Supreme Court of India
Nevada Properties Pvt. Ltd. Through Its ... vs The State Of Maharashtra on 24 September, 2019
Equivalent citations: AIR 2019 SUPREME COURT 4554, AIRONLINE 2019 SC 1119, 2020 CRI LJ 308, (2019) 12 SCALE 826, 2019 (3) ABR(CRI) 918, (2019) 4 ALLCRILR 538, (2019) 4 CALLT 36, (2019) 4 CRILR(RAJ) 1124, (2019) 4 CRIMES 515, (2019) 4 KER LJ 391, (2019) 4 KER LT 179, (2019) 4 MAD LJ(CRI) 456, (2019) 4 PAT LJR 199, (2019) 4 RAJ LW 2760, (2019) 4 RECCRIR 592, (2019) 76 OCR 619, 2019 CRILR(SC MAH GUJ) 1124, (2020) 1 ALD(CRL) 21, AIR 2020 SC( CRI) 1
Author: Sanjiv Khanna
Bench: Deepak Gupta, Sanjiv Khanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1481 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO. 1513 OF 2011)
NEVADA PROPERTIES PRIVATE LIMITED
THROUGH ITS DIRECTORS ….. APPELLANT(S)
VERSUS
STATE OF MAHARASHTRA AND ANOTHER ….. RESPONDENT(S)
WITH
CRIMINAL APPEAL NO. 1122 OF 2011
CRIMINAL APPEAL NOS. 1482-1485 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NOS.891-894 OF 2011)
CRIMINAL APPEAL NO. 1486 OF 2019
(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO. 4360 OF 2011)
AND
CRIMINAL APPEAL NO. 1487 OF 2019
Signature Not Verified
(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO. 3958 OF 2013)
Digitally signed by
MEENAKSHI KOHLI
Date: 2019.09.24
14:30:02 IST
Reason:
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JUDGMENT
SANJIV KHANNA, J.
Leave granted in Special Leave Petitions.
2. A Division Bench of this Court (Jagdish Singh Khehar and Arun
Mishra, JJ.) vide order dated November 18, 2014, noticing that the
issues that arise have far reaching and serious consequences,
had referred the aforesaid appeals to be heard by a Bench of at
least three Judges. After obtaining appropriate directions from
Hon’ble the Chief Justice, these appeals have been listed before
the present Bench.
3. For the sake of convenience, we have treated the Criminal Appeal
arising out of Special Leave Petition (Criminal) No. 1513 of 2011,
filed by Nevada Properties Pvt. Ltd., as the lead case. This
appeal arises 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 the Code of Criminal Procedure, 1973
(hereinafter referred to as the ‘Code’) does not include immovable
property and, consequently, a police officer investigating a criminal
case cannot take custody of and seize any immovable property
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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 Others1 lays down the correct ratio and the contrary view
expressed in M/s. Bombay Science and Research Education
Institute v. The State of Maharashtra and Others 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 (supra) lays down the correct law and the
ratio in Kishore Shankar Signapurkar (supra) is not good law.
4. In order to decide the present controversy which is primarily legal,
we would begin by reproducing Section 102 of the Code, which
reads as under:
“S.102 Power of police officer to seize certain
property.
(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.
1
1997 Vol.IV L J 793
2
2008 All M.R.(Crl.) 2133
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(2) Such police officer, if subordinate to the office 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, or where there is difficulty in securing proper
accommodation for the custody of such property, or
where the continued retention of the property in police
custody may not be considered necessary for the
purpose of investigation, 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.
Provided that where the property seized under sub-
section (1) is subject to speedy and natural decay and
if the person entitled to the possession of such property
is unknown or absent and the value of such property is
less than five hundred rupees, it may forthwith be sold
by auction under the orders of the Superintendent of
Police and the provisions of Sections 457 and 458
shall, as nearly as may be practicable, apply to the net
proceeds of such sale.”
5. Section 102 of the Code is part of a fasciculus of provisions under
Chapter VII – ‘Process to Compel the Production of Things’. Part
A of the said Chapter deals with Summons to produce; Part B
deals with Search-warrants; Part C deals with General provisions
relating to searches; and Part D, of which Section 102 is the first
Section, falls under the part described as Miscellaneous. The
marginal note of Section 102 states – “Power of police officer to
seize certain property”. Sub-section (3) of Section 102 was
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inserted by Act No. 45 of 1978. It was later amended by section
13(a) of the Cr.P.C. Amendment Act, 2005 (Act 25 of 2005) by
adding the expression “or where there is difficulty in securing
proper accommodation for the custody of such property, or where
the continued retention of the property in police custody may not
be considered necessary for the purpose of investigation.” Proviso
to sub-section (3) was also added by the Amendment Act, 2005.
