November 27, 2020

Case Brief: Nevada Properties Pvt. Ltd Through Its Director Ltd. v State of Maharashtra

Court: Supreme Court of India

Citation: (2019) SCC OnLine SC 1247

Coram: Before C.J.I. Ranjan Gogoi, J. Deepak Gupta, J. Sanjiv Khanna

Theme: Whether the term any property under Section 102 of CrPC includes immovable property or not

Subject: Criminal Procedure Code, 1973

Judgement: India

FACTS

Present appeal stems from judgment of the High Court of Judicature at Bombay dated November 29, 2010 wherein the majority judgment has held that, the expression ‘any property’ used in Sub-section (1) of Section 102 of CrPC does not include immovable property and, consequently, a police officer investigating a criminal case cannot take custody of and seize any immovable property which may be found under circumstances which create suspicion of the commission of any offence. According to the majority judgment, earlier decision of the Division Bench of the same High Court in Kishore Shankar Signapurkar v. State of Maharashtra and Ors.[1] lays down the correct ratio and the antithetical view expressed in M/s. Bombay Science and Research Education Institute v. The State of Maharashtra and Ors.[2] does not lay down the correct law. The minority view holds that the police officer has power to seize any property, whether movable or immovable, under Section 102 of the Code and the decision of the Division Bench in M/s. Bombay Science and Research Education Institute lays down the correct law and the ratio in Kishore Shankar Signapurkar is not good law.

ISSUE

The question before the Hon’ble Supreme Court is that whether Immovable property is covered under the expression “any property” under section 102, i.e., Seizure of Code of Criminal Procedure or not?

RULES

Code of Criminal Procedure, 1973

  • Section 2(y): Definition Clause
  • Section 83: Attachment of Property of person absconding
  • Section 105C: Assistance in relation to orders of attachment or forfeiture of property
  • Section 120: Power of the police officer to seize certain property
  • Section 145 &146: Disputes as to immovable property
  • Section 165: Search by police officer
  • Section 451 to 457: Deals with Disposal of Property

Indian Penal Code, 1860

  • Section 405: Criminal Breach of Trust
  • Section 22: Defines Moveable Property
  • Sales of Goods Act, 1930
  • Section 2(7): Definition of “Goods”

RATIO DECIDENDI

The three judge bench of Supreme Court held that:-

“The phase ‘any property’ in Section 102 Code of Criminal Procedure will only cover moveable property and not immovable property”

JUDICIAL APPROACH

Teesta Atul Setalvad v. State of Gujarat[3] is a case in which Supreme Court dismissed Teesta’s plea seeking de-freezing of her accounts saying that:

“The Investigating Officer was in possession of materials pointing out circumstances which create suspicion of the commission of an offence”

In State of Maharashtra v. Tapas D. Neogy[4], the question before the judiciary was whether bank account of an accused or any relation of the accused was ‘property’ within the meaning of section 102 of CrPC or not. It was held that bank accounts were within the meaning of word ‘property’ and police officer could seize or prohibit their operation provided they have a direct link with the commission of offence.

R.K. Dalmia etc. v. Delhi Administration[5]is a case in which the meaning of property was interpreted as per sections of Indian Penal Code, 1860 and held that meaning was not restricted to moveable property only. In fact, under IPC if a particular section will cover which type of property will depend on whether that particlur property can be subject to such an offence or not.

State of Gujarat and others v. Utility Users’ Welfare Association and Others[6] states that in order to find whether a case is precedent for a proposition or not, court must frame supposed proposition carefully and then insert a word reversing its meaning. If answer if contradictory, case is a precedent and vice versa.

In Binod Kumar v. State of Bihar[7], plantiff filled the case due to non completion of the construction of building within stiputaed time. Later, due to non payement of stiputaed amount, the respondent in the civil case filled criminal complaint. Therefore, it was held that criminal proceedings are no shortcut to civil remedies and thus same must be discouraged.

In N. Madhavan v. State of Kerala[8], person was charged for shooting dead with his 12 bore licensed gun. Supreme Court held that confiscation of gun was arbitrary and cannot be susutained. Therefore, Section 452 grants court discretion to dispose of property in any of three modes, i.e., destruction, confiscation or delivery to person entitled to possession.

