This article is written by Shashank Singh Rathor, a student currently pursuing B.A. LL.B. degree from Ideal Institute of Management & Technology and School of Law, Affiliated to G.G.S.I.P.U., Delhi. This article highlights the power provided to the police officials under Section 102 of CrPC and explores the implications of Nevada Properties Judgment on Section 102 of CrPC.
This article has been published by Rachit Garg.
How would you react If I tell you that Section 102 of the CrPC provides police officers with the power to seize any of your property? Imagine, a crime has been committed in your neighbourhood and police seizes your property on the suspicion that you can be the mastermind behind that particular crime. In such a situation, what will you do?
You will probably feel traumatised at that moment, helpless at the power of the police. Well, you might be thinking that you are part of such a country where police can do everything on mere suspicion only. Well if you have such doubts then this article will clear most of the things for you.
This article is going to discuss, what can police exactly seize under Section 102 of CrPC? Moreover, what is beyond the scope of Section 102 of CrPC? Whether police officials are authorized to seize both immovable and movable property under the purview of Section 102 of CrPC or not. This article will also analyze the judgments and the case laws which are directly or indirectly related to Section 102. Moreover, there are also some suggestions and recommendations that can be applied or taken care of, in the further amendments related to the seizure of immovable property by police officials.
There is no such definition of movable property in the CrPC. As per Section 2(y) of CrPC, the terms and expressions defined under Section 22 of IPC would be equally applicable in CrPC as well.
Section 22 of IPC defines the term ‘movable property’ to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth. Thus, any property or thing which is not permanently attached to the earth is stated as the movable property.
Section 102 of the Code of Criminal Procedure
Section 102 of CrPC, 1973 validates the power of police officers to seize certain property.
According to Section 102 –
- Any police officer may seize any property which may be reported or suspected to have been stolen, or which may be found under situations that originate suspicion of the commission of any crime or offense.
- If any lower-ranked police officer other than the in charge of the police station seized the property then he or she would be bound to report about the same to the in charge of the police station.
- Each and every police officer who stands under subsection (1) should have to immediately report the seizure to the magistrate having jurisdiction and in cases where the property is of such kind that it cannot be transported to the court, or if there is difficulty in securing the proper arrangement for the custody of such property, or if the continued detention of property in police custody is not needed for investigation and might not be considered relevant for the investigation, then the police officer may grant custody thereof to anyone on his executing a bond undertaking to produce before the court as and when it required for the execution of the further orders of the court as to the disposal of the same.
It also provides that if the property which was seized under sub-section (1) is subjected to fast and natural decay and the owner of such property is absent or unknown and the worth of such property is less than ₹500 then it might be sold immediately by auction under the orders of the superintendent of police and for such procedure, the provisions defined in Section 457 and Section 458 of CrPC should be applied, as nearly as practically possible for the net proceed of such sale.
This section highlights a few conditions to be fulfilled –
- If the seizing police officer is below the rank of inspector then he or she should immediately submit the report of the seizure to the police station in-charge or senior.
- After that, the senior should have to submit the report of seized property to the magistrate of that jurisdiction.
According to this Section, the power of the police is discretionary, and it does not make it mandatory to seize property in each and every case of robbery, theft, homicide, etc.
Purpose of seizing the property
According to the law, the police may have the power to seize the property of the accused under four main grounds:
- For The Safekeeping
The police have the authority to seize valuable property like money, jewelry, expensive electronics, etc. For investigation of the case and to protect such property from any kind of further damage or crime. Sometimes, police officials do such things to protect it from any kind of tampering by the accused or criminal.
The police have the power to seize certain property if they believe that such property was taken into use for the commission of the crime or procured during the commission of that crime.
Examples of some properties that can be forfeited:
A. Certain vehicles can be forfeited in a variety of situations or circumstances, which are somehow related to the crime or offense.
B. The amount of money that might be given or taken for some criminal offense like for unlawful dealings of drugs or illegal gambling.
C. Any kind of electronic devices of the suspected persons, which are somehow connected to that particular crime or offense.
3. Contraband- In simple terms, contraband refers to such property which might be seized by police officers because it’s already a crime to have such things in the first place. These kinds of property include illegal drugs, unlicensed handguns, etc.
