SHENTO VARGHESE versus JULFIKAR HUSEN & ORS.

10. In our view, the answer to this question can be derived by referring to the provisions in Chapter XXXIV of the 1973 Code which is titled as ‘Disposal of Property’. Section 457 Cr.P.C. sets out the procedure to be followed by police upon seizure of the property. Sub section (1) begin with the words: ‘Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of [1976] 1 SCR 779 : AIR 1976 SC 680 [2024] 6 S.C.R.  Shento Varghese v. Julfikar Husen & Ors. this Code, and such property is not produced before a Criminal Court during an inquiry or trial…..”. Similarly, we may refer to Section 459 Cr.P.C. which empowers the Magistrate with the power to auction/ sell seized property in certain situations. It begins with the words: ‘If the person entitled to the possession of such property is unknown or absent and the property is subject to speedy and natural decay, or if the Magistrate to whom its seizure is reported is of opinion that……”.

11. Both, Section 457 Cr.P.C. and Section 459 Cr.P.C. contemplates the act of seizure by police to be reported to the Magistrate so that necessary steps could be taken for its custody and disposal. However, the provision [Section 102(1) Cr.P.C.] which conferred substantive power on the police to seize property linked to a crime, did not impose on such officers a consequent duty to report the seizures made to the Magistrate. Section 523 in the 1882 Code had coupled the power to seize property linked to the crime and the duty to report forthwith the seizure to the Magistrate in the same provision. Since the relevant provisions in the 1898 Code and the 1973 Code provided only for the substantive power to seize and did not impose any duty on such seizing officer to report to the Magistrate, there arose a need for amendment. That appears to us to be the lacuna in the law which was sought to be overcome. In fact, there are several decisions which indicate that the purpose of reporting to the Magistrate is to ensure an order of the disposal of the seized property either on superdari, or otherwise, during the pendency of the case/investigations under Section 457 Cr.P.C. This further reinforces our view regarding the lacuna which was sought to be fixed. Therefore, the main object underlying the amendment appears to be a mere gap-filling exercise and an attempt to fix a basic omission in legislative drafting.

12. It is in this background that we must consider whether ‘seizure orders’ can be set at naught for non-compliance with the procedural formality of reporting such seizure forthwith to the Magistrate.

13. This requires us to consider whether validity of the seizure order is contingent on compliance with the reporting obligation? In our view, the validity of the power exercised under Section 102(1) Cr.P.C. is not dependent on the compliance with the duty prescribed on the police officer under Section 102(3) Cr.P.C. The validity of the exercise 420 of power under Section 102(1) Cr.P.C. can be questioned either on jurisdictional grounds or on the merits of the matter. That is to say, the order of seizure can be challenged on the ground that the seizing officer lacked jurisdiction15 to act under Section 102(1) Cr.P.C. or that the seized item does not satisfy the definition of ‘property’16 or on the ground that the property which was seized could not have given rise to suspicion concerning the commission of a crime, in order for the authorities to justify the seizure.17 The pre-requisite for exercising powers under Section 102(1) is the existence of a direct link between the tainted property and the alleged offence. It is essential that the properties sought to be seized under Section 102(1) of the Cr.P.C. must have a direct or close link with the commission of offence in question.18

14. As stated hereinbefore, 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.

15. We find that there are certain other provisions19 in the 1973 Code which place similar obligation(s) on the police officer to report their actions to the jurisdictional Magistrate. For example, Section 157 Cr.P.C. Nevada Properties (P) Ltd. Vs. State of Maharashtra & Anr. (2019) 20 SCC 119 Ms Swaran Sabharwal Vs. Commissioner of Police, 1990 (68) Comp Cas 652 Delhi (DB) State of Maharashtra Vs. Tapas D. Neogy,1999/INSC/417 Supra, 17. See, Section 168 Cr.P.C. [2024] 6 S.C.R.  Shento Varghese v. Julfikar Husen & Ors. provides that ‘if, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence……he shall forthwith send a report of the same to a Magistrate’. As in the case of Section 102(3) Cr.P.C., Section 157 Cr.P.C. does not provide for any consequence in the event there is failure to promptly comply with the reporting obligation. It would be helpful to understand how this Court has elucidated on the effect of such non-compliance in the context of Section 157 Cr.P.C. since the provision is nearly pari materia with Section 102(3).

