Prayer
Writ petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the fifth respondent to dispose of the petitioner’s representation dated 23.07.2024 by defreezing the petitioner’s account bearing Account No: 50100456613718 and IFSC Code: HDFC0004221 and releasing the entire amount of Rs.9,69,580/- plus the amount of Rs.2,48,835/- held by the fifth respondent.
The issue
The issue by many of the citizens currently face is the freezing of the account on instruction from the local Police or from the National Cyber Crime Reporting Portal. Many a times, the account holders have been taken into surprise that by such order of freezing, before they could realize as to why and for what purpose the accounts are freezed, enough damages are caused to their day to day financial life, since the very lifeline of the business gets severed by such unilateral orders of account freezing passed by the Police.
2. No doubt, the statutes empower the investigation agency to request the Bank to freeze the account pending investigation and intimate it forthwith to the jurisdiction Court, but whether the power is properly exercised or not is the moot question now looming large and in the several judgments of the Courts across the India, it had been categorically held that there cannot be freezing of account perpectually without intimating the account holders what for their account is freezed and what extent it has to be freezed. Even then, day in and day out, this Court receives applications to defreeze the account pointing out the failure of the investigating agency not only to the account holders, even to the jurisdictional Court not intimating about the freezing of the account as per Section 102 of Cr.P.C. equivalent to 106 of BNSS Act.
3. This is a case where the petitioner who is suspected to be dealing with cryptocurrency, the case is under investigation by the Cyber Crime Bureau of Cyberabad, Telangana, registered on 16.05.2023. The fifth respondent Bank has been instructed to freeze the account of the petitioner herein. The communication received by the Bank indicates that around Rs.2,48,835/- is the suspected money involved in the subject matter of the crime under investigation. Meticulously, in reference to the instructions received from National Cyber Crime Reporting Portal and the notice from the Telugana Cyber Crime Bureau, the fifth respondent has freezed the account.
5. When similar issues came up for consideration in Crl. OP No.10569 of 2021 vide order dated 18.06.2021, the learned Judge of his Court, directed the Commissioner of Police, Vepery, Greater Chennai, to give necessary instructions and directions to his personnel in conducting investigation in cases were freezing of account is required and ensure that there is no colourable exercise of power. Accordingly, the Commissioner of Police, Greater Chennai, Vepery, vide Circular Memorandum dated 24.06.2021, has issued a directional instructions to all the Deputy Commissioners of Police in District and CCB, CWC to ensure that there is no deviation of the instructions. It is appropriate to reproduce the circular.
“Circular reproduced”.
6. Unfortunately, in most of the cases the guidelines issued in this Circular not observed. Later when an identical issue came up for consideration before this Court in WP No.13509 of 2024 considering the dictum laid down by the Hon’ble Supreme Court in M.T.Enrica Lexie and another –vs- Doramma and others reported in MANU/SC/0409/2012, Teesta Atul Setalvad and others –vs- The State of Gujarat and others, reported in (2018) 2 SCC 372 and Shento Varghese –vs- Julfikar Husen and others, reported in 2024 SCC Online SC 895, directed the petitioner/account holder to execute a bond undertaking to deposit the amount in case the money found in his account is a tainted money and liable to be forfeited.
8. Under the guise of investigation, order freezing the entire account without quantifying the amount and period cannot be passed. Such order will be construed as violation of the fundamental rights of trade and business as well as violation of livelihood. Therefore, it is appropriate to direct the fifth respondent to de-freeze the account and kept a lien over a sum of Rs.2,50,000/-. The petitioner herein is permitted to operate his account, subject to the condition that he shall ensure, the account shall always have a minimum of Rs. 2,50,000/-.
Party
Mohammed Saifullah …Petitioner vs. 1. Reserve Bank of India, Rep. by its Governor, Head Office at 16th Floor, Central Office Building, Shahid Bhagat Singh Road, Mumbai 400 001 – W.P.No.25631 of 2024 – 10.09.2024 – Coram: The Honourable Dr.Justice G.Jayachandran.
