhibit P7|A TRUE COPY OF REPLY LEGAL NOTICE DTD. 30.6.2021| ||ISSUED BY COUNSEL FOR RESPONDENTS 4 AND 5|