Breaking: Police does not have power to attach immovable property of accused under section 102 of CrPC: Supreme Court

The Supreme Court today held that the power of the police under Section 102 of the Code of Criminal Procedure does not include the power to attach or seize property during the course of the investigation. As stated in the judgment pronounce by a Bench of Chief Justice Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna,.“... 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.“.Section 102 CrPC confers upon the police the power to seize certain property. The provision states:.“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.(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.”.The judgment came in an appeal arising out of a decision of the Full Bench of the Bombay High Court, which held that the police does not possess the power to attach immoveable property during investigation. The High Court had observed that if the police is allowed to do so, there may be misuse of power. The State of Maharashtra, aggrieved by this judgment, moved the Supreme Court in appeal..It was argued by the State that as per the judgment in the Tapas Neogy case, the police possesses the power to freeze bank accounts during investigation. Thus, it can attach immovable property as well..However, the Supreme Court today opined that the Tapas Neogay case did not deal with the questions before it. As noted in the judgment,.“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.”.The Court proceeded to interpret Section 102 in terms of the words used in the provision and the consequences that would follow if immovable property also fell within its purview. In this regard, the Court firstly noted that immovable property could not be stolen or seized in the conventional sense, whereas Section 102 deals with property that could be stolen which may be seized by the police. As noted in the judgment,.“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…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.”The Court proceeded to note that the liberal interpretation of the provision to mean that immovable property could be ‘seized’ by attaching it would entail granting the police powers that may not have been intended by the legislature. The Bench observed,“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.”In this backdrop, the Court proceeded to opine the police cannot be given powers to ‘seize’ immovable property merely on suspicion and surmise. The Bench opined that the same would also have the effect of criminalising civil disputes and granting the police adjudicatory role. In this regard, the judgment states,“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…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.…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.”The judges proceeded to summarise the law thus,“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.”The concurring opinion authored by Justice Deepak Gupta also places emphasis on the words used to frame Section 102, CrPC. He observed, inter alia,.“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.”He also highlighted that the power of attachment and forfeiture is distinct from the power of seizure referred to in Section 102, CrPC. The power of attachment and forfeiture is exercised with respect to immovable property and only lies in the domain of courts. As noted by Justice Gupta,“… the power of attachment and forfeiture is given to courts and not to police officer.”He proceeded to remark,“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.”.[Read the Judgment]