Bombay High Court
Sudhir Vasant Karnataki vs The State Of Maharashtra on 29 November, 2010
Bench: B.H. Marlapalle, R. C. Chavan, R. S. Dalvi
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cri.w.p.3198-2009 & Other Petitions.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3198 OF 2009
Sudhir Vasant Karnataki
Aged about 51 years,
residing at 14, Rohan Corner,
Shivtirtha Nagar, Poud Road,
Pune - 411 037. ..Petitioner
Vs.
1. The State of Maharashtra
2. The Commissioner of Police,
Pune.
3. The Senior Inspector,
Anti-Extortion Cell, Crime Branch,
Pune.
4. Yeshwant V. Natu
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Age : 63 years, Occu : Retired lecturer
R/o.Plot No.14, Tapodhan Society,
Near Bhagini Nivedita Bank,
Pune. ..Respondents
WITH
CRIMINAL WRIT PETITION NO.395 OF 2010
Mohideen Mohammed Sheik Dawood
an adult, occu : business
non resident Indian
residing at P.O.Box 24770,
Dubai, U.A.E.
and having permanent residence
in India at 34, South Street,
Nagore - 611 002, Tamil Nadu,
India.
Through its Power of Attorney Holder
Mr.Rajesh Baxi ..Applicant
Vs.
1. Russian Federation represented
in India through its Counsel
General Mr.Alezander V. Mantytsky
having their office at 42,
L. Jagmohandas Marg,
(Old Napean Sea Road), Palm Beach,
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cri.w.p.3198-2009 & Other Petitions.doc
Mumbai - 400 036.
2. The State of Maharashtra ..Respondents
WITH
CRIMINAL WRIT PETITION NO.2024 OF 2009
Sudhir Vasant Karnataki
Aged about 51 years,
residing at 14, Rohan Corner,
Shivtirtha Nagar, Poud Road,
Pune - 411 037. ..Petitioner
Vs.
1. The State of Maharashtra
2. The Commissioner of Police,
Pune.
3. The Senior Inspector,
Anti-Extortion Cell, Crime branch
Pune. ..Respondents
WITH
CRIMINAL WRIT PETITION NO.2137 OF 2010
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cri.w.p.3198-2009 & Other Petitions.doc
Chetna Properties Pvt. Ltd.
Registered Office :-No.1008,
10th floor, Dalamal Towers,
Nariman Point
Mumbai - 400 021. ..Applicant
Vs.
The State of Maharashtra
(at the instance of M.R.A.
Marg Police Station
C.R.No.15 of 2009) ig ..Respondent
Mr. Kunal Cheema i/by Ms. Veera Shinde for petitioner in Cri. W.P. No. 3198/09.
Mr. Harshad Ponda with Mr. Vijay Kantharia for petitioner in W.P. No.395/10.
Mr. Aabad H. H. Ponda for petitioner in Cri. W.P. No. 2137 of 2010.
Mr. S.V. Kotwal i/by Mr. Ashish Sawant for respondent no.4 in W.P. No.3198/09.
Mr. Ashok Mundargi with Mr. S.V. Kotwal and Mr. A.V. Jain i/by M/s. A.V. Jain and
Co. for respondent no.1 in W.P. No. 395/10.
Mrs. P. P. Shinde, APP in W.P. No. 395/10.
Mr. A.S. Gadkari, APP in W.P. Nos.2024/09, 3198/09 and 2137/10.
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cri.w.p.3198-2009 & Other Petitions.doc
CORAM: B. H. MARLAPALLE,
R. C. CHAVAN &
SMT. ROSHAN DALVI, JJ.
RESERVED ON : AUGUST 12, 2010
PRONOUCNED ON : NOVEMBER 29, 2010
JUDGMENT (PER B. H. MARLAPALLE, J.)
I have gone through the majority judgment written by Chavan J.,
for himself and for Dalvi J., holding that the powers of seizure under
Section 102 of the Criminal Procedure Code 1973 are not applicable for
the immovable property and with respect I could not persuade or agree
with the same view. Hence this separate judgment.
2. A Division Bench of this Court while hearing this petition was
confronted with two divergent findings on the issue as to whether an
immovable property could be seized under Section 102 of the Criminal
cri.w.p.3198-2009 & Other Petitions.doc
Procedure Code, 1973 (for short "the Code"). As per the petitioners
Section 102 of the Code envisages seizure of only movable property,
but the respondents, including the State of Maharashtra, contended
before the Division Bench that the word "any property" used in Section
102 of the Code cannot be restricted to movable property alone and
immovable property can also be seized under the said Section. The
Division Bench in its order dated 1st April, 2010 observed in para 12 as
under:-
"12. Having gone through Tapas Neogy [(1999) 7 SCC
685], we are inclined to hold that it is possible to urge that
in Tapas Neogy, the Supreme Court was primarily
considering whether the bank account of the accused could
be property within the the Section 102 (1) of the Code and
not whether under Section 102 of the Code, immovable
property could be seized. That question has been decided
by this Court in Kishore Shankar Signapurkar vs. State
of Maharashtra & Ors., 1997 Vol. IV LJ 793. It is held
cri.w.p.3198-2009 & Other Petitions.doc
therein that under Section 102, immovable property cannot
be seized. Unfortunately, attention of the Division Bench of
this court was not drawn to this judgment when it decided
M/s.Bombay Science & Research (2008 All. M.R. (Cri.)
2133). Reliance placed by the Division Bench in
M/s. Bombay Science & Research on Tapas Neogy does not
appear to us to be apt because in that case, the Supreme
Court was not considering whether immoveable property
can be seized under Section 102 of the Code. There is,
therefore, an apparent conflict between the view expressed
in Kishore Signapurkar and M/s.Bombay Science &
Research. In our opinion, therefore, the question whether
under Section 102 of the Code, immoveable property can be
seized needs to be referred to a larger bench as there is
conflict between two coordinate benches of this Court."
In Tapas Neogy's case the Supreme Court has referred to
Section 16 of the P. C. Act and hence is presumed to have considered
the Criminal Law (Amendment) Ordinance 1944.
cri.w.p.3198-2009 & Other Petitions.doc
2. For the above said reasons the Division Bench framed and
referred the following questions to be decided by the larger Bench:-
"(a) Whether the words "any property" used in sub-section
(1) of Section 102 of the Code of Criminal Procedure, 1973
would mean to include "immoveable property.?
(b)
Whether a police officer can take control of any
immovable property which may be found under
circumstances which create suspicion of the commission of
any offence?
(c) Which of the above two judgments lay down correct law
in respect of the powers of a police officer to seize any
immoveable property under Section 102 of the Code of
Criminal Procedure.
(d) Whether the law laid down by the Supreme Court in case
of State of Maharashtra v. Tapas D. Neogy (supra) is
restricted to seizure of bank accounts only or it can be
cri.w.p.3198-2009 & Other Petitions.doc
extended to immoveable property also, as interpreted by the
Division Bench in the case of M/s.Bombay Science and
Research Education Institute (supra)."
3. The main issue which we are required to decide is as to
whether an immovable property can be seized under Section 102 of the
Code, and our reply on this single issue will result in deciding all the
above stated four issues set out in the referral order.
4. In Kishore Shankar Signapurkar's case the Division Bench
considered the following points:-
(i) Whether the police can seize immovable property under
the provisions of Section 102 of the Code of Criminal
Procedure?
(ii) Whether the police can seize or freeze Bank accounts
cri.w.p.3198-2009 & Other Petitions.doc
under the provisions of section 102 of the Code of Criminal
Procedure;
(iii) What is the procedure to be followed by the police in
respect of the property seized under the provisions of
section 102 of the Code of Criminal Procedure.
After referring to the arguments advanced by the parties and
the judgments cited across the bar the Division Bench concluded its
findings, as under on the first two issues framed by it.
(a) The word "property" as used in Section 102 of the
Cr.P.C. cannot include "immovable property" and
(b) the police have no power under the provisions of Section
102 to direct the bank accounts to be freezed and prevent
the account holder from operating the bank account."
The short reasoning on the first issue in the said case finds
place in the following observations of the Division Bench:-
cri.w.p.3198-2009 & Other Petitions.doc
"As a matter of fact, we are of the opinion that the aforesaid
observations of the apex Court in R.K. Dalmia v. Delhi
Administration reported in A.I.R. 1962 S.C. 1821
support the conclusion that the interpretation of the word
"property" as used in section 102 will not depend on the
interpretation of the word "property" but on the fact
whether a particular kind of property can be subject to
the acts covered by that section. As stated earlier, in our
opinion, the provisions of sub-section (3) contemplate the
property to be capable of being produced before the
Court and being transported, and in as much as the
immovable property would be incapable of being
transported or so produced, we are of the opinion that the
word "property" as used in section 102 of the Cr.P.C.
Cannot include "immovable property....... Therefore,
on reading of the provisions of Section 102 the Code which
in our opinion are clear, and unambiguous, we are of the
opinion that an immovable property cannot be seized by the
police under the provisions of Section 102 of the Code."
The reasoning and findings recorded on the second issue
cri.w.p.3198-2009 & Other Petitions.doc
regarding the bank accounts need not be considered as they have been
disapproved by the Supreme Court in Tapas Neogy's case (supra).
5. In the case of M/s. Bombay Science Research Education
Institute (supra) another Division Bench of this Court following the law
laid down by the Supreme Court in Tapas Neogy's case held that all
properties whether movable or immovable can be seized by the police
under Section 102 of the Code as there is nothing in the provision to
show that the property would include only movable and not immovable
property. It is true that there is no reference in this judgment in the case
of M/s.Bombay Science Research Education Institute (supra), to the
earlier judgment in the case of Kishore Signapukar (Supra) but it is
beyond any doubt that the findings in both the decisions of this Court are
in conflict and the view taken in the later judgment of this Court is
solely based on the subsequent decision of the Supreme Court in the
case of Tapas Neogy's case (supra). In paras. 10 and 11 of the judgment
cri.w.p.3198-2009 & Other Petitions.doc
in M/s.Bombay Science and Research Education Institute the Division
Bench stated as under:-
"10. Now contention of the petitioner is that though
Supreme Court held that the bank account as
"property" within the meaning of Section 102 of
Criminal Procedure Code, but "immovable
properties" can not be "properties" within the meaning
of Section 102........
11. We do not find that there is any basis for such
distinction to be made in the movable and immovable
properties as far as "property" is mentioned in Section 102.
All properties whether movable or immovable in our
view can be seized by police under Section 102, as there
is nothing in the provision to show that the property would
include only movable and not immovable. The Supreme
Court has held in the para quoted above there was no
justification to come to the conclusion that the "property"
should be defined in the narrow sense".
cri.w.p.3198-2009 & Other Petitions.doc
6. In Tapas D. Neogy's case (supra) the main question for
consideration before the Apex Court was, whether the investigating
officer can pass orders freezing the bank account or issue prohibitory
orders to the bank not to allow the account holder to operate the account
by invoking the powers under Section 102 of the Code. The Supreme
Court reproduced the provisions of Section 102 of the Code and in para
6 stated as under:-
"6. A plain reading of sub-section (1) of Section 102
indicates that the police officer has the power to seize any
property which may be found under circumstances creating
suspicion of the commission of any offence. The legislature
having used the expression "any property" and "any
offence" have made the applicability of the provisions wide
enough to cover offences created under any Act. But the
two preconditions for applicability of Section 102(1) are
that it must be "property" and secondly, in respect of the
said property there must have been suspicion of commission
cri.w.p.3198-2009 & Other Petitions.doc
of any offence. In this view of the matter the two further
questions that arise for consideration are whether the bank
account of an accused or of his relation can be said to be
"property" within the meaning of sub-section (1) of Section
102 Cr.P.C. And secondly, whether circumstances exist,
creating suspicion of commission of any offence in relation
to the same......"
After referring to the earlier decisions of some of the High Courts as
well as the Supreme Court, Their Lordships in para 12 of Tapas D.
Neogy's case (supra) stated thus,
"12. Having considered the divergent views taken by
different High Courts with regard to the power of seizure
under Section 102 of the Code of Criminal Procedure, and
whether the bank account can be held to be "property"
within the meaning of the said Section 102(1), we see no
justification to give any narrow interpretation to the
provisions of the Criminal Procedure Code. It is well
cri.w.p.3198-2009 & Other Petitions.doc
known that corruption in public offices has become so
rampant that it has become difficult to cope up with the
same. Then again the time consumed by the courts in
concluding the trials is another factor which should be borne
in mind in interpreting the provisions of Section 102 of the
Criminal Procedure Code and the underlying object
engrafted therein, inasmuch as if there can be no order of
seizure of the bank account of the accused then the entire
money deplosited in a bank which is ultimely held in the
trial to be the outcome of the illegal gratification, could be
withdrawn by the accused and the courts would be
powerless to get the said money which has any direct link
with the commission of the offence committed by the
accused as a public officer. We are, therefore, persuaded to
take the view that the bank account of the accused or any of
his relations is "property within the meaning of Section 102
of the Criminal Procedure Code and a police officer in
cri.w.p.3198-2009 & Other Petitions.doc
course of investigation can seize or prohibit the operation
of the said account if such assets have direct links with the
commission of the offence for which the police officer is
investigating into.
The contrary view expressed by the Karnataka, Gauhati and
Allahabad High Courts, does not represent the correct law.
It may also be seen that under the Prevention of Corruption
Act, 1988, in the matter of imposition of fine under sub-
section (2) of Section 13, the legislatures have provided that
the courts in fixing the amount of fine shall take into
consideration the amount or the value of the property which
the accused person has obtained by committing the offence
or where the conviction is for an offence referred to in
clause (e) of sub-section (1) of Section 13, the pecuniary
resources or property for which the accused person is
unable to account satisfactorily. The interpretation given by
us in respect of the power of seizure under Section 102 of
the Criminal Procedure Code is in accordance with the
intention of the legislature engrafted in Section 16 of the
Prevention of Corruption Act referred to above." In the
aforesaid premises, we have no hesitation to come to the
cri.w.p.3198-2009 & Other Petitions.doc
conclusion that the High Court of Bombay committed error
in holding that the police officer could not have seized the
bank account or could not have issued any direction to the
bank officer, prohibiting the account of the accused from
being operated upon. Though we have laid down the law,
but so far as the present case is concerned, the order
impugned has already been given effect to and the accused
has been operating his account, and so, we do not interfere
with the same." (emphasis supplied).
7. The arguments by the respective parties before us are
almost on the same lines as they were advanced before the Division
Bench while passing the referral order. The learned Counsel for the
petitioner urged before us that the words "any property" used in Section
102 of the Code does not extent to "immovable property" and, therefore,
the police officer does not have the power to seize the immovable
property under the said Section. When it comes to immovable property,
what is envisaged under the Code is "attachment" and not "seizure" and
wherever the Legislature had intended to extend the provisions of the
cri.w.p.3198-2009 & Other Petitions.doc
Code to apply to immovable property the words "immovable property"
have been specifically used. The draftsmen of the Code have
distinguished between "seizure" and "attachment" and they have
contemplated the word "seizure" to apply to "movable property" and not
to the "immovable property". In support of these contentions, our
attention was drawn to the provisions of Sections 51, 52, 83(3)(a), 83(4)
(a), 105, 105E, 145, 146 and 451 to 459 of the Code as well as Section
68-F of the N.D.P.S. Act, 1985 so as to urge that the powers of seizure
under Section 102 of the Code cannot be invoked in respect of an
immovable property. It is further submitted that the later decision in the
case of M/s. Bombay Science and Research Institute (supra) did not
consider the reasoning set out by the earlie Division Bench in Kishore
Shankar Signapurkar's case (supra) and did not analyze the various
provisions of the Code to come to the said view that an immovable
property can be seized under Section 102 of the Code. The judgment of
the Supreme Court in the case of Tapas D. Neogy (supra) is a binding
precedent only to the extent that the power under Section 102 of the
cri.w.p.3198-2009 & Other Petitions.doc
Code can be invoked for the seizure or freezing of the bank account
and it cannot be extended to an immovable property even by inference
or implication. Though Section 102 of the Code can be divided in two
different parties, in the first part the "property stolen" is different from
the words "stolen property" as defined in Section 410 of the I.P.C., and,
therefore, the immovable property is not covered in the first part. As
regards the second part of Section 102 of the Code, it was submitted that
it cannot apply to an immovable property as the word used is "found"
and an immovable property cannot be found and it stays where it is. The
entire phrase "found in circumstances which creates suspicion of the
commission of any offence" which is the second part of Section 102 of
the Code would apply only to movable property. Section 102 of the
Code finds its place in Chapter VII of the Code and heading of the said
Chapter uses the word "things" and, therefore, it is impossible to
imagine by the common usage of the word "things" that the same
would also mean immovable property as an immoveable property cannot
be said to be "things". He also urged that Sections 451 to 459 of the
cri.w.p.3198-2009 & Other Petitions.doc
Code also support his arguments. Section 456 specifically takes care of
"immovable property" and it does not contemplate that the immovable
property should have been seized earlier. Section 452 grants power to
the Magistrate to pass an order for disposal, at the conclusion of the
trial, of the property in its custody or regarding which an offence
appears to have been committed and the stress in the Section is on its
production in the Court thereby implying that it applies only to movable
property.
Our attention has also been invited to the following
observations made by the earlier Division Bench in Kishore Shankar
Singnapurkar's case (supra) :-
".....If one goes to the provisions of the Code and especially
the provisions of Sections 83, 93, 105-C to 105-I, 145,
146, 152 and 456 it is clear that whenever movable
property is concerned, the power is given either to the
Court or to the Magistrate."
cri.w.p.3198-2009 & Other Petitions.doc
Based on these observations, it has been contended before us that when
it comes to an immovable property, the power of attachment can be
exercised by the Court or by the Magistrate and the power of seizure
which is available to a police officer under Section 102 of the Code
cannot be made applicable to an immovable property, otherwise the
consequence of any other interpretation would be disastrous and
innocent people or persons who have no connection with the alleged
crime would be made to suffer till the trial is completed and in given
cases the chances of dispossession during the investigation itself could
not be ruled out on account of the high handed attitude of the police
officer. Lastly, the learned Counsel for the petitioner also relied upon
the recommendations of the Malimath Committee so as to amend the
scheme of Section 102 of the Code to include the immovable property
and they urged that an inference ought to be drawn that the present
scheme of Section 102 does not include immovable property, and there
is no reason to upset the said view solely relying upon some of the
cri.w.p.3198-2009 & Other Petitions.doc
observations made by the Supreme Court in Tapas D. Neogy's case
(supra).
8. On the other hand the learned Counsel for the respondents
have urged before us that the words "any property" must be given their
natural meaning and it cannot be limited or altered to mean only
'movable property".
ig Wherever the legislature wanted to make
distinction it has used the words "movable property" and "immovable
property" in the Code. Reference has also been made to the dictionary
meaning of the words "seizure", "attachment" and "disposal", etc. It
was submitted that unless the property is seized during the course of
investigation by the police , the power of attachment to be invoked by
the Magistrate or by the Court cannot be applied effectively, in given
cases as the property in the meanwhile would have changed hands, more
so if it is a property acquired from the proceeds of crime/offence. The
term "any property" has to be interpreted so as to make the procedural
cri.w.p.3198-2009 & Other Petitions.doc
law effective and a restricted meaning to the said words would, at
times, render the Code ineffective. When the words used in the statute
are clear, plain and unambiguous, the Courts have no power to delete or
add any other words in the statute. The judgment in the case of Tapas D.