16. It is now too well settled that delay in registration of FIR is no ground for quashing of the FIR itself.20 It follows as a corollary that if delay in registration of FIR is no ground to quash the FIR, then delay in forwarding such FIR to the Magistrate can also afford no ground for nullification of the FIR. In fact, this Court has gone to the extent of holding that unless serious prejudice is demonstrated to have been suffered as against the accused, mere delay in sending the FIR to the Magistrate by itself will not have any deteriorating effect on the case of the prosecution.21 If prejudice is demonstrated and the prosecution fails to explain the delay, then, at best, the effect of such delay would only be to render the date and time of lodging the FIR suspect and nothing more.22 Drawing from this analogy, 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. Moreover, this Court has consistently held that even illegalities in the investigation (including illegality in search and seizures) is no ground for setting aside the investigation in toto23.

17. In the background of the aforesaid discussion, therefore, the line of precedents which have taken the position that ‘seizure orders’ Ravinder Kumar & Anr. Vs. State of Punjab (2001) 7 SCC 690 Supra, 20. Bhajan Singh and Ors. vs. State of Haryana, 2011/INSC/422 HN Rishbud v. State of Delhi (1954) 2 SCC 934 422 are vitiated for delay in compliance with the reporting obligation are declared to be manifestly erroneous and are accordingly, overruled. The relevant question to be determined was not whether the duty of the police to report the seizure to the Magistrate is mandatory or directory. Instead, what ought to have been inquired into was whether the exercise of the seizure power was subjected to compliance of reporting obligation, as illustrated in Section 105E Cr.P.C.

18. Merely because we have held that non reporting of the seizure forthwith by the police officer to the jurisdictional court would not vitiate the seizure order, it would not mean that there would be no consequence whatsoever as regards the police officer, upon whom the law has enjoined a duty to act in a certain way. Since there is an obligation cast on the officer to report the seizure forthwith, it becomes necessary to understand the meaning of the expression forthwith as used in Section 102(3) CrPC. For, without a clear understanding of the said expression, the Magistrate would not be in a position to determine whether the obligation cast on the police officer has been properly complied with. In this background, the expression ‘shall forthwith report the seizure to the Magistrate’ occurring in sub- section (3) of the Section 102 requires to be examined.

19. The meaning of the word ‘forthwith’ as used in Section 102(3) has not received judicial construction by this Court. However, this Court has examined the scope and contours of this expression as it was used under the Maintenance of Internal Security Act, 1971; Preventive Detention Act, 1950; Section 157(1) of the Cr.P.C.; and Gujarat Prevention of Anti-Social Activities Act, 1985 in the case of Sk. Salim v. State of West Bengal24, Alla China Apparao and Others v. State of Andhra Pradesh25 and Navalshankar Ishwarlal Dave v. State of Gujarat26.

20. This Court, in Rao Mahmood Ahmad Khan v. Ranbir Singh27, has held that the word ‘forthwith’ is synonymous with the word immediately, which means with all reasonable quickness. When a statute requires something to be done ‘forthwith’ or ‘immediately’ or even ‘instantly’, [1975] 3 SCR 394 : (1975) 1 SCC 653 (para 10 and 11) [2002] Supp. 3 SCR 175 : (2002) 8 SCC 440 (para 9) [1993] 3 SCR 676 : 1993 Supp (3) SCC 754 (para 9) [1995] 2 SCR 230 : 1995 Supp (4) SCC 275 [2024] 6 S.C.R.  Shento Varghese v. Julfikar Husen & Ors. it should probably be understood as allowing a reasonable time for doing it28.