Sub-section (3) to Section 102 is intended to give greater
discretion to the police officer for releasing seized property, where
there is a difficulty in securing proper accommodation for the
custody of the property or where the continued retention of the
property in police custody is not considered necessary for the
purpose of investigation. Proviso states that if the seized property
is of perishable nature and the value of such property is less than
five hundred rupees and if the person entitled to the possession of
such property is unknown or absent, the police is empowered to
sell such property by auction under orders of the Superintendent
of Police.
6. The minority judgment and the contention of the appellant is
substantially predicated on the words ‘any property’ in sub-section
(1) of Section 102. Reference was made to the decision of this
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Court in State of Maharashtra v. Tapas D. Neogy3. To avoid
prolixity, we are not referring to the contentions raised by both
sides as the same would be referred to and examined during the
course of our reasoning. At the outset, we must begin by referring
to the decision in Tapas D. Neogy (supra), a case arising from
three First Information Reports under Sections 120-B, 467, 468,
471 and 420 of the Indian Penal Code, 1860 (hereinafter referred
to as the ‘IPC’) and Section 13(2) read with Section 13(1)(d) of the
Prevention of Corruption Act, 1988. The question 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. Reference was made to several judgments of the
High Courts, some of which would be discussed later, to hold as
under:
“12. Having considered the divergent views taken by
different High Courts with regard to the power of
seizure under Section 102 of the Code of Criminal
Procedure, and whether the bank account can be held
to be “property” within the meaning of the said Section
102(1), we see no justification to give any narrow
interpretation to the provisions of the Criminal
Procedure Code. It is well known that corruption in
public offices has become so rampant that it has
become difficult to cope up with the same. Then again
the time consumed by the courts in concluding the
3
(1999) 7 SCC 685
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trials is another factor which should be borne in mind in
interpreting the provisions of Section 102 of the
Criminal Procedure Code and the underlying object
engrafted therein, inasmuch as if there can be no order
of seizure of the bank account of the accused then the
entire money deposited in a bank which is ultimately
held in the trial to be the outcome of the illegal
gratification, could be withdrawn by the accused and
the courts would be powerless to get the said money
which has any direct link with the commission of the
offence committed by the accused as a public officer.
We are, therefore, persuaded to take the view 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. The contrary view
expressed by the Karnataka, Gauhati and Allahabad
High Courts, does not represent the correct law. It may
also be seen that under the Prevention of Corruption
Act, 1988, in the matter of imposition of fine under sub-
section (2) of Section 13, the legislatures have
provided that the courts in fixing the amount of fine
shall take into consideration the amount or the value of
the property which the accused person has obtained by
committing the offence or where the conviction is for an
offence referred to in clause (e) of sub-section (1) of
Section 13, the pecuniary resources or property for
which the accused person is unable to account
satisfactorily. The interpretation given by us in respect
of the power of seizure under Section 102 of the
Criminal Procedure Code is in accordance with the
intention of the legislature engrafted in Section 16 of
the Prevention of Corruption Act referred to above. In
the aforesaid premises, we have no hesitation to come
to the conclusion that the High Court of Bombay
committed error in holding that the police officer could
not have seized the bank account or could not have
issued any direction to the bank officer, prohibiting the
account of the accused from being operated upon.
Though we have laid down the law, but so far as the
present case is concerned, the order impugned has
already been given effect to and the accused has been
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operating his account, and so, we do not interfere with
the same.”
7. 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.
8. Decision of this Court in Tapas D. Neogy (supra) was in respect
of the bank accounts and it did not examine and answer the
question whether the expression ‘any property’ would include
immovable property. This question was, however, noticed in
paragraph 6 in Tapas D. Neogy (supra), which had made
reference to a decision of the Delhi High Court in Ms. Swaran
Sabharwal v. Commissioner of Police4 in which it was held that
Section 102 requires that the seized property by itself should lead
to the suspicion that some offence has been committed. In other
4
1988 CriLJ 241 (Del) (DB)
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words, the discovery of the offence should be a sequel to the
discovery of that property and not the other way around.