Neogy (supra) clearly states that the word "any property" cannot be
given a limited meaning and to keep pace with the changing scenario of
different organised crimes, it would be imperative that the words "any
property" must include "movable property" as well as "immovable
property" otherwise the legislature would not have used the adjective
"any" before the word "property". The seizure does not connote merely
taking physical possession of the property by leaving it or removing it.
The requirement of production of the seized property, if the Court so
orders, found in Section 102, does not lead to the conclusion that "any
property" means only movable property. There are several cases where
movable property because of its size, etc., cannot be produced in the
Court. However, in respect of the seized immovable property, title
documents and other documents indicating seizure can be placed before
cri.w.p.3198-2009 & Other Petitions.doc
the Court. Therefore, sub-section (3) of Section 102 of the Code cannot
be read so as to indicate that because the immovable property cannot be
produced before the Court the words "any property" must mean only
"movable property". The object behind the action of seizure under
Section 102 of the Code is to preserve and to protect the property which
has been acquired from the proceeds of the crime during the trial.
Section 451 of the Code provides for an order which a Court can pass
pending trial for custody of the property, whereas Section 452 and 456
of the Code speaks about disposal of the property at the completion of
the trial. Section 457 of the Code is the only Section which enables the
Court to preserve and protect the property till the conclusion of the trial
and it can be directly related to Section 102 of the Code. If Section 102
of the Code is given a narrow meaning as suggested by the petitioner it
would curtail the investigating officer's legitimate power and that would
adversely affect the investigation of serious crimes under various penal
provisions general as well as special. The investigating officer may
become totally helpless where he would come to the prima facie
cri.w.p.3198-2009 & Other Petitions.doc
conclusion that the property found was under the circumstances which
create suspicion on the commission of any offence. The investigation of
serious offences under the N.D.P.S. Act, Maharashtra Control of
Organised Crime Act, Money Lending Act, the Maharashtra Protection
of Interest of Depositors (In Financial Establishment) Act, 1999 and the
Prevention of Money Laundering Act, 2002 would be adversely
affected. It was further urged that the view taken by the Division Bench
in M/s. Bombay Science & Research Education Institute (supra) is in
keeping with the letter and spirit of the interpretation of Section 102 as
amplified by the Supreme Court in the case of Tapas D. Neogy (supra)
and that the view taken in the case of Kishore Shankar Signapurkar
(supra) is no more a good law. The Criminal Law (amendment)
Ordinance 1944 could not detain, as is clear from the taken by the
Supreme Court in Tapas D. Neogy's case (supra), to take a restricted
view that a property acquired from the proceeds of crime cannot be
seized under Section 102 of the Code, urged the learned Counsel for the
respondents.
cri.w.p.3198-2009 & Other Petitions.doc
9. It may be useful to quote for our ready reference some of
the Sections of the Code including Section 102 which have been
referred to and relied upon during the course of arguments, including
Sections 68-C to 68-F of the N.D.P.S. Act and the Criminal Law
(Amendment) Ordinance 1944.
The Code of Criminal Procedure:
"S.83.(1) The Court issuing a proclamation under Section 82 may, for
reasons to be recorded in writing, at any time after the issue of the
proclamation, order the attachment of any property, movable or
immovable or both, belonging to the proclaimed person:
Provided that where at the time of issue of the proclamation the
Court is satisfied, by affidavit or otherwise, that the person in relation to
whom the proclamation is to be issued-
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the
local jurisdiction of the Court, it may order the attachment
simultaneously with the issue of the proclamation.
cri.w.p.3198-2009 & Other Petitions.doc
(2) Such order shall authorise the attachment of any property
belonging to such person within the district in which it is made; and it
shall authorise the attachment of any property belonging to such person
without such district when endorsed by the District Magistrate within
whose district such property is situate.
(3) If the property ordered to be attached is a debt or other movable
property, the attachment under this section shall be made-
(a) by seizure; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the delivery of such property to
the proclaimed person or to any one on his behalf; or
(d) by all or any two of such methods, as the Court thinks fit.
(4) If the property ordered to be attached is immovable, the
attachment under this section shall, in the case of land paying revenue to
the State Government, be made through the Collector of the district in
which the land is situate, and in all other cases-
(a) by taking possession; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the payment of rent or
delivery of property to the proclaimed person or to any one on his
behalf; or
(d) by all or any two of such methods, as the Courts thinks fit.
cri.w.p.3198-2009 & Other Petitions.doc
(5) If the property ordered to be attached consists of live-stock or is of
a perishable nature, the Court may, if it thinks it expedient, order
immediate sale thereof, and in such case the proceeds of the sale shall
abide the order of the Court.
(6) The powers, duties and liabilities of a receiver appointed under
this section shall be the same as those of a receiver appointed under the
Code of Civil Procedure, 1908 (5 of 1908).
S.102 (1) Any police officer may seize any property which may be
alleged or suspected to have been stolen, or which may be found under
circumstances which create suspicion of the commission of any offence.
(2) Such police officer, if subordinate to the officer in charge of a
police station, shall forthwith report the seizure to that officer.
(3) Every police officer acting under sub-section (1) shall forthwith
report the seizure to the Magistrate having jurisdiction and where the
property seized is such that it cannot be conveniently transported to the
Court, (or where there is difficulty in securing proper accommodation
for the custody of such property, or where the continued retention of the
property in police custody may not be considered necessary for the
purpose of investigation) he may give custody thereof to any person on
his executing a bond undertaking to produce the property before the
Court as and when required and to give effect to the further orders of the
Court as to the disposal of the same.
(Provided that where the property seized under sub-section (1) is subject
to speedy and natural decay and if the person entitled to the possession
of such property is unknown or absent and the value of such property is
less than five hundred rupees, it may forthwith be sold by auction under
the orders of the Superintendent of Police and the provisions of sections
cri.w.p.3198-2009 & Other Petitions.doc
457 and 458 shall, as nearly as may be practicable, apply to the net
proceeds of such sale.)
"105-A. Definitions.- In this Chapter, unless the context otherwise
requires,-
(a)"contracting State" means any country or place outside India in
respect of which arrangements have been made by the Central
Government with the Government of such country through a treaty or
otherwise;
(b) "identifying" includes establishment of a proof that the
property was derived from, or used in, the commission of an offence;
(c) "proceeds of crime" means any property derived or
obtained directly or indirectly, by any person as a result of criminal
activity (including crime involving currency transfers) or the value of
any such property;
(d) "property" means property and assets of every description
whether corporeal or incorporeal, movable or immovable, tangible or
intangible and deeds and instruments evidencing title to, or interest in,
such property or assets derived or used in the commission of an offence
and includes property obtained through proceeds of crime;
(e)"tracing" means determining the nature, source, disposition,
movement, title or ownership of property."
"S.105-C. (1) Where a Court in India has reasonable grounds to believe
that any property obtained by any person is derived or obtained, directly
or indirectly, by such person from the commission of an offence, it may
make an order of attachment or forfeiture of such property, as it may
cri.w.p.3198-2009 & Other Petitions.doc
deem fit under the provisions of Sections 105-D to 105-J (both
inclusive).
(2) Where the Court has made an order for attachment or forfeiture of
any property under sub-section (1), and such property is suspected to be
in a contracting state, the Court may issue a letter of request to a Court
or an authority in the contracting State for execution of such order.
(3) Where a letter of request is received by the Central Government
from a Court or an authority in a contracting State requesting attachment
or forfeiture of the property in India, derived or obtained, directly or
indirectly, by any person from the commission of an offence committed
in that contracting State, the Central Government may forward such
letter of request to the Court, as it thinks fit, for execution in accordance
with the provisions of Section 105-D to 105-J (both inclusive)or, as the
case may be, any other law for the time being in force."
"S.105-E. (1) Where any officer conducting an inquiry or investigation
under Section 105-D has a reason to believe that any property in relation
to which such inquiry or investigation is being conducted is likely to be
concealed, transferred or dealt with in any manner which will result in
disposal of such property, he may make an order for seizing such
property and where it is not practicable to seize such property, he may
make an order of attachment directing that such property shall not be
transferred or otherwise dealt with, except with the prior permission of
the officer making such order, and a copy of such order shall be served
on the person concerned.
(2) Any order made under sub-section (1) shall have no effect unless
the said order is confirmed by an order of the said Court, within a period
of thirty days of its being made."
cri.w.p.3198-2009 & Other Petitions.doc
"S.105-H. Forfeiture of property in certain cases.- (1) The Court may,
after considering the explanation, if any, to the show-cause notice issued
under section 105-G and the material available before it and after giving
to the person affected (and in a case where the person affected holds any
property specified in the notice through any other person, to such other
person also) a reasonable opportunity of being heard, by order, record a
finding whether all or any of the properties in question are proceeds of
crime:
"S.105-L. Application of this Chapter.- The Central Government may, by
notification in the Official Gazette, direct that the application of this
Chapter in relation to a contracting State with which reciprocal
arrangements have been made, shall be subject to such conditions,
exceptions or qualifications as are specified in the said notification."
"D - Disputes as to immovable property.
S. 145. Procedure where dispute concerning land or water is likely to
cause breach of peace - (1) whenever an Executive Magistrate is
satisfied from a report of police officer or upon other information that a
dispute is likely to cause a breach of the peace exists concerning any
land or water or the boundaries thereof, within his local jurisdiction, he
shall make an order in writing, stating the grounds of his being so
satisfied, and requiring the parties concerned in such dispute to attend
his Court in person or by pleader, on a specified date and time, and to
put in written statements of their respective claims as respects the fact of
actual possession of the subject of dispute.
(2) For the purposes of this section, the expression "land or
water" includes buildings, markets, fisheries, crops or other produce of
land, and the rents or profits of any such property.
cri.w.p.3198-2009 & Other Petitions.doc
"S.146.(1) If the Magistrate at any time after making the order under
sub-section (1) of Section 145 considers the case to be one of
emergency, or if he decides that none of the parties was then in such
possession as is referred to in Section 145, or if he is unable to satisfy
himself as to which of them was then in such possession of the subject
of dispute, he may attach the subject of dispute until a competent Court
has determined the rights of the parties thereto with regard to the person
entitled to the possession thereof:
Provided that such Magistrate may withdraw the attachment at
any time if he is satisfied that there is no longer any likelihood of breach
of the peace with regard to the subject of dispute.
(2) When the Magistrate attaches the subject of dispute, he
may, if no receiver in relation to such subject of dispute has been
appointed by any Civil Court, make such arrangements as he considers
proper for looking after the property or if he thinks fit, appoint a receiver
thereof, who shall have, subject to the control of the Magistrate, all the
powers of a receiver appointed under the Code of Civil Procedure, 1908
(5 of 1908):
Provided that in the event of a receiver being subsequently
appointed in relation to the subject of dispute by any Civil Court, the
Magistrate-
(a) shall order the receiver appointed by him to hand over the
possession of the subject of dispute to the receiver appointed by the
Civil Court and shall thereafter discharge the receiver appointed by him;
(b) may make such other incidental or consequential orders as
may be just."
cri.w.p.3198-2009 & Other Petitions.doc
"451. Order for custody and disposal of property pending trial in certain
cases.- When any property is produced before any Criminal Court during
any inquiry or trial, the Court may make such order as it thinks fit for the
proper custody of such property pending the conclusion of the inquiry or
trial, and, if the property is subject to speedy and natural decay, or if it is
otherwise expedient so to do, the Court may, after recording such
evidence as it thinks necessary, order it to be sold or otherwise disposed
of.
Explanation.- For the purposes of this section, "property" includes-
(a) property of any kind or document which is produced before
the Court or which is in its custody.
(b) any property regarding which an offence appears to have
been committed or which appears to have been used for the commission
of any offence."
"452. Order for disposal of property at conclusion of trial.- (1) When an
inquiry or trial in any Criminal Court is concluded, the Court may make
such order as it thinks fit for the disposal, by destruction, confiscation or
delivery to any person claiming to be entitled to possession thereof or
otherwise, of any property or document produced before it or in its
custody, or regarding which any offence appears to have been
committed, or which has been used for the commission of any offence.
(2) An order may be made under sub-section (1) for the
delivery of any property to any person claiming to be entitled to the
possession thereof, without any condition or on condition that he
executes a bond with or without sureties, to the satisfaction of the Court,
engaging to restore such property to the Court if the order made under
sub-section (1) is modified or set aside on appeal or revision.
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(3) A Court of Sessions may, instead of itself making an order
under sub-section (1), direct the property to be delivered to the Chief
Judicial Magistrate, who shall thereupon deal with it in the manner
provided in sections 457, 458 and 459.
(4) Except where the property is livestock or is subject to
speedy and natural decay, or where a bond has been executed in
pursuance of sub-section (2), an order made under sub-section (1) shall
not be carried out for two months, or when an appeal is presented, until
such appeal has been disposed of.
(5) In this section, the term "property" includes, in the case of
property regarding which an offence appears to have been committed,
not only such property as has been originally in the possession or under
the control of any party, but also any property into or for which the same
may have been converted or exchanged, and anything acquired by such
conversion or exchange, whether immediately or otherwise."
"456. Power to restore possession of immovable property.- (1) When a
person is convicted of an of offence attended by criminal force or show
of force or by criminal intimidation, and it appears to the Court that, by
such force or show of force or intimidation, any person has been
dispossessed of any immovable property, the Court may, if it thinks fit,
order that possession of the same be restored to that person after evicting
by force, if necessary, any other person who may be in possession of the
property:
Provided that no such order shall be made by the Court more than
one month after the date of the conviction.
cri.w.p.3198-2009 & Other Petitions.doc
The Criminal Law (Amendment) Ordinance, 1944:
"4.Ad interim attachment.- (1) Upon receipt of an application under
section 3, the District Judge shall, unless for reasons to be recorded in
writing he is of the opinion that there exist no prima facie grounds for
believe that the person in respect of whom the application is made has
committed any scheduled offence or that he has procured thereby any
money or other property, pass without delay an ad interim order
attaching the money or other property alleged to have been so procured,
or if it transpires that such money or other property is not available for
attachment, such other property of the said person of equivalent value as
the District Judge may think fit:
Provided that the District Judge may if he thinks fit before passing
such order, and shall before refusing to pass such order, examine the
person or persons making the affidavit accompanying the application.
(2) At the same time as he passes an order under sub-section (1),
the District Judge shall issue to the person whose money or other
property is being attached, a notice, accompanied by copies of the order,
the application and affidavits and of the evidence, if any, recorded,
calling upon him to show cause on a date to be specified in the notice
why the order of attachment should not be made absolute.
(3) The District Judge shall also issue, accompanied by copies of
the documents accompanying the notice under sub-section (2), to all
persons represented to him as having or being likely to claim, any
interest or title in the property of the person to whom notice is issued
under the said sub-section calling upon each such person to appear on
the same date as specified in the notice under the said sub-section and
make objection if he so desires to the attachment of the property or any
portion thereof on the ground that he has an interest in such property or
portion thereof.
cri.w.p.3198-2009 & Other Petitions.doc
(4) Any person claiming an interest in the attached property or any
portion thereof may, notwithstanding that no notice has been served
upon him under this section, make an objection as aforesaid to the
District Judge at any time before an order is passed under sub-section (1)
or sub-section (3), as the case may be, of section 5."
"6. Attachment of property of mala fide transferees.- (1) Where the asset
available for attachment of a person believed to have committed
scheduled offence are found to be less than the amount or value which
he is believed to have procured by means of such offence, and where the
District Judge is satisfied, by affidavit, or otherwise, that there is
reasonable cause for believing that the said person has, after the date on
which the offence is alleged to have been committed, transferred
(whether after the commencement of this Ordinance or not) any of his
property otherwise than in good faith and for consideration, the District
Judge may by notice, require any transferee of such property (whether or
not he received the property directly from the said person) to appear on a
date to be specified in the notice and show cause why so much of the
transferee's property as is equivalent to the proper value of property
transferred should not be attached."
"13. Disposal of attached property upon termination of criminal
proceedings.- (1) Upon the termination of any criminal proceedings for
any scheduled offence in respect of which any order of attachment of
property has been made under this Ordinance or security given in lieu
thereof, the agent of the (State Government or, as the case may be, the
Central Government) shall without delay inform the District Judge, and
shall where criminal proceedings have been taken in any Court, furnish
the District Judge with a copy of the judgment or order of the trying
Court and with copies of the judgments or orders, if any, of the appellate
or revisional Courts thereon.
cri.w.p.3198-2009 & Other Petitions.doc
(2) Where it is reported to the District Judge under sub-section (1)
that cognizance of the alleged scheduled offence has not been taken or
where the final judgment or order of the Criminal Court is one of
acquittal, the District Judge shall forthwith withdrawn any orders of
attachment of property made in connection with the offence, or where
security has been given in lieu of such attachment, order such security to
be returned.
(3) Where the final judgment or order of the Criminal Courts is
one of conviction, the District Judge shall order that from the property of
the convicted person attached under this Ordinance or out of the security
given in lieu of such attachment, there shall be forfeited to Government
such amount or value as is found, in the final judgment or order of the
Criminal Courts in pursuance of section 12 to have been procured by the
convicted person by means of the offence, together with the costs of
attachment as determined by the District Judge and where the final
judgment or order of the Criminal Courts have imposed or upheld a
sentence of fine on the said person (whether alone or in conjunction with
any other punishment), the District Judge may order, without prejudice
to any other mode of recovery, that the said fine shall be recovered from
the residue of the said attached property or of the security given in lieu
of attachment.
(4) Where the amounts ordered to be forfeited or recovered
under sub-section (3) exceed the value of the property of the convicted
person attached, and where the property of any transferee of the
convicted person has been attached under section 6, the District Judge
shall order that the balance of the amount ordered to be forfeited under
sub-section (3) together with the costs of attachment of the transferee's
property is determined by the District Judge shall be forfeited to
Government from the attached property of the transferee or out of the
security given in lieu of such attachment; and the District Judge may
order, without prejudice to any other mode of recovery, that any fine
cri.w.p.3198-2009 & Other Petitions.doc
referred to in sub-section (3) or any person thereof not recovered under
that sub-section shall be recovered from the attached property of the
transferee or out of security given in lieu of such attachment.
(5) If any property remains under attachment in respect of any
scheduled offence of any security given in lieu of such attachment
remains with the District Judge after his orders under sub-sections (3)
and (4) have been carried into effect, the order of attachment in respect
of such property remaining shall be forthwith withdrawn or as the case
may be, the remainder of the security returned, under the orders of the
District Judge.
(6) Every sum ordered to be forfeited under this section in
connection with any scheduled offence other than one specified in item I
of the Schedule to this Ordinance, shall, after deduction of the costs of
attachment as determined by the District Judge, be credited to the
Government being a Government referred to in the said Schedule or
local authority to which the offence has caused loss, or where there is
more than one such Government or local authority, the sum shall, after
such deduction as aforesaid, be distributed among them in preparation to
the loss sustained by each."
"THE SCHEDULE
(See section 2)
OFFENCES IN CONNECTION WITH WHICH PROPERTY
IS LIABLE TO BE ATTACHED
2. An offence punishable under section 406 or section 408 or section
409 of the Indian Penal Code (45 of 1860), where the property in
respect of which the offence is committed is property entrusted by
His Majesty's Government in the United Kingdom or in any part
of His Majesty's dominions or the Central or a State Government
cri.w.p.3198-2009 & Other Petitions.doc
or a department of any such Government or a local authority [or a
corporation established by or under a Central, provincial or State
Act, or an authority or a body owned or controlled or aided by
Government company as defined in section 617 of the Companies
Act, 1956 (1 of 1956), or a society aided by such corporation,
authority, body or Government company] or a person acting on
behalf of any such Government or department or authority [or
corporation or body or Government company or society].