The police can detain the property, which can help to form the evidence against the accused person.
Nevada Properties Private Limited Through Its Directors v. The State of Maharashtra And Another
Nevada Properties Private Limited through Its Directors v. The State Of Maharashtra and Another (2019) settled the issue by stating that the word any property under section 102 CrPC does not include immovable property.
Facts of the case
The appeal in the following case arose due to a special leave petition filed by Nevada Properties Pvt Ltd before the Supreme Court of India, on the judgment given by Bombay High Court “in Kishore Shankar Signapurkar v. The State of Maharashtra”, the single judge bench held that the term “any property” coined in the sub-section (1) of Section 102 of CrPC does not include immovable property and hence, the police authority cannot take custody of or seize any immovable property for investigation even if that immovable property reasonably doubtful or found suspicious in between investigation of the crime or offense.
However, the police authority is not barred or prohibited from seizing any documents or papers of title correlated with the immovable property, as the same is different from the seizure of immovable property.
- The question before the Hon’ble Supreme Court was, whether immovable property comes under the expression “any property” under Section 102, i.e., Seizure of Code of Criminal Procedure or not?
The verdict was pronounced by the three-judge bench comprising the Chief Justice of India Ranjan Gogoi, Justice Sanjiv Khanna, and Justice Deepak Gupta.
- Firstly, the Bench analyzed the motive of the legislature behind the enactment of this particular provision. The Court observed that the main intention behind making this provision is to authorize the police authority to seize such property which might be found in such a situation which creates suspicion of the commission of any crime or offense at that place. But in the strict sense, only movable property can be taken into custody or seized, not the immovable one. Although the documents or papers related to the suspicious immovable property can be seized, specifically the immovable property cannot be seized.
- The Court furthermore stated that as per the concern of seizure or custody of immovable property, Section 145 and 146 of CrPC could come into effect as per the law. However, Section 102 of CrPC is not entitled to authorize or allow the police authority to dispose of a man from his immovable property for the sake of investigation.
- The Hon’ble Court also examined the expression “situations which might create doubt or suspicion of the commission of any criminal offense”. The Court stated that mere ‘suspicion’ is a wider and weaker term when it comes to justifiable satisfaction, Section 102 of CrPC doesn’t permit or empower the police officers to have the firm opinion and evaluate or adjudicate on the affairs of immovable property. The Court further stated that it couldn’t be forgotten that adjudication is the power of the Court; the function of the police is to investigate any offense. By encompassing the seizure of immovable property under the realm of Section 102 of CrPC, the police will be having the extreme power to seize someone’s immovable property based on their mere presumption. Further, the Court also mentioned that the matter or dispute regarding land, house, etc. comes under the jurisdiction of the civil court, and any such inappropriate attempt to convert a civil matter into a criminal dispute should be discouraged.
The Court took into account the following case laws –
- Teesta Atul Setalvad v. The State of Gujarat
In“Teesta Atul Setalvad v. The State of Gujarat,” the petitioner pleaded that the continued seizure of her bank account by the police authority is not valid as it does not amount to be property and is not related to the crime, so her account should be defreezed. The Court after analyzing the case ruled that the bank account comes under the realm of Section 102 of CrPC and the same would be counted as property and freezing of bank account by police under Section 102 is valid. The Hon’ble Supreme Court, in this case, overruled the judgment of the Bombay High Court in The State of Maharashtra vs.Tapas Neogy where the respective High Court opined that the bank account of an accused does not amount to a property and the same cannot come under the realm of the property so the bank account could not be seized under Section 102.
- Binod Kumar v. The State of Bihar
In the Binod Kumar vs. The State of Bihar case, the plaintiff had filed a case in the civil court due to the unaccomplished construction of the building in the given time. Eventually, the respondent filed a criminal complaint in the civil case for non-payment of the decided amount for constructing that building. The Hon’ble Supreme Court went on to rule that any attempt to convert the civil dispute into a criminal one should be discouraged.
