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Mere use of word ''shall' would itself not make the provision in an act mandatory

Citation : M/S SJS Gold Pvt. Ltd. vs State Of UP

Date of Judgment/Order : 2022.06.04

Court/Tribunal : High Court of Judicature at Allahabad, Lucknow Bench

Corum : Hon'ble Ramesh Sinha,J. & Hon'ble Mrs. Saroj Yadav,J.


Background

Bank account of the petitioners was frozen on the instructions of the Investigating Officer by the Axis Bank as a sequel to the F.I.R. lodged by the Chief Manager of the Management of Monuments, Museum, Parks, Garden etc. for offence punishable under Sections 409, 420, 467, 468, 471 I.P.C.

The Petitioner argued through their writ petition that the Investigating Officer has not reported the seizure/debit freezing of the petitioners' account to the Magistrate concerned having jurisdiction as mandated under Section 102 (3) of the Code of Criminal Procedure, 1973 (CrPC) and therefore the freezing is illegal.

The Govt. Advocate referring to the order of the Co-ordinate Bench of this Court at Allahabad in Criminal Misc. Writ Petition No. 11201 of 2021 : Amit Singh Vs. State of U.P. and others, decided on 18.04.2022, argued that the question as to whether Section 102 (3) Cr.P.C. is mandatory or directory 

Judgment

Time schedules specified in acts are generally not mandatory for Public officials

Section 102 of the CrPC deals with the power of police officer to seize certain property. While subsection 3 of the said section says - "Every police officer acting under Sub-Section (1) shall forthwith report the seizure to the Magistrate having jurisdiction........"

The Supreme Court referring to the judgment in Amit Singh (supra) observed that the said judgment goes gone into details on whether Section 102(3) Cr.P.C. is mandatory or directory in nature?

The Amit Singh (supra) judgment had observed that it is well settled that non-observance of a mandatory condition is fatal to the validity of the action. However, non-observance would not matter if the condition is found to be merely directory. In other words, it is not that every omission or defect entails the drastic penalty of invalidity. Whether the provision is mandatory or directory can be ascertained by looking at the entire scheme and purpose of the provision and by weighing the importance of the condition, the prejudice to private rights and the claims of the public interest, therefore, it will depend upon the provisions of the statute and mere use of word ''shall' would itself not make the provision mandatory. The Hon'ble Supreme Court in the case of State of Haryana Versus Raghuveer Dayal (Supra) has held that the use of word 'shall' is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, on consequences to flow from such construction would not so demand.

The Hon'ble Supreme Court, in the case of Nasiruddin and Others Versus Sita Ram Agarwal; AIR 2003 Supreme Court 1543, has held that it is well settled that the real intention of the legislation must be gathered from the language used. It may be true that the use of the expression ''shall or may' is not decisive for arriving at a finding as to whether statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character. It has further been held that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time frame, the same will be held to be directory unless the consequences therefor are specified.

The consequences of non reporting about the seized property have not been provided under the section. In addition, the requirement of reporting in the manner, as stated, is on the part of a public functionary and in view of the law laid down by the Hon'ble Supreme Court, as noticed above, the same is required to be held to be directory unless the consequences thereof are specified. Since the consequences have not been specified, it would be safe to hold that requirement of Section 102(3) Cr.P.C. cannot be termed as mandatory but would be directory in nature.

Based on the above, the High Court in the current matter found itself in full agreement with the view expressed by the Co-ordinate Bench of this Court at Allahabad vide judgment and dismissed the writ petition.


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