Reference in this regard can also be made to Jagdish Chander
and Others v. State and Others5, wherein the petitioner had
challenged the seizure action of the police on the ground that the
word ‘seizure’ appearing in Section 102 of the Code would imply
actual taking of possession and, therefore, would not include
immovable property. This contention was not answered and left
open as the Delhi High Court came to the conclusion that the
seizure order therein under Section 102 of the Code was not in
accordance with the statutory requirement as the property should
be discovered under circumstances which create a suspicion of
the commission of an offence, that is, the police officer should
come across certain property in circumstances which create in his
mind a suspicion that an offence has been committed. Section
102, it was held, would not be attracted where the property has
not been traced or discovered which leads to a suspicion of an
offence having been committed. Discovery of property should
precede the detection of crime. This ratio was subsequently
followed in P.K. Parmar and Others v. Union of India and
Another6 in which the Delhi High Court had reiterated that unless
5
40 (199) DLT 233
6
1992 CriLJ 2499 (Del)
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discovery of the property leads to a suspicion of an offence having
been committed, Section 102 of the Code cannot be invoked for
seizing such properties. The Delhi High Court examined the
question; whether the discovery of the bank accounts had
preceded the suspicion of the offences having been committed
and held that there were good reasons, in view of the attending
circumstances, which had led Central Bureau of Investigation
(hereinafter referred to as the ‘CBI’) to be suspicious of an offence
having been committed in relation to such accounts. The accounts
were found either in the name of non-existent persons or in bogus
names and all such accounts were allegedly being maintained by
the principal accused. There was sufficient cause for the CBI to
set the criminal law into motion. In this case, the allegation was
that subsidies were obtained illegally and without entitlement from
the Government of India, and the amounts so received were
deposited in the bank accounts that had prima facie linked the
accused with various offences with which they were charged. The
cause of action, therefore, for seizing the bank accounts arose
when a suspicion was created relating to the multiple and spurious
handling of bank accounts.
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9. Tapas D. Neogy (supra) had also referred to the judgment of a
Single Judge of the Madras High Court in Bharat Overseas Bank
v. Minu Publication7, which had made reference to Sections 451,
452, 453, 456 and 457 of the Code to observe that these
provisions seek to reimburse or compensate victims of crime and
bring about restoration of the property or its restitution. The
provision empowering seizure was necessary to preserve the
property for the purpose of enabling the Criminal Court to pass
suitable orders under the aforesaid provisions at the conclusion of
the trial. The judgment also refers to restoration of immovable
property under certain circumstances dealt with under Section 456
of the Code.
10. The reason why we have referred to the two decisions in P.K.
Parmar (supra) and Bharat Overseas Bank (supra) is to notice
the wide range of issues and contentions with reference to the
term ‘property’ that could arise for consideration while interpreting
the power of the police officer to effect seizure under Section 102
of the Code, albeit this Court did not deal with and express an
opinion on several issues in Tapas D. Neogy (supra) and the
judgment was confined and limited to the question; whether bank
accounts would fall within the category of ‘any property’. Holding
7
1988 MLW (Cri) 106
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that the bank accounts would fall under the expression ‘any
property’ under Section 102 of the Code, it was observed that
there was no justification or reason to give a narrow interpretation
to the words to exclude bank accounts, elucidating that corruption
in public offices has become rampant and this aspect has to be
borne in mind while interpreting the provisions of Section 102 of
the Code and the underlying object engrafted in the provision.
11. It follows from the aforesaid discussion that the decision in Tapas
D. Neogy (supra) did not go into and decide the issue; whether
immovable property would fall under the expression ‘any property’
under Section 102 of the Code. We say so by applying the
inversion test as referred to in State of Gujarat and Others v.
Utility Users’ Welfare Association and Others 8, which states
that the Court must first carefully frame the supposed proposition
of law and then insert in the proposition a word reversing its
meaning to get the answer whether or not a decision is a
precedent for that proposition. If the answer is in the affirmative,
the case is not a precedent for that proposition. If the answer is in
the negative, the case is a precedent for the original proposition
and possibly for other propositions also. This is one of the tests
applied to decide what can be regarded and treated as ratio
8
(2018) 6 SCC 21
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decidendi of a decision. Reference in this regard can also be
made to the decisions of this Court in U.P. State Electricity
Board v. Pooran Chandra Pandey and Others 9, Commissioner
of Income Tax v. Sun Engineering Works (P) Ltd.10 and other
cases which hold that a decision is only an authority for what it
actually decides. What is of the essence in a decision is its ratio.
Not every observation found therein nor what logically flows from
those observations is the ratio decidendi. 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. It is, therefore, clear to us that Tapas D. Neogy (supra)
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. We will have to, therefore, examine the issue and
answer the same.
12. This Court in R.K. Dalmia etc. v. Delhi Administration11 had
interpreted the word ‘property’ in Section 405 and other sections
9
(2007) 11 SCC 92
10
(1992) 4 SCC 363
11
AIR 1962 SC 1821
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of the IPC to opine that there was no good reason to restrict the
meaning of the word ‘property’ to movable property when the word
was used without any qualification in Section 405 or in other
sections of the IPC. At the same time, this Court had cautioned
that whether an offence defined in a particular section of the IPC
can be committed in respect of any particular kind of property, will
depend not on the interpretation of the word ‘property’ but on the
fact that whether that particular kind of property can be subject to
acts covered by that section. In that sense, it can be said that 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. This, we would observe, is the central
and core principle which would have to be applied when we
interpret the expression ‘any property’ used in Section 102 of the
Code, which as noticed above and elucidated below is a power
conferred upon the police officer and relates to the stage of
investigation and collection of evidence to be produced in the
Court during trial.
