[dropcap]T[/dropcap]HE Supreme Court on Tuesday held that the power of a police officer under Section 102 of the Code of Criminal Procedure (CrpC) to seize any property, which may be found under circumstances that create suspicion of the commission of any offence, would not include the power to attach, seize and seal an immovable property.
Section 102 of the CrPC which confers upon the police the power to seize certain property, reads as follows:
(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.
The decision by a three-judge bench comprising the Chief Justice of India (CJI) Ranjan Gogoi, Justices Sanjiv Khanna and Deepak Gupta, has come after a division bench of the Supreme Court comprising the then Justice Jagdish Singh Khehar and Justice Arun Mishra vide order dated November 18, 2014, noticing that the issues that arise have far-reaching and serious consequences, had referred the matter be heard by a Bench of at least three Judges.
The full bench of the Bombay High Court by a majority decision in 2010 had held that expression ‘any property’ used in sub-section (1) of Section 102 of CrPC did not include immovable property and, consequently, a police officer investigating a criminal case could not take custody of and seize any immovable property which may be found under circumstances which create suspicion of the commission of any offence.
This decision of the Bombay High Court was under challenge before the apex court.
Writing the lead opinion for the court, Justice Sanjiv Khanna held, “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 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 the 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,” he added.
Justice Khanna further observed, “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 the 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 the 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 the 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”.
In a separate but concurring opinion, Justice Deepak Gupta noted, “If a police officer is given the power to seize immovable property it may lead to an absolutely chaotic situation. 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,” he continued.
Justice Gupta thus, held that the phrase ‘any property’ in Section 102 will only cover moveable property and not immovable property.
As far as the meaning of property in Section 452 of the Cr.P.C. is concerned, that is not a question referred to the larger Bench and therefore Justice Gupta refrained from commenting on the same.