LAW COMMISSION REPORT

The 154th Law Commission Report given by Law Commission of India under the chairmanship of Justice K. Jayachandra Reddy brought forward a legal reform on Code of Criminal Procedure which too brought a change to section 102 of the code.

The right to speedy trial is protected in the criminal procedure of our country.[9] In order to ensure the same, amendment was made to section 102(3) if CrPC and a proviso clause was also added so as to avoid any damage caused to the property due to the conduct of the court.

Under section 102(3), by addition of the words like ‘difficulty in proper accommodation or continued retention of property in police custody not considered necessary’, it became easy for the court to interpret the section with more clarity and proviso clause helped the magistrate to give orders for auction of property if subject to natural decay or of perishable nature which would prevent damage to the property and bring it in use.

ANALYSIS

Legislative Analysis

It has been rightly said by the judiciary under the said case that section 102 will not include immovable property and it is so because of the following reasons:

a) Sub-section (1) of Section 102 says that property in terms of one which may be alleged or suspected to be stolen. Therefore immovable property cannot be stolen and therefore does not fall under this head.

b) The word ‘seized’has been used to mean physical custody of the property.

c) With a reading to sub-section (3) of Section 102, it indicates that property must be capable of production in and also, kept inside some accommodation. This however is not possible with immovable property.

d) Also, it is the power of the court to issue attachment and forfeiture of any property as stated under Chapter- VII-A of the code.

e) Section 102 states seizure of property and immovable property in its strict sense can only be attached or sealed.

Therefore, a conclusion can be drawn from the above argument that police officer does not have the power to attach, seize and seal an immovable property.

Also, under The Indian Forest Act, 1927, it has been clearly mentioned that every police officer has the power to seize forest produce, which is defined under section 2(4)[10], along with tools, boats or cattle used in commission of offence.[11] Further the act states that any property which is of perishable nature and would result in speedy decay may be sold with direction of Magistrate.[12] This provision supports the proviso clause provided under 102 of CrPC. As per The Transfer of Property Act, 1882, says that immovable property does not include standing timber, growing crops or grass.[13] Therefore, under The Indian Forest Act also, the police officer has the power to seize movable property only thereby supporting the contention of the supreme court.

Next, The Narcotic Drugs and Psychotropic Substance Act, 1985 clearly mentioned the provision regarding power of seizure by the police officer[14] wherein he has immense power to seize any drug along with any animal or conveyance etc. which he has a reason to believe has been used in the course of crime. But for the seizure or immovable property he has to refer to Chapter- V-A wherein authority from the competent authority is required.

Therefore, in the current case, the bench was justified in excluding immovable property under section 102 of CrPC as such a situation would create a very confusing environment.

Judicial Analysis

Indian judiciary since 1990s have tired to interpret the meaning of the term ‘property’ under section 102 of Code of Criminal Procedure. With such a long lasting debate and a long list of precedents, the Supreme Court of India came forward with a view that section 102 will strictly adhere to moveable property and not immovable as all the characteristics of the section support this contention.

In Tapas D. Neogy’s[15] case, for the first time such question regarding bank accounts were raised which was rightly answered by the court of law. Along the path, new principles also came forward like ‘criminal cases cannot be used as a shortcut for civil remedies, etc.’ or how to find whether a case is a precedent or not.

Also, on plain reading of section 102 of Code of Criminal Procedure, it is quite evident that the section gives power to police officers only to seize moveable property and not immoveable property as such power of seizure and disposal of immovable property has been vested with the court of law under Section 451 to 457 of the code.