3. An offence punishable under section 411 or section 414 of the
Indian Penal Code (45 of 1860), where the stolen property in
respect of which the offence is committed is property such as is
described in the proceeding item and in respect of which an
offence punishable under section 406 or section 408 or section
409 of the said Code has been committed.
4. An offence punishable under section 417 or section 420 of the
Indian Penal Code (45 of 1860), where the person deceived is His
Majesty's Government in the United Kingdom or in any part of
His Majesty's dominions or the Central or State Government or a
department of any such Government or a local authority or a
corporation established by o under a Central, Provincial or State
Act, or an authority or a body owned or controlled or aided by
Government or a Government company as defined in section 617
of the Companies Act, 1956 (1 of 1956) or a society aided by such
corporation, authority, body or Government Company or a person
acting on behalf of any such Government or department (or
authority or corporation or body or Government company or
society).
[4-A. An offence punishable under the Prevention of Corruption
Act, 1988 (49 of 1988)]
cri.w.p.3198-2009 & Other Petitions.doc
5.Any conspiracy to commit or any attempt to commit or any abetment
or any of the offences specified in [items 2, 3, 4 and 4-A]."
The Narcotic Drugs and Psychotropic Substances Act:
"68-C. Prohibition of holding illegally acquired property.- (1) As from
the commencement of this Chapter, it shall not be lawful for any person
to whom this Chapter applies to hold any illegally acquired property
either by himself or through any other person on his behalf.
(2) Where any person holds any illegally acquired property in
contravention of the provisions of sub-section (1), such property shall be
liable to be forfeited to the Central Government in accordance with the
provisions of this Chapter:
(Provided that no property shall be forfeited under this Chapter if
such property was acquired, by a person to whom this Act applies,
before a period of six years from the date he was arrested or against
whom a warrant or authorisation of arrest has been issued for the
commission of an offence punishable under this Act or from the date the
order or detention was issued, as the case may be.)
68-E. Identifying illegally acquired property.- (1) Every officer
empowered under section 53 and every officer-in-charge of a police
station shall, on receipt of information is satisfied that any person to
whom this Chapter applies holds any illegally acquired property, he may,
after recording reasons for doing so, proceed to take all steps necessary
for tracing and identifying such property.)
(2) The steps referred to in sub-section (1) may include any
inquiry, investigation or survey in respect of any person, place, property,
cri.w.p.3198-2009 & Other Petitions.doc
assets, documents, books of account in any bank or public financial
institution or any other relevant matters.
(3) Any inquiry, investigation or survey referred to in sub-
section (2) shall be carried out by an officer mentioned in sub-section (1)
in accordance with such directions or guidelines as the competent
authority may make or issue in this behalf.
68-F. Seizure or freezing of illegally acquired property.- (1) Where
any officer conducting an inquiry or investigation under section 68-E
has reason to believe that any property in relation to which such inquiry
or investigation is being conducted is an illegally acquired property and
such property is likely to be concealed, transferred or dealt with in any
manner which will result in frustrating any proceeding relating to
forfeiture of such property under this Chapter, he may make an order for
seizing such property and where it is not practicable to seize such
property, he may make an order that such property shall not be
transferred or otherwise dealt with, except with the prior permission of
the officer making such order, or of the competent authority and a copy
of such order shall be served on the person concerned:
Provided that the competent authority shall be duly informed of
any order made under this sub-section and a copy of such an order shall
be sent to the competent authority within forty-eight hours of its being
made.
(2) Any order made under sub-section (1) shall have no effect
unless the said order is confirmed by an order of the competent authority
within a period of thirty days of its being made.
Explanation.- For the purposes of this section, "transfer of
property" means any disposition, conveyance, assignment, settlement,
cri.w.p.3198-2009 & Other Petitions.doc
delivery, payment or other alienation of property and, without limiting
the generality of the foregoing, includes-
(a) the creation of a trust in property;
(b) the grant or creation of any lease, mortgage, charge,
easement, licence, power, partnership or interest in property;
(c) the exercise of a power of appointment of property vested
in any person, not the owner of the property, to determine its disposition
in favour of any person other than the donee of the power; and
(d) any transaction entered into by any person with intent
thereby to diminish directly or indirectly the value of his own property
and to increase the value of the property of any other person."
(underlining is ours)
10. A survey of the English Law was also made by one of us (Roshan
Dalvi, J.) and Sections 19 to 22 of the Police and Criminal Evidence
Act, 1984 enactment by the United Kingdom which have been
reproduced in the majority judgment.
However, we have noted that the power of seizure as
envisaged in the scheme of the English Law is in respect of a property
cri.w.p.3198-2009 & Other Petitions.doc
located in the premises and the said power could be exercised by the
constable if he has reasonable grounds for believing (a) that it has been
obtained in consequence of the commission of an offence; and (b) that it
is necessary to seize it in order to prevent it being concealed, lost,
damaged, altered or destroyed. The constable has also the power of
seizing anything which is on the premises and if he has reasonable
grounds for believing that (a) it is evidence in relation to an offence
which he is investigating or any other offence; (b) that it is necessary to
do so in order to prevent it being concealed, lost, tampered with or
destroyed. However, such a power cannot be invoked when the
constable has reasonable grounds for believing to be a subject to legal
privilege. The word "premises" itself would refer to the "immovable
property" and "any thing on the premises" would refer to only the
"movable property." The above said scheme is not comparable to the
scheme of Section 102 of the Code, even by inference, and to support
the contention that the seizure of property under Section 102 of the Code
is only with respect to the movable property.
cri.w.p.3198-2009 & Other Petitions.doc
11. The power of seizure in Section 102 (1) of the Code is in
two parts i.e. any police officer may seize any property (a) which may
be alleged or suspected to bave been stolen or (b) which may be found
under circumstances which create suspicion of the commission of any
offence. Thus the power of seizure is in respect of "any property". As
per sub-section (2) of Section 102 of the Code if the police officer
seizing the property is subordinate to the officer in charge of a police
station, he shall forthwith report the seizure to that officer and as per
sub-section (3) therein every police officer acting under sub-section (1)
shall forthwith report the seizure to the Magistrate having jurisdiction
and where the property seized is such that it cannot be conveniently
transported to the Court or where there is difficulty in secureing proper
accommodation for the custody of such property, or where the continued
retention of the property in police custody may not be considered
necessary for the purpose of investigation, he may give custody thereof
to any person on his executing a bond undertaking to produce the
cri.w.p.3198-2009 & Other Petitions.doc
property before the Court as and when required and to give effect to the
further orders of the Court as to the disposal of the same. By the Act 25
of 2005 a proviso has been added below Section 102(3) of the Code with
effect from 23rd June, 2006 and sub-section (3) also has been amended
in the year 1978 so as to give greater discretion to the police for
releasing seized property, where there is difficulty in securing proper
accommodation for the custody of the property or where the continued
retention of the property in police custody is not considered necessary
for the purposes of investigation. If the property is of perishable nature
and its value is less than five hundred rupees and if the person entitled
to the possession of such property is unknown or absent, the police have
been empowered to sell such property by auction.
12. As per Section 2(y) of the Code the words and expressions
used therein and not defined but defined in the Indian Penal Code have
the meanings respectively assigned to them under the I.P.C. The word
"property" has not been defined under the Code, but Section 410 of the
cri.w.p.3198-2009 & Other Petitions.doc
I.P.C., has defined "stolen property" and Section 22 of IPC has defined
"movable property" and the said sections are reproduced as under:-
"410. Stolen property.--Property, the possession whereof
has been tranferred by theft, or by extortion, or by robberry,
and property which has been criminally misappropriated or
in respect of which criminal breach of trust has been
committed, is designated as "stolen property", whether the
transfer has been made, or the misappropriation or breach of
trust has been committed, within or without India. But, if
such property subsequently comes into the possession of a
person legally entitled to the possession thereof, it then
ceases to be stolen property."
Whereas "movable property" has been defined under Section 22 of
I.P.C. And it reads as under:-
"22.Moveable property-- The words "movable property" are
intended to include corporal property of every description,
except land and things attached to the earth or permanently
cri.w.p.3198-2009 & Other Petitions.doc
fastened to anything attached to the earth."
Thus what is excepted from Section 22 of the I.P.C. is an immovable
property.
13. The words "seizure", "attachment" "freezing", "forfeiture"
"disposal" and "return" have been used in different sections of the Code
and certainly in different context. The word "seizure" cannot be said to
be synonymous with the word "attachment" in every case. However,
"attachment" may include "seizure". Attachment of property is done
under the Court's or Magistrate's order and seizure under Section 102 of
the Code is done by the police officer. However, under some special
penal statutes, the police officer has been entrusted with the powers of
provisional attachment, and it may be accepted that such powers are
synonymous to "seizure". As per Black's Law Dictionary the meaning
of the words "seizure", "attachment" "freezing", "forfeiture" and
"disposal" is as under:-
cri.w.p.3198-2009 & Other Petitions.doc
(a) "Attachment" - the legal process of selling another's
property in accordance with a writ or judicial order for the
purpose of securing satisfaction of a judgment yet to be
rendered. The act or process of taking, apprehending, or
seizing persons of propoerty, by virtue of a writ, summons,
or other judicial order, and bringing the same into the
custody of the court for the purpose of securing satisfaction
of the judgment ultimately to be entered in the action."
(b) "Forfeiture" - A comprehensive term which means a
divestiture of specific property without compensation, it
imposes a loss by the taking away of some preexisting
valid right without compensation. A deprivation or
destruction of a right in consequence of the nonperformance
of some obligation or condition. Loss of some right of
property as a penalty for some illegal act."
(c) "Freeze" - A period when the government restricts or
immobilizes certain commercial activity. To make
immobile, by government mandate, of banking action. To
cease physical movement, especially when ordered by a law
enforcement officer.
cri.w.p.3198-2009 & Other Petitions.doc
(d) "Disposal" - Sale, pledge, giving away, use,
consumption or any other disposition of a thing. To
exercise control over; to direct or assign for a use, to pass
over into the control of someone else; to alienate, bestow, or
part with."
14. The common arguments advanced before us by and for the
petitioners are that the words "any property" in Section 102(1) of the
Code ought to be read "any movable property", whereas it is the
contention of the respondents including the State that the words "any
property" ought to be read as "movable and immovable property". The
line of argument advanced by the petitioner is that the scheme of the
Code does not envisage the seizure of immovable property under
Section 102(1) and more so because as required under sub-section (3)
therein the immovable property cannot be produced before the Court. It
is also urged that as and when the Code intended to refer to seizure of
immovable property it has been so stated and in this regard reliance is
placed on the scheme of Sections 83, 105-C, 105-F, 145, 146 and 451 to
cri.w.p.3198-2009 & Other Petitions.doc
457 of the Code. The respondents on the other hand vehemently urged
before us that the words "any property" cannot be given a restricted
meaning so as to mean "any movable property" only and such an
explanation of the word "any property" cannot be accepted, if the Code
which is a procedural law, has to remain an effective instrument for
investigation and trial of the offences under the I.P.C. as well as the
special penal statutes and to do full and complete justice to the victims
of modern crimes.
15. When it comes to the interpretation of statutes, it has to be
presumed that the legislature does not waste its words and say anything
in vain. The construction which attributes redundancy to the legislature
has to be avoided. The legislature is presumed to have inserted every
part of the statute for a purpose and hence should be given effect to. The
ordinary rule of interpretation is that the words used by the legislature
shall be given such meaning as the legislature has chosen to assign them
by coining definitions contained in the interpretation clause and in the
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absence thereof the words would be given such meaning as they are
susceptible in ordinary parlance may be by having recourse to
dictionaries as has been held by the Constitution Bench in the case of
State of West Bengal vs. Kesoram Industries Ltd. & Ors., 2004 10
S.C.C. 201. The court should not be over zealous in searching for
ambiguities or obstacles in words which are plain. A penal statute
indisputably is required to be strictly construed. Procedure should not
be used to discourage substantial and effective justice but should be so
construed as to advance justice. Every statute is to be interpreted
without any violence to its language and the court cannot enlarge the
scope of legislation or intention. When the language of the statute is
clear, plain or unambiguous, Courts should avoid a construction which
would reduce the legislation to futility. If there is any doubt or
ambiguity in the statute the rule of purposeful construction should be
taken recourse to. When the words of the statute are clear, plain or
unambiguous, the Courts are bound to give effect to that meaning
irrespective of consequences. Where the language of the statute is clear,
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the Courts cannot make any additions or substitution of words,
otherwise the provision stands meaningless or doubtful in meaning.
All the Rules of procedure are handmaiden of justice. The language
employed by the draftsman of the procedural law may be liberal or
stringent but the fact remains that the object of prescribing the
procedure is to advance the cause of justice. Unless compelled by
express and specific language of the statute, the provisions of a
procedural law ought not to be construed in a manner which would leave
the court helpless to meet the extraordinary situations in the ends of
justice. Courts cannot add words to a statute or read into the statute
words not in it. Where the wordings of the statute are absolutely clear
and unambiguous, recourse to different principles of interpretation may
not be resorted to. It is, thereefore, necessary to keep these principles of
interpretation in mind while answering the prime question as to
whether immovable property could be seized under Section 102 of the
Code.
16. The judgment of the Apex Court in the case of Tapas D.
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Neogy (supra) also clearly goes to show that the statutes ought to be
interpreted to meet the demands of time, we live in and with an intention
to keep pace for the prevention and deterrence of crimes and must be
capable of arresting all the possible loopholes likely to cause
impediments in taking the criminal trial to a logical and meaningful
conclusion. The Courts cannot afford to interpret the penal statutes or a
procedural statute in a manner which would make such laws defective.
The Court's interpretations of criminal procedural laws must be capable
of dealing with the rampant corruption in public life as well as
innovative manipulations of scamsters, underworld dons, cyber crime
offenders, corporate manipulators, food and drugs adulterators and
crime syndicates. Any narrow interpretation of criminal procedural law,
evolved by the Courts, may lead to the defeat of social, public,
economic, health, industrial and environmental interests of the country.
At the same time the Courts must provide for checks and balances so
that the police are kept within the bounds of law. The power of seizure
as envisaged under Section 102 of the Code ought to be treated as
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procedural and not penal. It has built-in safeguards and on seizure of the
property the police officer in charge is required to report forthwith such
seizure to the Court concerned. It has sufficient means to keep the
police officer invoking the powers of seizure within the bounds of law,
so as to ensure that the powers are not misused or abused. It is the
mandate that the seizure effected is required to be reported forthwith to
the Magistrate having jurisdiction. The production of the property
before the Court need not be physical production and, therefore, the
inability or incapacity to produce the immovable property before the
Court cannot be the sole reason to hold that the immovable property
cannot be seized under Section 102(1) of the Code by the police officer.
Section 457 of the Code provides for adequate safety measures so that
the police officer is not allowed to misuse the powers of seizure. An
isolated instance of abuse of power or not reporting to seizure forthwith
to the Magistrate can not be a reason to give a narrow interpretation to
the powers of seizure under Section 102 of the Code.
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17. Let us first consider the decision in the case of R. K. Dalmia
(Supra) which was referred to by the Division Bench in the case of
Signapurkar (Supra). The Supreme Court was considering the scheme of
Section 405 to 409 of IPC and more particularly the meaning of the
word "property". Section 405 defines what amounts to criminal breach
of trust and Section 406 of IPC provides for punishment for the said
offence. Section 407 provides for punishment for criminal breach of
trust committed by a carrier, wharfinger or ware-house-keeper, with
respect to property entrusted to them and makes their offence more
severe than the offence under Section 406 of IPC. Similarly, Section
408 makes the criminal beach of trust committed by a clerk or servant
entrusted in any manner, in such capacity, with property or with any
dominion over property, more severely punishable than the offence of
criminal breach of trust under Section 406 and offences under Section
407 and 408 of IPC are similarly punishable. Section 409 provides for a
still heavier punishment when criminal breach of trust is committed by
persons mentioned therein i.e. public servant, business banker,
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merchant, factor, broker, attorney or agent. It would be relevant to
reproduce the observations made by the three Judge Bench in paras 47,
48 and 50 of the said judgment:
"47. We are of opinion that there is no good reason to
restrict the meaning of the word `property' to movable
property only when it is used without any qualification in
S.405 or in other sections of the Indian Penal Code.
Whether the offence defined in a particular section of the
Indian Penal Code can be committed in respect of any
particular kind of property will depend not on the
interpretation of the word `property' but on the fact whether
that particular kind of property can be subject to the acts
covered by that section. It is in this sense that it may be said
that the word `property' in a particular section covers only
that type of property with respect to which the offence
contemplate in that section can be committed.
48. Section 22 I.P.C. defines `movable property'. The
definition is not exhasutive. According to the section the
words `movable property' are intended to include corporeal
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property of every description, except land and things
attached to the earth or permanently fastened to anything
which is attached to the earth. The definition is of the
expression `movable property' and not of `property' and can
apply to all corporeal property except property excluded
from the definition. It is thus clear that the word `property'
is used in the Code in a much wider sense than the
expression `movable property'. It is not, therefore,
necessary to consider in detail what type of property will be
included in the various sections of the Indian Penal Code.
50. It is to be noticed that though S. 403 I.P.C. speaks of
dishonestly misappropriating or converting to one's own use
any movable property, S. 404 speaks of only dishonestly
misappropriating or converting to one's own use property. If
the Legislature had intended to restrict the operation of S.
404 to movable property only, there was no reason why the
general word was used without the qualifying word
`movable'. We, therefore, do not see any reason to restrict
the word `property' to `movable property' only. We need not
express any opinion whether immovable property could be
subject of the offence under S. 404 I.P.C."
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18. The Apex Court held that the definition of movable property in
Section 22 of IPC is not exhaustive and it is the definition of the
expression "movable property" and not of "property". The word
"property" is used in the Code in a much wider sense than the
expression "movable property" and, therefore, it is not necessary to
consider in detail what type of property will be included in the various
sections of IPC. Section 403 speaks of dishonestly misappropriating or
converting to one's own use any movable property, whereas Section 404
of IPC speaks of only dishonestly misappropriating or converting to
one's own use property. The Supreme Court, therefore, held that if the
Legislature had intended to restrict the operation of Section 404 of IPC
to movable property only, there was no reason why the general word
was used without the qualifying word "movable" and, therefore, it did
not see any reason to restrict the word "property" to "movable property"
only and their Lordships did not express any opinion whether
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immovable property could be the subject of the offence under Section
404 of IPC. Similar interpretations and reasoning must apply in the
instant case as well. When the Legislature has used the word "any
property", it would not be permissible, having regard to the principles of
interpretations, as referred to hereinabove, to restrict the meaning of the
said word to only "movable property". I, therefore, find that the
judgment of the Supreme Court in the case of Dalmia (Supra) does not
support the view taken by the Division Bench in Signapurkar's case.
19. Section 102 finds place in Chapter VII which is titled as
"Process to Compel the Production of Things". The title of the Chapter
does not necessarily be taken support of to interpret the provisions of the
Sections thereunder. It cannot be expected that because the Chapter
speaks of the "production of things", the words "any property" used in
Section 102 (1) of the Code cannot include immovable property. The
word "things" may not include a bank account, but it does not mean that
the power of seizure under Section 102(1) cannot be invoked by the
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Police Officer for a bank account and the view otherwise taken by this
Court in t he case of Kishore Shankar Signapurkar (supra) has already
been set aside by the Supreme Court in Tapas D. Neogy (supra). The
Supreme Court reminded in the said case that the legislature having used
the expression "any property" and "any office" in Section 102(1) of the
Code has made the applicability of the provisions to cover offences
committed under any Act provided two preconditions for applicability
of the said Sections are made i.e. (1) it must be property and (2) in
respect of the said property there must have been suspicion of
commission of any offence. While elaborating on this point, the
Supreme Court further stated that there was no justification to give any
narrow interpretation to the provisions of the Code and more particularly
to the words "any property" as set out in Section 102(1) of the Code.
