In the present case, a three-judge bench of Chief Justice Ranjan Gogoi, Justices Deepak Gupta and Sanjiv Khanna gauged the scope of the term “any property” in Section 102 of the Code of Criminal Procedure. The bench held that the said term would not include immovable properties in its ambit. It further clarified that under Section 102 of CrPC, a police officer does not hold any power to attach, seal and seize an immovable property.
Section 102 CrPC: Power of police officer to seize certain property
This provision of the Code deals with the power of a police officer to seize certain property. Sub-section (1) of the provision states that “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”.
The Ruling of Bombay High Court and Reference to Three-judge bench
The majority judgment of the full bench of the Bombay High Court had ruled that the term “any property” used in sub-section (1) of Section 102 of CrPC does not include immovable property, and, as a result, a police officer investigating a criminal case cannot take custody of and seize any immovable property. While scrutinising the appeals against this judgment [Nevada Properties Private Limited Vs. Territory of Maharashtra], the top court bench had referred the case to a larger bench keeping the serious and expansive consequences of the issues in mind.
Tapas D. Neogy Judgment and its relevance
The apex court held that the said judgment did not deal with the issues at hand. Tapas D. Neogy judgment was referred to because the minority judgment of the Bombay High Court had relied on the Supreme Court judgment in State of Maharashtra v Tapas D. Neogy. It was being relied upon to hold that the expression “any property” would cover immovable properties as well. In the case of Tapas D. Neogy, the Supreme Court observed, the apex court had to decide upon whether the bank account of an accused or any relation of his would constitute as ‘property’ under Section 102 of CrPC. If it would, then whether the Investigating Officer would be entitled to seize the bank account or issue a prohibitory order precluding the operation of the bank account. In the said case it was held that the bank account of an accused or any of his relation would constitute a “property” under Section 102 of the CrPC. It was further held that an Investigating Officer can seize such bank accounts or can restrain their operations. It could be done if the assets had a direct connection with the commission of the offence for which the police officer is carrying out the investigation.
Money- not an immovable property
The bench made the following observation while explaining the gist of Tapas D. Neogy judgment:
“Money, as per clause (7) of Section 2 of the Sales of Goods Act, 1930, is neither goods nor movable property, albeit Section 22 of the 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. The expression ‘movable property’ has not been specifically defined in the Code. In terms of Section 2(y) of the Code, words and meanings defined in the IPC would equally be applicable to the Code. Money, therefore, would be property for the purposes of the Code. Money is not an immovable property”.
After discussing the reference made to the said judgment at length, the bench concluded that the case did not address the question that whether Section 102 of CrPC includes immovable property within the expression “any property”.
Immovable property- Unseizable
The bench made the following observation while delineating the breadth of Section 102, CrPC:
“Section 102 postulates seizure of the property. Immovable property cannot, in its strict sense, be seized, though documents of title, etc. relating to immovable property can be seized, taken into custody and produced. Immovable property can be attached and also locked/sealed. It could be argued that the word ‘seize’ would include such action of attachment and sealing. Seizure of immovable property in this sense and manner would in law require dispossession of the person in occupation/possession of the immovable property, unless there are no claimants, which would be rare. Language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossess a person in occupation and take possession of an immovable property in order to seize it. In the absence of the Legislature conferring this express or implied power under Section 102 of the Code to the police officer, we would hesitate and not hold that this power should be inferred and is implicit in the power to effect seizure. Equally important, for the purpose of interpretation is the scope and object of Section 102 of the Code, which is to help and assist investigation and to enable the police officer to collect and collate evidence to be produced to prove the charge complained of and set up in the charge sheet. The Section is a part of the provisions concerning investigation undertaken by the police officer. After the charge sheet is filed, the prosecution leads and produces evidence to secure conviction. Section 102 is not, per se, an enabling provision by which the police officer acts to seize the property to do justice and to hand over the property to a person whom the police officer feels is the rightful and true owner. This is clear from the objective behind Section 102, use of the words in the Section and the scope and ambit of the power conferred on the Criminal Court vide Sections 451 to 459 of the Code”.
Documents of title pertaining to immovable property- Seizable
Being distinct from seizure of immovable property, an Investigating Officer can seize the papers or documents of title relating to the immovable property, the bench clarified.
Civil courts- the adjudicator of disputes related to immovable properties
The top court emphasised on the point that the civil disputes ought not to be converted into criminal ones to put pressure on the other side. It said that the courts should dissuade such attempts. It noted that the disputes pertaining to title, possession, etc., of the immovable properties are civil disputes and should be adjudicated by the civil courts only:
“Given the nature of criminal litigation, such seizure of an immovable property by the police officer in the form of an attachment and dispossession would not facilitate investigation to collect evidence/material to be produced during inquiry and trial. As far as possession of the immovable property is concerned, specific provisions in the form of Sections 145 and 146 of the Code can be invoked as per and in accordance with law. Section 102 of the Code is not a general provision which enables and authorises the police officer to seize immovable property for being able to be produced in the Criminal Court during trial. This, however, would not bar or prohibit the police officer from seizing documents/ papers of title relating to immovable property, as it is distinct and different from seizure of immovable property. Disputes and matters relating to the physical and legal possession and title of the property must be adjudicated upon by a Civil Court”.
Situations to go haywire if held in else manner
The expression “circumstances which create suspicion of the commission of any offence” within Section 102 of the Code does not mean a positive opinion or a finding by a police officer to determine whether or not ‘any property’ is seizable or not. The court stated:
“The word ‘suspicion’ is a weaker and a broader expression than ‘reasonable belief’ or ‘satisfaction’. The police officer is an investigator and not an adjudicator or a decision maker. This is the reason why the Ordinance was enacted to deal with attachment of money and immovable properties in cases of scheduled offences. In case and if we allow the police officer to ‘seize’ immovable property on a mere ‘suspicion of the commission of any offence’, it would mean and imply giving a drastic and extreme power to dispossess etc. to the police officer on a mere conjecture and surmise, that is, on suspicion, which has hitherto not been exercised”.
Concurring opinion by Justice Deepak Gupta
In a likewise manner, Justice Deepak Gupta put forth his opinions in a separate but concurring judgment. He also stated that the term “any property” in Section 102 of CrPC would not include any immovable property within its scope. He observed that the power of attachment and forfeiture rests with the courts and not with the police officers. He further opined that if such power to seize immovable properties would be extended to the police officers then it may lead to an absurd situation. He gave few illustrations to make his point: “To give an example, if there is a physical fight between the landlord and the tenant over the rented premises and if the version of the appellant is to be accepted, the police official would be entitled to seize the tenanted property. This would make a mockery of rent laws. To give another example, 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”.