Freezing of Bank Accounts and the Mandate of Section 106 of the Bharatiya Nagarik Suraksha Sanhita, 2023: Towards a Doctrine of Provision-Fidelity

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Abstract

While Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), has replaced the CrPC, 1973, yet it does not merely incorporate the provisions of Section 102 CrPC in Section 106 BNSS. Instead, it creates two structurally different and textually distinct modes of seizure: Section 106, a low threshold, police power of seizure on the ground of mere suspicion and after-the-fact notification to the Magistrate; and Section 107, a new method of attaching proceeds of crime which requires a show cause notice, fourteen days to respond to the notice, and usually a hearing before any attachment order can be issued. Nevertheless, Indian Courts are sustaining indefinite freeze orders on bank accounts under Section 106 BNSS, relying on cases decided under the earlier unitary code, such as Tapas D. Neogy, Teesta Setalvad, Nevada Properties, and Shento Varghese, without recognizing the statutory reconfiguration. This paper argues that indefinite freezing of bank account that essentially constitutes seizure of proceeds of crime under Section 106 is inconsistent with the legislative scheme of Section 107 and disrupts the constitutional balance outlined under Articles 14, 19(1)(g), 21, and 300A. The proposed solution is an interpretive principle of provision fidelity supplemented by a judicially enforceable time limit.

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