[2024] 6 S.C.R. 409 : 2024 INSC 407 Shento Varghese v. Julfikar Husen & Ors. (Criminal Appeal Nos. 2531-2532 of 2024) 13 May 2024 [Pamidighantam Sri Narasimha and Aravind Kumar,* JJ.] Issue for Consideration What is the implication of non-reporting of the seizure forthwith to the jurisdictional Magistrate as provided under Section 102(3) Cr.P.C.; does delayed reporting of the seizure to the Magistrate vitiate the seizure order altogether. Headnotes† Code of Criminal Procedure, 1973 – s.102(3) – Implication of non-reporting of the seizure forthwith to the jurisdictional Magistrate:

Held: The meaning of the word ‘forthwith’ as used in section 102(3) has not received judicial construction – 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 – 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 was reported forthwith – 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 – The non reporting of the seizure forthwith by the police * Author 410 [2024] 6 S.C.R. Digital Supreme Court Reports

officer to the jurisdictional court would not vitiate the seizure order, it also 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 – 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. [Paras 18, 19, 20, 23, 24] Code of Criminal Procedure, 1973 – s.102(3) – Delay in reporting the seizures to the Magistrates: Held: 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 toto. [Para 16] Code of Criminal Procedure, 1973 – s.102(1) and s.102(3) – Whether validity of the seizure order is contingent on compliance with the reporting obligation:

Held: 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 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 jurisdiction to act under Section 102(1) Cr.P.C. or that the seized item does not satisfy the definition of ‘property’ 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 – 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 [2024] 6 S.C.R. 411 Shento Varghese v. Julfikar Husen & Ors. Cr.P.C. must have a direct or close link with the commission of offence in question. [Para 13] Code of Criminal Procedure, 1973 – s.102(3) – Expression “shall forthwith report” – Discussed. [Paras 18-22] Case Law Cited

Tmt. T .Subbulakshmi v. The Commissioner of Police (2013) 4 MLJ (Crl) 41; The Meridian Educational Society v. The State of Telangana (2022) 1 ALT (Cri) 229; Dr Shashikant D. Karnik v. State of Maharashtra (2008) CRL.L.J. 148; Ruqaya Akhter v. Ut Through Crime Branch (CRM(M) No.223/2022, Jammu & Kashmir and Ladakh High Court). Operation Mobilization India v. State of Telangana (2021) SCC OnLine TS 1529; Bharath Overseas Bank v. Minu Publication (1988) MLJ (Crl.) 309; Ms Swaran Sabharwal v. Commissioner of Police (1990) 68 Comp Cas 652 Delhi (DB) – referred to. Anwar Ahmad v. State of UP [1976] 1 SCR 779 : AIR (1976) SC 680; Nevada Properties (P) Ltd. v. State of Maharashtra & Anr. [2019] 15 SCR 223 : (2019) 20 SCC 119; State of Maharashtra v. Tapas D. Neogy [1999] Supp. 2 SCR 609 : 1999 INSC 417; Ravinder Kumar & Anr. v. State of Punjab [2001] Supp. 2 SCR 463 : (2001) 7 SCC 690; Bhajan Singh and Ors. v. State of Haryana [2011] 7 SCR 1 : 2011 INSC 422; HN Rishbud v. State of Delhi [1955] 1 SCR 1150 : (1954) 2 SCC 934; Sk. Salim v. State of West Bengal [1975] 3 SCR 394 : (1975) 1 SCC 653; China Apparao and Others v. State of Andhra Pradesh [2002] Supp. 3 SCR 175 : (2002) 8 SCC 440; Navalshankar Ishwarlal Dave v. State of Gujarat [1993] 3 SCR 676 : 1993 Supp. 3 SCC 754; Rao Mahmood Ahmad Khan v. Ranbir Singh [1995] 2 SCR 230 : (1995) Supp. 4 SCC 275; Bidya Deb Barma v. District Magistrate [1969] 1 SCR 562 : (1968) SCC OnLine SC 82 – referred to.

Books and Periodicals Cited Black’s Law Dictionary, 10th Edition; Wharton’s Law Lexicon, 17th Edition – referred to. 412 [2024] 6 S.C.R. Digital Supreme Court Reports List of Acts Code of Criminal Procedure, 1973; Code of Criminal Procedure, 1882; Code of Criminal Procedure, 1898; Bharatiya Nagarik Suraksha Sanhita, 2023; Maintenance of Internal Security Act, 1971; Preventive Detention Act, 1950; Gujarat Prevention of Anti-Social Activities Act, 1985. List of Keywords Section 102(3) of the Code of Criminal Procedure, 1973; Section 102(1) of the Code of Criminal Procedure, 1973; Implication of non-reporting of the seizure forthwith to the jurisdictional Magistrate; Reasonable construction; Seizure of property; Reporting obligation. Case Arising From CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 2531-2532 of 2024 From the Judgment and Order dated 09.08.2023 of the High Court of Judicature at Madras in CRLOP Nos. 14029 and 14031 of 2023 Appearances for Parties Himinder Lal, Roy Abraham, Ms. Reena Roy, Adithya Koshy Roy, Ms. Anju Kanodiya, Advs. for the Appellant. S. Mahendran, Adv. for the Respondents. Judgment / Order of the Supreme Court Judgment Aravind Kumar J. 1. Leave granted.

