Q.(a) Whether the words "any property" used in sub- section (1) of Section 102 of the Code of Criminal Procedure, 1973 would mean to include "immoveable property"?
Ans. We, therefore, hold that the expression "any
property" used in sub-section (1) of Section 102 of the
Code does not include immovable property. Question (a)
is, therefore, answered in the negative.
Bombay High Court
Sudhir Vasant Karnataki vs Age : 63 Years, Occu : Retired ... on 29 November, 2010
Bench: B.H. Marlapalle, R. C. Chavan, R. S. Dalvi
I have gone through the majority judgment written by Chavan J.,
for himself and for Dalvi J., holding that the powers of seizure under
Section 102 of the Criminal Procedure Code 1973 are not applicable for
the immovable property and with respect I could not persuade or agree
with the same view. Hence this separate judgment.
2. A Division Bench of this Court while hearing this petition was
confronted with two divergent findings on the issue as to whether an
immovable property could be seized under Section 102 of the Criminal 6
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Procedure Code, 1973 (for short "the Code"). As per the petitioners
Section 102 of the Code envisages seizure of only movable property,
but the respondents, including the State of Maharashtra, contended
before the Division Bench that the word "any property" used in Section
102 of the Code cannot be restricted to movable property alone and
immovable property can also be seized under the said Section. The
Division Bench in its order dated 1st April, 2010 observed in para 12 as
under:-
"12. Having gone through Tapas Neogy [(1999) 7 SCC 685], we are inclined to hold that it is possible to urge that in Tapas Neogy, the Supreme Court was primarily considering whether the bank account of the accused could be property within the the Section 102 (1) of the Code and not whether under Section 102 of the Code, immovable property could be seized. That question has been decided by this Court in Kishore Shankar Signapurkar vs. State of Maharashtra & Ors., 1997 Vol. IV LJ 793. It is held 7
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therein that under Section 102, immovable property cannot be seized. Unfortunately, attention of the Division Bench of this court was not drawn to this judgment when it decided M/s.Bombay Science & Research (2008 All. M.R. (Cri.) 2133). Reliance placed by the Division Bench in M/s. Bombay Science & Research on Tapas Neogy does not appear to us to be apt because in that case, the Supreme Court was not considering whether immoveable property can be seized under Section 102 of the Code. There is, therefore, an apparent conflict between the view expressed in Kishore Signapurkar and M/s.Bombay Science & Research. In our opinion, therefore, the question whether under Section 102 of the Code, immoveable property can be seized needs to be referred to a larger bench as there is conflict between two coordinate benches of this Court."
In Tapas Neogy's case the Supreme Court has referred to
Section 16 of the P. C. Act and hence is presumed to have considered
the Criminal Law (Amendment) Ordinance 1944. 8
cri.w.p.3198-2009 & Other Petitions.doc
2. For the above said reasons the Division Bench framed and
referred the following questions to be decided by the larger Bench:-
"(a) Whether the words "any property" used in sub-section (1) of Section 102 of the Code of Criminal Procedure, 1973 would mean to include "immoveable property.?
(b) Whether a police officer can take control of any immovable property which may be found under circumstances which create suspicion of the commission of any offence?
(c) Which of the above two judgments lay down correct law in respect of the powers of a police officer to seize any immoveable property under Section 102 of the Code of Criminal Procedure.
(d) Whether the law laid down by the Supreme Court in case of State of Maharashtra v. Tapas D. Neogy (supra) is restricted to seizure of bank accounts only or it can be 9
cri.w.p.3198-2009 & Other Petitions.doc
extended to immoveable property also, as interpreted by the Division Bench in the case of M/s.Bombay Science and Research Education Institute (supra)."
3. The main issue which we are required to decide is as to
whether an immovable property can be seized under Section 102 of the
Code, and our reply on this single issue will result in deciding all the
above stated four issues set out in the referral order.
4. In Kishore Shankar Signapurkar's case the Division Bench
considered the following points:-
(i) Whether the police can seize immovable property under the provisions of Section 102 of the Code of Criminal Procedure?
(ii) Whether the police can seize or freeze Bank accounts 10
cri.w.p.3198-2009 & Other Petitions.doc
under the provisions of section 102 of the Code of Criminal Procedure;
(iii) What is the procedure to be followed by the police in respect of the property seized under the provisions of section 102 of the Code of Criminal Procedure.
After referring to the arguments advanced by the parties and
the judgments cited across the bar the Division Bench concluded its
findings, as under on the first two issues framed by it.