13. Before we proceed further, we would like to refer to the Criminal
Law Amendment Ordinance, 1944 (No. XXXVIII of 1944) which
was promulgated in exercise of powers conferred under Section
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72 of the Ninth Schedule of the Government of India Act, 1935 to
prevent disposal or concealment of property procured by means of
offences specified in its Schedule, which include offences
punishable under Sections 406, 408, 409, 411 and 414 of the IPC
in respect of Government property, property of local authority or a
Corporation established by or under a Central, Provincial or State
Act, etc., and an offence punishable under the Prevention of
Corruption Act, 1988, an insertion made by the Prevention of
Corruption Act, 1988. It sets out the procedure when the Central/
State Government has a reason to believe that a person has
committed any scheduled offence, whether or not the Court has
taken cognisance of the said offence, by attachment of money or
other property which the Central/State Government believes that
the person has procured by means of the scheduled offence, and
if such money or property cannot for any reason be attached, any
other property of the said person of value as nearly as may be
equivalent to that of the aforesaid money or property. This
enactment mandates application of provisions of Order XXVII of
the Code of Civil Procedure, 1908 with a provision for filing an
application before the District Judge who is entitled to pass an ad
interim attachment order after following the prescribed procedure
including examination and investigation of objections to
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attachment of the property. The District Judge can pass an order
either making the interim attachment absolute or varying it by
releasing the property or portion thereof or withdrawing the order
on satisfaction of certain conditions. Other sections contained in
the Ordinance provide for attachment of property of mala fide
transferees, execution of orders of attachment, security in lieu of
attachment, administration of attached property, duration of
attachment, appeals, power of Criminal Court to evaluate property
procured by scheduled offences and disposal of attached property
upon termination of criminal proceedings. Section 14 bars legal
proceedings in other Courts in respect of the property attached
under the Ordinance. The Ordinance is a permanent Ordinance
which was promulgated during the Second World War. It was
adopted by the Presidential Adaptation of Laws Order, 1950
issued under the powers conferred by clause (2) of Article 372 of
the Constitution, thus, making it effective in the territory of India
and, therefore, continues to remain in force.
14. Similarly, there are provisions in the form of Sections 145, 146,
165 amongst others in the Code which specifically relate to
immovable properties. Chapter VIIA – ‘Reciprocal Arrangements
for Assistance in Certain Matters and Procedure for Attachment
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and Forfeiture of Property’ specifically includes immovable
properties under the expression ‘property’ for the purpose of the
said Chapter unless the context otherwise requires. Similarly, we
have specific provisions relating to and dealing with immovable
property under the Narcotics, Drugs and Psychotropic Substances
Act, 1985.
15. We would now refer to Chapter XXXIV of the Code, which has the
heading ‘Disposal of Property’ and consists of Sections 451 to
459. We would like to reproduce Sections 451, 452, 453, 454,
456 and 457 of the Code, which read as under:
“451. Order for custody and disposal of property
pending trial in certain cases.— When any property
is produced before any Criminal Court during any
inquiry or trial, the Court may make such order as it
thinks fit for the proper custody of such property
pending the conclusion of the inquiry or trial, and, if the
property is subject to speedy and natural decay, or if it
is otherwise expedient so to do, the Court may, after
recording such evidence as it thinks necessary, order it
to be sold or otherwise disposed of.
Explanation.– For the purposes of this section,
"property" includes –
(a) property of any kind or document which is produced
before the Court or which is in its custody,
(b) any property regarding which an offence appears to
have been committed or which appears to have been
used for the commission of any offence.
452.Order for disposal of property at conclusion of
trial.-
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(1) When an inquiry or trial in any Criminal Court is
concluded, the Court may make such order as it thinks
fit for the disposal, by destruction, confiscation or
delivery to any person claiming to be entitled to
possession thereof or otherwise, of any property or
document produced before it or in its custody, or
regarding which any offence appears to have been
committed, or which has been used for the commission
of any offence.
(2) An order may be made under sub-section (1) for the
delivery of any property to any person claiming to be
entitled to the possession thereof, without any
condition or on condition that he executes a bond, with
or without sureties, to the satisfaction of the Court,
engaging to restore such property to the Court if the
order made under sub-section (1) is modified or set
aside on appeal or revision.
(3) A Court of Session may, instead of itself making an
order under sub-section (1), direct the property to be
delivered to the Chief Judicial Magistrate, who shall
thereupon deal with it in the manner provided in
sections 457, 458 and 459.
