Neutral Citation No. - 2025:AHC-LKO:8715-DB Court No. - 9 Case :- CRIMINAL MISC. WRIT PETITION No. - 1049 of 2025 Petitioner :- Devendra Kumar Respondent :- State Of U.P. Thru. The Prin. Secy. Home And 2 Others Counsel for Petitioner :- Akshay Singh,Arshad Siddiqui Counsel for Respondent :- G.A.,Prashant Kumar Srivastava Hon'ble Mrs. Sangeeta Chandra,J. Hon'ble Ajai Kumar Srivastava-I,J. 1. Heard learned counsel for the parties and perused the record. 2. This petition has been filed with the following main prayer :- i. To issue the writ in the nature of mandamus commanding the opposite party no.3 to de- freeze the account of the petitioner, i.e., Account No.62860100000118, IFSC Code: BARBOVJBBNK and allow the petitioner to use his account for both debit and credit facilities." 3. It has been submitted that the petitioner has a Bank Account in Bank of Baroda, Civil Lines branch, Barabanki and he has never received any money arising out of any fraudulent transaction but for the reasons best known to the Bank his account has been put on debit freeze. 4. The petitioner filed a complaint before the Department of Consumer but no satisfactory reply has been given to him. He has, therefore, approached this Court. 5. Learned A.G.A. as produced before this Court the instructions sent by Shri Sanjeev Kumar Yadav, Incharge Inspector, Police Station - Cyber Crime, District Barabanki wherein it has been stated that a notice under Sections 94 and 106 B.N.S.S., corresponding Sections 91 and 102 Cr.P.C., dated 05.11.2024 was received through email in Bank of Baroda, Civil Lines, Barabanki by Cyber Crime Police station Chikkaballapura, Karnataka on 05.11.2024 in case crime no.108/2024, under section 66 (D) of the I.T. Act and Section 316 (2), 318 (4) of BNS, 2023 and in pursuance of such notice the account of the petitioner has been put on debit freeze. 6. The said instructions are kept on record. 7. The corresponding provision of Section 102 Cr.P.C. is in the form of Section 106 of B.N.S.S. While interpreting the scope of Section 102 Cr.P.C. (corresponding Section 106 B.N.S.S.), Hon'ble Supreme Court in the case of Teesta Atul Setalvad v. State of Gujarat : (2018) 2 SCC 372 in paragraph nos.17 & 18 has held as under:- "17. The sweep and applicability of Section 102 of the Code is no more res integra. That question has been directly considered and answered in State of Maharashtra v. Tapas D. Neogy [State of Maharashtra v. Tapas D. Neogy, (1999) 7 SCC 685 : 1999 SCC (Cri) 1352] . The Court examined the question whether the police ofÏcer investigating any offence can issue prohibitory orders in respect of bank accounts in exercise of power under Section 102 of the Code. The High Court, in that case, after analysing the provisions of Section 102 of the Code had opined that bank account of the accused or of any relation of the accused cannot be held to be "property" within the meaning of Section 102 of the Code. Therefore, the investigating ofÏcer will have no power to seize bank accounts or to issue any prohibitory order prohibiting the operation of the bank account. This Court noted that there were conflicting decisions of different High Courts on this aspect and as the question was seminal, it chose to answer the same. In para 6, this Court noted thus : (SCC p. 691) "6. A plain reading of sub-section (1) of Section 102 indicates that the police ofÏcer has the power to seize any property which may be found under circumstances creating suspicion of the commission of any offence. The legislature having used the expression "any property" and "any offence" have made the applicability of the provisions wide enough to cover offences created under any Act. But the two preconditions for applicability of Section 102(1) are that it must be "property" and secondly, in respect of the said property there must have been suspicion of commission of any offence. In this view of the matter the two further questions that arise for consideration are whether the bank account of an accused or of his relation can be said to be "property" within the meaning of sub-section (1) of Section 102 CrPC and secondly, whether circumstances exist, creating suspicion of commission of any offence in relation to the same." 18. After analysing the decisions of different High Courts, this Court in para 12, expounded the legal position thus : (SCC pp. 694-95) "12. Having considered the divergent views taken by different High Courts with regard to the power of seizure under Section 102 of the Code of Criminal Procedure, and whether the bank account can be held to be "property" within the meaning of the said Section 102(1), we see no justification to give any narrow interpretation to the provisions of the Criminal Procedure Code. It is well known that corruption in public ofÏces has become so rampant that it has become difÏcult to cope up with the same. Then again the time consumed by the courts in concluding the trials is another factor which should be borne in mind in interpreting the provisions of Section 102 of the Criminal Procedure Code and the underlying object engrafted