(a) The word "property" as used in Section 102 of the Cr.P.C. cannot include "immovable property" and
(b) the police have no power under the provisions of Section 102 to direct the bank accounts to be freezed and prevent the account holder from operating the bank account."
The short reasoning on the first issue in the said case finds
place in the following observations of the Division Bench:- 11
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"As a matter of fact, we are of the opinion that the aforesaid observations of the apex Court in R.K. Dalmia v. Delhi Administration reported in A.I.R. 1962 S.C. 1821 support the conclusion that the interpretation of the word "property" as used in section 102 will not depend on the interpretation of the word "property" but on the fact whether a particular kind of property can be subject to the acts covered by that section. As stated earlier, in our opinion, the provisions of sub-section (3) contemplate the property to be capable of being produced before the Court and being transported, and in as much as the immovable property would be incapable of being transported or so produced, we are of the opinion that the word "property" as used in section 102 of the Cr.P.C. Cannot include "immovable property....... Therefore, on reading of the provisions of Section 102 the Code which in our opinion are clear, and unambiguous, we are of the opinion that an immovable property cannot be seized by the police under the provisions of Section 102 of the Code."
The reasoning and findings recorded on the second issue 12
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regarding the bank accounts need not be considered as they have been
disapproved by the Supreme Court in Tapas Neogy's case (supra).
5. In the case of M/s. Bombay Science Research Education
Institute (supra) another Division Bench of this Court following the law
laid down by the Supreme Court in Tapas Neogy's case held that all
properties whether movable or immovable can be seized by the police
under Section 102 of the Code as there is nothing in the provision to
show that the property would include only movable and not immovable
property. It is true that there is no reference in this judgment in the case
of M/s.Bombay Science Research Education Institute (supra), to the
earlier judgment in the case of Kishore Signapukar (Supra) but it is
beyond any doubt that the findings in both the decisions of this Court are
in conflict and the view taken in the later judgment of this Court is
solely based on the subsequent decision of the Supreme Court in the
case of Tapas Neogy's case (supra). In paras. 10 and 11 of the judgment 13
cri.w.p.3198-2009 & Other Petitions.doc
in M/s.Bombay Science and Research Education Institute the Division
Bench stated as under:-
"10. Now contention of the petitioner is that though Supreme Court held that the bank account as "property" within the meaning of Section 102 of Criminal Procedure Code, but "immovable properties" can not be "properties" within the meaning of Section 102........
11. We do not find that there is any basis for such distinction to be made in the movable and immovable properties as far as "property" is mentioned in Section 102. All properties whether movable or immovable in our view can be seized by police under Section 102, as there is nothing in the provision to show that the property would include only movable and not immovable. The Supreme Court has held in the para quoted above there was no justification to come to the conclusion that the "property" should be defined in the narrow sense".
14
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6. In Tapas D. Neogy's case (supra) the main question for
consideration before the Apex Court was, whether the investigating
officer can pass orders freezing the bank account or issue prohibitory
orders to the bank not to allow the account holder to operate the account
by invoking the powers under Section 102 of the Code. The Supreme
Court reproduced the provisions of Section 102 of the Code and in para
6 stated as under:-
"6. A plain reading of sub-section (1) of Section 102 indicates that the police officer has the power to seize any property which may be found under circumstances creating suspicion of the commission of any offence. The legislature having used the expression "any property" and "any offence" have made the applicability of the provisions wide enough to cover offences created under any Act. But the two preconditions for applicability of Section 102(1) are that it must be "property" and secondly, in respect of the said property there must have been suspicion of commission 15
cri.w.p.3198-2009 & Other Petitions.doc
of any offence. In this view of the matter the two further questions that arise for consideration are whether the bank account of an accused or of his relation can be said to be "property" within the meaning of sub-section (1) of Section 102 Cr.P.C. And secondly, whether circumstances exist, creating suspicion of commission of any offence in relation to the same......"
After referring to the earlier decisions of some of the High Courts as
well as the Supreme Court, Their Lordships in para 12 of Tapas D.
Neogy's case (supra) stated thus,
"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 16
cri.w.p.3198-2009 & Other Petitions.doc
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 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 deplosited in a bank which is ultimely 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 17
cri.w.p.3198-2009 & Other Petitions.doc
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 18
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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 operating his account, and so, we do not interfere with the same." (emphasis supplied).
