SC: Section 102 of CrPC does not cover immovable property

The Hon’ble Supreme Court, on 24th September 2019, in the matter of Nevada Properties Private Limited Through Its Directors v. State Of Maharashtra And Another pronounced that Section 102 of CrPC 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.

Question before the court

Whether immovable property would fall under the expression ‘any property’ under  Section 102 of the Code of Criminal Procedure, 1973 ?

The Hon’ble Supreme Court observed that:

Judgment in question has to be read as a whole and the observations have to be considered in light of the instances which were before the Court. This is the way to ascertain the true principles laid down by a decision. Ratio decidendi cannot be decided by picking out words or sentences averse to the context under question from the judgment. (Para 11)

The word ‘property’ in a particular section covers only that type of property in respect of which the offence contemplated in that section can be committed. (Para 12)

The expression ‘any property’ appearing in Section 102 of the Code would not include immovable property. (Para 18)

The first part of sub-section (1) of Section 102 of the Code relates to the property which may be alleged or suspected to have been stolen. Immovable property certainly cannot be stolen and cannot fall in this part. The second part relates to the property which may be found by a police officer under circumstances which create suspicion of the commission of any offence. (Para 19)

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. (Para 20)

Language of Section 102 of the Code of Criminal Procedure, 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. (Para 20)

Section 102 of CrPC 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. (Para 20)

The expression ‘circumstances which create suspicion of the commission of any offence’ in Section 102 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. 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. (Para 20)

Section 102 of CrPC 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. (Para 20)

Disputes and matters relating to the physical and legal possession and title of the property must be adjudicated upon by a Civil Court. (Para 20)

Power of a police officer under Section 102 of 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. (Para 21)

Copy of judgement: Judgement_24-Sep-2019

-Adv. Tushar Kaushik

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