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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