therein, inasmuch as if there can be no order of seizure of the bank account of the accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of the illegal gratification, could be withdrawn by the accused and the courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the accused as a public ofÏcer. We are, therefore, persuaded to take the view that the bank account of the accused or any of his relations is "property" within the meaning of Section 102 of the Criminal Procedure Code and a police ofÏcer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police ofÏcer is investigating into. … In the aforesaid premises, we have no hesitation to come to the conclusion that the High Court of Bombay [Chandrashekar Ramprakash Agarwal v. State of Maharashtra, 1997 SCC OnLine Bom 632] committed error in holding that the police ofÏcer could not have seized the bank account or could not have issued any direction to the bank ofÏcer, prohibiting the account of the accused from being operated upon." After this decision, there is no room to countenance the challenge to the action of seizure of bank account of any person which may be found under circumstances creating suspicion of the commission of any offence." (Emphasis supplied by us) 8. The action of seizing a movable property, which includes freezing of the Bank account, is taken under Section 106 B.N.S.S. (corresponding Section 102 Cr.P.C.), which is reproduced hereinunder:- "106. Power of police ofÏcer to seize certain property. — (1) Any Police OfÏcer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. (2) Such police ofÏcer, if subordinate to the ofÏcer in charge of a Police Station, shall forthwith report the seizure to that ofÏcer. (3) Every Police OfÏcer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court or where there is difÏculty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same: Provided that where the property seized under sub- section (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of Sections 457, and 458, shall, as nearly as may be practicable, apply to the net proceeds of such sale." 9. In Vinoshkumar Ramachandran Valluvar v. State of Maharashtra : 2011 SCC OnLine Bom 402 it was observed as under:— "18. It is, therefore, clear that like any other property a bank account is freezable. Freezing the account is an act in investigation. Like any other act, it commands and behoves secrecy to preserve the evidence. It does not deprive any person of his liberty or his property. It is necessarily temporary i.e. till the merit of the case is decided. It clothes the Investigating OfÏcers with the power to preserve a property suspected to have been used in the commission of the offence in any manner. The property, therefore, requires to be protected from dissemination, depletion or destruction by any mode. Consequently, under the guise of being given information about the said action, no Accused, not even a third party, can overreach the law under the umbrella of a sublime provision meant to protect the innocent and preserve his property. It would indeed be absurd to suggest that a person must be told that his Bank account, which is suspected of having been used in the commission of an offence by himself or even by another, is being frozen to allow him to have it closed or to have its proceeds withdrawn or transferred upon such notice." (Emphasis supplied by us) 10. We are of the considered view that freezing the account by invoking provision as contained under Section 106 B.N.S.S. (corresponding Section 102 Cr.P.C.) cannot, by any stretch of imagination, be said to be deprivation of right of property available to the petitioner. Such argument of learned counsel for the petitioner appears to be misconceived. 11. It is apposite to refer Section 503 B.N.S.S., corresponding Section 457 of Cr.P.C. which enables the trial Court to grant interim custody pending trial. Similarly, Section 503 B.N.S.S., corresponding Section 457 of Cr.P.C. also vests power in the Magistrate to deal with the seized property as deemed proper and necessary. An accused whose property is seized by police ofÏcer can file application for grant of interim custody. This is an effective and efÏcacious remedy. Section 503 B.N.S.S. for ready reference is reproduced here-in-under:- "503. Procedure by police upon seizure of property. (1) Whenever the seizure of property by any police ofÏcer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation." (Emphasis supplied by us) 12. Thus, on the basis of what has been discussed above, the petitioner ought to have approached the jurisdictional Magistrate seeking appropriate remedy in respect of the property seized and therefore, when an alternative remedy is available, in our considered opinion the present writ petition is not maintainable. 13. In view of the above, the petition lacks merit, which is accordingly, finally disposed of, leaving it open to the petitioner to avail appropriate remedy as may be available to him in accordance with law. Order Date :- 7.2.2025 A.Dewal Digitally signed by :- ASHISH DEWAL High Court of Judicature at Allahabad, Lucknow Bench