2. These appeals have been preferred at the instance of the first informant in Crime No.318 of 2022. By the impugned order dated 09.08.2023, passed in Crl. O.P. Nos.14029 & 14031 of 2023 and Crl. M.P. Nos.8658 of 2023, the High Court of Madras has allowed the claim of the Respondents-accused for de-freezing of their bank accounts. The High Court has ordered for de-freezing on the specific ground that there was delay on part of the police in reporting the seizure to [2024] 6 S.C.R. 413 Shento Varghese v. Julfikar Husen & Ors. the jurisdictional Magistrate. The facts in the instant case, which we shall advert to later below, have given rise to following question of law: What is the implication of non-reporting of the seizure forthwith to the jurisdictional Magistrate as provided under Section 102(3) Cr.P.C.? more specifically; Does delayed reporting of the seizure to the Magistrate vitiate the seizure order altogether? That is the question which needs to be answered in these appeals.

3. Our research indicates that there is no authoritative pronouncement of this Court on this issue. If we turn to the pronouncements of the High Courts, there are decisions1 which have directly confronted this question. Having reviewed these decisions, we find that, broadly, there are two prevailing strands of thought: one set of cases holding that delayed reporting to the Magistrate would, ipso facto, vitiate the seizure order; and the other view being that delayed reporting would constitute a mere irregularity and would not vitiate the seizure order. 4. The former view has been justified on the grounds that: (a) the obligation [u/S 102(3) Cr.P.C.] to report the seizure forthwith to the Magistrate is mandatory and non-negotiable, breach of which would qualify as an illegality in following the prescribed statutory procedure2; (b) the employment of the word ‘shall’ in Section 102(3) makes it clear that non-compliance of the mandatory requirement to report forthwith to the Magistrate goes to the root of the matter3; (c) the power to seize has been subjected to procedural requirements prescribed under Section 102(3) – 1 See Table at Annexure A for a compilation of the 36 decisions on this issue. 2 Tmt. T .Subbulakshmi vs The Commissioner of Police 2013(4) MLJ (Crl) 41 3 The Meridian Educational Society Vs. The State of Telangana, 2022 1 ALT(Cri) 229 414 [2024] 6 S.C.R. Digital Supreme Court Reports

and breach of complying with follow-up procedures would render the exercise of the main power to be without authority and jurisdiction – in that sense, the requirement to report is in the nature of a condition subsequent clause.4 5. The latter view has been sustained on the reasoning that: a) The statutory provision provides no express consequence(s) for non-compliance and therefore, the procedural requirement is merely directory and not mandatory5; b) The power to seize property connected with a crime is plenary and the obligation to intimate is a mere incidental exercise of power – breach of the latter cannot affect the former6; c) the object of reporting is to facilitate disposal of property seized – prejudice caused by delayed reporting, if any, can always be demonstrated at the trial7; d) Neither is there any obligation to seek prior leave before exercising the power to seize nor is there any statutorily provided consequence for non-compliance of the reporting obligation8; e) No prejudice would be caused to the owner of a property by non-reporting of seizure to the concerned Magistrate during the investigation phase. Therefore, it cannot be a case of illegality but such an omission may only be an irregularity.9 4 Dr Shashikant D. Karnik Vs. State of Maharashtra, 2008 CRL.L.J. 148 5 Ruqaya Akhter Vs Ut Through Crime Branch, CRM(M) No.223/2022, Jammu & Kashmir and Ladakh High Court.

6 Operation Mobilization India Vs. State of Telangana 2021 SCC OnLine TS 1529 7 Bharath Overseas Bank Vs. Minu Publication [1988] MLJ (Crl.) 309 8 Supra, 7 9 Supra, 5 [2024] 6 S.C.R. 415 Shento Varghese v. Julfikar Husen & Ors. 6. In light of conflicting precedents operating across various High Courts, we find it expedient and necessary to settle the conflict and bring in uniformity in adjudication. LEGISLATIVE HISTORY – A COMPARATIVE ANALYSIS Criminal Relevant Provision Procedure Codes 188210 Section 523- Procedure by police upon seizure of property taken under Section 51 or stolen The seizure by any Police-officer of property taken under Section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a magistrate, who shall make such order as he thinks fit respecting 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. 189811 Section 550- Powers to police to seize property suspected to be stolen: Any police-office 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. Such police-officer, if subordinate to the office in charge of a police station, shall forthwith report the seizure to that officer.