(4) Except where the property is livestock or is subject
to speedy and natural decay, or where a bond has
been executed in pursuance of sub-section (2), an
order made under sub-section (1) shall not be carried
out for two months, or when an appeal is presented,
until such appeal has been disposed of.
(5) In this section, the term "property" includes, in the
case of property regarding which an offence appears to
have been committed, not only such property as has
been originally in the possession or under the control of
any party, but also any property into or for which the
same may have been converted or exchanged, and
anything acquired by such conversion or exchange,
whether immediately or otherwise.
453.Payment to innocent purchaser of money
found on accused.-
When any person is convicted of any offence which
includes, or amounts to, theft or receiving stolen
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property, and it is proved that any other person bought
the stolen property from him without knowing or having
reason to believe that the same was stolen, and that
any money has on his arrest been taken out of the
possession of the convicted person, the Court may, on
the application of such purchaser and on the restitution
of the stolen property to the person entitled to the
possession thereof, order that out of such money a
sum not exceeding the price paid by such purchaser be
delivered to him.
454.Appeal against orders under section 452 or
section 453.-
(1) Any person aggrieved by an order made by a Court
under section 452 or section 453, may appeal against it
to the Court to which appeals ordinarily lie from
convictions by the former Court.
(2) On such appeal, the Appellate Court may direct the
order to be stayed pending disposal of the appeal, or
may modify, alter or annul the order and make any
further orders that may be just.
(3) The powers referred to in sub-section (2) may also
be exercised by a Court of appeal, confirmation or
revision while dealing with the case in which the order
referred to in sub-section (1) was made.
xx xx xx
456.Power to restore possession of immovable
property.-
(1) When a person is convicted of an offence attended
by criminal force or show of force or by criminal
intimidation, and it appears to the Court that, by such
force or show of force or intimidation, any person has
been dispossessed of any immovable property, the
Court may, if it thinks fit, order that possession of the
same be restored to that person after evicting by force,
if necessary, any other person who may be in
possession of the property:
Provided that no such order shall be made by the Court
more than one month after the date of the conviction.
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(2) Where the Court trying the offence has not made an
order under sub-section (1), the Court of appeal,
confirmation or revision may, if it thinks fit, make such
order while disposing of the appeal, reference or
revision, as the case may be.
(3) Where an order has been made under sub-section
(1), the provisions of section 454 shall apply in relation
thereto as they apply in relation to an order under
section 453.
(4) No order made under this section shall prejudice
any right or interest to or in such immovable property
which any person may be able to establish in a civil
suit.
457.Procedure by police upon seizure of property.-
(1) Whenever the seizure of property by any police
officer is reported to a Magistrate under the provisions
of this Code, and such property is not produced before
a Criminal Court during an inquiry or trial, the
Magistrate may make such order as he thinks fit
respecting the disposal of such property or the delivery
of such property to the person entitled to the
possession thereof, or if such person cannot be
ascertained, respecting the custody and production of
such property.
(2) If the person so entitled is known, the Magistrate
may order the property to be delivered to him on such
conditions (if any) as the Magistrate thinks fit and if
such person is unknown, the Magistrate may detain it
and shall, in such case, issue a proclamation
specifying the articles of which such property consists,
and requiring any person who may have a claim
thereto, to appear before him and establish his claim
within six months from the date of such proclamation.”
16. Section 451 empowers the Criminal Court to pass an order of
proper custody of ‘any property’ pending trial or inquiry. The Court
can also direct disposal in certain circumstances. Explanation to
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Section 451 states that for the purpose of the said Section,
‘property’ includes property of any kind or document which is
produced before the Court or which is in its custody or any
property regarding which an offence appears to have been
committed or which appears to have been used for the
commission of any offence. Section 451 applies during or pending
trial, or inquiry (the expression ‘inquiry’ is defined in Section 2(g) of
the Code). There are judgments that hold that the expression
‘property’ for the purpose of Section 451 includes immovable
property. In fact, preponderance of judicial decisions takes this
view, though there is no direct judgment of this Court. Same is the
position with regard to Section 452, which in sub-section (5) states
that the term ‘property’ includes, in case of property regarding
which an offence appears to have been committed, not only such
property as was originally in possession or under control of any
party, but also any property into which the same may have been
converted or exchanged, and anything acquired by such
conversion or exchange, whether immediately or otherwise.
Section 452 states that when an inquiry or trial in a Criminal Court
concludes, the Court may make an order as it thinks fit for the
disposal, by destruction, confiscation or delivery to any person
claiming himself to be entitled to possession thereof or otherwise,
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SLP (Crl.) No. 1513 of 2011 and connected matters Page 21 of 39
of any property or document produced before it or in its custody,
or regarding which an offence appears to have been committed or
which has been used for the commission of any offence. The
context is wide, albeit the words, “may make such order as it
thinks fit” in Section 452 vests the Court with the discretion to
dispose of the property in any of the three modes specified,
namely, destruction, confiscation or delivery to the person entitled
to be in possession thereof or otherwise (see N. Madhavan v.