COMPARITIVE ANALYSIS WITH OTHER COUNTRIES

Search and Seizure procedure carried out by the law enforcement officers is done with a perspective to gain sufficient evidence to ensure the arrest and conviction of the offender. The latitude allowed to police officers and other law enforcement agencies varies from country to country along with the variance in protection given to individual rights of the accused person. Such variation in seizure laws in stated as below:-

a) U.S. Constitution

The Civil Forfeiture and Criminal Forfeiture apply to the county in case of seizure of property. The police officers is U.S. are allowed to seizer not only the moveable property but also the immovable property engaged or suspected to be used in a crime. For instance, homes have been seized even if someone other than homeowner on premises committed drug crimes whiteout owner’s awareness.[16]

b) South Africa

In Ntoyakhe v Minister of Safety and Security[17], the court held that the word ‘seizure’ encompasses not only the act of taking possession of article, but also subsequent detention thereof. When compared to the Indian laws, the Criminal Procedure Act of South Africa clearly states that state may seize anything provided provide proof of the commission of an offence in the Republic or elsewhere, or provide proof of the fact that the commission of the offence was planned.[18]

c) Canada

Section 489 of Canadian Criminal Procedure clearly authorizes police officer to seize certain property with and without warrant which they believe has been obtained by or in commission of the offence that violates this or any other act of parliament[19]. Therefore, it creates no bifurcation between immovable and moveable property and they can seize both as against the Indian Judgment.

SUGGESTIONS AND RECOMMENDATIONS

The Supreme Court of Indian excluded power of seizing of immovable property by the police officers which is parallel with other laws of the country. The legislature must provide an amendment to the section stating that the section no more includes immovable property or word moveable must be added before the word property so as to avoid any confusion and property legislation can be drafted.

Also, snatching the power completely from the hands of the police officers may sometimes prove to be harmful for the case as there are certain cases under which immediate possession of the property is required such that the accused may be tamper with the evidence and case of the prosecution cannot be hampered. So a provision must be inserted supporting the above contention.

Thirdly, while seizing of immovable property, a due permission of the Magistrate is required, i.e., an immovable property can be seized only after an order from the Magistrate. So therefore, a speedy mechanism must be created such that the order from the magistrate can be taken at an early stage and property can be sealed and taken in control that would help to support the case and prove prosecution’s facts.

CONCLUSION

Seizure of property, i.e., the moveable property is therefore a detailed process which is carried on by the police officers wherein different documents are prepared like seizure panchnama, etc because of the principle that the statement given by police is not admissible in the court of law. If the process is carried on negligently, it could harm the case and lead to injustice in the society. However the court fails to mention anything related to another type of property, i.e., Intellectual Property which is another area upon which the court could have deliberated upon.

References

[1] Kishore Shankar Signapurkar v. State of Maharashtra, (1997) Vol. IV LJ 793

[2] M/s. Bombay Science and Research Education Institute v. The State of Maharashtra and Ors., (2008) All M.R. (Crl.) 2133

[3] Teesta Atul Setalvad v. State of Gujarat (2018) 2 SCC 372

[4] State of Maharashtra v. Tapas D. Neogy (1999) 7 SCC 685

[5] R.K. Dalmia etc. v. Delhi Administration AIR 1962 SC 1821

[6] State of Gujarat and others v. Utility Users’ Welfare Association and Others (2018) 6 SCC 21

[7] Binod Kumar v. State of Bihar (2014) 10 SCC 663

[8] N. Madhavan v. State of Kerala (1979) 4 SCC 1

[9] Code of Criminal Procedure, 1973, Section 309

[10] The Indian Forest Act, 1927, Section 2(4)

[11] The Indian Forest Act, 1927, Section 52

[12] The Indian Forest Act, 1927, Section 58

[13] The Transfer of Property Act, 1882, Section 3

[14] The Narcotic Drugs and Psychotropic Substance Act, 1985, Section 43

[15] Supra at 4

[16] Radley Balko, Gothamist on asset forfeiture abuse on NYPD, The Washington Post (Jan. 16. 2014, 3:03 A.M.), https://www.washingtonpost.com/news/opinions/wp/2014/01/15/gawker-on-asset-forfeiture-abuse-at-nypd/

[17] Ntoyakhe v Minister of Safety and Security (2000) 1 SA 257

[18] The Criminal Procedure Act, Section 20

[19] Canadian Criminal Procedure, Section 489


Contributed by: Vanshika Gupta (Symbiosis Law School, Pune)

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