197312 102. Power of police officer to seize certain property.—(1) Any police officer 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. 10 Hereinafter referred to as “1882 Code”. 11 Hereinafter referred to as “1898 Code”. 12 Hereinafter referred to as “1973 Code”. 416 [2024] 6 S.C.R. Digital Supreme Court Reports (2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer (3) Every police officer 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 difficulty 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.] 202313 106. (1) Any police officer 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 officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer. 13 Hereinafter referred to as the “2023 Code”. [2024] 6 S.C.R. 417 Shento Varghese v. Julfikar Husen & Ors.

(3) Every police officer 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 difficulty 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 505 and 506 shall, as nearly as may be practicable, apply to the net proceeds of such sale.

7. The responsibility of the police officer to promptly inform the Magistrate about the seizure can be historically traced to the 1882 Code. Oddly enough, this provision was absent in the 1898 Code. In the 1898 Code, however, it was provided that if the seizing officer was below the rank of an officer-in charge of a police station, then such officer was under a duty to give information to his superior regarding the seized property. It appears that the provision as it existed in the 1898 Code was retained as is in the 1973 Code. Sub-section (3) to Section 102 was inserted by way of an amendment only in the year 1978. This amendment reintroduced the reporting obligations of police officer to the Magistrate, as it originally existed in the 1882 Code. It also empowered the seizing officer to give custody of the seized property to any person, on such person executing a bond undertaking to produce the property before the Court as and when required. There was no provision in the 1973 Code nor the 1898 Code till the insertion of sub-section (3) by an amendment in 1978, empowering the police to take a bond from a person undertaking to produce the property entrusted to 418 [2024] 6 S.C.R. Digital Supreme Court Reports

him by the police later on before the Court. The law as it existed then was that the bond could be entered before the Court but not in favour of the police. While setting aside the order of forfeiture in regard to the bond in favour of the police, this Court in Anwar Ahmad v State of UP14, pointed out the lacuna in the 1973 Code and suggested the insertion of a suitable provision. That is why this sub-section (3) empowering the police to execute the bond under certain conditionalities came to be inserted by way of the 1978 Amendment. For the sake of completeness, it may be observed that Section 102 Cr.P.C. in its present form has been retained as is in the 2023 Code, which is scheduled to come into force on 1st July 2024 and replace the 1973 Code.

8. The Notes on Clauses appended to the 1978 Bill had set out the following reasons for inserting sub section (3) to Section 102 Cr.P.C.: “Clause 10- Section 102 is being amended (1) to provide that the police officer shall forthwith report the seizure of any property under sub-section (1) to the Magistrate, as there is a lacuna in the Law and (2) to give effect to the observations of the Supreme Court made in Anwar Ahmad vs. the State of U.P. (AIR 1976 SC 680) that the police should be given the power to get a bond from the person to whom the property seized is entrusted, particularly in cases where a bulky property like elephant or car, is seized and the Magistrate is living at a great distance and it is difficult to produce the property seized before the Magistrate.” 9. The reason cited for inserting the amendment was to overcome a ‘lacuna’ in the law. What could have been the lacuna in the law that impelled the insertion of this amendment? 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 14 [1976] 1 SCR 779 : AIR 1976 SC 680 [2024] 6 S.C.R. 419 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 [2024] 6 S.C.R. Digital Supreme Court Reports 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. 15 Nevada Properties (P) Ltd. Vs. State of Maharashtra & Anr. (2019) 20 SCC 119 16 Ms Swaran Sabharwal Vs. Commissioner of Police, 1990 (68) Comp Cas 652 Delhi (DB) 17 State of Maharashtra Vs. Tapas D. Neogy,1999/INSC/417 18 Supra, 17. 19 See, Section 168 Cr.P.C. [2024] 6 S.C.R. 421 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’ 20 Ravinder Kumar & Anr. Vs. State of Punjab (2001) 7 SCC 690 21 Supra, 20. 22 Bhajan Singh and Ors. vs. State of Haryana, 2011/INSC/422 23 HN Rishbud v. State of Delhi (1954) 2 SCC 934 422 [2024] 6 S.C.R. Digital Supreme Court Reports 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’, 24 [1975] 3 SCR 394 : (1975) 1 SCC 653 (para 10 and 11) 25 [2002] Supp. 3 SCR 175 : (2002) 8 SCC 440 (para 9) 26 [1993] 3 SCR 676 : 1993 Supp (3) SCC 754 (para 9) 27 [1995] 2 SCR 230 : 1995 Supp (4) SCC 275 [2024] 6 S.C.R. 423 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 28 Bidya Deb Barma v. District Magistrate,1968 SCC OnLine SC 82 424 [2024] 6 S.C.R. Digital Supreme Court Reports

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 29 Application under Section 457 – Cr. M.C 2032 of 2023 was filed. [2024] 6 S.C.R. 425