The Supreme Court further took note of the fact that corruption in public
offices has become so rampant that it has become difficult to cope up
with the same and the time consumed by the Courts including the price
is another factor which should be borne in mind in interpreting the
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provisions of Section 102 of the Code. The underlying object engrafted
therein also has to be kept in mind and the Courts should not be made
powerless to get such property acquired from the proceeds of crime
within its fold, during the course of investigation provided such property
has direct links with the commission of offence for which he is
investigating into. This elaboration by the Apex Court ought to be kept
in mind and it is sufficient to support the argument that a redantic
approach while interpreting the penal criminal law has to be discarded.
20. Section 83 is under Chapter VI of the Code and it deals with
the attachment of property of a person absconding. Chapter VIIA has
been added to the Code by Act 40 of 1993 with effect from 20 th July,
1994. It prescribes reciprocal arrangements for assistance in certain
matters and procedure for attachment and forfeiture of property.
Section 105-A to 105-L are under Chapter VIIA of the Code. Clauses ©
and (d) of Section 105-A define the term "proceeds of crime"and
"Property". "Proceeds of crime" means any property derived or
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obtained directly or indirectly, by any person as a result of criminal
activity (including crime involving currency transfers) or the value of
any such property, whereas "property" means property and assets of
every description whether corporeal or incorporeal, movable or
immovable, tangible or intangible and deeds and instruments evidencing
title to, or interest in, such property or assets derived or used in the
commission of an offence and includes property obtained through
proceeds of crime. The scheme of Chapter VII-A of the Code, deals
with reciprocal arrangement for assistance, in relation to a criminal
matter and the property in a contracting State or within the country. The
term "contracting State" means any country or place outside India in
respect of which arrangements have been made by the Central
Government with the Government of such country through a treaty or
otherwise. The actions of attachment, forfeiture or seizure of the
property envisaged under the said Chapter are to be at the instance of the
Court and by the officer not below the rank of Sub Inspector of Police as
directed by the Court. Section 105-C is in relation to the orders of
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attachment or forfeiture of property whereas Section 105-E is regarding
seizure or attachment of property while conducting an enquiry or
investigation under Section 105-D which enquiry is for identifying
unlawfully acquired property. Section 105-A provides for the
management of the property seized or forfeited under Chapter VIIA.
Sections 145 and 146 find place in Chapter X and titled as Maintenance
of Public Order and Tranquility (under sub part D-Disputes as to
Immovable Property).
ig Both these Sections find their place in Chapter
X. Section 145 prescribes the procedure where a dispute concerning land
or water is likely to cause breach of peace, whereas Section 146 is
power to attach the subject of dispute and to appoint receiver by the
Magistrate after making an order under Section 145 of the Code.
21. Sections 451 to 459 are part of Chapter XXXIV and the said
Chapter is titled as "Disposal of Property". Section 451 provides for the
order for custody and disposal of property pending trial in certain cases
and such an order is contemplated to be passed by the Court. Section
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452 provides for order for disposal of the property at the conclusion of
enquiry or trial in any criminal Court and such an order is required to be
passed by the Court for the disposal/distruction/confiscation or delivery
to any person claiming to be entitled to possession of the property.
Section 456 empowers the Court to restore the possession of the
immovable property to any person who was dispossessed of such
property by the person convicted by the Court of an offence attended by
criminal force or show of force or by criminal intimidation. Section
457 of the Code provides for the procedure to be followed by the police
upon seizure of the property and undoubtedly it is applicable for the
seizure to be made under Section 102 of the Code as well. As per sub-
section (1) of Section 457 whenever the seizure of property by any
police officer is reported to a Magistrate under the provisions of the
Code and such property is not produced before the Criminal Court
during an enquiry or trial, the Magistrate may make such order as he
thinks fit respecting the disposal of such property or the delivery of
such property to the person entitled to the possession thereof, if such
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person cannot be ascertained, respecting the custody and production of
such property. As per sub-section (2) of Section 457 of the Code if the
person so entitled is known, the Magistrate may order the property to be
delivered to him on such conditions (if any) as the Magistrate thinks fit
and if such person is unknown, the Magistrate may detain it and shall,
in such case, issue a proclamation specifying the articles of which such
property consists, and requiring any person who may have a claim
thereto, to appear before him and establish his claim within six months
from the date of such proclamation. As per Section 458(1) of the Code
if no person within such period establishes his claim to such property
and if the person in whose possession such property was found is unable
to show that it was legally acquired by him, the Magistrate may by order
direct that such property shall be at the disposal of the State Government
and may be sold by that Government and the proceeds of such sale shall
be dealt with in such manner as may be prescribed. Such an order
passed by the Magistrate under sub-section (1) is appealable under sub-
section (2) of Section 458 and the appeal will lie to the Court to which
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the appeals ordinarily lie on conviction by the Magistrate.
22. The scheme of Sections 457 and 458 of the Code if read
together would go to show that the powers under section 102 of the
Code of seizure are also applicable to an immovable property and it
cannot be said that the police officer has no power to seize the
immovable property and the said powers can be exercised only in
respect of the movable property or the bank accounts. Such limited
meaning if given to the words "any property" would make the procedure
of seizure and subsequent action of attachment by the Court otiose.
When the statute has used the words "any property'", in the course of its
interpretation, the Court has no power to restrict its scope so as to apply
it only to the movable property. The learned Counsel for the petitioner
insisted that there has to be an addition in the words "any property" and
the addition must be the word "movable" between "any" and "property".
In a way these arguments presuppose that the legislature has dropped the
word "movable" and, therefore, it is required to be added. It is well
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settled that the Courts have no plower to supply casus omissus when the
language of the statute is plain and clear. In the case of Padma
Sundara Rao (dead) and others vs. State of T.N. and others, A.I.R.
2002 S.C.1334 the Supreme Court has stated thus,
"11.......It is well settled principle in law that the Court
cannot read anything into a statutory provisionwhich is
plain and unambiguous.
ig A statute is an edict of the
legislature. The language employed in a stattute is the
determinative factor of legislative intent. The first and
primary rule of construction is that the intention of the
legislation must be found in the words used by the
Legislature itself. The question is not what may be supposed
and has been intended but what has been said......."
"13. While interpreting a provision the Court only interprets
the law and cannot legislate it. If a provision of law is
misused and subjected to the abuse of the process of law, it
is for the legislature to amend, modify or repeal it, if
deemed necessary. The legislative casus omissus cannot be
supplied by judicial interpretative process...."
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14. Two principlles of construction--one relating to casus
omissus and the other in regard to reading the statute as a
whole--appear to be well settled. Under the first principle a
casus omissus cannot be suplied by the Court except in the
case of a clear necessity and when reason for it is found in
the four corners of the statute itself but at the same time a
casus omissus should not be readily inferred and for that
purpose all the parts of a statute or section must be
construed together and every clause of a section should be
construed with reference to the context and other clauses
thereof so that the construction to be put on a particular
provision makes a consistent enactment of the whole statute.
This would be more so if literal construction of a particular
clause leads to manifestly absurd or anomalous results
which could not have been intended by the Legislature......"
It is also clear from the said judgment that it is always safer to apply
plain and primary rule of construction. The first and primary rule of
construction is that the intention of the legislature is to be found in the
words used by the legislature itself. The true or legal meaning of an
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enactment is derived by construing the meaning of the word in the light
of the discernible purpose or object which comprehends the mischief
and its remedy to which an enactment is directed.
24. Section 102 of the Code has used the words "any property"
and it must be read in the same manner and the word "any" cannot be
redundant. As noted earlier Section 105A of the Code has defined the
term "property" and it means property and assets of every description
whether corporeal or incorporeal, movable or immovable, tangible or
intangible and deeds and instruments evidencing title to, or interest in,
such property or assets derived or used in the commission of an offence
and includes property obtained through proceeds of crime. However,
Chapter VII-A deals with a reciprocal arrangements for assistance in
relation to criminal matter in a contracting State or in respect of a
property in a contracting State or a property in India, but arising from a
crime in the contracting State. There is no reason or specific provision
in the Code as to why the same meaning of "property" as set out under
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Section 105-A cannot be made applicable for the term "property"
appearing in Section 102 of the Code. It is prefixed by the word "any"
and hence must include property of all types and it cannot be limited
only to the movable property. Such an interpretation will be doing
violence to the statute and, therefore, is not permissible.
24. The learned Counsel for the petitioner also relied upon the
Criminal Law (Amendment) Ordinance 1944 as well as the
recommendations of Malimath Committee for amendment in Section
102 of the Code so as to add the word "immovable property". It is
required to be noted that the power of attachment available in the
Criminal Law (Amendment) Ordinance is in respect of the scheduled
property, and the said power is exercised by the Court. It does not deal
with the powers of seizure of immovable property to be exercised by the
police officer during the course of investigation. However, Section 68-E
of the N.D.P.S. Act does empower any officer investigating under
Section 68-A of the said Act to exercise the power of seizure or freezing
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of illegally acquired property. The enquiry under Section 68-E of the
N.D.P.S. Act is in respect of the identification of illegally acquired
property. Undoubtedly the N.D.P.S. Act is a special statute and the
availability of power of seizure with the investigating officer of an
immovable property under Section 68-E of the N.D.P.S. Act cannot be
read to hold that such a power is not available under Section 102 of the
Code, which is a procedural law for investigation of crimes in general.
We cannot limit or qualify the interpretations of Section 102 of the Code
by relying upon Section 68-E of the N.D.P.S. Act. When we interpret
the power of seizure available with the police officer under Section 102
of the Code we have to keep in mind the ground realities and the
interpretation must be to do complete justice by the Court in a criminal
trial. If an immovable property has been acquired from the proceeds of
crime and the crime is under investigation by the police, it is not enough
to say that the Court will pass an order of attachment of such immovable
property and the police officer cannot exercise the powers of seizure of
the said property. By the time the Court is called upon to pass such an
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order of attachment, the property may not disappear, but it may have
changed hands, and probably in multiple transactions. In such a
situation, it would be difficult or in some cases impossible for the Court
to bring the property acquired from the proceeds of the crime within its
folds even by passing an order of attachment. The recommendations of
the Malimath Committee suggesting for amendment in Section 102 of
the Code could be read as an intention to make the law more specific
and without leaving any doubt for interpretation and such a
recommendation cannot be taken to support the contentions that the
words "any property" used in Section 102 of the Code means "any
movable property" and such an interpretation finds support from the
reasons set out in Tapas D. Neogy's case (supra) by the Apex Court.
We must also note that in Topas Neogy case, the Supreme Court was
aware of the Criminal Law (Amendment) Ordinance 1944 and by
referring to Section 16 of the Prevention of Corruption Act, 1988, the
Court held that the police officer has the power to seize the bank
accounts.
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25. I am, therefore, satisfied that the term "any property" used in
Section 102 of the Code cannot be read as "any movable property" and
it must include all types of properties, whether movable or immovable
and merely because an immovable property cannot be produced before
the Court on its seizure, does not lead to the conclusion that the words
"any property" means "any movable property". As noted earlier
production of the property before the Court need not be in the physical
form every time and the immovable property could be produced before
the Court/Magistrate in the form of its title deeds, possession
certificates and/or applications/tax bills, etc. Such an interpretation
alone would make the procedural law i.e. the Code effective and
meaningful and any limited interpretation or meaning of the words "any
property" as was sought to be made on behalf of the petitioner may
make the investigation of a crime as an exercise in futility and hamper
the powers of the Court to do complete justice in the course of trial of
crimes. The interpretation, as advanced by the petitioner, would render
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the Code toothless and resultantly it may cripple the trial. In a given
case, it may result in denial of complete justice to the victims of crime
and more particularly the victims of organised bloodless crimes. We
cannot allow the trial courts to become powerless in their bounden duty
to do full justice to the victims of crime.
26. Hence I hold that the police officer has the powers to seize any
property whether movable or immovable under Section 102 of the
Code and we, therefore, approve the view taken by the Division Bench
in the case of M/s. Bombay Science and Research Institute (supra). The
view taken by the earlier Division Bench in the case of Kishore
Shankar Signapurkar (supra) that a police officer cannot seize
immovable property under Section 102 of the Code is no more a good
law. The reference is answered accordingly.
(B. H. MARLAPALLE, J.)
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JUDGMENT (PER R.C. CHAVAN, J.)
27. A Division Bench of this Court has referred the
following questions for decision by this Bench.
"(a) Whether the words "any property" used
in sub-section (1) of Section 102 of the Code
of Criminal Procedure, 1973 would mean to
include "immoveable property"?
(b) Whether a police officer can take
control of any immoveable property which may
be found under circumstances which create
suspicion of the commission of any offence?
(c) Which of the above two judgments lay
down correct law in respect of the powers of a
police officer to seize any immoveable
property under Section 102 of the Code of
Criminal Procedure?
(d) Whether the law laid down by the
Supreme Court in case of State of Maharashtra
v. Tapas D. Neogy (1999) 7 SCC 685 is
restricted to seizure of bank accounts only or
it can be extended to immoveable property
also, as interpreted by the Division Bench in
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the case of M/s. Bombay Science and Research
Education Institute v. The State of
Maharashtra & Ors. 2008 All M.R. (Cri.) 2133?"
28. The need to make this reference arose since a
Division Bench of this Court in Kishore Shankar
Signapurkar v. State of Maharashtra & Ors., reported in
1997 Vol.IV LJ 793 had held that under Section 102 of the
Code of Criminal Procedure immovable property could not
be seized. That Bench had formulated the following
questions in paragraph 18 of the said Judgment.
"18. We make it clear that in these
proceedings, we are dealing only with the
scope and interpretation of section 102 of the
Code of Criminal Procedure and we are not
dealing specifically with factual aspects of
any matter, the points which we would consider
are as under:-
(i) Whether the police can seize immovable
property under the provisions of section 102
of the Code of Criminal Procedure?
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(ii) Whether the police can seize or freeze
Banks accounts under the provisions of section
102 of the Code of Criminal Procedure?
(iii) What is the procedure to be followed
by the police in respect of the property
seized under the provisions of section 102 of
the Code of Criminal Procedure."
29. After considering the arguments advanced, on the
first question, the Bench held towards end of paragraph
Nos.20, 21 and 28 as under:-
"20. .... In our opinion, the provisions of
sub-section (3) clearly suggest that the
property which is seized under sub-section (1)
has necessarily to be such as is capable of
being transported to the Court. Only in a case
where though the property is capable of being
transported, but it is not convenient to do so
that the custody thereof can be given to any
person on his executing a bond undertaking to
produce the property before the Court as and
when required and to give effect to the
further orders of the Court as to the disposal
of the same. In our opinion, the requirement
of the undertaking to produce the property
before the Court as and when required also
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suggests that the property which can be seized
under the provisions of section 102 has to be
capable of being produced before the Court and
inasmuch as immovable property is incapable of
being produced before the Court, we are of the
opinion that the words "any property" as used
in sub-section (1) cannot include immovable
property."
"21. .... As a matter of fact, we are of the
opinion that the aforesaid observations of the
apex Court support the conclusion that the
interpretation of the word "property" as used
in section 102 will not depend on the
interpretation of the word "property" but on
the fact whether a particular kind of property
can be subject to the acts covered by that
section. As stated earlier, in our opinion,
the provisions of sub-section (3) contemplate
the property to be capable of being produced
before the Court and being transported, and in
as much as the immovable property would be
incapable of being transported or so produced,
we are of the opinion that the word "property"
as used in section 102 of the Cr.P.C. cannot
include "immovable property".
"28. .... Therefore, on reading the
provisions of section 102 which, in our
opinion, are clear and unambiguous, we are of
the opinion that an immovable property cannot
be seized by the police under the provisions
of section 102 of the Code of Criminal
Procedure."
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30. On the second question, the Bench held in
paragraph Nos.34 and 36 as under:-
"34. .... We are of the opinion that so far
as the nature of the amount in Bank is
concerned, we are bound by the decision of the
Division Bench of this Court. That being the
nature of the amount in an account in a Bank,
we are of the opinion that though such funds
are property, it is not such a property which
is capable of being produced in Court and,
therefore, outside the purview of the
provisions of section 102 of the Code of
Criminal Procedure."
"36. .... On consideration of the entire
matter, we are of the view that the police
have no power under the provisions of section
102 to direct the Banks accounts to be freezed
and prevent the account holders from operating
the account."
31. The finding on the third question in paragraph
38 reads as under:-
cri.w.p.3198-2009 & Other Petitions.doc
"38. This brings us to the third question,
viz., the procedure to be followed by the
police. In fact, the procedure to be followed
by the police is very clearly mentioned in the
section itself. If the police officer is
subordinate to the officer in charge of the
police station, he must forthwith report the
seizure to the officer-in-charge of the police
station. Secondly, the police officer seizing
the property under the provisions of sub-
section (1) is also obliged to forthwith
report the seizure to the Magistrate having
jurisdiction and where the property seized is
such that it cannot be conveniently
transported to the Court, he may give custody
thereof to any person on his executing a bond
undertaking to produce the property before the
court as and when required and to give effect
to the further orders of the Court as to the
disposal of the same. It is also clear that
section 457 clearly mentions that whenever the
seizure of property by any police officer is
reported to a Magistrate under the provisions
of the Code and such property is not produced
before a Criminal Court during an enquiry or
trial, the Magistrate may make such order as
he thinks fit respecting the disposal of such
property or the delivery of such property to
the person entitled to the possession thereof,
or if such person cannot be ascertained,
respecting the custody and production of such
property."
cri.w.p.3198-2009 & Other Petitions.doc
32. The findings on the second question, without
doubt do not reflect the correct position of law in view
of Judgment of the Supreme Court in State of Maharashtra
v. Tapas D. Neogy, reported in (1999) 7 SCC 685. In Tapas
Neogy (supra) the Supreme Court was considering the
following question:-
"The short question that arose before the High
Court is whether a police officer
investigating into an offence can issue
prohibitory order in respect of the bank
account of the accused in exercise of power
under Section 102 of the Criminal Procedure
Code."
33. After considering the arguments advanced, the
Supreme Court held as under in paragraph Nos.6 and 12:-
"6. A plain reading of sub-section (1) of
Section 102 indicates that the police officer
cri.w.p.3198-2009 & Other Petitions.doc
has the power to seize any property which may
be found under circumstances creating
suspicion of the commission of any offence.
The legislature having used the expression
"any property" and "any offence" have made the
applicability of the provisions wide enough to
cover offences created under any Act. But the
two preconditions for applicability of section
102(1) are that it must be "property" and
secondly, in respect of the said property
there must have been suspicion of commission
of any offence. In this view of the matter
the two further questions that arise for
consideration are whether the bank account of
an accused or of his relation can be said to
be "property" within the meaning of sub-
section (1) of Section 102 CrPC and secondly,
whether circumstances exist, creating
suspicion of commission of any offence in
relation to the same. ...."
