India:

Whether Seizure Of An Immovable Property Falls Under The Purview Of S.102 Of The Criminal Procedure Code When Reference Is Made To ‘any Property’?

INTRODUCTION:-

It has been observed on multiple occasions that the common man
has been subjected to arbitrary investigation procedures by the
police authorities. Under the guise of suspicion, immovable
property is attached and seized by the police authorities without
conducting any preliminary investigation. In the past few years the
Apex Court and various other High Courts, through multiple
decisions, discussed this issue. The Apex Court in Nevada
Properties Private Limited v. The State of Maharashtra &
Anr, has given a detailed overview of Section 102 of the Code
of Criminal Procedure, 1974. In the present case, the major
question of law before the Court was whether immovable property
could be seized under mere suspicion of the commissioning of an
offence as provided under S. 102 of the Code?

FACTS PERTAINING TO THE PRESENT CASE:-

The appeal arose out of a judgment of the Bombay High Court
wherein the majority view has held that the expression
‘any property’ used in S.102 (1) of the Code
of Criminal Procedure does not include immovable property and,
consequently, a police officer investigating a criminal case cannot
take custody of and seize any immovable property which may be found
under circumstances which create suspicion of the commissioning of
any offence.

JUDGEMENT AND ANALYSIS:-

In the present case the Apex Court has given out a detailed
explanation about the ambiguity that has always arisen while
interpreting the term ‘any property’ in the context of
S.102 of the Code.

The Apex Court has clearly laid down the law that S.102
postulates seizure of any property; however, immovable property
cannot, in its strict sense, be seized, though documents of title,
etc. relating to immovable property can be seized, taken into
custody and produced. Immovable property can be attached and also
locked/sealed. It could be argued that the word ‘seize’
would include such actions of attachment and sealing, but seizure
of immovable property in this sense and manner would require
dispossession of the person in occupation/possession of the
immovable property in most cases. The language of S.102 of the Code
does not support the interpretation that the police officer has the
power to dispossess a person in occupation and take possession of
an immovable property in order to seize it. The scope and object of
S.102 is to help and assist the investigation and to enable the
police officer to collect and collate evidence to be produced, to
prove the charge complained of and for use in the preparation of
the charge sheet. The section is a part of the provisions
concerning investigations undertaken by police officers. After the
charge sheet has been filed, the prosecution leads and produces
evidence to secure the conviction. Section 102 is not, per
se, an enabling provision by which the police officer acts to
seize the property to do justice and to hand over the property to
the person whom the police officer feels is the rightful and true
owner. The court remphasised that disputes relating to title,
possession, etc., of immovable property were civil disputes should
be decided and adjudicated in Civil Courts. Any attempt to convert
civil disputes into criminal cases to put pressure on the other
side would be unacceptable.¹

The Court also discussed State of
Maharashtra v. Tapas D. Neogy²  where bank
accounts were included under the purview of S. 102 of the Code and
that they could be frozen under the direction of the police
authorities if there was a suspicion of the commissioning of an
offence in relation to a bank account. 

Further emphasis has been laid out on Chapter XXXIV of the Code
wherein provisions have been laid down for disposal of property and
which enables courts to pass orders relating to both movable and
immovable property, rather than drastic measures under S.102.

CONCLUSION: –

The Apex Court opined that it was impossible to give such
judicial powers in the hands of the police authorities, as seizure
and attachment of a property is a subject of trial and evidence.
The Court stated that police officers were investigators and not
decision makers or adjudicators. It was observed that the term
‘any property’ under Section 102 of the code would not
include the power to attach, seize and seal an immovable
property.

Footnotes

1 Binod Kumar v. State
of Bihar, (2014) 10 SCC 663.

2 (1999) 7 SCC 685.

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