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 S. CASE CITATION COURT No

1. Manish Khandelwal And Ors 2019 SCC OnLine Bombay vs The State of Maharashtra Bom 1412 High Court And Ors 2. V Plus Technology Pvt Ltd 2022/DHC/001595 Delhi HC vs The State (Nct Of Delhi) & Anr 3. Muktaben M. Mashru vs 2019 SCC OnLine Delhi HC State Of Nct Of Delhi & Anr Del 11509 4. Tmt.T.Subbulakshmi vs The 2013(4)MLJ(Crl)41 Madras Commissioner of Police High Court 426 [2024] 6 S.C.R. Digital Supreme Court Reports 5. Ms Swaran Sabharwal 1990 (68) Comp Delhi High Versus Commissioner of Cas 652 Delhi (DB) Court Police 6. Uma Maheshwari Vs. The 2013 SCC OnLine Madras State Rep. By Inspector Mad 3829 HC of Police, Central Crime Branch, Egmore, Channai; Criminal O.P. No.15467 of 2013 7. The Meridian Educational 2022 1 ALT(Cri) Telangana Society Vs. The State of 229 HC Telangana; Writ Petition No.21106 of 2021 8. Padmini vs. Inspector of 2008(3) Crimes Madras Police, Tirunelveli 716 (Mad.) HC 9. R. Chandrasekar vs. 2003 Criminal Law Madras Inspector of Police, Salem Journal 294 HC 10. Lathifa Vs. State of 2012 Cri. L.J. 3487 Karnataka Karnataka High Court 11. B. Ranganathan Vs. State 2003 Crl.L.J 2779 Madras and Ors HC 12. Shashikant D. Karnik Vs. II(2007)BC337 Bombay The State of Maharashtra HC 13. Karthika Agencies W.P.No.17953 of Madras Export House vs The 2021 High Court Commissioner of Police 14. S. Ganapathi Vs. State and Crl.O.P.No.800 of Madras Ors. 2014 HC 15. R. Sivaraj Vs. State of Tamil Criminal Madras Nadu O.P.Nos.576 and HC 577 of 2013

16. Shri. Vilas S/o. Prabhakar Criminal Writ Bombay Dange Vs. State of Petition No. HC Maharashtra 1033/2017 17. Purbanchal Road Service, 1991CRILJ2798 Gauhati Gauhati VS State High Court [2024] 6 S.C.R. 427 Shento Varghese v. Julfikar Husen & Ors. 18. S. T. Cleopatra VS W.P.No.17953 of Madras Commissioner of Police, 2021 HC Chennai City, Vepery, Chennai 19. Kiruthika Vs. State rep. Crl.O.P.No.14733 Madras by Inspector of Police and of 2021 HC another 20. Dr.Shashikant D. Karnik Vs. 2008 CRL.L.J. 148 Bombay State Of Maharashtra HC 21. Ali Trading and Anr v The WA 296/2019 Gauhati State of Assam HC 22. B. Kavitha v. Inspector of Crl.OP. NO. Madras Police & ors 14824/2019 HC CASES WHERE THE COURT HAS HELD THE REPORTING CONDITIONS ARE DIRECTORY AND NOT ILLEGAL 23. Dattasai (Kisan Seva 2022 6 ALD 702 Telangana Kendra) VS State of HC Telangana 24. M/S SJS Gold Pvt. Ltd. Criminal Misc. Writ Allahabad Thru. Director Sunil Jaihind Petition No. - 3511 High Court Salunkhe & Anr V. State of Of 2022 UP 25. Amit Singh vs State of U.P. Criminal Misc. Allahabad And Anr. Writ Petition No. - High Court 11201 Of 202 26. Ruqaya Akhter Vs Ut CRM(M) The Through Crime Branch No.223/2022 Jammu & Kashmir and Ladakh High Court 27. Narottam Singh Dhillon and Criminal Misc. Punjab-another vs. State of Punjab No.43768 of 2004 Haryana High Court 28. Vinoshkumar 2011(1) MWN (Cr) Bombay Ramachandran Valluvar Vs. 497 HC The State of Maharashtra 428 [2024] 6 S.C.R.

Digital Supreme Court Reports 29. C.Aranganayagam Vs. State 1999 SCC OnLine Madras by the Director of Vigilance Mad 463 HC and Anti-corruption, Erode and another 30. M/S. Ap Product vs State Of AIR ONLINE 2020 Telangana Telangana on 3 December, TEL 135 High Court 2020 31. Mohd. Maqbool Ahmed @ 1996(3) ALT215 Andhra Mateen And Anr. vs The High Court Deputy Commissioner Of Police 32. State of Manipur v Canning 2021 SCC OnLine Manipur Keishing Mani 272 HC 33. M.S. Jaggi vs 1977 CRILJ 1902 Orissa Subaschandra Mohapatra High Court 34. Bharath Overseas Bank v. [1988] MLJ (Crl.) Madras Minu Publication 309 HC 35. Dr. Shaik Haseena v State 2020 SCC OnLine Telangana of Telangana TS 2851 HC 36. Operation Mobilization India 2021 SCC OnLine Telangana v. State of Telangana TS 1529: (2021) 1 HC HLT 81 Result of the case: Appeals partly allowed †Headnotes prepared by: Ankit Gyan