"12. Having considered the divergent views
taken by different High Courts with regard to
the power of seizure under Section 102 of the
Code of Criminal Procedure, and whether the
bank account can be held to be "property"
within the meaning of the said Section 102(1),
we see no justification to give any narrow
interpretation to the provisions of the
Criminal Procedure Code. It is well known that
corruption in public offices has become so
rampant that it has become difficult to cope
up with the same. Then again the time consumed
by the courts in concluding the trials is
cri.w.p.3198-2009 & Other Petitions.doc
another factor which should be borne in mind
in interpreting the provisions of Section 102
of the Criminal Procedure Code and the
underlying object engrafted therein, inasmuch
as if there can be no order of seizure of the
bank account of the accused then the entire
money deposited in a bank which is ultimately
held in the trial to be the outcome of the
illegal gratification, could be withdrawn by
the accused and the courts would be powerless
to get the said money which has any direct
link with the commission of the offence
committed by the accused as a public officer.
We are, therefore, persuaded to take the view
that the bank account of the accused or any of
his relations is "property" within the meaning
of Section 102 of the Criminal Procedure Code
and a police officer in course of
investigation can seize or prohibit the
operation of the said account if such assets
have direct links with the commission of the
offence for which the police officer is
investigating into. The contrary view
expressed by the Karnataka, Gauhati and
Allahabad High Courts, does not represent the
correct law. It may also be seen that under
the Prevention of Corruption Act, 1988, in the
matter of imposition of fine under sub-section
(2) of Section 13, the legislatures have
provided that the courts in fixing the amount
of fine shall take into consideration the
amount or the value of the property which the
accused person has obtained by committing the
offence or where the conviction is for an
cri.w.p.3198-2009 & Other Petitions.doc
offence referred to in clause (e) of sub-
section (1) of Section 13, the pecuniary
resources or property for which the accused
person is unable to account satisfactorily.
The interpretation given by us in respect of
the power of seizure under Section 102 of the
Criminal Procedure Code is in accordance with
the intention of the legislature engrafted in
Section 16 of the Prevention of Corruption Act
referred to above. In the aforesaid premises,
we have no hesitation to come to the
conclusion that the High Court of Bombay
committed error in holding that the police
officer could not have seized the bank account
or could not have issued any direction to the
bank officer, prohibiting the account of the
accused from being operated upon. Though we
have laid down the law, but so far as the
present case is concerned, the order impugned
has already been given effect to and the
accused has been operating his account, and
so, we do not interfere with the same."
(emphasis supplied)
34. Following this Judgment another Division Bench
of this Court in M/s. Bombay Science & Research Education
Institute v. State of Maharashtra & Ors, reported in 2008
ALL MR (Cri) 2133 held that police could seize even
cri.w.p.3198-2009 & Other Petitions.doc
immovable property under Section 102 of the Criminal
Procedure Code. In that case, police had presumably
seized immovable properties purchased from crores of
rupees collected from students by cheating them to enroll
for courses which were not recognized. In this context
the Bench held in paragraph Nos.9 to 11 as under:-
"9. The
Petitioners
learned
submits
igcounsel
that the
for the
immovable
property cannot be attached and the learned
counsel for the Petitioner had relied on some
judgments of the High Courts. We do not think
that the question is res integra in view of
the judgment of State of Maharashtra Vs. Tapas
D. Neogy, (1999) 7 S.C.C. 685. It is true that
there was divergence of opinion with regard to
the scope of the term "the property" mentioned
in Section 102 before this judgment in various
High Courts. But the controversy was put to
rest by this judgment of the Supreme Court. In
Para 12 of the said Judgment, the Supreme
Court held that:
"We are, therefore, persuaded to take
the view that the bank account of the
accused or any of his relation is
"property" within the meaning of
cri.w.p.3198-2009 & Other Petitions.doc
Section 102 of the Criminal Procedure
Code and a police officer in course of
investigation can seize or prohibit the
operation of the said account if such
assets have direct links with the
commission of the offence for which the
police officer is investigating into.
The contrary view expressed by
Karnataka, Gauhati and Allahabad High
Courts, does not represent the correct
law."
(emphasis supplied)
10.
Now contention of the Petitioner is
that though Supreme Court held that the bank
account was "property" within the meaning of
Section 102 of Criminal Procedure Code, but
"immovable properties" can not be "properties"
within the meaning of Section 102.
11. We do not find that there is any basis
for such distinction to be made in the movable
and immovable properties as far as "property"
is mentioned in Section 102. All properties
whether movable or immovable in our view can
be seized by police under Section 102, as
there is nothing in the provision to show that
the property would include only movable and
not immovable. The Supreme Court has held in
para quoted above that there was no
justification to come to the conclusion that
the "property" should be defined in the narrow
cri.w.p.3198-2009 & Other Petitions.doc
sense."
35. Confronted with these conflicting Judgments of
two Division Benches, the Division Bench has made this
reference. The reasons which prevailed upon the Division
Bench, to make this reference are as under:-
"12.
Having gone through Tapas Neogy, we
are inclined to hold that it is possible to
urge that in Tapas Neogy, the Supreme Court
was primarily considering whether the bank
account of the accused could be property
within the meaning of Section 102(1) of the
Code and not whether under Section 102 of the
Code, immovable property could be seized. That
question has been decided by this court in
Kishore Signapurkar. It is held therein that
under Section 102, immovable property cannot
be seized. Unfortunately, attention of the
Division Bench of this court was not drawn to
this judgment when it decided M/s.Bombay
Science & Research. Reliance placed by the
Division Bench in M/s. Bombay Science &
Research on Tapas Neogy does not appear to us
to be apt because in that case, the Supreme
Court was not considering whether immovable
property can be seized under Section 102 of
cri.w.p.3198-2009 & Other Petitions.doc
the Code."
36. Considering these reasons, we would first
consider question (d) referred to us - namely whether the
Judgment of Supreme Court in Tapas Neogy's case (supra)
is restricted only to Bank accounts.
37. We have heard the learned counsel appearing for the
respective parties in the respective applications, as
also the learned APPs, all of whom have advanced well-
researched and erudite arguments. The learned Counsel for
petitioners contended that observations in Tapas Neogy
could not be extended to cover seizure of immovable
properties, as had been done in Bombay Science And
Research Education Institute by a Division Bench of this
Court. Their adversaries, on the other hand, submitted
that the observations of the Supreme Court in paragraph 6
cri.w.p.3198-2009 & Other Petitions.doc
to the effect that, "The legislature having used the
expression `any property' and `any offence', have made
the applicability of the provision wide enough to cover
offences created under any Act," can not be ignored. It
was submitted that the Supreme Court then considered only
the question whether Bank accounts were "property". It
was submitted that as far as immovable property is
concerned, there can be no doubt that it is "property".
Consequently the dictum of the Supreme Court that there
was no justification to give any narrow interpretation to
the term "property", would have to be applied to include
immovable property within the ambit of Section 102 of the
Criminal Procedure Code.
38. The learned counsel for the petitioners also pointed
out that seizure of bank accounts would be even otherwise
permissible under Section 102 of Criminal Procedure Code.
cri.w.p.3198-2009 & Other Petitions.doc
Since the word "property" has not been defined in the
Criminal Procedure Code, in view of provisions of section
2(y) of the Criminal Procedure Code, terms not defined in
the Criminal Procedure Code would have the same meaning
as in the Indian Penal Code. Section 22 of the Indian
Penal Code defines "movable property" to include
everything that is not attached to earth. Therefore, if
bank account is "property", since it is not attached to
earth, it would be a movable property and, therefore,
capable of being seized under Section 102 of Criminal
Procedure Code. The learned counsel, therefore, suggests
that the Judgment in Tapas Neogy is even otherwise
justified by the above causation, though not adopted by
the Supreme Court. Consequently, the learned counsel
suggests that Tapas Neogy cannot be an authority for the
proposition that immovable property can be seized under
Section 102 of Criminal Procedure Code.
cri.w.p.3198-2009 & Other Petitions.doc
39. The learned Counsel for petitioners in these
bunch of petitions relied on observations of the Supreme
Court in Gopal Upadhyaya and others v. Union of India and
others, reported in 1986 (Supp) SCC 501 and National
Insurance Company Limited v. Geeta Bhat and others,
reported in (2008) 12 SCC 426 on what constitutes a
binding precedent and the effect of obiter dicta of the
Supreme Court. In paragraph 4 of the Judgment in Gopal
Upadhyaya's case (supra), the Supreme Court observed as
under:-
"4. The learned counsel however invites
our attention to the judgments of the learned
Single Judge and the Division Bench of High
Court which were confirmed by Supreme Court in
that case and urges that the real question
there was whether the fundamental right
guaranteed by Article 19(1)(c) of the
Constitution could be claimed in view of the
notification issued under Section 4 of the
Defence of India Act and the Army Rules. We
cri.w.p.3198-2009 & Other Petitions.doc
are unable to appreciate this submission. When
a question is answered expressly or by
necessary implication we cannot ignore the
answer by referring to the decisions appealed
against and holding that the real question
that must be considered to have been answered
was something else. That is not our
understanding of the law of precedents. What
the judges expressly decided or what they must
be considered to have decided by necessary
implication by reference to the facts stated
by the judges themselves are what constitute
precedents. We cannot traverse (sic travel)
beyond the judgment, ignoring what has been
said in the judgment. We have therefore, no
option but to dismiss the writ petition."
40. In paragraph 26 of Judgment in National
Insurance Company's case (supra) the Supreme Court held
that obiter dicta of the Supreme Court are binding on the
High Courts, though for the Supreme Court they may only
be persuasive.
41. The learned Additional Public Prosecutor
submitted that attempting to make a distinction between
cri.w.p.3198-2009 & Other Petitions.doc
binding effect of ratio and obiter dicta in Judgments of
Supreme Court may be only an academic exercise as pointed
out by a Full Bench of this Court in Kamleshkumar
Ishwardas Patel v. Union of India and others, reported in
1994 (1) LJ Soft 313 = 1995 (2) Bom.C.R. 640, in the
following words:
"7.
It must be borne in mind that what has
been made binding under the provisions of
Article 141 of the Constitution of India is
"the law declared by the Supreme Court". If
there is a clear enunciation or declaration of
law, the same would be binding even though
such declaration was not strictly necessary
for the disposal of the case or the
declaration of law is not followed by actual
application thereof in the case in question.
The law declared as well as applied in a
particular decision becomes the ratio
decidendi of the case while a mere declaration
of law, even though solemn and thoroughly
reasoned, without application thereof in the
case in question is branded as obiter dictum.
Since Article 141 uses the expression "the law
declared" as was the case in section 212 of
the preceding Constitution, being the
Government of India, Act, 1935, "a declaration
cri.w.p.3198-2009 & Other Petitions.doc
of law" even though not accompanied by actual
application thereof, is binding on all other
Courts within the territory of India. From
that point of view, it may be idle and futile
to ascertain whether a declaration of law,
which is otherwise clear, forms part of the
ratio or is only obiter, as it would be
equally binding in either case."
(emphasis supplied)
42. In view of this, it may be necessary to recall
what was the question
ig which the Supreme Court was
considering in Tapas Neogy's case and whether there was
any clear enunciation of law on the question of seizure
of immovable property. It would be clear from the
question that had been framed for consideration by the
Supreme Court in Tapas Neogy, as also all the
observations of the Supreme Court thereon which have been
reproduced in earlier paragraphs, that the Court was
considering whether Bank accounts could be seized and
there is not even a faint reference to seizure of
cri.w.p.3198-2009 & Other Petitions.doc
immovable properties.
43. Though there could have been no doubt that
immovable property is "property" - (as contrasted with
bank accounts about which there was a doubt which was set
at rest by the Supreme Court), still the question as to
whether immovable property could be seized under Section
102 remains and would
have to be decided by reading
Section 102 in its entirety, since in Tapas Neogy there
is not even a faint whisper about seizure of immovable
property. The question is whether by process of logical
deduction, the observations of the Supreme Court could be
held to cover immovable property as well. Judgments of
the Courts cannot be read, interpreted and applied like
statutes. While in the case of a statutory provision, it
may be possible to interpret the words therein in order
to apply them to a situation which even the Legislature
cri.w.p.3198-2009 & Other Petitions.doc
may not have contemplated, or to indulge in logical
deductions and extensions permissible from the words used
therein, the same does not hold good about words in a
Judgment. A Judgment is an authority only for what it
decides and not for what logically follows from it, as
held by the Supreme Court in U.P. State Electricity Board
v. Pooran Chandra Pandey and others, reported in (2007)
11 SCC 92 as under:-
"12. As observed by this Court in State of
Orissa v. Sudhansu Sekhar Misra [AIR 1968 SC
647] (vide AIR pp.651-52, para 13):
"13. ... A decision is only an
authority for what it actually decides.
What is of the essence in a decision is
its ratio and not every observation
found therein nor what logically follows
from the various observations made in
it. On this topic this is what Earl of
Halsbury, L.C. Said in Quinn v. Leathem
[1901 AC 495: (1900-03) All ER Rep 1
(HL)]: (All ER p.7 G-I)
`Before discussing Allen v. Flood
cri.w.p.3198-2009 & Other Petitions.doc
[1898 AC 1: (1895-99) All ER Rep 52
(HL)] and what was decided therein,
there are two observations of a general
character which I wish to make; and one
is to repeat what I have very often said
before - that every judgment must be
read as applicable to the particular
facts proved, or assumed to be proved,
since the generality of the expressions
which may be found there are not
intended to be expositions of the whole
law, but are governed and qualified by
the particular facts of the case in
which such expressions are to be found.
The other is that a case is only an
authority for what it actually decides.
I entirely deny that it can be quoted
for a proposition that may seem to
follow logically from it. Such a mode of
reasoning assumes that the law is
necessarily a logical code, whereas
every lawyer must acknowledge that the
law is not always logical at all'".
(emphasis supplied)
"13. In Ambica Quarry Works v. State of
Gujarat [(1987) 1 SCC 213] (vide SCC p.221,
para 18) this Court observed:
"18. ... The ratio of any decision
must be understood in the background of
the facts of that case. It has been said
long time ago that a case is only an
cri.w.p.3198-2009 & Other Petitions.doc
authority for what it actually decides,
and not what logically follows from it."
"14. In Bhavnagar University v. Palitana
Sugar Mill (P) Ltd. [(2003) 2 SCC 111] (vide
SCC p.130, para 59) this Court observed:
"59. ... It is also well settled that a
little difference in facts or
additional facts may make a lot of
difference in the precedential value of
a decision."
(emphasis supplied)
"15. As held in Bharat Petroleum Corpn.
Ltd. v. N.R. Vairamani [(2004) 8 SCC 579: AIR
2004 SC 4778] a decision cannot be relied on
without disclosing the factual situation. In
the same judgment this Court also observed:
(SCC pp.584-85, paras 9-12)
"9. Courts should not place reliance
on decisions without discussing as to
how the factual situation fits in with
the fact situation of the decision on
which reliance is placed. Observations
of courts are neither to be read as
Euclid's theorems nor as provisions of a
statute and that too taken out of their
context. These observations must be read
in the context in which they appear to
have been stated. Judgments of courts
are not to be construed as statutes. To
cri.w.p.3198-2009 & Other Petitions.doc
interpret words, phrases and provisions
of a statute, it may become necessary
for judges to embark into lengthy
discussions but the discussion is meant
to explain and not to define. Judges
interpret statutes, they do not
interpret judgments. They interpret
words of statutes; their words are not
to be interpreted as statutes. In London
Graving Dock Co. Ltd. v. Horton [1951 AC
737: (1951) 2 All ER 1 (HL)] (AC at
p.761) Lord MacDermott observed: (All ER
p.14 C-D)
`The matter cannot, of course, be
settled merely by treating the ipsissima
verba of Willes, J. as though they were
part of an Act of Parliament and
applying the rules of interpretation
appropriate thereto. This is not to
detract from the great weight to be
given to the language actually used by
that most distinguished judge, ...'
10. In Home Office v. Dorset Yatch
Co. Ltd. [1970 AC 1004: (1970) 2 WLR
1140: (1970) 2 All ER 294 (HL)] (All ER
p.297 g-h) Lord Reid said, `Lord Atkin's
speech ... is not to be treated as if it
were a statutory definition. It will
require qualification in new
circumstances.' Megarry, J. in Shepherd
WLR 1062: (1971) 2 All ER 1267]
cri.w.p.3198-2009 & Other Petitions.doc
observed: (All ER p.1274d)
`One must not, of course, construe
even a reserved judgment of even
Russell, L.J. as if it were an Act of
Parliament;'
And, in Herrington v. British Railways Board
[1972 AC 877: (1972) 2 WLR 537: (1972) 1 All
ER 749 {HL(E)}] Lord Morris said: (All ER
p.761c)
`There is always peril in treating
the words of a speech or a judgment as
though they were words in a legislative
enactment, and it is to be remembered
that judicial utterances are made in the
setting of the facts of a particular
case.'
11. Circumstantial flexibility, one additional
or different fact may make a world of
difference between conclusions in two cases.
Disposal of cases by blindly placing reliance
on a decision is not proper.
12. The following words of Lord Denning in
the matter of applying precedents have become
locus classicus:
`Each case depends on its own facts
and a close similarity between one case
and another is not enough because even a
single significant detail may alter the
cri.w.p.3198-2009 & Other Petitions.doc
entire aspect, in deciding such cases,
one should avoid the temptation to
decide cases (as said by Cardozo) by
matching the colour of one case against
the colour of another. To decide
therefore, on which side of the line a
case falls, the broad resemblance to
another case is not at all decisive.
* * *
Precedents should be followed only
so far as it marks the path of justice,
but you must cut the dead wood and trim
off the side branches else you will find
yourself lost in thickets and branches.
My plea is to keep the path of justice
clear of obstructions which could impede
it.'
(emphasis supplied)"
44. This was restated by a Full Bench of this Court
in para 13 of the Judgment in Emkay Exports v.
Madhusudan Shrikrishna, reported in 2008 (4) Mh.L.J.
843.
45. We may also refer to the observations in para 39
cri.w.p.3198-2009 & Other Petitions.doc
of the Judgment of the Supreme Court in Commissioner of
Income-Tax v. M/s. Sun Engineering Works (P) Ltd.,
reported in AIR 1993 SC 43 which read as under:-
"39. .... It is neither desirable nor
permissible to pick out a word or a sentence
from the judgment of this court, divorced from
the context of the question under
consideration and treat it to be the complete
`law' declared by this court. The judgment
must be read as a whole and the observations
from the judgment have to be considered in the
light of the questions which were before this
Court. A decision of this Court takes its
colour from the questions involved in the case
in which it is rendered and while applying the
decision to a later case, the courts must
carefully try to ascertain the true principle
laid down by the decision of this court and
not to pick out words or sentences from the
judgment, divorced from the context of the
questions under consideration by this Court,
to support their reasonings. In Madhav Rao
Jiwaji Rao Scindia Bahadur v. Union of India,
(1971) 3 SCR 9: (AIR 1971 SC 530 at p.578)
this Court cautioned:
"It is not proper to regard a word, a
clause or a sentence occurring in a
cri.w.p.3198-2009 & Other Petitions.doc
judgment of the Supreme Court, divorced
from its context, as containing a full
exposition of the law on a question when
the question did not even fall to be
answered in that judgment."
We have also considered the observations of the Supreme
Court, on the doctrine of precedent in judgment of
Supreme Court in State of U.P. and Another v. Synthetics
& Chemicals Ltd. and Another, reported in (1991) 4 SCC
139.
46. In the light of these judgments we have
carefully considered the arguments advanced. First, in
Tapas Neogy the question of seizure of bank account was
being considered, which is a movable property in view of
the definition in the Indian Penal Code, and about power
to seize movable property, there was no controversy.
Secondly, there is no reference or even a whisper about
cri.w.p.3198-2009 & Other Petitions.doc
immovable property in the Judgment in Tapas Neogy.