- RK Dalmia etc v. Delhi Administration
In the RK Dalmia etc. vs. Delhi Administration case, the Supreme Court ruled that the expression ‘any property’ in sub-section (1) of Section 102 of CrPC has to be elucidated as per the definition mentioned under the Indian Penal Code 1860, which is not exclusively restricted to movable property. In fact according to the Indian Penal Code 1860, whether the particular property comes under the purview of the particular provision or not, all depends on whether that specific property is subjected to any criminal offense or not.
- The State of Gujarat and Others v. Utility Users’ Welfare Association and Others
In The State of Gujarat and Others v. Utility Users’ Welfare Association and Others case, the Supreme Court of India adjudged that to find whether a case will set a precedent or not, it all depends on the structure of the framed proposition by the Court. The Court should frame the supposed proposition carefully and then insert the word reversing its meaning. If the answer is contrasting, then the case will set a precedent and vice versa.
The majority judgment of the Supreme Court of India backed the earlier judgment of Bombay High Court and held that in Kishore Shankar Signapurkar v. The State of Maharashtra, the Bombay High Court laid down the law correctly and the judgment of the same High Court in Bombay Science and Research Education Institute v. The State of Maharashtra and Ors did not lay down the law correctly.
Justice Deepak Gupta, “one of the judges in the panel,” delivered the separate concurring verdict. He clarified that under Section 102 of CrPC, police are authorized to seize any property that might be suspected to have been stolen. Moreover, adding on to this he said that theft or robbery can be done of movable property, not of immovable property. The term ‘seized’ has been taken into use for the actual physical custody of certain property.
He further stated that as per subsection 3 of Section 102 of CrPC, if the property is of such kind that it is tough to transport it to be produced in the court or it is very difficult to provide such accommodation to take custody of that property, then such property can be handed over to anyone on executing a bond. It indicates that the property must be capable of being produced before the Court and also be capable of being kept inside some accommodation. However, this is not possible with immovable property. Furthermore, he added that in the dispute between the landowners and tenants, if the rented property would be seized then it would be a mockery of rental laws.
Justice Deepak Gupta further mentioned that in such circumstances where a person forges a will, “the ‘will’ would be seized, not the willed property”. Because in such a situation the seizure of immovable property will create a chaotic problem.
A short analysis of the case
The Nevada Properties Private Limited through Its Directors v. The State Of Maharashtra And Another is one of the crucial judgments pronounced by the Hon’ble Supreme Court. As the consequences of this verdict might be far-reaching and most importantly this judgment demarcated the power of police officers provided under Section 102 of CrPC.
The verdict pronounced by the Court was completely justified and correct. The Court concurred that the immovable property should not fall under the expression “any property” mentioned in subsection (1) of Section 102 CrPC due to the following reasons:
- The term ‘seize’ in Section 102 CrPC clearly remarks that the rationale behind this Section is to take physical custody of the property.
- The immovable property is something that could not be physically seized or taken into custody, it could only be attached or sealed.
- As per chapter VIIA of CrPC, the power to annex or seal any immovable property lies with the Court only.
- According to Section 102, the seizable property is suspected to have been stolen, robbed, etc. but an ‘immovable’ property cannot be stolen.
- Subsection (3) of Section 102 clearly says that the property must be of such type that could be produced and accommodated before the Court; both these things are impossible with the immovable property.
Thereupon, it can be interpreted from the above contentions that the police officers are not empowered to attach, seal and seize an immovable property.
Law Commission Report
The 154th Law Commission Report presented by the Law Commission of India under the chairmanship of Justice K. Jayachandra Reddy led forward a legal reform on CrPC which also highlighted the need to change in Section 102 of the code.
The right to a speedy trial is protected in the Criminal Procedure of our nation. So, to achieve the same, an amendment was made into Section 102(3) of CrPC and a proviso clause was added to ensure that there shouldn’t be any kind of damage to the property due to the conduct of the Court.
Under Section 102(3) of CrPC, the inclusion of the words like ‘difficulty in proper accommodation or continued retention of property in police custody not considered necessary’, making it easy for the Indian courts to interpret the section with more clarity.
Comparative analysis along with other countries
For the sake of investigation, sometimes it is necessary to take custody of any suspicious property of an accused, as it is a crucial part of the investigation which might give some clue to the investigating officer and can help him to move forward in the further investigation. Nevertheless, it should also be taken into account that during this phase the rights of the accused person would be least likely to be violated and the authority must take utmost care of this.