[2024] 6 S.C.R. 409 : 2024 INSC 407 Shento Varghese v. Julfikar Husen & Ors. (Criminal Appeal Nos. 2531-2532 of 2024) 13 May 2024 [Pamidighantam Sri Narasimha and Aravind Kumar,* JJ.] Issue for Consideration What is the implication of non-reporting of the seizure forthwith to the jurisdictional Magistrate as provided under Section 102(3) Cr.P.C.; does delayed reporting of the seizure to the Magistrate vitiate the seizure order altogether. Headnotes† Code of Criminal Procedure, 1973 – s.102(3) – Implication of non-reporting of the seizure forthwith to the jurisdictional Magistrate:

Held: The meaning of the word ‘forthwith’ as used in section 102(3) has not received judicial construction – 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 – 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 was reported forthwith – 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 – The non reporting of the seizure forthwith by the police * Author 410 [2024] 6 S.C.R. Digital Supreme Court Reports

officer to the jurisdictional court would not vitiate the seizure order, it also 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 – 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. [Paras 18, 19, 20, 23, 24] Code of Criminal Procedure, 1973 – s.102(3) – Delay in reporting the seizures to the Magistrates: Held: 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 toto. [Para 16] Code of Criminal Procedure, 1973 – s.102(1) and s.102(3) – Whether validity of the seizure order is contingent on compliance with the reporting obligation:

Held: 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 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 jurisdiction to act under Section 102(1) Cr.P.C. or that the seized item does not satisfy the definition of ‘property’ 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 – 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 [2024] 6 S.C.R. 411 Shento Varghese v. Julfikar Husen & Ors. Cr.P.C. must have a direct or close link with the commission of offence in question. [Para 13] Code of Criminal Procedure, 1973 – s.102(3) – Expression “shall forthwith report” – Discussed. [Paras 18-22] Case Law Cited

Tmt. T .Subbulakshmi v. The Commissioner of Police (2013) 4 MLJ (Crl) 41; The Meridian Educational Society v. The State of Telangana (2022) 1 ALT (Cri) 229; Dr Shashikant D. Karnik v. State of Maharashtra (2008) CRL.L.J. 148; Ruqaya Akhter v. Ut Through Crime Branch (CRM(M) No.223/2022, Jammu & Kashmir and Ladakh High Court). Operation Mobilization India v. State of Telangana (2021) SCC OnLine TS 1529; Bharath Overseas Bank v. Minu Publication (1988) MLJ (Crl.) 309; Ms Swaran Sabharwal v. Commissioner of Police (1990) 68 Comp Cas 652 Delhi (DB) – referred to. Anwar Ahmad v. State of UP [1976] 1 SCR 779 : AIR (1976) SC 680; Nevada Properties (P) Ltd. v. State of Maharashtra & Anr. [2019] 15 SCR 223 : (2019) 20 SCC 119; State of Maharashtra v. Tapas D. Neogy [1999] Supp. 2 SCR 609 : 1999 INSC 417; Ravinder Kumar & Anr. v. State of Punjab [2001] Supp. 2 SCR 463 : (2001) 7 SCC 690; Bhajan Singh and Ors. v. State of Haryana [2011] 7 SCR 1 : 2011 INSC 422; HN Rishbud v. State of Delhi [1955] 1 SCR 1150 : (1954) 2 SCC 934; Sk. Salim v. State of West Bengal [1975] 3 SCR 394 : (1975) 1 SCC 653; China Apparao and Others v. State of Andhra Pradesh [2002] Supp. 3 SCR 175 : (2002) 8 SCC 440; Navalshankar Ishwarlal Dave v. State of Gujarat [1993] 3 SCR 676 : 1993 Supp. 3 SCC 754; Rao Mahmood Ahmad Khan v. Ranbir Singh [1995] 2 SCR 230 : (1995) Supp. 4 SCC 275; Bidya Deb Barma v. District Magistrate [1969] 1 SCR 562 : (1968) SCC OnLine SC 82 – referred to.

Books and Periodicals Cited Black’s Law Dictionary, 10th Edition; Wharton’s Law Lexicon, 17th Edition – referred to. 412 [2024] 6 S.C.R. Digital Supreme Court Reports List of Acts Code of Criminal Procedure, 1973; Code of Criminal Procedure, 1882; Code of Criminal Procedure, 1898; Bharatiya Nagarik Suraksha Sanhita, 2023; Maintenance of Internal Security Act, 1971; Preventive Detention Act, 1950; Gujarat Prevention of Anti-Social Activities Act, 1985. List of Keywords Section 102(3) of the Code of Criminal Procedure, 1973; Section 102(1) of the Code of Criminal Procedure, 1973; Implication of non-reporting of the seizure forthwith to the jurisdictional Magistrate; Reasonable construction; Seizure of property; Reporting obligation. Case Arising From CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 2531-2532 of 2024 From the Judgment and Order dated 09.08.2023 of the High Court of Judicature at Madras in CRLOP Nos. 14029 and 14031 of 2023 Appearances for Parties Himinder Lal, Roy Abraham, Ms. Reena Roy, Adithya Koshy Roy, Ms. Anju Kanodiya, Advs. for the Appellant. S. Mahendran, Adv. for the Respondents. Judgment / Order of the Supreme Court Judgment Aravind Kumar J. 1. Leave granted.