Approval by Supreme Court in para 9 of the Judgment of
observations of learned Single Judge of Madras High
Court is unhelpful since even the Madras High Court was
considering whether money in a Bank account could be
property which could be seized under Section 102 of the
Code, and not the question of seizure of immovable
property. It would be wrong to stretch the words in a
judgment or to read them out of context of the facts in
which they came.
47. The Criminal Law (Amendment) Ordinance, 1944
(quoted in discussion to follow) would have enabled the
prosecuting and investigating agencies to attach
properties, including bank accounts and immovable
properties of persons accused of amassing wealth by
corrupt means. As a riposte, it was sought to be
cri.w.p.3198-2009 & Other Petitions.doc
suggested that if in spite of provisions of Criminal Law
(Amendment) Ordinance, the Supreme Court found it
necessary to include bank accounts in the expression
"property" in Section 102 of the Cr.P.C., existence of
those provisions cannot help in excluding immovable
properties. To this we may only observe that in Tapas
Neogy the Supreme Court had not at all referred to the
provisions of Criminal Law (Amendment) Ordinance. Had
the Court noted those provisions and then concluded that
in spite of those provisions bank accounts could be
seized even under Section 102 of Cr.P.C., it would have
been possible to hold that the Supreme Court had
impliedly ruled that recourse to provisions of Section
102 to provide for seizure of even immovable property
was necessary. Though the provisions of Criminal Law
(Amendment) Ordinance were not specifically referred to
by the Supreme Court, the finding about seizability of
cri.w.p.3198-2009 & Other Petitions.doc
bank account ruled out adequacy of mechanism under the
ordinance and impliedly held that Rule 102 of the Code
of Criminal Procedure is in consonance of the provisions
of the Ordinance. It would be too strained a logic to
conclude that though the Supreme Court did not even note
provisions of Criminal Law (Amendment) Ordinance, its
finding in respect of seizure of a bank account ruled
out adequacy of
mechanism under the ordinance and
impliedly held that Rule 102 of the Code of Criminal
Procedure could encompass even immovable property.
Rather, it may be arguable that had the Supreme Court
noticed the provisions of Criminal Law (Amendment)
Ordinance, the Court would certainly have held that bank
accounts could be seized in view of these specific
provisions, as the offence involved in that case was one
included in the Schedule to the Ordinance. Therefore, in
the light of Judgments on the use of precedents referred
cri.w.p.3198-2009 & Other Petitions.doc
to in the preceding paragraphs, the question (d) would
have to be answered thus:-
The law laid down by the Surpeme Court in State of
Maharashtra v. Tapas D. Neogy (supra) is restricted
to seizure of bank account and cannot be extended to
immovable property also, as interpreted by the
Division Bench in M/s. Bombay Science & Research
Education Institute v. State of Maharashtra & Ors.
(supra).
48. This takes us to question (a), namely,
"(a) Whether the words "any property" used in
sub-section (1) of Section 102 of the Code of
Criminal Procedure, 1973 would mean to include
"immovable property"?
49. On behalf of petitioners it is submitted that
cri.w.p.3198-2009 & Other Petitions.doc
immovable property is not included in the term "any
property" in Section 102 of Criminal Procedure Code for
the following reasons - most of which were canvassed
before and accepted by a Division Bench of this Court
which decided Kishore Signapurkar's case (supra).
(i) Wherever the Legislature wanted to
refer to immovable
ig property it has
specifically used the expression "immovable
property".
(ii) Ordinarily in relation to immovable
property the expression used is "attachment"
and not "seizure", and therefore, there would
be no question of seizure of immovable
property.
(iii) The expression "any property" used in
Section 102 would have to be read contextually
and "any property" does not mean "any property
under the sun" but which may be alleged or
suspected to have been stolen or which may be
found in the circumstances which create
suspicion of commission of any offence and,
therefore, excludes immovable property.
(iv) Since Section 102 lays down procedure
in relation to penal statutes, it has to be
cri.w.p.3198-2009 & Other Petitions.doc
strictly interpreted.
(v) Consequences of allowing police to
dabble with immovable property may be
disastrous.
50. On behalf of the respondents it was submitted
that:-
(i)
refer to
Whenever the Legislature wanted to
movable property or immovable
property alone, it has specifically done so,
and therefore, if the legislature wanted to
refer to movable property alone in Section 102
of the Code, it would have said so;
(ii) Attachment and seizure are synonymous
and there is no warrant for tagging the term
"attachment" to immovable property and
restricting "seizure" to movable property.
(iii) Even if read contextually the term,
"any property" cannot exclude "immovable
property".
(iv) Strict interpretation of Section l02
does not warrant narrow interpretation and
observations of the Supreme Court in para 12
in Tapas Neogy that the Supreme Court saw, "no
cri.w.p.3198-2009 & Other Petitions.doc
justifications to give any narrow
interpretation to the provisions of the
Criminal Procedure Code" would have to be
borne in mind while interpreting Section 102.
(v) If the provisions are not so
interpreted, offenders would be able to walk
away with the property acquired from proceeds
of crime.
51. In support of their respective contentions the
learned counsel for the parties took us through all the
relevant provisions of the Code and relied on the
Judgments which have a bearing on the issues involved.
52. It has been suggested that the conclusions drawn
in Signapurkar's case are not supportable and may be in
conflict with the judgment of the Supreme Court in R.K.
Dalmia v. The Delhi Administration, reported in AIR 1962
SC 1821, which was considered by the Division Bench. In
that case, the Supreme Court was considering the
cri.w.p.3198-2009 & Other Petitions.doc
provisions of Sections 403 to 409 of the IPC, in order
to find out if reference to "property" in those sections
also included all species of property. The Supreme Court
held that the word "property" in Sections 403 to 409 of
the IPC would include all corporeal property except
property excluded from the definition. At first blush it
may seem that in the face of this judgment of the
Supreme Court it was not open to the Division Bench
deciding Kishore Signapurkar's case that the term
"property" in Section 102 of Cr.P.C. excluded immovable
property. However, apart from reasons given by the
Division Bench deciding Signapurkar's case, it has to be
pointed out first, that it may be impermissible to
import interpretation of a word from altogether
different statute, of a different character - a penal
statute - for the purpose of interpreting a procedural
provision. A penal statute must be so interpreted that
cri.w.p.3198-2009 & Other Petitions.doc
no crook escapes punishment, but procedural laws have to
be so interpreted that no innocent person would suffer.
Reasons for including immovable property in the term
"property" misappropriated or in respect of which
criminal breach of trust is committed in penal statute
would not be valid for including it in procedural
provision enabling a police officer to seize it on
suspicion of commission
ig of a crime. Therefore, with
great respect, it has to be observed that judgment of
the Supreme Court in Dalmia's case (supra) does not come
in conflict with the observations of the Division Bench
in Signapurkar's case. At the cost of repetition it may
be pointed out that a term has to be interpreted
contextually and not with reference to interpretation in
another provision in a statute of different kind.
Secondly, and most importantly, even in Dalmia's case
what the Supreme Court was considering were bank
cri.w.p.3198-2009 & Other Petitions.doc
accounts. The Court noted the distinction in expression
in Sections 403 and 404 of the Penal Code and found that
while Section 403 specifically referred to movable
property, Section 404 merely referred to "property"
without any qualifier. In that context the Court held
that the funds in banks referred to in the charge did
amount to property.
53. In our view it would be impermissible to
conclude that the Division Bench deciding Signapurkar's
case was wrong in taking the view that "property" in
Section 102 Cr.P.C. did not include immovable property
because of the judgment of the Supreme Court in Dalmia's
case, which, first, was not considering provision of
Section 102 Cr.P.C. and secondly was not at all dealing
with immovable property even in the context of Section
404 of the Penal Code.
cri.w.p.3198-2009 & Other Petitions.doc
54. We would now briefly refer to Judgments cited
before going to the provisions of the Code of Criminal
Procedure and other relevant enactments. In Amrit Lal
Kumawat & Ors. v. State of Rajastan & Anr., reported in
1998 Cri.L.J 3032, a learned Single Judge of the High
Court of Rajasthan held, after an elaborate analysis of
the relevant provisions, that police had no power to
seize disputed immovable property under Section 102 of
the Criminal Procedure Code.
55. In Bisweswar Singh and others v. Bhola Nath
Pathuk, reported in 1914 Vol.XXII Indian Cases 751, the
Calcutta High Court held that Section 517 of the 1898
Code had no application to immovable property. Section
517 of the 1898 Code roughly corresponds to Section 452
of the 1973 Code.
cri.w.p.3198-2009 & Other Petitions.doc
56. To support their contention that immovable
property was not contemplated as capable of being seized
under Section 102 of the Code of Criminal Procedure,
1973, the learned Counsel for the petitioners placed
reliance on a Judgment in Anwar Ahmad Vs. State of U.P.,
reported at AIR 1976 SC 680. The Supreme Court was
considering enforceability of a bond on which property
had been returned by police, under the old Code. The
Court pointed to an omission in the new (1973) Code in
paragraph 4 as under:-
"4. Before closing this judgment, we would
like to observe that even in the new Criminal
Procedure Code, there is no express provision
which empowers the police to get a bond from
the person to whom the property seized is
entrusted. This may lead to practical
difficulties, for instance in cases where a
bulky property, like an elephant or a car is
seized and the magistrate is living at a great
distance, it would be difficult for a police
cri.w.p.3198-2009 & Other Petitions.doc
officer to report to the magistrate with the
property. In these circumstances, we feel that
the Government will be well advised to make
suitable amendments in the CrPC to fill up
this serious lacuna by giving power to the
police for taking the bond in such
circumstances."
57. Taking note of the lacuna pointed out by the
Supreme Court, Section 102 was amended by an amendment
in 1978 adding
sub-section (3) to provide for
contingency referred to by the Supreme Court. The
argument is that the Supreme Court would not have
referred to the requirement of taking the property to a
Magistrate, had the property seizable under Section 102
been other than movable property. Though persuasive,
this argument alone, in our view, may not be decisive of
the questions which have been referred to this Bench.
58. The learned Counsel for the petitioners also
cri.w.p.3198-2009 & Other Petitions.doc
pointed to a further amendment to subsection 3 of
Section 102 of the Code carried out in 2005 (?) giving
greater discretion to police (according to Statement of
Objects and Reasons of the amending Act) for releasing
the seized property where there is difficulty in
securing proper accommodation for custody of property.
This too may indicate that seized property could also
be movable property, required to be stored in police
stations, but cannot in itself lead to a conclusion that
it could be only movable property, since it is arguable
that the provisions may apply mutatis mutandis according
to nature of property.
59. This takes us to the submissions on the question
: how to interpret of Section 102 of the Code. The
learned Counsel for the parties placed for our perusal
settled canons of interpretation of statutes. It is
cri.w.p.3198-2009 & Other Petitions.doc
indisputable that while interpreting a provision of
statute a Court must first find out what is the plain or
natural or literal meaning of the words used. If this
does not lead to any ambiguity, nothing further is
required to be done. For gathering the meaning of words
used, the Court may first look into definitions in the
statute itself, or General Clauses Act in that order of
preference. If such an interpretation leads to ambiguity
then the Court may look elsewhere. Again here, the
order in which other sources could be invoked would be,
first, other provisions of the same statute; next,
similar provisions in other statutes; and next, the
object of legislation with reference to the mischief
rule. If, and only if, there is still an ambiguity can a
Court, look at the consequences, and then may utilise
tools like adding or deleting a word to ensure that the
construction is harmonious, does not lead to absurdity
cri.w.p.3198-2009 & Other Petitions.doc
and achieves the object, subject to the limitations on
such exercise expressed in M/s. Mandvi Co-op. Bank Ltd.
v. Nimesh B. Thakore, reported at AIR 2010 Supreme Court
1402 and Union of India and another, v. Deoki Nandan
Aggarwal, reported at AIR 1992 Supreme Court 96.
Dictionaries are undoubtedly a help in interpreting
words, but since dictionaries may list several meanings
against a word, the meaning appropriate to the occasion
has to be contextually gathered. Therefore, attachment
and seizure being shown as synonymous in dictionaries is
irrelevant. Every synonym has a contextual usage and one
word cannot replace another only because it is
synonymous.
60. With this prelude, before considering the
question raised, it may be useful to quote for ready
reference Section 102 of the Code and some of the other
cri.w.p.3198-2009 & Other Petitions.doc
provisions of the Code where "property" is dealt with;
along with provisions from other enactments,
illustratively and not exhaustively.
The Code of Criminal Procedure:
"S.83.(1) The Court issuing a proclamation under Section
82 may, for reasons to be recorded in writing, at any
time after the issue of the proclamation, order the
attachment of any property, movable or immovable or
both, belonging to the proclaimed person:
Provided that where at the time of issue of the
proclamation the Court is satisfied, by affidavit or
otherwise, that the person in relation to whom the
proclamation is to be issued-
(a) is about to dispose of the whole or any part of his
property, or
(b) is about to remove the whole or any part of his
property from the local jurisdiction of the Court, it
may order the attachment simultaneously with the issue
of the proclamation.
(2) Such order shall authorise the attachment of any
property belonging to such person within the district in
which it is made; and it shall authorise the attachment
of any property belonging to such person without such
district when endorsed by the District Magistrate within
cri.w.p.3198-2009 & Other Petitions.doc
whose district such property is situate.
(3) If the property ordered to be attached is a debt or
other movable property, the attachment under this
section shall be made-
(a) by seizure; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the delivery
of such property to the proclaimed person or to any
one on his behalf; or
(d) by all or any two of such methods, as the Court
thinks fit.
(4) If the property ordered to be attached is immovable,
the attachment under this section shall, in the case of
land paying revenue to the State Government, be made
through the Collector of the district in which the land
is situate, and in all other cases-
(a) by taking possession; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the
payment of rent or delivery of property to the
proclaimed person or to any one on his behalf;
or
(d) by all or any two of such methods, as the
Courts thinks fit.
cri.w.p.3198-2009 & Other Petitions.doc
(5) If the property ordered to be attached consists of
live-stock or is of a perishable nature, the Court may,
if it thinks it expedient, order immediate sale thereof,
and in such case the proceeds of the sale shall abide
the order of the Court.
(6) The powers, duties and liabilities of a receiver
appointed under this section shall be the same as those
of a receiver appointed under the Code of Civil
Procedure, 1908 (5 of 1908)."
"S.102 (1) Any police officer may seize any
property which may be alleged or suspected to have been
stolen, or which may be found under circumstances which
create suspicion of the commission of any offence.
(2) Such police officer, if subordinate to the officer
in charge of a police station, shall forthwith report
the seizure to that officer.
(3) Every police officer acting under sub-section (1)
shall forthwith report the seizure to the Magistrate
having jurisdiction and where the property seized is
such that it cannot be conveniently transported to the
Court, (or where there is difficulty in securing proper
accommodation for the custody of such property, or where
the continued retention of the property in police
custody may not be considered necessary for the purpose
of investigation) he may give custody thereof to any
person on his executing a bond undertaking to produce
the property before the Court as and when required and
to give effect to the further orders of the Court as to
cri.w.p.3198-2009 & Other Petitions.doc
the disposal of the same.
(Provided that where the property seized under sub-
section (1) is subject to speedy and natural decay and
if the person entitled to the possession of such
property is unknown or absent and the value of such
property is less than five hundred rupees, it may
forthwith be sold by auction under the orders of the
Superintendent of Police and the provisions of sections
457 and 458 shall, as nearly as may be practicable,
apply to the net proceeds of such sale.)
"105-A. Definitions.- In this Chapter, unless the
context otherwise requires,-
(a)"contracting State" means any country or place
outside India in respect of which arrangements have been
made by the Central Government with the Government of
such country through a treaty or otherwise;
(b) "identifying" includes establishment of a proof
that the property was derived from, or used in, the
commission of an offence;
(c) "proceeds of crime" means any property derived
or obtained directly or indirectly, by any person as a
result of criminal activity (including crime involving
currency transfers) or the value of any such property;
(d) "property" means property and assets of every
description whether corporeal or incorporeal, movable or
immovable, tangible or intangible and deeds and
instruments evidencing title to, or interest in, such
property or assets derived or used in the commission of
cri.w.p.3198-2009 & Other Petitions.doc
an offence and includes property obtained through
proceeds of crime;
(e)"tracing" means determining the nature, source,
disposition, movement, title or ownership of property."
"S.105-C. (1) Where a Court in India has reasonable
grounds to believe that any property obtained by any
person is derived or obtained, directly or indirectly,
by such person from the commission of an offence, it may
make an order of attachment or forfeiture of such
property, as it may deem fit under the provisions of
Sections 105-D to 105-J (both inclusive).
...
"S.105-E. (1) Where any officer conducting an inquiry or
investigation under Section 105-D has a reason to
believe that any property in relation to which such
inquiry or investigation is being conducted is likely to
be concealed, transferred or dealt with in any manner
which will result in disposal of such property, he may
make an order for seizing such property and where it is
not practicable to seize such property, he may make an
order of attachment directing that such property shall
not be transferred or otherwise dealt with, except with
the prior permission of the officer making such order,
and a copy of such order shall be served on the person
concerned.
...
"S.105-L. Application of this Chapter.- The Central
Government may, by notification in the Official Gazette,
direct that the application of this Chapter in relation
to a contracting State with which reciprocal
cri.w.p.3198-2009 & Other Petitions.doc
arrangements have been made, shall be subject to such
conditions, exceptions or qualifications as are
specified in the said notification."
Chapter X Maintenance of Public Order & Tranquility
"D - Disputes as to immovable property.
S. 145. Procedure where dispute concerning land or water
is likely to cause breach of peace - (1) whenever an
Executive Magistrate is satisfied from a report of
police officer or upon other information that a dispute
is likely to cause a breach of the peace exists
concerning any land or water or the boundaries thereof,
within his local jurisdiction, he shall make an order in
writing, stating the grounds of his being so satisfied,
and requiring the parties concerned in such dispute to
attend his Court in person or by pleader, on a specified
date and time, and to put in written statements of their
respective claims as respects the fact of actual
possession of the subject of dispute.
(2) For the purposes of this section, the expression
"land or water" includes buildings, markets, fisheries,
crops or other produce of land, and the rents or profits
of any such property.
"S.146.(1) If the Magistrate at any time after making
the order under sub-section (1) of Section 145 considers
the case to be one of emergency, or if he decides that
none of the parties was then in such possession as is
referred to in Section 145, or if he is unable to
satisfy himself as to which of them was then in such
cri.w.p.3198-2009 & Other Petitions.doc
possession of the subject of dispute, he may attach the
subject of dispute until a competent Court has
determined the rights of the parties thereto with regard
to the person entitled to the possession thereof:
Provided that such Magistrate may withdraw the
attachment at any time if he is satisfied that there is
no longer any likelihood of breach of the peace with
regard to the subject of dispute.
(2) When the Magistrate attaches the subject of
dispute, he may, if no receiver in relation to such
subject of dispute has been appointed by any Civil
Court, make such arrangements as he considers proper for
looking after the property or if he thinks fit, appoint
a receiver thereof, who shall have, subject to the
control of the Magistrate, all the powers of a receiver
appointed under the Code of Civil Procedure, 1908 (5 of
1908):
Provided that in the event of a receiver being
subsequently appointed in relation to the subject of
dispute by any Civil Court, the Magistrate-
(a) shall order the receiver appointed by him to
hand over the possession of the subject of dispute to
the receiver appointed by the Civil Court and shall
thereafter discharge the receiver appointed by him;
(b) may make such other incidental or consequential
orders as may be just."