Following are the rules and provisions of law associated with the seizure of property in other countries:
Following Section 489 of Canadian Criminal Procedure,1985 the Canadian police officers may seize any property with or without a warrant which they have appropriate grounds to believe that it was procured by or in the commission of the crime that infringes this or any other act of Parliament. Thus, in Canadian Criminal Procedure, there is no such bifurcation between movable and immovable property for the seizure by the police authority, which is contradictory with the Indian Court’s judgment.
The seizure of any property in the US comes under the realm of civil forfeiture and criminal forfeiture. In the US, the police authority is empowered to seize not only movable property but also immovable property which might be suspected to be used or engaged with any sort of crime.
- South Africa
The Criminal Procedure Act, 1977 of South Africa prominently affirms that police may seize anything, provided they provide proof of the commission of the crime in the Republic or elsewhere or provide proof of the fact that the commission of the crime was planned. Furthermore, according to the verdict of the Court of South Africa, it was held that the term seizure not only comprises taking possession of the suspected property but also subsequent detention of the same.
Seizure of bank accounts and money under Section 102 CrPC
The Madhya Pradesh High Court, in the case of Bhimji Ramji Gujrathi v. Emperor (1944), held the seizure of the bank account as legal. In the given case, the police had caught the accused with a certain amount of money in their possession due to certain information that was received regarding an alleged illegal trade. The Court held the seizure of this money to be valid under Section 102 CrPC.
In another judgement, the Supreme Court in the case of State of Maharashtra v. Tapas D. Neogy(1999) held that the police have the power to seize the bank account of an accused under Section 102 CrPC as the term ‘property’ also includes bank accounts within its scope. This observation of the Supreme Court was reiterated even in later judgements. The Supreme Court in the judgement of Teesta Atul Setalvad v. State of Gujarat(2018) placed its reliance on the judgement of Tapas D. Neogy and held that the account of the accused or anyone else who is associated with the said offence can be seized upon suspicion or any link that is directly associated with the said offence. The Court also held that nothing in Section 102 CrPC requires the police to issue a prior notice before such a seizure to the accused and that the application for de-freezing of the account can be made by the accused upon the completion of the investigation.
However, this stance of the Supreme Court has not always remained the same. The Court, in various cases, has also ordered the de-freezing of accounts by holding that a bank account cannot be treated as “property” under Section 102 CrPC. For instance, the Supreme Court in the case of Swaran Sabharwal v. Commissioner of Police (1987) held that in case it is found that the seizure took place on false suspicion, the police authorities will be directed to pay compensation to the accused.
Further, the Gauhati High Court, in the case of Purbanchal Road Service v. State(1990), held that for section 102 CrPC to apply, it is important that an actual seizure take place. The Court went on to explain that “seizure” implies actual possession of property and, therefore, merely putting restrictions on a bank account cannot be termed as a “seizure” within the meaning of Section 102 CrPC. The Court has also strictly held in the case of Jayendra Saraswathy Swamigal (2) v. State of T.N.(2005) that a bank account cannot continue to be seized once the investigation is complete.
Seizure of oxygen cylinders during COVID-19 : legal or illegal under Section 102 CrPC
The Delhi High Court, in the case of Matrix Cellular (International) Services Ltd. v. State (NCT of Delhi) (2021), addressed the seizure of oxygen cylinders and other medical equipment sold in the black market (sold at high profit margins) during the second wave of the COVID-19 pandemic that witnessed a low demand for oxygen cylinders throughout Delhi NCR. High profile names like Khan Chacha and Dayal Opticals were also named in this case. On the issue of the seizure of the oxygen cylinders by the police being illegal, the Court held that Section 102 CrPC allows the police to seize any property that is under suspicion of being stolen or is found under suspicious circumstances that imply the commission of an offence. The Court, on this basis, held the seizure of oxygen cylinders under Section 102 CrPC as legal since the cylinders were found under suspicious circumstances and the accused were found to be in violation of COVID-19 protocols and lockdown measures.