21. The expression ‘forthwith’ has been defined in Black’s Law Dictionary, 10th Edition as under: “forthwith, adv. (14c) 1. Immediately; without delay. 2. Directly; promptly; within a reasonable time under the circumstances; with all convenient dispatch” Wharton’s Law Lexicon, 17th Edition describes ‘forthwith’ as extracted: Forthwith, When a defendant is ordered to plead forthwith, he must plead within twenty four hours. When a statute or rule of Court requires an act to be done ‘forthwith’, it means that the act is to be done within a reasonable time having regard to the object of the provision and the circumstances of the case [Ex parte Lamb, (1881) 19 Ch D 169; 2 Chit. Arch. Prac., 14th Edition]

22. From the discussion made above, it would emerge that the expression ‘forthwith’ means ‘as soon as may be’, ‘with reasonable speed and expedition’, ‘with a sense of urgency’, and ‘without any unnecessary delay’. In other words, it would mean as soon as possible, judged in the context of the object sought to be achieved or accomplished.

23. We are of the considered view that the said expression must receive a reasonable construction and in giving such construction, regard must be had to the nature of the act or thing to be performed and the prevailing circumstances of the case. When it is not the mandate of the law that the act should be done within a fixed time, it would mean that the act must be done within a reasonable time. It all depends upon the circumstances that may unfold in a given case and there cannot be a straight-jacket formula prescribed in this regard. In that sense, the interpretation of the word ‘forthwith’ would depend upon the terrain in which it travels and would take its colour depending upon the prevailing circumstances which can be variable.

24. Therefore, 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 Bidya Deb Barma v. District Magistrate,1968 SCC OnLine SC 82 424 was reported forthwith. In doing so, it ought to have regard to the interpretation of the expression, ‘forthwith’ as discussed above. 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.

25. Having clarified the applicable legal position above, we now proceed to consider the facts in instant case.

26. The Respondents-accused is 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 suggest that the exchange took place on 20.12.2022. Shortly thereafter, the Appellant learns that gold bars handed over to him were fake. On this basis, the Appellant approached the police and lodged the first information report. On registration of the first information report, the police initiated investigation and during such investigation, it was noticed that certain monies to the tune of Rs.19,83,036/- were deposited in the bank accounts of Accused 1 and 3. On 09.01.2023, the investigating officer wrote to the bank and ordered for freezing of their bank accounts. The order of freezing was reported to the Magistrate on 27.01.2023. The Respondents had unsuccessfully approached29 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 has allowed the application of the Respondents-accused for de-freezing of the bank accounts, and therefore set at naught the Application under Section 457 – Cr. M.C 2032 of 2023 was filed. [2024] 6 S.C.R.  Shento Varghese v. Julfikar Husen & Ors. seizure order on the sole ground that the order of seizure was not forthwith reported to the Magistrate.

27. The reasoning adopted by the High Court cannot be sustained in the light of aforestated discussion. This takes us to the consequential question, namely, whether at this distance of time, we ought to direct freezing of the bank accounts afresh? The answer has to be in the negative, since undisputedly by virtue of the impugned order, the bank accounts of the respondents has 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. 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. It is needless to say that the bond executed would stand discharged if the accused persons are acquitted at the end of trial.