"451. Order for custody and disposal of property pending
cri.w.p.3198-2009 & Other Petitions.doc
trial in certain cases.- When any property is produced
before any Criminal Court during any inquiry or trial,
the Court may make such order as it thinks fit for the
proper custody of such property pending the conclusion
of the inquiry or trial, and, if the property is subject
to speedy and natural decay, or if it is otherwise
expedient so to do, the Court may, after recording such
evidence as it thinks necessary, order it to be sold or
otherwise disposed of.
Explanation.- For the purposes of this section,
"property" includes-
(a) property of any kind or document which
ig is
produced before the Court or which is in its custody.
(b) any property regarding which an offence appears
to have been committed or which appears to have been
used for the commission of any offence."
"452. Order for disposal of property at conclusion of
trial.- (1) When an inquiry or trial in any Criminal
Court is concluded, the Court may make such order as it
thinks fit for the disposal, by destruction,
confiscation or delivery to any person claiming to be
entitled to possession thereof or otherwise, of any
property or document produced before it or in its
custody, or regarding which any offence appears to have
been committed, or which has been used for the
commission of any offence.
(2) An order may be made under sub-section (1) for
the delivery of any property to any person claiming to
be entitled to the possession thereof, without any
cri.w.p.3198-2009 & Other Petitions.doc
condition or on condition that he executes a bond with
or without sureties, to the satisfaction of the Court,
engaging to restore such property to the Court if the
order made under sub-section (1) is modified or set
aside on appeal or revision.
(3) A Court of Sessions may, instead of itself
making an order under sub-section (1), direct the
property to be delivered to the Chief Judicial
Magistrate, who shall thereupon deal with it in the
manner provided in sections 457, 458 and 459.
(4) Except where the property is livestock or is
subject to speedy and natural decay, or where a bond has
been executed in pursuance of sub-section (2), an order
made under sub-section (1) shall not be carried out for
two months, or when an appeal is presented, until such
appeal has been disposed of.
(5) In this section, the term "property" includes,
in the case of property regarding which an offence
appears to have been committed, not only such property
as has been originally in the possession or under the
control of any party, but also any property into or for
which the same may have been converted or exchanged, and
anything acquired by such conversion or exchange,
whether immediately or otherwise."
"456. Power to restore possession of immovable
property.- (1) When a person is convicted of an of
offence attended by criminal force or show of force or
by criminal intimidation, and it appears to the Court
that, by such force or show of force or intimidation,
cri.w.p.3198-2009 & Other Petitions.doc
any person has been dispossessed of any immovable
property, the Court may, if it thinks fit, order that
possession of the same be restored to that person after
evicting by force, if necessary, any other person who
may be in possession of the property:
Provided that no such order shall be made by the
Court more than one month after the date of the
conviction.
The Criminal Law (Amendment) Ordinance, 1944:
"4.Ad interim attachment.- (1) Upon receipt of an
application under section 3, the District Judge shall,
unless for reasons to be recorded in writing he is of
the opinion that there exist no prima facie grounds for
believe that the person in respect of whom the
application is made has committed any scheduled offence
or that he has procured thereby any money or other
property, pass without delay an ad interim order
attaching the money or other property alleged to have
been so procured, or if it transpires that such money or
other property is not available for attachment, such
other property of the said person of equivalent value as
the District Judge may think fit:
Provided that the District Judge may if he thinks
fit before passing such order, and shall before refusing
to pass such order, examine the person or persons making
the affidavit accompanying the application.
...
"6. Attachment of property of mala fide transferees.-
(1) Where the asset available for attachment of a person
cri.w.p.3198-2009 & Other Petitions.doc
believed to have committed scheduled offence are found
to be less than the amount or value which he is believed
to have procured by means of such offence, and where the
District Judge is satisfied, by affidavit, or otherwise,
that there is reasonable cause for believing that the
said person has, after the date on which the offence is
alleged to have been committed, transferred (whether
after the commencement of this Ordinance or not) any of
his property otherwise than in good faith and for
consideration, the District Judge may by notice, require
any transferee of such property (whether or not he
received the property directly from the said person) to
appear on a date to be specified in the notice and show
cause why so much of the transferee's property as is
equivalent to the proper value of property transferred
should not be attached."
"13. Disposal of attached property upon termination of
criminal proceedings.- (1) Upon the termination of any
criminal proceedings for any scheduled offence in
respect of which any order of attachment of property has
been made under this Ordinance or security given in lieu
thereof, the agent of the (State Government or, as the
case may be, the Central Government) shall without delay
inform the District Judge, and shall where criminal
proceedings have been taken in any Court, furnish the
District Judge with a copy of the judgment or order of
the trying Court and with copies of the judgments or
orders, if any, of the appellate or revisional Courts
thereon.
(2) Where it is reported to the District Judge under
sub-section (1) that cognizance of the alleged scheduled
offence has not been taken or where the final judgment
cri.w.p.3198-2009 & Other Petitions.doc
or order of the Criminal Court is one of acquittal, the
District Judge shall forthwith withdraw any orders of
attachment of property made in connection with the
offence, or where security has been given in lieu of
such attachment, order such security to be returned.
(3) Where the final judgment or order of the
Criminal Courts is one of conviction, the District Judge
shall order that from the property of the convicted
person attached under this Ordinance or out of the
security given in lieu of such attachment, there shall
be forfeited to Government such amount or value as is
found, in the final judgment or order of the Criminal
Courts in pursuance of section 12 to have been procured
by the convicted person by means of the offence,
together with the costs of attachment as determined by
the District Judge and where the final judgment or order
of the Criminal Courts have imposed or upheld a sentence
of fine on the said person (whether alone or in
conjunction with any other punishment), the District
Judge may order, without prejudice to any other mode of
recovery, that the said fine shall be recovered from the
residue of the said attached property or of the security
given in lieu of attachment.
...
"THE SCHEDULE
(See section 2)
OFFENCES IN CONNECTION WITH WHICH PROPERTY
IS LIABLE TO BE ATTACHED
2.An offence punishable under section 406 or section
408 or section 409 of the Indian Penal Code (45 of
cri.w.p.3198-2009 & Other Petitions.doc
1860), where the property in respect of which the
offence is committed is property entrusted by His
Majesty's Government in the United Kingdom or in any
part of His Majesty's dominions or the Central or a
State Government or a department of any such
Government or a local authority [or a corporation
established by or under a Central, provincial or
State Act, or an authority or a body owned or
controlled or aided by Government company as defined
in section 617 of the Companies Act, 1956 (1 of
1956), or a society aided by such corporation,
authority, body or Government company] or a person
acting on behalf of any such Government or
department or authority [or corporation or body or
Government company or society].
3.An offence punishable under section 411 or section
414 of the Indian Penal Code (45 of 1860), where the
stolen property in respect of which the offence is
committed is property such as is described in the
proceeding item and in respect of which an offence
punishable under section 406 or section 408 or
section 409 of the said Code has been committed.
4.An offence punishable under section 417 or section
420 of the Indian Penal Code (45 of 1860), where the
person deceived is His Majesty's Government in the
United Kingdom or in any part of His Majesty's
dominions or the Central or State Government or a
department of any such Government or a local
authority or a corporation established by o under a
Central, Provincial or State Act, or an authority or
a body owned or controlled or aided by Government or
a Government company as defined in section 617 of
cri.w.p.3198-2009 & Other Petitions.doc
the Companies Act, 1956 (1 of 1956) or a society
aided by such corporation, authority, body or
Government Company or a person acting on behalf of
any such Government or department (or authority or
corporation or body or Government company or
society).
[4-A. An offence punishable under the Prevention of
Corruption Act, 1988 (49 of 1988)]
5.Any conspiracy to commit or any attempt to commit
or any abetment or any of the offences specified in
[items 2, 3, 4 and 4-A]."
The Narcotic Drugs and Psychotropic Substances Act:
"68-C. Prohibition of holding illegally acquired
property. ...
68-E. Identifying illegally acquired property. ...
68-F. Seizure or freezing of illegally acquired
property.- (1) Where any officer conducting an inquiry
or investigation under section 68-E has reason to
believe that any property in relation to which such
inquiry or investigation is being conducted is an
illegally acquired property and such property is likely
to be concealed, transferred or dealt with in any manner
which will result in frustrating any proceeding relating
to forfeiture of such property under this Chapter, he
may make an order for seizing such property and where it
is not practicable to seize such property, he may make
an order that such property shall not be transferred or
otherwise dealt with, except with the prior permission
cri.w.p.3198-2009 & Other Petitions.doc
of the officer making such order, or of the competent
authority and a copy of such order shall be served on
the person concerned:
Provided that the competent authority shall be duly
informed of any order made under this sub-section and a
copy of such an order shall be sent to the competent
authority within forty-eight hours of its being made.
(2) Any order made under sub-section (1) shall have
no effect unless the said order is confirmed by an order
of the competent authority within a period of thirty
days of its being made.
"transfer of
Explanation.- For the purposes of this section,
property" means any disposition,
conveyance, assignment, settlement, delivery, payment or
other alienation of property and, without limiting the
generality of the foregoing, includes-
(a) the creation of a trust in property;
(b) the grant or creation of any lease,
mortgage, charge, easement, licence, power,
partnership or interest in property;
(c) the exercise of a power of appointment of
property
(d) any transaction entered into by any person with
intent thereby to diminish directly or
indirectly the value of his own property and to
increase the value of the property of any other
person."
cri.w.p.3198-2009 & Other Petitions.doc
(underlining is ours)
61. If every species of property could be seized,
under Section 102 of the Code it may have been
unnecessary for the Legislature to provide for freezing
the property in Section 68-F of the Narcotic Drugs and
Psychotropic Substances Act, or for attachment of
properties under the Criminal Law (Amendment) Ordinance,
or to clarify in Clause (d) of 105-A that property would
include movable or immovable property and then provide
for its attachment in Section 105-C. The very fact that
Section 105-A of the Cr.P.C. begins with the words "In
this chapter" would indicate the legislative intent of
restricting the definitions therein to the provisions of
that chapter and this is the reason why these
definitions cannot be applied to terms used in other
parts of the Code including Section 102 of Cr.P.C.. Had
cri.w.p.3198-2009 & Other Petitions.doc
the legislature so intended, it could have included
these definitions in Section 2 of the Code, to make them
applicable throughout the body of the Code. Rather the
clarificatory Clause (d) of Section 105-A would indicate
that since legislature was aware that "property" did not
explicitly include all species of property, it felt the
need to provide an expansive definition.
62. It may be useful to note that Rules 43, 51 and
54 in Order XXI of Civil Procedure Code, which deal with
attachment of movables, negotiable instruments and
immovable property respectively, the mode of attachment
provided for movables and negotiable instruments is
seizure, while attachment of immovable property has to
be made by a prohibitory order. It may be useful to
quote these rules as under:-
cri.w.p.3198-2009 & Other Petitions.doc
"43. Attachment of movable property, other
than agricultural produce, in possession of
judgment- debtor. - Where the property to be
attached is movable property, other than
agricultural produce, in the possession of the
judgment-debtor, the attachment shall be made
by actual seizure, and the attaching officer
shall keep the property in his own custody or
in the custody of one of his subordinates, and
shall be responsible for the due custody
thereof;
Provided that, when the property seized is
subject to speedy and natural decay, or when
the expense of keeping it in custody is likely
to exceed its value, the attaching officer may
sell it at once.
51. Attachment of negotiable instruments -
Where the property is a negotiable instrument
not deposited in a Court, nor in the custody
of a public officer, the attachment shall be
made by actual seizure, and the instrument
shall be brought into Court and held subject
to further orders of the Court.
54. Attachment of immovable property (1) Where
the property is immovable, the attachment
shall be made by an order prohibiting the
judgment-debtor from transferring or charging
the property in any way, and all persons from
taking any benefit from such transfer or
charge.
cri.w.p.3198-2009 & Other Petitions.doc
(1-A) The order shall also require the
judgment-debtor to attend Court on a specified
date to take notice of the date to be fixed
for settling the terms of the proclamation of
sale.
(2) The order shall be proclaimed at some
place on or adjacent to such property by beat
of drum or other customary mode, and a copy of
the order shall be affixed on a conspicuous
part of the property and then upon a
conspicuous part of the Court-house, and also
where the property is land paying revenue to
the Government, in the office of the Collector
of the District in which the land is situate
(and, where the property is land situate in a
village, also in the office of the Gram
Panchayat, if any, having jurisdiction over
that village.)."
63. Though on a plain reading of Section 102 of the
Code it may appear that since the word "property" is
qualified by adjective "any", it would include even
immovable property, if considered in the context of use
of the words "property", "immovable property" and
"movable property" in the other sections of the Code, it
cri.w.p.3198-2009 & Other Petitions.doc
would be clear that "any property" referred to is only
movable property. Section 83 of the Code refers to
attachment of property, movable or immovable. It
provides for attachment of movable property by seizure
and attachment of immovable property by taking
possession, appointment of receiver, prohibitory order,
etc.. It is significant that while the section provides
for seizure of movable property, it does not use the
word "seizure" in relation to immovable property.
Attachment of property in Section 146 of the Code is
also relevant. As already pointed out, Sections 145 and
146 are contained in Part-D of Chapter X of the Code
which is titled as `Disputes as to immovable property'.
Therefore, it can not be said that the contention that
term "seizure" is used in relation to movables and
"attachment" in relation to immovables is without any
merit. Section 456 of the Code refers to the power of
cri.w.p.3198-2009 & Other Petitions.doc
the Courts to restore possession of immovable property.
Therefore, if the provisions of Section 102 are examined
in the above context, it would be difficult to conclude
that any property would include immovable property since
it would not be capable of being physically seized.
Whenever the Legislature wanted to deal with immovable
property it has specifically used that expression.
Therefore by implication
ig when this adjective is not
used, the word "property" may refer to only movable
property.
64. The words "any property" cannot be interpreted
in isolation. They have to be read in the context of all
expressions used in the section. Therefore, such
property has to be one which is alleged or suspected to
have been stolen or "found" under circumstances which
create suspicion of commission of any offence. Now, by
cri.w.p.3198-2009 & Other Petitions.doc
definition of "theft", immovable property cannot be
stolen. As to "finding" it under circumstances which
create suspicion of commission of any offence, it is
difficult to conceive as to how immovable property
itself could give rise to suspicion of commission of an
offence. An offence may be committed on immovable
property - like say, a murder in a house. An offence
could be committed in respect of immovable property -
like trespass, or construction, or development in
violation of building bye-laws. Construction or
development of property in violation of law may come
nearest to the property itself creating suspicion of
commission of an offence. But even here, a closer look
would show that rarely would the property itself create
a suspicion of commission of offence - but, activities
thereon, which could be objectively observed, may create
such suspicion and could be proved by objective
cri.w.p.3198-2009 & Other Petitions.doc
observations at the trial. The purpose which Section 102
which is supposed to serve is to enable police officer
to collect evidence. The provision is procedural in
nature and not penal even in the widest sense of putting
any temporary restraint on a suspect, as a part of
investigation, or for ensuing a fair trial.
65.
If it is taken for a while that Section 102 of
the Code provided for seizure of immovable property for
the purpose of ensuring that offenders do not derive
benefits from the property which they got as a result of
crime as well, then it would have been unnecessary for
the Legislature to provide for attachment and,
eventually, forfeiture of such property under the
Criminal Law (Amendment) Ordinance, as also the
provisions of Section 105-A to 105-L of the Code and
Sections 68-C to F of the Narcotic Drugs and
cri.w.p.3198-2009 & Other Petitions.doc
Psychotropic Substances Act. It became necessary for the
Legislature to provide for attachment and forfeiture of
such property which the offenders had got as a result of
crime, because Section 102 did not and could not have
provided for attachment of such property.
66. A learned single Judge of the Delhi High Court
did consider this aspect.
ig In Jagdish Chander & Ors. v.
State & Ors., reported at 40 (1990) Delhi Law Times 233,
the Delhi High Court was considering investigating
officer's letter to a builder to withhold certain
properties as investigation in offences punishable under
Sections 380, 467, 468, 470 and 420 of the Indian Penal
Code was pending. It was argued that Section 102 of the
Cr.P.C. did not apply to immovable properties. The Court
held that assuming that Section 102 of the Code applied
to immovable property still it could not be seized unless
cri.w.p.3198-2009 & Other Petitions.doc
it was found under circumstances which create suspicion
of commission of offence. This limited object of the
provisions in Section 102 of the Criminal Procedure Code
cannot be lost sight of. Using this provision for seizing
property to prevent an offender from utilising proceeds
of crime was decidedly not intended, since whenever the
Legislature felt such a need, they have so provided and
at the cost of repetition we may point out that the
provisions of the Criminal Law Amendment ordinance are a
glaring example.
67. Section 102 basically deals with the manner in
which a police officer has to collect evidence for the
purpose of proving charge at the trial. It does not deal
with penalising an offender or depriving the offender of
the benefits of such property because it was derived from
crime before he is tried. It would be an abuse of the
cri.w.p.3198-2009 & Other Petitions.doc
provision if it were to be interpreted to mean that the
property acquired by offenders from crime could be
attached by a police officer to prevent the offender from
getting the benefit of ill-gotten wealth or proceeds of
crime on a mere suspicion that it was ill-gotten, without
any enquiry, since such property in itself could not at
all be conceived as creating a suspicion of the
commission of any offence.
68. Whether a person acquired any immovable property
from his ill-gotten wealth from crime could be proved by
documents and not by the seizure of the immovable
property itself. Thus, sale deed or any other document
whereby immovable property was acquired would be an
evidence which would create suspicion of commission of
an offence. It is hard to conceive that the immovable
property in itself would provide any evidence of its
cri.w.p.3198-2009 & Other Petitions.doc
having been acquired from the proceeds of crime.
Therefore, if the argument is that Section 102 of the
Code is to be interpreted to include immovable property
to ensure that criminals do not walk away with the
property acquired from the proceeds of crime, it would
amount to attempting to put Section 102 to an use to
which it was not intended to provide for.
69. Nothing prevents the Legislature from enacting
provisions like Criminal Law (Amendment) Ordinance or to
include such property in the Schedule to the ordinance
which already exists. As may be seen from the Schedule,
right now stolen properties of the Government/State in
respect of which offences punishable under Section 411 or
414 of the IPC are committed, or properties of the
Government in respect of which offences punishable under
Sections 408, 409, 417 or 420 of the IPC are committed,
cri.w.p.3198-2009 & Other Petitions.doc
is included in the Schedule. Should the Legislature so
decide, it could remove from the Schedule the qualifier
that the property must belong to the State, enabling
attachment of any property which is obtained from the
proceeds of crime. Therefore, the argument that Section
102 ought to be interpreted to include immovable property
in order to prevent criminal from enjoying their ill-
gotten wealth amounts to seeking legislation from the
Court. It may be pointed out that in Tapas Neogy, this
aspect as to whether the property, namely, Bank accounts
could be seized under Section 102 of the Criminal
Procedure Code for the purpose of preventing criminals
from taking advantage of their ill-gotten wealth was not
raised. The question as to whether Section 102 could be
put to such use or whether seizure of immovable property
was permissible under Section 102 even if it was not
found under circumstances which create suspicion of the
cri.w.p.3198-2009 & Other Petitions.doc
commission of offence, had not been raised and so cannot
be said to have been decided even by implication. The
belief that unless Section 102 was interpreted to
include seizure of ill-gotten wealth, increase in
incidents of corruption in public life cannot be
adequately dealt with is belied by the Criminal Law
(Amendment) Ordinance which contains adequate mechanism
for attachment of
such property. Offences under the
Prevention of Corruption Act are included in entry 4A in
Schedule to the Criminal Law (Amendment) Ordinance, 1944.
