LexSHENTO VARGHESE versus JULFIKAR HUSEN & ORS.
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* Author [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 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
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