Section 102 CrPC- Expression 'Any Property' Does Not Include 'Immovable Property', Holds SC [Read Judgment]

The Supreme Court has held that the expression 'any property' appearing in Section 102 of the Code of Criminal Procedure would not include 'immovable property'.

The bench comprising Chief Justice Ranjan Gogoi, Justice Deepak Gupta and Justice Sanjiv Khanna observed thus while holding that a power of a police officer under Section 102 of the Criminal Procedure Code 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 CrPC: Power of police officer to seize certain property

This provision deals with the Power of police officer to seize certain property. It provides 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."

Bombay HC Judgment and Reference to Three judge Bench

The majority judgment of the Full Bench of Bombay High Court had held that the expression 'any property' used in sub-section (1) of Section 102 of the Code of Criminal Procedure does not include immovable property and, consequently, a police officer investigating a criminal case cannot take custody of and seize any immovable property.

While considering appeals filed against this judgment [Nevada Properties Private Limited Vs. State Of Maharashtra], the Apex Court bench had referred the case to larger bench observing that the issues have far reaching and serious consequences.

Tapas D. Neogy Judgment did not deal with this issue

The minority judgment of the High Court in this case had relied on the Supreme Court judgment in State of Maharashtra v. Tapas D. Neogy to hold that the provision would include 'immovable property' also.

The Apex Court, while answering the reference, noted that in Tapas D. Neogy, the issue considered by the bench was whether a bank account of an accused or any relation of the accused was 'property' within the meaning of Section 102 of the Code and if so, whether the Investigating Officer has the power to seize the bank account or issue a prohibitory order restraining operation of the bank account. In the said judgment, it was held that the bank account of the accused or any of his relations is "property" within the meaning of Section 102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into.

Money is not an immovable property

Explaining the purport of the said judgment, the bench observed:

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.

Elaborately referring to the discussion made in Tapas D. Neogy (supra), the bench concluded that it did not decide the issue in question; whether or not an immovable property will fall within the expression 'any property' in Section 102 of the Code.

Immovable Property Cannot Be Seized

Explaining the Scope of Section 102 CrPC, the bench observed:

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.

Seizure of documents/ papers of title relating to immovable property not barred

The bench has clarified that there is no bar or prohibition on 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 relating to title, possession, etc., of immovable property to be adjudicated in Civil Courts

The bench further noted that disputes relating to title, possession, etc., of immovable property are civil disputes which have to be decided and adjudicated in Civil Courts and that the Courts must discourage and stall any attempt to convert civil disputes into criminal cases to put pressure on the other side

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.

Absolutely Chaotic Situation if held otherwise

Taking note of the expression 'circumstances which create suspicion of the commission of any offence' in Section 102, the bench observed that the same does not refer to a firm opinion or an adjudication/finding by a police officer to ascertain whether or not 'any property' is required to be seized. It said:

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.

Justice Deepak Gupta's Concurring Opinion

Justice Deepak Gupta, in his separate, but concurring opinion observed that the power of attachment and forfeiture is given to courts and not to police officer. He further held that the phrase 'any property' in Section 102 will only cover moveable property and not immovable property. If a police officer is given the power to seize immovable property it may lead to an absolutely chaotic situation, the judge said.

Justice Gupta explained this with a couple of illustrations as follows:

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. 

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