State of Kerala12). However, an order under Section 452 is not an
order determining title or ownership but that of the right to
possession, and therefore where serious claims to ownership are
put forward, it would be best if the Criminal Courts directs the
parties to establish their claim before the Civil Court. The Criminal
Court can, however, pass appropriate order of interim nature as it
may be appropriate. What is important and relevant for our
discussion is that the Sections 451 and 452 are broad and wide
conferring specific and clear powers upon the Criminal Court, and
the language indicates that they could equally apply to immovable
property. These Sections do not make reference to Section 102 of
the Code relating to the seizure of property by the police officer.
This is equally true of Section 456 which specifically empowers
12
(1979) 4 SCC 1
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SLP (Crl.) No. 1513 of 2011 and connected matters Page 22 of 39
the Criminal Court to restore possession of immovable property
when a person is convicted of an offence attended by criminal
force or show of force or by criminal intimidation and it appears to
the Court that by such force or show of force or intimidation any
person has been dispossessed of the property. This order can be
made without prejudice to the right or interest to or in such
immovable property which any person may be able to establish in
a civil suit. Section 457 applies when a property has been seized
by any police officer and is reported to a Magistrate under the
provisions of the Code and such property is not produced before a
Criminal Court during the course of inquiry or trial. The expression
‘not produced before a Criminal Court’ used in Section 457 of the
Code is significant. Thus, this provision applies to the property
seized under Section 102 of the Code, but not produced during
the trial or inquiry. In common parlance, the word ‘produced’ is an
expression used to signify actual or physical production which
would apply to movable property. Immovable property cannot be
‘produced’ in a Court.
17. We have referred to the said provisions under Chapter XXXIV –
‘Disposal of Property’, as this would be of significance and,
addresses the argument and concern expressed by the appellant
Criminal Appeal arising out of
SLP (Crl.) No. 1513 of 2011 and connected matters Page 23 of 39
– Nevada Properties Pvt. Ltd. and some of the State
Governments. These provisions, specifically enable the Court to
pass orders relating to the properties, both movable and
immovable. We have referred to Section 451, which does not
specifically refer to any seizure order under Section 102 of the
Code but vide Explanation includes such property regarding which
an offence appears to have been committed or which appears to
have been used for the commission of any offence. Similarly,
Section 452 refers to property regarding which an offence appears
to have been committed as has been originally in possession or
under control of any party and also such property into or for which
the same may have been converted or exchanged. Again Section
452 per se, does not make any reference to Section 102 of the
Code. This is also true for Section 456 of the Code which relates
to restoration of possession of immovable property in certain
circumstances. These provisions, therefore, do not directly define
the contours and scope of Section 102 of the Code. On the other
hand, it would show that Section 102 is not the primary or the core
provision which would make the provisions of Section 451, 452 or
456 of the Code applicable. The parameters for application of
these sections are those as are enumerated in the specific
provisions. Sections 451 and 452 specifically define the
Criminal Appeal arising out of
SLP (Crl.) No. 1513 of 2011 and connected matters Page 24 of 39
expression ‘property’ for the purpose of an order of custody and
disposal by the Court. Section 456 applies to the category or type
of offences concerning immovable property regardless of whether
the immovable property is in custody of the Court or has been
attached. Power of the Criminal Court under these Sections,
except Section 457 of the Code, is not restricted to property
seized by the police officer under Section 102 of the Code.
Section 457, as noticed, applies to properties which have been
seized by the police officer under the Code but not produced
during inquiry or trial.
18. Having held and elucidated on the power of the Criminal Court, we
find good ground and reason to hold that the expression ‘any
property’ appearing in Section 102 of the Code would not include
immovable property. We would elucidate and explain.