2. These appeals have been preferred at the instance of the first informant in Crime No.318 of 2022. By the impugned order dated 09.08.2023, passed in Crl. O.P. Nos.14029 & 14031 of 2023 and Crl. M.P. Nos.8658 of 2023, the High Court of Madras has allowed the claim of the Respondents-accused for de-freezing of their bank accounts. The High Court has ordered for de-freezing on the specific ground that there was delay on part of the police in reporting the seizure to [2024] 6 S.C.R. 413 Shento Varghese v. Julfikar Husen & Ors. the jurisdictional Magistrate. The facts in the instant case, which we shall advert to later below, have given rise to following question of law: What is the implication of non-reporting of the seizure forthwith to the jurisdictional Magistrate as provided under Section 102(3) Cr.P.C.? more specifically; Does delayed reporting of the seizure to the Magistrate vitiate the seizure order altogether? That is the question which needs to be answered in these appeals.

3. Our research indicates that there is no authoritative pronouncement of this Court on this issue. If we turn to the pronouncements of the High Courts, there are decisions1 which have directly confronted this question. Having reviewed these decisions, we find that, broadly, there are two prevailing strands of thought: one set of cases holding that delayed reporting to the Magistrate would, ipso facto, vitiate the seizure order; and the other view being that delayed reporting would constitute a mere irregularity and would not vitiate the seizure order. 4. The former view has been justified on the grounds that: (a) the obligation [u/S 102(3) Cr.P.C.] to report the seizure forthwith to the Magistrate is mandatory and non-negotiable, breach of which would qualify as an illegality in following the prescribed statutory procedure2; (b) the employment of the word ‘shall’ in Section 102(3) makes it clear that non-compliance of the mandatory requirement to report forthwith to the Magistrate goes to the root of the matter3; (c) the power to seize has been subjected to procedural requirements prescribed under Section 102(3) – 1 See Table at Annexure A for a compilation of the 36 decisions on this issue. 2 Tmt. T .Subbulakshmi vs The Commissioner of Police 2013(4) MLJ (Crl) 41 3 The Meridian Educational Society Vs. The State of Telangana, 2022 1 ALT(Cri) 229 414 [2024] 6 S.C.R. Digital Supreme Court Reports

and breach of complying with follow-up procedures would render the exercise of the main power to be without authority and jurisdiction – in that sense, the requirement to report is in the nature of a condition subsequent clause.4 5. The latter view has been sustained on the reasoning that: a) The statutory provision provides no express consequence(s) for non-compliance and therefore, the procedural requirement is merely directory and not mandatory5; b) The power to seize property connected with a crime is plenary and the obligation to intimate is a mere incidental exercise of power – breach of the latter cannot affect the former6; c) the object of reporting is to facilitate disposal of property seized – prejudice caused by delayed reporting, if any, can always be demonstrated at the trial7; d) Neither is there any obligation to seek prior leave before exercising the power to seize nor is there any statutorily provided consequence for non-compliance of the reporting obligation8; e) No prejudice would be caused to the owner of a property by non-reporting of seizure to the concerned Magistrate during the investigation phase. Therefore, it cannot be a case of illegality but such an omission may only be an irregularity.9 4 Dr Shashikant D. Karnik Vs. State of Maharashtra, 2008 CRL.L.J. 148 5 Ruqaya Akhter Vs Ut Through Crime Branch, CRM(M) No.223/2022, Jammu & Kashmir and Ladakh High Court.

6 Operation Mobilization India Vs. State of Telangana 2021 SCC OnLine TS 1529 7 Bharath Overseas Bank Vs. Minu Publication [1988] MLJ (Crl.) 309 8 Supra, 7 9 Supra, 5 [2024] 6 S.C.R. 415 Shento Varghese v. Julfikar Husen & Ors. 6. In light of conflicting precedents operating across various High Courts, we find it expedient and necessary to settle the conflict and bring in uniformity in adjudication. LEGISLATIVE HISTORY – A COMPARATIVE ANALYSIS Criminal Relevant Provision Procedure Codes 188210 Section 523- Procedure by police upon seizure of property taken under Section 51 or stolen The seizure by any Police-officer of property taken under Section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a magistrate, who shall make such order as he thinks fit respecting 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. 189811 Section 550- Powers to police to seize property suspected to be stolen: Any police-office 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. Such police-officer, if subordinate to the office in charge of a police station, shall forthwith report the seizure to that officer.