Therefore, this was not and could not have been the
rationale of the judgment in Tapas Neogy. On the other
hand, we cannot lose sight of the fact that in Tapas
Neogy, in para 6 (quoted earlier), the Supreme Court said
that upon a plain reading of Section 102 that there was a
precondition that "there must have suspicion of
commission of any offence".
cri.w.p.3198-2009 & Other Petitions.doc
70. We may also usefully quote relevant provision of
the Police and Criminal Evidence Act, 1984 in force in
U.K. as under:-
"19.-(1) The powers conferred by subsections (2), (3)
and (4) below are exercisable by a
constable who is lawfully on any premises.
(2) The constable may seize anything which is on the
premises if he has reasonable grounds for believing-
(a) that it has been obtained in consequence of the
commission of an offence; and
(b) that it is necessary to seize it in
order to prevent it being concealed, lost,
damaged, altered or destroyed.
(3) The constable may seize anything which is on the
premises if he has reasonable grounds for believing-
(a) that it is evidence in relation to an
offence which he is investigating or any other
offence; and,
(b) it is necessary to seize it in order to prevent
the evidence being concealed, lost, altered or
cri.w.p.3198-2009 & Other Petitions.doc
destroyed.
(4) The constable may require any information which is
contained in a computer and is accessible from the
premises to be produced in a form in which it can be
taken away and in which it is visible and legible if he
has reasonable grounds for believing-
(a) that -
(i) it is evidence in relation to offence which he
is investigating or any other offence; or
(ii) it has been obtained in
ig consequence of the
commission of an offence; and
(b) it is necessary to do so in order to prevent it
being concealed, lost, tampered with or destroyed.
(5) The powers conferred by this section are in
addition to any power otherwise conferred.
(6) No power of seizure conferred on a constable under
any enactment (including an enactment contained in an
Act passed after this Act) is to be taken to authorise
the seizure of an item which the constable exercising the
power has reasonable grounds for believing to be subject
to legal privilege."
"21.-(l) A constable who seizes anything in the exercise
of a power conferred by any enactment, including an
enactment contained in an Act passed after this Act,
shall, if so requested by a person showing himself-
cri.w.p.3198-2009 & Other Petitions.doc
(a) to be the occupier of premises on which it was
seized ; or
(b) to have had custody or control of it immediately
before the seizure,
provide that person with a record of what he seized.
(2) The officer shall provide the record within a
reasonable time from the making of the request for it.
(3) Subject to subsection (8) below, if a request for
permission to be granted access to anything which-
(a) has been seized by a constable ; and
(b) is retained by the police for the purpose of
investigating an offence,
is made to the officer in charge of the investigation by
a person who had custody or control of the thing
immediately before it was so seized or by someone acting
on behalf of such a person, the officer shall allow the
person who made the request access to it under the
supervision of a constable.
(4) Subject to subsection (8) below if a request for a
photograph or copy of any such thing is made to the
officer in charge of the investigation by a person who
had custody or control of the thing immediately before
it was so seized, or by someone acting on behalf of
such a person, the officer shall-
(a) allow the person who made the request
cri.w.p.3198-2009 & Other Petitions.doc
access to it under the supervision of a
constable for the purpose of
photographing or copying it ; or
(b) A photograph or copy it, or cause it to be
photographed or copied.
(5) A constable may also photograph or copy, or have
photographed or copied, anything which he has power to
seize without a request being made under subsection (4)
above.
(6) Where anything is photographed or copied under sub
section (4)(b) above, the photograph or copy shall be
supplied to the person who made the request.
(7) The photograph or copy shall be so supplied within a
reasonable time from the making of the request.
(8) There is no duty under this section to grant access
to, or to supply a photograph or copy of, anything if
the officer in charge of the investigation for the
purposes of which it was seized has reasonable grounds
for believing that to do so would prejudice -
(a) that investigation ;
(b) the investigation of an offence other
than the offence for the purposes of
investigation which the thing was seized; or
(c) any criminal proceedings which may be
brought as a result of -
cri.w.p.3198-2009 & Other Petitions.doc
(i) the investigation of which he is in
charge; or
(ii) any such investigation as is
mentioned in paragraph (b)
above."
"22._(1) Subject to subsection (4) below, anything which
has been seized by a constable or taken away by a
constable following a requirement made by virtue of
section 19 or 20 above may be retained so long as is
necessary in all the circumstances.
(2) Without prejudice to the generality of subsection(1)
above-
(a) anything seized for the purpose of a
criminal investigation may be retained,
except as a provided by sub section (4)
below___
(i) for use as evidence at a trial
for an offence; or
(ii) for forensic examination or for
investigation in connection with
an offence; and
(b) anything may be retained in order to establish its
lawful owner, where there are reasonable grounds for
believing that it has been obtained in consequence of the
commission of an offence.
cri.w.p.3198-2009 & Other Petitions.doc
(3) Nothing seized on the ground that it may be used -
(a) to cause physical injury to any
person;
(b) to damage property;
(c) to interfere with evidence ; or
(d) to assist in escape from police
detention or lawful custody,
may be retained when the person from whom it was seized
is no longer in police detention or the custody of a
court or is in the custody of a court but has been
released on bail.
(4) Nothing may be retained for either of the purposes
mentioned in subsection 2(a) above if a photograph or
copy would be sufficient for that purpose.
(5) Nothing in this section affects any power of a court
to make an order under section 1 of the Police (Property)
Act, 1897."
"23. In this Act -
"premises" includes any place and, in particular,
includes, -
(a) any vehicle, vessel, aircraft or hovercraft;
(b) any offshore installation; and
(c) any tent or movable structure; and
"offshore installation" has the meaning given to it by
cri.w.p.3198-2009 & Other Petitions.doc
section 1 of the Mineral Workings (Offshore
Installations) 1971 c.61. Act 1971."
70. It may thus be seen that the provisions relating
to seizure in U.K. too do not refer to seizure of
immovable property. The question of interpreting these
provisions had come up in the case of William Cowan v.
Sir Paul Condon, Metropolitan Police Service, [1999) EWCA
(iv 203)] decided on 29-7-1999 in relation to seizure of
a car, since under Section 23, quoted above, a vehicle is
included in the definition of premises, `car' would be
`premises'. It may be interesting to note how the Court
of Appeal dealt with the issue. The Court held:
"In s.19(2) and (3) the constable is given a power to
seize "anything which is on the premises". In s.18(2) the
constable is given power to seize and retain "anything
for which he may search under ss.(1) above". The thing
for which he may search under s.18(1) is evidence on the
premises that relates to the offence for which the person
has been arrested or to some other offence which is
cri.w.p.3198-2009 & Other Petitions.doc
connected with or similar to that offence. Neither
section gives a constable power to seize and retain the
premises as a whole. On the other hand neither section
prohibits the constable from seizing and retaining the
premises as a whole. A constable will not be able to
seize and retain premises when they are immovable
property because of the physical impossibility of doing
so. That practical barrier does not exist where the
premises are readily movable such as a vehicle or a tent
or a caravan. In my judgment there is no reason why the
word "anything" contained in s.18(2) and s.19(2) and (3)
should not include "everything" where the nature of the
premises makes it physically possible for the totality of
the premises to be seized and retained by the police, and
where practical considerations make that desirable. In
this case there were two practical reasons why the
removal of the vehicle to the police station was
desirable and necessary. First, the police wished to
fingerprint the vehicle to see if the fingerprints of any
of the children were to be found in or on the vehicle.
The police would not know where such finger prints might
be found and a thorough investigation required that the
whole vehicle should be available for fingerprinting.
Second, if the vehicle were to be left in the street
opposite the appellant's home, then there would be a high
risk of the vehicle being interfered with by others, for
example the parents of children who had made complaints
who might wish to vent their anger upon it, or those
close to the appellant who believed they might assist him
by interfering with the vehicle.
In those circumstances, I would adopt an interpretation
of the Act which enables the police to carry out
effective investigation, which will normally in the case
cri.w.p.3198-2009 & Other Petitions.doc
of premises which can easily be removed to a police
station, involve the removal of such premises to the
police station so that evidence may be preserved. Such
removal will still be subject to the statutory
requirements relating to retention which are to be found
in s.22 of the 1984 and in Lord Denning's statement of
the common law in Ghani-v-Jones (above). The preservation
of evidence is in the interests of both the general
public and an accused or suspected person."
71. Thus it may be seen that even an English Court
has referred to impossibility of seizure of immovable
property. The test applied was whether the property could
be "removed" to a police station.
72. Judgments in Textile Traders Syndicate Ltd.,
Bulandshahr v. The State of U.P. and others, reported at
AIR 1960 Allahabad 405 (V 47 C 99), M/s.Purbanchal Road
Service, Gauhati v. The State, Opposite Party, reported
at 1991 CRI.L.J.2798, Ms. Swaran Sabharwal, v.
Commissioner of Police, reported at 1988 CRI.L.J.241 and
M/s.Malnad Construction Co., Shimoga, and others, v.
cri.w.p.3198-2009 & Other Petitions.doc
State of Karnataka and others, reported at 1994
CRI.L.J.645 dealing with service of bank accounts need
not be dealt with in view of Judgment in Tapas Neogy.
73. At the cost of repetition we may point out that
when there is adequate provision for attachment of ill-
gotten wealth out of certain offences with sufficient
safeguard of judicial
ig control, which the Legislature
could extend to other species of offences should it so
desire, we cannot opt for interpreting Section 102 in a
manner which may open up unbriddled dabbling in immovable
property by investigating agencies. Even the British
rulers, who should have been interested in strengthening
their rule, expressed weariness, if not suspicion, about
activities of police and investigating agencies and
included sufficient safeguards and controls over powers
of police. In independent India, this will be more valid.
cri.w.p.3198-2009 & Other Petitions.doc
74. The argument that restrictive interpretation of
expression "any property" in Section 102 of Cr.P.C.
would hamper the powers of the Courts to do complete
justice or that such interpretation would render the
Code toothless or that it would make trial Courts
powerless is misleading and flows from a failure to make
distinction between
powers of police and powers of
Courts. Section 102 refers to powers of police to seize
properties. As far as Courts are concerned, the powers
to deal with property which is ill-gotten or is proceeds
of crime need not be sought in the procedural code
itself. First, the Schedule to Criminal Law (Amendment)
Ordinance takes care of even ill-gotten wealth by
corrupt means and property of State misappropriated by
committing an offence.
cri.w.p.3198-2009 & Other Petitions.doc
75. If a private citizen is aggrieved about
misappropriation of his property he can always knock the
doors of a civil Court and such property - if immovable -
is subject matter of such suit it would be virtually
frozen in view of the provisions of Section 52-A of the
Transfer of Property Act. Thus the citizen is not
rendered remedyless nor are Courts rendered powerless to
deal with such a
situation. To insist that only the
criminal Courts ought to be able to exercise such powers
would amount to over-look the purpose of system of
criminal justice - which is to punish the offenders for
the crime committed. The slow and steady obliteration of
distinction between civil and criminal jurisdiction is a
disturbing development which would encroach upon liberty
which a citizen is expected to enjoy. Clamour for greater
powers by police under the pretext of failure to check
crime would result in our State being turned into a
cri.w.p.3198-2009 & Other Petitions.doc
police State. Rather than recognize such drastic powers
in the police, Courts would do well to remind the
uniformed force as also aggrieved citizens to exhaust
legal remedies available under the existing law. Courts
too cannot be oblivious to possibilities of abuse of
powers without adequate safeguards. We may also remind
ourselves of the role of the Courts in as far as criminal
justice is concerned - they are to stand between the
mighty State and the liberty of the citizen and cannot
align themselves with prosecuting or investigating
agencies when the State itself, with power to legislate,
does not do so. To borrow the words of Lord Atkin in his
famous dissent in Liversidge v. Anderson, [Law Reports
citation: (1942) A.C. 206] we cannot be more executive
minded than the executive.
76. We may add that a Bank account, or a Demat
cri.w.p.3198-2009 & Other Petitions.doc
account reflecting the shares of the Limited Company
listed on the Stock Exchange, may similarly be required
to be dealt with during investigation, extract whereof
may be available from the Bank, and may provide
circumstances which would create suspicion of commission
of offence. But we would repeat that it is difficult to
conceive that an immvovable property could be found in
circumstances creating
ig suspicion of commission of
offence to warrant its seizure. The situation at a place
of offence may provide evidence of commission of crime,
such as finding incriminating articles, dead body, blood
stained clothes, weapons, etc.. This has to be
distinguished from finding the immovable property
itself as creating suspicion of commission of crime.
Therefore, on question (a) we hold that the expression
"any property" used in Section 102 of the Code cannot be
given widest possible interpretation to include
cri.w.p.3198-2009 & Other Petitions.doc
immovable property as well, since it is difficult to
conceive that any immovable property could ever be found
in circumstances which may create suspicion of
commission of any offence.
77. As regards Question (b), since it is not
conceivable that any immovable property could ever be
found under the
circumstances which could create
suspicion of commission of any offence, (except the
cases in which the immovable property is itself acquired
from the proceeds of a crime such as in cases of
disproportionate assets under the Prevention of
Corruption Act, 1987 or 1988, and which can be
sufficiently and adequately dealt with by the police
officer during investigation by its attachment under the
Criminal Law (Amendment) Act (supra),) there could be no
question of police officer being in a position to take
cri.w.p.3198-2009 & Other Petitions.doc
control of such immovable property. In view of this, we
hold that police officer may not be required to take
control of any immovable property since such property
could ordinarily not be found under the circumstances
which create suspicion of commission of any offence. The
question (b) is, therefore, answered in the negative.
78. It has been
submitted that due to changing
times, it is necessary to interpret the provisions in a
manner which will ensure that criminals do not reap the
benefits of crime. It is also suggested that delay in
securing an order of attachment from the Court would harm
interest of the victim of crime is fallacious. This
argument, Section 4 of Criminal Law (Amendment) ordinance
enjoining that a District Judge shall pass an order of
interim attachment without delay. It has also to be
observed that the argument overlooks the availability of
cri.w.p.3198-2009 & Other Petitions.doc
other remedies in a Civil Court. The person aggrieved
could always knock the door of Civil Court promptly, and
once he knocks the door of the Civil Court, he could also
have re-course to provisions of Section 52A of the
Transfer of Property Act to secure his interest. It may
be mentioned that forgery, if proved, would not at all
pass on title even to successive holders, and, it would
be easier to prove forgery in a Civil Court than forgery
as a crime before the Criminal Court because of the
different standards of proof.
79. There have been several civil wrongs which have
been treated as crimes also, for which both civil and
criminal remedies are available. Libel or slander is
punishable as offence of defamation. Assault, battery and
mayhem are punishable as offences against human body.
Misappropriation, cheating or forgery could be dealt with
cri.w.p.3198-2009 & Other Petitions.doc
under criminal law, as also civil wrongs of conversion or
trover. This does not mean that Civil remedies are
abolished or can not be resorted to, or can be branded as
inefficacious.
80. Since a reference to change in times has been
made, it may be useful to recall that the proportion of
convictions in Criminal Courts in India is miniscule as
compared to number of charge sheets filed. There is a
growing tendency to add to the burden of already
inadequate police force. Without augmenting their
strength and without enhancing their skills to deal with
the new type of work that is passed on to them, there
would be even more failures. The frustration of a
citizen, who is led to believe that police will take care
of his woes in respect of wrongs to private property,
would be greater when the prosecution fails and his
cri.w.p.3198-2009 & Other Petitions.doc
interests are defeated, than if he is told at the
beginning itself that it would be for him to fight his
own cause in an appropriate Civil Court by seeking
appropriate remedy.
81. In any case, whether police should be taking up
this work is a matter in the realm of policy to be
decided by other pillars of the State and not by the
Court. As a matter of policy, the State has acted by
passing Criminal Law (Amendment) Ordinance providing that
properties which are involved in offences of corruption
and/or properties of only the State which are
misappropriated would be dealt with under the provisions
of the Ordinance. It would be inappropriate for the
Courts to hold that properties of even private
individuals could be dealt with likewise (like fees
wrongfully taken from students by educational
cri.w.p.3198-2009 & Other Petitions.doc
institutions) when the State has chosen not to include
such properties in the Criminal Law (Amendment)
Ordinance.
82. Victimology undoubtedly has a significant place
in Criminal jurisprudence. But this cannot be stretched
too far and only if the victim is under any disability
should there be occasion for the State (or Courts) to
help him. Otherwise, he must pursue such legal remedies
as are available.
83. As regards Question (c), in the light of the
foregoing discussion, we hold that the judgment in
Kishore Shankar Signapurkar v. State of Maharashtra
(supra), and not that in M/s. Bombay Science & Research
Education Institute v. State of Maharashtra (supra) lays
down the correct law and the judgment of the Supreme
cri.w.p.3198-2009 & Other Petitions.doc
Court in State of Maharashtra v. Tapas D. Neogy (supra)
has not been correctly interpreted in M/s. Bombay
Science & Research Education Institute v. State of
Maharashtra (supra). This question is, therefore,
answered accordingly.
84. To sum up, we answer the reference thus:
Q.(a) Whether the words "any property" used in sub-
section (1) of Section 102 of the Code of Criminal
Procedure, 1973 would mean to include "immoveable
property"?
Ans. We, therefore, hold that the expression "any
property" used in sub-section (1) of Section 102 of the
Code does not include immovable property. Question (a)
is, therefore, answered in the negative.
Q.(b) Whether a police officer can take control of any
immoveable property which may be found under
cri.w.p.3198-2009 & Other Petitions.doc
circumstances which create suspicion of the commission
of any offence?
Ans. NO.
Q.(c) Which of the above two judgments lay down
correct law in respect of the powers of a police officer
to seize any immoveable property under Section 102 of
the Code of Criminal Procedure?
Ans. The judgment in Kishore Shankar Signapurkar v.
State of Maharashtra (supra), and not that in M/s.
Bombay Science & Research Education Institute v. State
of Maharashtra (supra) lays down the correct law and the
judgment of the Supreme Court in State of Maharashtra v.
Tapas D. Neogy (supra) has not been correctly
interpreted in M/s. Bombay Science & Research Education
Institute v. State of Maharashtra (supra). This question
is, therefore, answered accordingly.
Q.(d) Whether the law laid down by the Supreme Court
cri.w.p.3198-2009 & Other Petitions.doc
in case of State of Maharashtra v. Tapas D. Neogy (1999)
7 SCC 685 is restricted to seizure of bank accounts only
or it can be extended to immoveable property also, as
interpreted by the Division Bench in the case of M/s.
Bombay Science and Research Education Institute v. The
State of Maharashtra & Ors. 2008 All M.R. (Cri.) 2133?
Ans. The law laid down by the Supreme Court in State
of Maharashtra v. Tapas D. Neogy (supra) is restricted
to seizure of bank account and cannot be extended to
immovable property also, as interpreted by the Division
Bench in M/s. Bombay Science & Research Education
Institute v. State of Maharashtra & Ors. (supra).
(R. C. CHAVAN, J.)
(SMT. ROSHAN DALVI, J.)
cri.w.p.3198-2009 & Other Petitions.doc
On pronouncement of the judgment, Mr. Gadkari, the learned A.P.P., submitted
an oral application for stay.
2. The judgment of the Full Bench only answers the questions of law referred to
it and, therefore, we do not find any compelling necessity to stay the above order.
However, the certified copy of the judgment be made available to the parties on
priority basis.
(B. H. MARLAPALLE, J.)
(R. C. CHAVAN, J.)
(SMT. ROSHAN DALVI, J.)