19. 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. We have already
referred to the judgments of the Delhi High Court in the case of
Criminal Appeal arising out of
SLP (Crl.) No. 1513 of 2011 and connected matters Page 25 of 39
P.K. Parmar (supra), Ms. Swaran Sabharwal (supra), and
Jagdish Chander (supra), which have elucidated and in a
restricted and narrow manner defined the requirement for invoking
the second part. However, we have come across a decision of this
Court in Teesta Atul Setalvad v. State of Gujarat13, on an appeal
from the judgment of the Gujarat High Court and had dealt with a
situation when an act of freezing the accounts was a sequel to the
crime as the crime was detected earlier. The Gujarat High Court
took a somewhat contrary view, by not interfering and directing
defreezing, observing that even if the action of the investigating
agency at the inception to seize may not be regular, the Court
cannot be oblivious to the collection of substantial material by the
investigating agency which justifies its action under Section 102 of
the Code. Further when the investigation had progressed to a
material point, de-freezing the bank accounts on the basis of such
arguments would paralyse the investigation which would not be in
the interest of justice. After referring to the factual matrix in
Teesta Atul Setalvad (Supra), this Court observed that the
Investigating Officer was in possession of material pointing out to
the circumstances that had created suspicion of the commission
of an offence, in particular the one under investigation, and
13
(2018) 2 SCC 372
Criminal Appeal arising out of
SLP (Crl.) No. 1513 of 2011 and connected matters Page 26 of 39
therefore exercise of power under Section 102 of the Code would
be in law legitimate as it was exercised after following the
procedure prescribed in sub-sections (2) and (3) of the same
provision.
20. 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
Criminal Appeal arising out of
SLP (Crl.) No. 1513 of 2011 and connected matters Page 27 of 39
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. 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. This is the
reason why the Ordinance was enacted to deal with attachment of
money and immovable properties in cases of scheduled offences.
Criminal Appeal arising out of
SLP (Crl.) No. 1513 of 2011 and connected matters Page 28 of 39
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. We have hardly come across any case where
immovable property was seized vide an attachment order that was
treated as a seizure order by police officer under Section 102 of
the Code. The reason is obvious. Disputes relating to title,
possession, etc., of immovable property are civil disputes which
have to be decided and adjudicated in Civil Courts. We must
discourage and stall any attempt to convert civil disputes into
criminal cases to put pressure on the other side (See Binod
Kumar and Others v. State of Bihar and Another14). Thus, it will
not be proper to hold that Section 102 of the Code empowers a
police officer to seize immovable property, land, plots, residential
houses, streets or similar properties. 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
14
(2014) 10 SCC 663
Criminal Appeal arising out of
SLP (Crl.) No. 1513 of 2011 and connected matters Page 29 of 39
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.
21. In view of the aforesaid discussion, the Reference is answered by
holding that the power of a police officer under Section 102 of the
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.
Criminal Appeal arising out of
SLP (Crl.) No. 1513 of 2011 and connected matters Page 30 of 39
22. The Registry is directed to list the individual appeals for disposal
before the appropriate Bench.
..................................CJI.
(RANJAN GOGOI)
......................................J.
(DEEPAK GUPTA)
......................................J.
(SANJIV KHANNA)
NEW DELHI;
SEPTEMBER 24, 2019.
Criminal Appeal arising out of
SLP (Crl.) No. 1513 of 2011 and connected matters Page 31 of 39
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1481 OF 2019
(@ SLP (CRL.) NO.1513 of 2011)
NEVADA PROPERTIES PRIVATE LIMITED
THROUGH ITS DIRECTOR …APPELLANT(S)
VERSUS
STATE OF MAHARASHTRA AND ANR. …RESPONDENT(S)
WITH
CRIMINAL APPEAL NO.1122 OF 2011
CRIMINAL APPEAL NOS. 14821485 OF 2019
(@ SLP(CRL.) NOS.891894 OF 2011)
CRIMINAL APPEAL NO. 1486 OF 2019
(@ SLP(CRL.) NO.4360 OF 2011)
AND
CRIMINAL APPEAL NO. 1487 OF 2019
(@ SLP(CRL.) NO.3958 OF 2013)
JUDGMENT
Deepak Gupta, J.
1. I have gone through the judgment delivered by my brother, Justice Sanjiv Khanna. I agree with the finding in the said Criminal Appeal arising out of SLP (Crl.) No. 1513 of 2011 and connected matters Page 32 of 39 judgment. However, in view of the nature of the issue involved, I intend to give a few additional reasons of my own.
2. Since brother Khanna in his judgment has given elaborate reasons to hold that in the context of Section 102 the words ‘any property’ would mean only movable property, I am not repeating the same for the sake of brevity.
3. The main issue involved is what is the meaning to be given to the word ‘property’ occurring in Section 102 of the Code of Criminal Procedure which reads as follows: “Power of police officer to seize certain property. (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 subsection (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, or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, 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:
Provided that where the property seized under subsection (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of Sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.” Criminal Appeal arising out of SLP (Crl.) No. 1513 of 2011 and connected matters Page 33 of 39 Subsection (1) of Section 102 empowers a police officer to 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. On behalf of the appellant it is urged that the word ‘any property’ is of very wide amplitude and will cover movable and immovable properties. This stand is also supported by the State of Maharashtra. On the other hand, it is contended by the respondents that in the context in which the word ‘any property’ is used in the Section, it has to be limited to movable property and cannot be extended to immovable property.