197312 102. Power of police officer to seize certain property.—(1) Any police officer 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. 10 Hereinafter referred to as “1882 Code”. 11 Hereinafter referred to as “1898 Code”. 12 Hereinafter referred to as “1973 Code”. 416 [2024] 6 S.C.R. Digital Supreme Court Reports (2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer (3) Every police officer 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 difficulty 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.] 202313 106. (1) Any police officer 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 officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer. 13 Hereinafter referred to as the “2023 Code”. [2024] 6 S.C.R. 417 Shento Varghese v. Julfikar Husen & Ors.

(3) Every police officer 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 difficulty 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 505 and 506 shall, as nearly as may be practicable, apply to the net proceeds of such sale.

7. The responsibility of the police officer to promptly inform the Magistrate about the seizure can be historically traced to the 1882 Code. Oddly enough, this provision was absent in the 1898 Code. In the 1898 Code, however, it was provided that if the seizing officer was below the rank of an officer-in charge of a police station, then such officer was under a duty to give information to his superior regarding the seized property. It appears that the provision as it existed in the 1898 Code was retained as is in the 1973 Code. Sub-section (3) to Section 102 was inserted by way of an amendment only in the year 1978. This amendment reintroduced the reporting obligations of police officer to the Magistrate, as it originally existed in the 1882 Code. It also empowered the seizing officer to give custody of the seized property to any person, on such person executing a bond undertaking to produce the property before the Court as and when required. There was no provision in the 1973 Code nor the 1898 Code till the insertion of sub-section (3) by an amendment in 1978, empowering the police to take a bond from a person undertaking to produce the property entrusted to 418 [2024] 6 S.C.R. Digital Supreme Court Reports

him by the police later on before the Court. The law as it existed then was that the bond could be entered before the Court but not in favour of the police. While setting aside the order of forfeiture in regard to the bond in favour of the police, this Court in Anwar Ahmad v State of UP14, pointed out the lacuna in the 1973 Code and suggested the insertion of a suitable provision. That is why this sub-section (3) empowering the police to execute the bond under certain conditionalities came to be inserted by way of the 1978 Amendment. For the sake of completeness, it may be observed that Section 102 Cr.P.C. in its present form has been retained as is in the 2023 Code, which is scheduled to come into force on 1st July 2024 and replace the 1973 Code.

8. The Notes on Clauses appended to the 1978 Bill had set out the following reasons for inserting sub section (3) to Section 102 Cr.P.C.: “Clause 10- Section 102 is being amended (1) to provide that the police officer shall forthwith report the seizure of any property under sub-section (1) to the Magistrate, as there is a lacuna in the Law and (2) to give effect to the observations of the Supreme Court made in Anwar Ahmad vs. the State of U.P. (AIR 1976 SC 680) that the police should be given the power to get a bond from the person to whom the property seized is entrusted, particularly in cases where a bulky property like elephant or car, is seized and the Magistrate is living at a great distance and it is difficult to produce the property seized before the Magistrate.” 9. The reason cited for inserting the amendment was to overcome a ‘lacuna’ in the law. What could have been the lacuna in the law that impelled the insertion of this amendment? 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 14 [1976] 1 SCR 779 : AIR 1976 SC 680 [2024] 6 S.C.R. 419 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 [2024] 6 S.C.R. Digital Supreme Court Reports 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. 15 Nevada Properties (P) Ltd. Vs. State of Maharashtra & Anr. (2019) 20 SCC 119 16 Ms Swaran Sabharwal Vs. Commissioner of Police, 1990 (68) Comp Cas 652 Delhi (DB) 17 State of Maharashtra Vs. Tapas D. Neogy,1999/INSC/417 18 Supra, 17. 19 See, Section 168 Cr.P.C. [2024] 6 S.C.R. 421 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’ 20 Ravinder Kumar & Anr. Vs. State of Punjab (2001) 7 SCC 690 21 Supra, 20. 22 Bhajan Singh and Ors. vs. State of Haryana, 2011/INSC/422 23 HN Rishbud v. State of Delhi (1954) 2 SCC 934 422 [2024] 6 S.C.R. Digital Supreme Court Reports 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’, 24 [1975] 3 SCR 394 : (1975) 1 SCC 653 (para 10 and 11) 25 [2002] Supp. 3 SCR 175 : (2002) 8 SCC 440 (para 9) 26 [1993] 3 SCR 676 : 1993 Supp (3) SCC 754 (para 9) 27 [1995] 2 SCR 230 : 1995 Supp (4) SCC 275 [2024] 6 S.C.R. 423 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 28 Bidya Deb Barma v. District Magistrate,1968 SCC OnLine SC 82 424 [2024] 6 S.C.R. Digital Supreme Court Reports

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 29 Application under Section 457 – Cr. M.C 2032 of 2023 was filed. [2024] 6 S.C.R. 425

