Page No.# 1/7 GAHC010103862025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2670/2025 LUTFUR RAHMAN CHOWDHURY SON OF LATE FOIZUR RAHMAN CHOWDHURY, R/O SAMARALI TUP GAON, P.S. MURAJHAR, P.O. CHOWDHURY BAZAR, DIST. HOJAI, ASSAM, PIN-782439 VERSUS THE STATE OF ASSAM AND 2 ORS. REPRESENTED BY ITS SECRETARY TO THE GOVERNMENT OF ASSAM, HOME DEPARTMENT, DISPUR, ASSAM. 2:STATE BANK OF INDIA MURAJHAR BRANCH (08751) P.O.NILBAGAN DIST. HOJAI ASSAM PIN-782445. 3:OFFICER-IN-CHARGE NILBAGAN POLICE OUT POST P.O.NILBAGAN P.S. HOJAI PIN-78244 Advocate for the Petitioner : TAWHID LASKAR, ASHRAFUL BORBHUYAN,MR. D K Page No.# 2/7 AGARWALA Advocate for the Respondent : GA, ASSAM, BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI ORDER 15.10.2025 Heard Shri DK Agarwala, learned counsel for the petitioner as well as Shri BJ Talukdar, learned Addl. Sr. Government Advocate, Assam. 2. The petitioner has questioned the action of the authorities in freezing of his Savings Bank Account No. 33513568240 maintained in the State Bank of India, Murajhar Branch. 3. In connection with Hojai PS Case No.286/2024, the petitioner was arrested and later released on bail. However, it is the case of the petitioner that without any notice, the aforesaid f bank account has been freezed. 4. By drawing the attention of this Court to the provisions of the BNSS, more specifically, Section 106(3), the learned counsel for the petitioner submits that there is a requirement of forthwith reporting the seizure to the Magistrate having jurisdiction and this mandatory requirement has not been followed in this case. 5. Shri Talukdar, learned State Counsel fairly submits that the seizure was done in the interest of public and to facilitate a proper investigation in the police case. However, it is a matter of fact that it was not reported to the jurisdictional Magistrate forthwith. Page No.# 3/7 6. Shri Agarwal, learned counsel for the petitioner has submitted that on similar circumstances, this Court vide an order dated 07.01.2022 passed in WP(C)/2180/2021 had directed defreezing of bank account. The learned counsel has also relied upon the decision of the Hon’ble Supreme Court in the case of Teesta Atul Setalvad Vs. State of Gujarat, reported in (2018) 2 SCC 372. 7. After hearing the parties and on the candid disclosure by the learned State Counsel that the mandate of Section 106 of the BNSS has not been followed, this Court is of the opinion that the impugned action of freezing is not tenable in law. 8. In the case of Teesta Atul Setalvad (supra), the Hon’ble Supreme Court has laid down as follows: “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. The Court examined the question whether the police officer 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 officer 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: “6. A plain reading of sub-section (1) of Section 102 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 Page No.# 4/7 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: “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 offices has become so rampant that it has become difficult 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 officer. We are, therefore, persuaded to take the view that the bank account of the accused or any of his Page No.# 5/7 relations is “property” within the meaning of Section 102 of the Criminal Procedure Code and a police officer 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 officer is investigating into. … In the aforesaid premises, we have no hesitation to come to the conclusion that the High Court of Bombay committed error in holding that the police officer could not have seized the bank account or could not have issued any direction to the bank officer, 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.” 9. A similar stand has been taken by the Hon’ble Supreme Court in the case of Nevada Properties Pvt. Ltd. Vs. State of Maharashtra, reported in 2019 (20) SCC 119, the relevant extract of which is as follows: “29. Section 102 postulates seizure of the property. Immovable property cannot, in its strict sense, be seized, though documents of title, etc. relating to immovable property can be seized, taken into custody and produced. Immovable property can be attached and also locked/sealed. It could be argued that the word “seize” would include such action of attachment and sealing. Seizure of immovable property in this sense and manner would in law require dispossession of the person in occupation/possession of the immovable property, unless there are no claimants, which would be rare. Language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossess a person in occupation and take possession of an immovable property in order to seize it. In the absence of the legislature conferring this express or implied power under Section 102 of the Code to the police officer, we would hesitate and not hold that this power should be inferred and is Page No.# 6/7 implicit in the power to effect seizure. 30. Equally important, for the purpose of interpretation is the scope and object of Section 102 of the Code, which is to help and assist investigation and to enable the police officer to collect and collate evidence to be produced to prove the charge complained of and set up in the charge-sheet. The section is a part of the provisions concerning investigation undertaken by the police officer. After the charge-sheet is filed, the prosecution leads and produces evidence to secure conviction. Section 102 is not, per se, an enabling provision by which the police officer acts to seize the property to do justice and to hand over the property to a person whom the police officer feels is the rightful and true owner. This is clear from the objective behind Section 102, use of the words in the section and the scope and ambit of the power conferred on the criminal court vide Sections 451 to 459 of the Code. 31. The expression “circumstances which create suspicion of the commission of any offence” in Section 102 does not refer to a firm opinion or an adjudication/finding by a police officer to ascertain whether or not “any property” is required to be seized. The word “suspicion” is a weaker and a broader expression than “reasonable belief” or “satisfaction”. The police officer is an investigator and not an adjudicator or a decision maker. This is the reason why the Ordinance was enacted to deal with attachment of money and immovable properties in cases of scheduled offences.” 10. It is a settled position of law that when the law prescribes a particular thing to be done in a particular way that thing has to be done in the prescribed procedure only and not in any other way. In this regard, one may gainfully refer to the celebrated case of Nazir Ahmed Vs. King Emperor, reported in AIR 1936 253 PC (II) wherein, it has been stated as follows: “The rule which applies is a different and not less well recognized rule—namely, that Page No.# 7/7 where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.” 11. After consideration of the facts and circumstances of the case, this Court is of the opinion that the action of freezing is not in accordance with law and therefore, it is directed that immediate steps be taken for defreezing of the aforesaid Bank Account No. 33513568240. 12. It is, however, made clear that the interference is made only on the violation of the procedure prescribed and not on any other consideration. 13. The writ petition is accordingly disposed of. JUDGE Comparing Assistant