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THE POWER OF A POLICE OFFICER TO SEIZE PROPERTY U/S. 102 CR.PC HAS TO BE LIMITED TO MOVABLE PROPERTY

NEVADA PROPERTIES PVT LTD v. STATE OF MAHARASHTRA &  ANOTHER, Criminal Appeal No. 1481/2019, SLP 1513/2011- 24th September, 2019

CORAM: Single Judge Bench comprising of Justice Deepak Mehta

It was being held in the above case that “The power of a police officer to seize a property under Section 102 of the Criminal Procedure Code is to be limited only to movable property and not immovable property.”

This is an appeal case which had arisen from the High Court of Judicature of Bombay on 29th November, 2010 wherein the majority judgement held was the term ‘any property’, under Section 102(1) of the Code of Criminal Procedure, 1973, does not comprise of immovable property and only refers to immovable property. So, the police officer who is in charge of investigating a criminal case cannot take over the custody and seize the property which is found under the circumstances that lead to creation of suspicion of any offence, while the minority judgement view held was that the police officer does have the power to seize any property under Sub section (1) of Section 102 of the Code of Criminal Procedure, 1973, irrespective of the property being movable or immovable in nature

The question of law is as to whether the seizure of property by a police officer is only limited to movable property or not?

To decide the controversy of the primary legality of this case, the case was taken into the hands of the Supreme Court. They decided to examine the provision relating to seizure of property under Section 102 of Code of Criminal Procedure, 1973.

S.102 – Power of the police officer to seize certain property

(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, 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 u/s.102(1) is subjected to speedy & natural decay & if the person is entitled to the possession of such a property is unknown or absent & the value of such property is less than the value of five hundred rupees, it may forthwith be sold under an auction  under the orders of the Superintendent of Police & the provisions of Section 457 & Section 458, shall as nearly as may be practicable, apply to the net proceeds of such a sale.

Section 102 comes under Chapter VII of the Code of Criminal Procedure, 1973. The chapter is divided as Part A – Summons to produce, Part B – Search Warrants, Part C – General provisions relating to searches & Part D – Miscellaneous & Section 102 falls under Part D

Section 451 of the Code of Criminal Procedure, 1973 was also examined in which it stated that it empowers the Criminal Court to pass an order of proper custody of ‘any property’ which has a pending trial or inquiry

Section 452 too was examined in which it stated that when an inquiry or trial in a Criminal Court concludes, the Court may make an order as it thinks to be fit for the disposal, by destruction or by confiscation or by delivery to any person who claims to be entitled to the possession of the property thereof or otherwise.

The contention of the Appellant is substantially predicated on the term ‘any property’ under sub section (1) of Section 102 of the Code of Criminal Procedure, 1973, i.e., they contended that a police officer has the power to seize a property which is immovable or movable if it is put to illegal purposes or alleged or suspected to have been stolen or the property is being found in the circumstances of the case which leads to a reasonable amount of suspicion. The counsel on behalf of the appellant also urges that the word ‘any property’ is of a very wide amplitude & therefore will cover both movable as well as immovable property, while on the other hand, it is contended by the respondents that in the context in which the term ‘any property’ is used in Section 102 of the Code of Criminal Procedure, 1973 has to be limited to movable property & it cannot be extended to immovable property.

If a person forges a will and thereby claims property on the basis of the forged will, can the police officer be given the power to seize the entire property, both movable and immovable, that may be mentioned in the will?  The answer has to be in the negative.  Otherwise it would lead to an absurd situation which could never have been envisaged by the Legislature.  The power of seizure in Section 102 has to be limited to movable property.

The Court observed that though the arguments of the appellant sound quite appealing, because the term ‘any property’ would imply description of any type of property, yet there is a well settled principle of statutory interpretation which holds that while construing the words of a statute, it should be read in such a manner that they fit into the section & in the context of the purpose which is sought to be achieved by that particular provision of law. It was also observed that it is impossible to steal immovable property (for example land, building, etc.) just like how movable property (for example cash, jewellery, etc.) can be stolen. The Court also observed & examined the following provisions falling under the Code of Criminal Procedure, 1973 & they are as follows:

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 the 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

105A (d) – ‘Property’ means property & assets of every description whether it is corporeal/incorporeal, movable/immovable, tangible/intangible/deeds/instruments.

S. 105C (1)Where an Indian Court has reasonable grounds to believe that a person has obtained a property, directly or indirectly by the commission of an offence, it can make an order of attachment or forfeiture of such property

Since the Court felt that if a police officer is given the power to seize an immovable property, it might lead to absolutely chaotic situations and so they held that the power of a police property to seize property is limited to movable property.

Nardhana Ram

by Adv. Sathish Kumar.

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