4. At first blush, the arguments on behalf of the appellant seem attractive because normally the words ‘any property’ would mean property of any kind or description. However, it is a well settled principle of statutory interpretation that when construing the words of a statute, they must be read in a manner in which they fit into the section and in the context of the purpose sought to be achieved by that particular provision of law. Criminal Appeal arising out of SLP (Crl.) No. 1513 of 2011 and connected matters Page 34 of 39
5. Subsection (1) of Section 102 empowers a police officer to seize any property which may be alleged or suspected to have been stolen. Theft can take place only of movable property and not of immovable property. In my view, the word ‘seized’ has been used in the sense of taking actual physical custody of the property. Subsection 3 of Section 102 provides that where it is difficult to conveniently transport the property to the court or there is difficulty in securing proper accommodation for the custody of the property, then the property can be given to any person on his executing a bond. This per se indicates that the property must be capable of production in court and also be capable of being kept inside some accommodation. This obviously cannot be done with immovable property.
6. Section 102 has been in the statute book for more than a century. Section 102 corresponds to Section 550 of the Code of Criminal Procedure, 1898. For more than a century the courts have read the words ‘any property’ to mean movable property 151617 15 AIR 1960 AII 405 16 WP(C) No. 12275 of 2012, Judgment dated 26.07.2012 (Ker HC) 17 2016(3) PLJR 464 Criminal Appeal arising out of SLP (Crl.) No. 1513 of 2011 and connected matters Page 35 of 39 and no decision to the contrary was brought to our notice. Reliance is only placed on the judgment of this Court in State of Maharashtra vs. Tapas D. Neogy18. In that case, the question was totally different and this court only decided that a bank account of an accused was property within the meaning of Section
102. The Court did not go into the question of movable or immovable property and, therefore, this judgment would not be applicable.
7. I would also like to point out that in the Code of Criminal Procedure itself the Legislature has in various provisions specifically used the words ‘movable’ and ‘immovable’ property. Some of those have been dealt with by my learned brother. In this regard reference may be made to Section 83 of the Cr.P.C. which relates to seizure of the property of a proclaimed absconder. Sub section 1 of Section 83 reads as follows: “(1) The Court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person:...” 18 (1999) 7 SCC 685 Criminal Appeal arising out of SLP (Crl.) No. 1513 of 2011 and connected matters Page 36 of 39 The Legislature in its wisdom uses the words “order the attachment of any property, movable or immovable or both”. This is in contradistinction to the words ‘any property’ used in Section 102.
8. Chapter VIIA was introduced in Cr.P.C. vide Act 40 of 1993 w.e.f. 20th July 1994. This Chapter deals with reciprocal arrangements for assistance in certain matters and procedure for attachment and forfeiture of property. Property has been defined in Section 105A(d) as follows: “‘Property’ means property and assets of every description whether corporeal or incorporeal, movable or immovable, tangible or intangible and deeds and instruments evidencing title to, or interest in, such property or assets derived or used in the commission of an offence and includes property obtained through proceeds of crime.” This would include property of all kinds, movable and immovable. The Legislature made it clear that property of all kinds can be attached and forfeited.
Section 105C (1) reads as follows: “S.105C (1) Where a Court in India has reasonable grounds to believe that any property obtained by any person is derived or obtained, directly or indirectly, by such person from the commission of an offence, it may make an order of attachment or forfeiture of such property, as it may deem fit under the provisions of Section 105D to 105J (both inclusive).” Reading all these provisions together, it is clear that when any court in India has reasonable grounds to believe that any property has been obtained by any person directly or indirectly from the Criminal Appeal arising out of SLP (Crl.) No. 1513 of 2011 and connected matters Page 37 of 39 commission of an offence, the Court may make an order for attachment or forfeiture of such property.
9. This Court is not concerned with the procedure to be followed for attachment and forfeiture of the property but only the meaning of the word ‘property’. Thus, Section 105C empowers the court to order forfeiture of any property which it may feel is derived or obtained directly or indirectly by the commission of an offence.
10. If the argument of the appellant and the State of Maharashtra is accepted then there was no need for the legislature to have introduced Chapter VIIA. It would also be pertinent to mention that the power of attachment and forfeiture is given to courts and not to police officer. As pointed out in the judgment of my learned brother, 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 Criminal Appeal arising out of SLP (Crl.) No. 1513 of 2011 and connected matters Page 38 of 39 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.
11. 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, I would refrain from saying anything about that.
12. In view of the above, I would answer the reference by holding that the phrase ‘any property’ in Section 102 will only cover moveable property and not immovable property.
…………………………J. (Deepak Gupta) New Delhi September 24, 2019 Criminal Appeal arising out of SLP (Crl.) No. 1513 of 2011 and connected matters Page 39 of 39