Suggestions and recommendations
- As our Hon’ble Supreme Court excluded the seizure of immovable property from the domain of Section 102 of CrPC, it means the police officials will not be able to seize any kind of immovable property by using the power provided under this Section. Our legislature must amend Section 102 of CrPC to clarify that the term any property used in the respective section only talks about the movable property and immovable property will not be counted under the realm of Section 102 of CrPC anymore. This should be done to avoid any sort of confusion in the future and make it easy to interpret.
- Moreover, snatching complete jurisdiction from police officials regarding the same could be detrimental in some cases. As in certain cases, the immediate seizure of not only of the movable but also of the immovable property is required as sometimes it’s necessary to prevent the evidence from any kind of tampering from the suspected person and it should also be taken care of that the case of prosecution might not hamper due to any kind of tampering with the evidence. So, taking into account such unforeseeable situations, certain provisions should be inserted or amended.
- Last but not the least, while seizing any immovable property by the police official, the order or permission of the magistrate should be made put forth as mandatory and the magistrate may be empowered to have jurisdiction in such cases and may grant permission depending on the severity of the crime. So, a speedy process can be initiated against the accused or offender in serious crimes and the police might have some authority to take fast action in such circumstances, before any kind of tampering with the evidence and the orders from the magistrate can be taken at an early stage. So, the property could be sealed and taken into custody as early as possible, which may further help the prosecution to prove their facts.
For many years, in the Indian courts, it was a sizzling topic of debate whether immovable property comes under the realm of Section 102 CrPC or not. With the Nevada properties judgment, the Court ultimately deduced that the immovable property can not be seized under Section 102 CrPC.
The Division Bench explored numerous circumstances in which the immovable property can be seized or taken into custody and how it might harm the various other provisions of the law. The statutes like the Indian Forests Act, 1927 and the Narcotic Drugs and Psychotropic Substance Act, 1985 also have provisions to seize ‘movable property’ by the concerned officers only.
As of now, we all know that Section 102 talks about such properties which might be suspected or alleged to have been stolen or robbed. But this is something that is not possible with the immovable property as it cannot be stolen or robbed.
The verdict of the Apex Court in Nevada Properties Judgement has very well demarcated the expression ‘any property’ in subsection (1) of Section 102 CrPC. The Court’s decision that the immovable property is not incorporated in Section 102 of CrPC, will resolve the various concerns and also protect the rights of an accused person.
Frequently Asked Questions(FAQs)
Can immovable property be seized under Section 102 CrPC?
As per the judgement of the Supreme Court in the case of Nevada Properties Private Limited through Its Directors v. The State of Maharashtra and Another (2019), immovable property cannot be seized under Section 102 CrPC.
Is it required for the police to serve a notice to the accused before seizing the bank account?
As per the judgement of the Supreme Court in the case of Teesta Atul Setalvad v. State of Gujarat(2018), the police are not required to serve any notice to the accused before seizing the bank account under Section 102 CrPC.
Can the police continue to seize the property even when the investigation is over?
As per the judgement of the Supreme Court in the case of Jayendra Saraswathy Swamigal (2) v. State of T.N.(2005), a bank account cannot continue to be seized once the investigation is complete.
- Nevada Properties Private Limited Through Its Directors v. The State of Maharashtra And Another, (2019) SCC Online SC 1247.
- Indian Penal Code, 1860
- Criminal Procedure Code, 1973
- Kishore Shankar Signapurkar v. The State of Maharashtra, 2003 (4) MhLj 938.
- M/s. Bombay Science and Research Education Institute v. The State of Maharashtra and Ors., (2008) All M.R. (Crl.) 2133.
- Teesta AtulSetalvad v. The State of Gujarat, (2018) 2 SCC 372.
- State of Maharashtra v. Tapas D. Neogy, (1999) 7 SCC 685.
- Binod Kumar v. The State of Bihar, (2014) 10 SCC 663.
- R.K. Dalmia etc. v. Delhi Administration, AIR 1962 SC 1821.
- The state of Gujarat and others v. Utility Users’ Welfare Association and Others, (2018) 6 SCC 21.
- Canadian Criminal Procedure, § 489.
- Indian Forests Act, 1927.
- Narcotic Drugs and Psychotropic Substance Act, 1985.
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