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 S. CASE CITATION COURT No

1. Manish Khandelwal And Ors 2019 SCC OnLine Bombay vs The State of Maharashtra Bom 1412 High Court And Ors 2. V Plus Technology Pvt Ltd 2022/DHC/001595 Delhi HC vs The State (Nct Of Delhi) & Anr 3. Muktaben M. Mashru vs 2019 SCC OnLine Delhi HC State Of Nct Of Delhi & Anr Del 11509 4. Tmt.T.Subbulakshmi vs The 2013(4)MLJ(Crl)41 Madras Commissioner of Police High Court 426 [2024] 6 S.C.R. Digital Supreme Court Reports 5. Ms Swaran Sabharwal 1990 (68) Comp Delhi High Versus Commissioner of Cas 652 Delhi (DB) Court Police 6. Uma Maheshwari Vs. The 2013 SCC OnLine Madras State Rep. By Inspector Mad 3829 HC of Police, Central Crime Branch, Egmore, Channai; Criminal O.P. No.15467 of 2013 7. The Meridian Educational 2022 1 ALT(Cri) Telangana Society Vs. The State of 229 HC Telangana; Writ Petition No.21106 of 2021 8. Padmini vs. Inspector of 2008(3) Crimes Madras Police, Tirunelveli 716 (Mad.) HC 9. R. Chandrasekar vs. 2003 Criminal Law Madras Inspector of Police, Salem Journal 294 HC 10. Lathifa Vs. State of 2012 Cri. L.J. 3487 Karnataka Karnataka High Court 11. B. Ranganathan Vs. State 2003 Crl.L.J 2779 Madras and Ors HC 12. Shashikant D. Karnik Vs. II(2007)BC337 Bombay The State of Maharashtra HC 13. Karthika Agencies W.P.No.17953 of Madras Export House vs The 2021 High Court Commissioner of Police 14. S. Ganapathi Vs. State and Crl.O.P.No.800 of Madras Ors. 2014 HC 15. R. Sivaraj Vs. State of Tamil Criminal Madras Nadu O.P.Nos.576 and HC 577 of 2013

16. Shri. Vilas S/o. Prabhakar Criminal Writ Bombay Dange Vs. State of Petition No. HC Maharashtra 1033/2017 17. Purbanchal Road Service, 1991CRILJ2798 Gauhati Gauhati VS State High Court [2024] 6 S.C.R. 427 Shento Varghese v. Julfikar Husen & Ors. 18. S. T. Cleopatra VS W.P.No.17953 of Madras Commissioner of Police, 2021 HC Chennai City, Vepery, Chennai 19. Kiruthika Vs. State rep. Crl.O.P.No.14733 Madras by Inspector of Police and of 2021 HC another 20. Dr.Shashikant D. Karnik Vs. 2008 CRL.L.J. 148 Bombay State Of Maharashtra HC 21. Ali Trading and Anr v The WA 296/2019 Gauhati State of Assam HC 22. B. Kavitha v. Inspector of Crl.OP. NO. Madras Police & ors 14824/2019 HC CASES WHERE THE COURT HAS HELD THE REPORTING CONDITIONS ARE DIRECTORY AND NOT ILLEGAL 23. Dattasai (Kisan Seva 2022 6 ALD 702 Telangana Kendra) VS State of HC Telangana 24. M/S SJS Gold Pvt. Ltd. Criminal Misc. Writ Allahabad Thru. Director Sunil Jaihind Petition No. - 3511 High Court Salunkhe & Anr V. State of Of 2022 UP 25. Amit Singh vs State of U.P. Criminal Misc. Allahabad And Anr. Writ Petition No. - High Court 11201 Of 202 26. Ruqaya Akhter Vs Ut CRM(M) The Through Crime Branch No.223/2022 Jammu & Kashmir and Ladakh High Court 27. Narottam Singh Dhillon and Criminal Misc. Punjab-another vs. State of Punjab No.43768 of 2004 Haryana High Court 28. Vinoshkumar 2011(1) MWN (Cr) Bombay Ramachandran Valluvar Vs. 497 HC The State of Maharashtra 428 [2024] 6 S.C.R.

Digital Supreme Court Reports 29. C.Aranganayagam Vs. State 1999 SCC OnLine Madras by the Director of Vigilance Mad 463 HC and Anti-corruption, Erode and another 30. M/S. Ap Product vs State Of AIR ONLINE 2020 Telangana Telangana on 3 December, TEL 135 High Court 2020 31. Mohd. Maqbool Ahmed @ 1996(3) ALT215 Andhra Mateen And Anr. vs The High Court Deputy Commissioner Of Police 32. State of Manipur v Canning 2021 SCC OnLine Manipur Keishing Mani 272 HC 33. M.S. Jaggi vs 1977 CRILJ 1902 Orissa Subaschandra Mohapatra High Court 34. Bharath Overseas Bank v. [1988] MLJ (Crl.) Madras Minu Publication 309 HC 35. Dr. Shaik Haseena v State 2020 SCC OnLine Telangana of Telangana TS 2851 HC 36. Operation Mobilization India 2021 SCC OnLine Telangana v. State of Telangana TS 1529: (2021) 1 HC HLT 81 Result of the case: Appeals partly allowed †Headnotes prepared by: Ankit Gyan