28. With these observations, appeals are allowed in part. ANNEXURE ‘A’ CASES WHERE COURTS HAVE HELD THAT BREACH OF REPORTING CONDITIONS IS ILLEGAL No CASE CITATION COURT 1. Manish Khandelwal And Ors vs The State of Maharashtra And Ors 2019 SCC OnLine Bom 1412 Bombay High Court 2. V Plus Technology Pvt Ltd vs The State (Nct Of Delhi) & Anr 2022/DHC/001595 Delhi HC 3. Muktaben M. Mashru vs State Of Nct Of Delhi & Anr 2019 SCC OnLine Del 11509 Delhi HC 4. Tmt.T.Subbulakshmi vs The Commissioner of Police 2013(4)MLJ(Crl)41 Madras High Court 426 5. Ms Swaran Sabharwal Versus Commissioner of Police 1990 (68) Comp Cas 652 Delhi (DB) Delhi High Court 6. Uma Maheshwari Vs. The State Rep. By Inspector of Police, Central Crime Branch, Egmore, Channai; Criminal O.P. No.15467 of 2013 SCC OnLine Mad 3829 Madras HC 7. The Meridian Educational Society Vs. The State of Telangana; Writ Petition No.21106 of 2021 2022 1 ALT(Cri) Telangana HC 8. Padmini vs. Inspector of Police, Tirunelveli 2008(3) Crimes 716 (Mad.) Madras HC 9. R. Chandrasekar vs. Inspector of Police, Salem 2003 Criminal Law Journal 294 Madras HC 10. Lathifa Vs. State of Karnataka 2012 Cri. L.J. 3487 Karnataka High Court 11. B. Ranganathan Vs. State and Ors 2003 Crl.L.J 2779 Madras HC 12. Shashikant D. Karnik Vs. The State of Maharashtra II(2007)BC337 Bombay HC 13. Karthika Agencies Export House vs The Commissioner of Police W.P.No.17953 of Madras High Court 14. S. Ganapathi Vs. State and Ors. Crl.O.P.No.800 of Madras HC 15. R. Sivaraj Vs. State of Tamil Nadu Criminal O.P.Nos.576 and 577 of 2013 Madras HC 16. Shri. Vilas S/o. Prabhakar Dange Vs. State of Maharashtra Criminal Writ Petition No. 1033/2017 Bombay HC 17. Purbanchal Road Service, Gauhati VS State 1991CRILJ2798 Gauhati High Court [2024] 6 S.C.R.  Shento Varghese v. Julfikar Husen & Ors. 18. S. T. Cleopatra VS Commissioner of Police, Chennai City, Vepery, Chennai W.P.No.17953 of Madras HC 19. Kiruthika Vs. State rep. by Inspector of Police and another Crl.O.P.No.14733 of 2021 Madras HC 20. Dr.Shashikant D. Karnik Vs. State Of Maharashtra 2008 CRL.L.J. 148 Bombay HC 21. Ali Trading and Anr v The State of Assam WA 296/2019 Gauhati HC 22. B. Kavitha v. Inspector of Police & ors Crl.OP. NO. 14824/2019 Madras HC CASES WHERE THE COURT HAS HELD THE REPORTING CONDITIONS ARE DIRECTORY AND NOT ILLEGAL 23. Dattasai (Kisan Seva Kendra) VS State of Telangana 2022 6 ALD 702 Telangana HC 24. M/S SJS Gold Pvt. Ltd. Thru. Director Sunil Jaihind Salunkhe & Anr V. State of UP Criminal Misc. Writ Petition No. – 3511 Of 2022 Allahabad High Court 25. Amit Singh vs State of U.P. And Anr. Criminal Misc. Writ Petition No. – 11201 Of 202 Allahabad High Court 26. Ruqaya Akhter Vs Ut Through Crime Branch CRM(M) No.223/2022 The Jammu & Kashmir and Ladakh High Court 27. Narottam Singh Dhillon and another vs. State of Punjab Criminal Misc. No.43768 of 2004 Punjab- Haryana High Court 28. Vinoshkumar Ramachandran Valluvar Vs. The State of Maharashtra 2011(1) MWN (Cr) Bombay HC 428 29. C.Aranganayagam Vs. State by the Director of Vigilance and Anti-corruption, Erode and another 1999 SCC OnLine Mad 463 Madras HC 30. M/S. Ap Product vs State Of Telangana on 3 December, AIR ONLINE 2020 TEL 135 Telangana High Court 31. Mohd. Maqbool Ahmed @ Mateen And Anr. vs The Deputy Commissioner Of Police 1996(3) ALT215 Andhra High Court 32. State of Manipur v Canning Keishing 2021 SCC OnLine Mani 272 Manipur HC 33. M.S. Jaggi vs Subaschandra Mohapatra 1977 CRILJ 1902 Orissa High Court 34. Bharath Overseas Bank v. Minu Publication [1988] MLJ (Crl.) Madras HC 35. Dr. Shaik Haseena v State of Telangana 2020 SCC OnLine TS 2851 Telangana HC 36. Operation Mobilization India v. State of Telangana 2021 SCC OnLine TS 1529: (2021) 1 HLT 81 Telangana HC Result of the case: Appeals partly allowed †Headnotes prepared by: Ankit Gyan