Notice To Accused Not Necessary For Freezing Bank Account Under Section 102 CrPC : Madras High Court

The Madras High Court has dismissed a plea made by the wife of controversial PUBG gamer Madan seeking the defreezing of her bank account at Axis Bank Limited.

Justice M. Nirmal Kumar observed that there are far-ranging allegations against both the accused, including misappropriation of funds collected in the name of Covid Relief and making revenue from the live streaming of PUBG gaming videos with obscene commentary and filthy language against women and teenage subscribers.

Before the High Court, the major contention of Kiruthika, the admin of two YouTube Channels, namely, Madan and Toxic Madan 18+, was that the freezing of bank account did not align with the procedure contemplated under Section 102(3) of Cr.P.C.

Section 102(3) Cr. P.C mandates that every police officer acting under subsection (1) shall give a seizure report to the Magistrate having jurisdiction after freezing the bank account. The petitioner alleged that no such seizure report was given to the Magistrate nor was such seizure informed to the petitioner with an infant child. She submitted that the account can't be frozen indefinitely and such prohibitory orders can only be for a short duration.

The court noted that the bank had acknowledged the freezing of the account of the accused to the police by a letter on 15th June, 2021. It was produced and submitted to the magistrate when Kiruthika was remanded on 16th June. 

Justice M. Nirmal Kumar, after taking note of the submissions by the state and Kiruthika, noted in the order as below:

"The letter dated 15.06.2021 sent by the Senior Manager & Operations Head, Axis Bank, R.A.Puram Branch, Chennai was produced to the concerned Magistrate during the remand of the petitioner, as could be seen from the Court seal and Magistrate Initial dated 16.06.2021. The aforesaid letter was sent along with Statement of Account for A/c.No.xxxx for the period from 01.01.2020 to 31.12.2020 and 01.01.2021 to 14.06.2021 and other relevant documents"

About informing the petitioner about the freezing of accounts, the court noted that there is no such mandate in the statutory provisions. Relying On Teesta Atul Setalvad v. State of Gujarat (2017), the court remarked that Section 102 Cr.P.C. does not stipulate issuance of any notice to the account holder. For the purpose of investigation, no notice to the suspect can be expected under law, the court added.

"Section 102 Cr.P.C. is an important step towards investigation, in view of settled legal position, the accused cannot have any say in the investigation and notice to the suspect is out of question. The intention of the investigating agency is not required to be revealed to suspect at that crucial stage, else message of alert would be received by the suspect creating huge room for manipulation or destruction of evidence."

The respondents had also contended that though the investigation was completed and the charge sheet was filed, Kiruthika must undergo trial to prove that she is entitled to the money in the frozen bank account.

The court noted that out of the funds to the tune of crores of rupees collected for Covid Relief from fellow gamers, followers and subscribers, only less than two lakhs were donated via a crowdfunding platform called Milaap.

"...with regard to the balance amount, the accused are to give reasons. Though it is claimed by the prosecution that 2842 victims across India were cheated and victimized but only 25 victims could be accessed by the prosecution.", the court observed while dismissing the plea made by Kiruthik for giving suitable direction for defreezing the account.

However, the court also added that it is open for the petitioner to approach the concerned judicial magistrate for defreezing the account by giving satisfactory explanations. The court observed that the account freeze cannot continue indefinitely and the petitioner can show the concerned magistrate that freezing the bank account entirely is not needed for further investigation. 

"Thereafter, it is for the concerned Court to consider the plea of the accused in accordance with law, after hearing the petitioner and the respondent police on the facts and circumstances of the case and thereafter, to pass appropriate orders", the court added.

Background

PUBG Madan and Kiruthika have been accused of swindling funds collected for covid relief and accumulating revenue from the circulation of PUBG Gaming videos in the two YouTube channels which is riddled with abusive and filthy language. The prosecution had contended that both Madan and Kiruthika made streaming of PUBG gaming videos with obscene commentary even when both YouTube Channels have a large fan following including children below the age of 18 years. According to the police, Kiruthika had also disclosed about the starting of a Company in the name of Madan Game Station Private Limited, in which the petitioner and her father are the Directors.

According to the prosecution, the two YouTube Channels, Madan and Toxic Madan 18+ , have 7.7 lakhs and ten thousand subscribers respectively.

Kiruthika was arrested on 15th June, 2021 and Madan was nabbed by the police three days after. According to the police, both have given their confessions about uploading PUBG Gaming Videos with vulgar language in the YouTube Channels even though the PUBG Software is banned by the Indian Government.  PUBG Madan was remanded to custody on 19th June and he was later detained under the Goondas Act on 5th August, 2021.

Initially, the case was registered against both of them for offences pertaining to  Sections 67, 67A of IT Act, Sections 294(b), 509 of IPC and Section 4 of Indecent Representation of Women Act, 1986. Later, when the alleged scam behind covid relief came to light, an alteration report was filed and Section 420 IPC was also added as an offence.

According to the prosecution, the accused received money through various digital channels including UPI Apps. Additionally, a notice was sent to Google India under Sections 160 and 91 of Cr.P.C for taking down the offensive videos in both YouTube Channels. The IP addresses indicated that both of the YouTube Channels were accessed from their residence using Broadband connection. According to the Prosecution, the accused persons have obtained Rs.35,62,060.58/- illegally between 23.01.2020 to 31.05.2021 from Google Company, USA.

Case Title: Kiruthika v. The State Represented By Inspector of Police & Anr.

Case No: Crl. O.P. No.14733 of 2021

Citation: 2022 LiveLaw (Mad) 105

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