7. The arguments by the respective parties before us are
almost on the same lines as they were advanced before the Division
Bench while passing the referral order. The learned Counsel for the
petitioner urged before us that the words "any property" used in Section
102 of the Code does not extent to "immovable property" and, therefore,
the police officer does not have the power to seize the immovable
property under the said Section. When it comes to immovable property,
what is envisaged under the Code is "attachment" and not "seizure" and
wherever the Legislature had intended to extend the provisions of the 19
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Code to apply to immovable property the words "immovable property"
have been specifically used. The draftsmen of the Code have
distinguished between "seizure" and "attachment" and they have
contemplated the word "seizure" to apply to "movable property" and not
to the "immovable property". In support of these contentions, our
attention was drawn to the provisions of Sections 51, 52, 83(3)(a), 83(4)
(a), 105, 105E, 145, 146 and 451 to 459 of the Code as well as Section
68-F of the N.D.P.S. Act, 1985 so as to urge that the powers of seizure
under Section 102 of the Code cannot be invoked in respect of an
immovable property. It is further submitted that the later decision in the
case of M/s. Bombay Science and Research Institute (supra) did not
consider the reasoning set out by the earlie Division Bench in Kishore
Shankar Signapurkar's case (supra) and did not analyze the various
provisions of the Code to come to the said view that an immovable
property can be seized under Section 102 of the Code. The judgment of
the Supreme Court in the case of Tapas D. Neogy (supra) is a binding
precedent only to the extent that the power under Section 102 of the 20
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Code can be invoked for the seizure or freezing of the bank account
and it cannot be extended to an immovable property even by inference
or implication. Though Section 102 of the Code can be divided in two
different parties, in the first part the "property stolen" is different from
the words "stolen property" as defined in Section 410 of the I.P.C., and,
therefore, the immovable property is not covered in the first part. As
regards the second part of Section 102 of the Code, it was submitted that
it cannot apply to an immovable property as the word used is "found"
and an immovable property cannot be found and it stays where it is. The
entire phrase "found in circumstances which creates suspicion of the
commission of any offence" which is the second part of Section 102 of
the Code would apply only to movable property. Section 102 of the
Code finds its place in Chapter VII of the Code and heading of the said
Chapter uses the word "things" and, therefore, it is impossible to
imagine by the common usage of the word "things" that the same
would also mean immovable property as an immoveable property cannot
be said to be "things". He also urged that Sections 451 to 459 of the 21
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Code also support his arguments. Section 456 specifically takes care of
"immovable property" and it does not contemplate that the immovable
property should have been seized earlier. Section 452 grants power to
the Magistrate to pass an order for disposal, at the conclusion of the
trial, of the property in its custody or regarding which an offence
appears to have been committed and the stress in the Section is on its
production in the Court thereby implying that it applies only to movable
property. Our attention has also been invited to the following
observations made by the earlier Division Bench in Kishore Shankar
Singnapurkar's case (supra) :-
".....If one goes to the provisions of the Code and especially the provisions of Sections 83, 93, 105-C to 105-I, 145, 146, 152 and 456 it is clear that whenever movable property is concerned, the power is given either to the Court or to the Magistrate."
22
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Based on these observations, it has been contended before us that when
it comes to an immovable property, the power of attachment can be
exercised by the Court or by the Magistrate and the power of seizure
which is available to a police officer under Section 102 of the Code
cannot be made applicable to an immovable property, otherwise the
consequence of any other interpretation would be disastrous and
innocent people or persons who have no connection with the alleged
crime would be made to suffer till the trial is completed and in given
cases the chances of dispossession during the investigation itself could
not be ruled out on account of the high handed attitude of the police
officer. Lastly, the learned Counsel for the petitioner also relied upon
the recommendations of the Malimath Committee so as to amend the
scheme of Section 102 of the Code to include the immovable property
and they urged that an inference ought to be drawn that the present
scheme of Section 102 does not include immovable property, and there
is no reason to upset the said view solely relying upon some of the 23
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observations made by the Supreme Court in Tapas D. Neogy's case
(supra).
8. On the other hand the learned Counsel for the respondents
have urged before us that the words "any property" must be given their
natural meaning and it cannot be limited or altered to mean only
'movable property". Wherever the legislature wanted to make
distinction it has used the words "movable property" and "immovable
property" in the Code. Reference has also been made to the dictionary
meaning of the words "seizure", "attachment" and "disposal", etc. It
was submitted that unless the property is seized during the course of
investigation by the police , the power of attachment to be invoked by
the Magistrate or by the Court cannot be applied effectively, in given
cases as the property in the meanwhile would have changed hands, more
so if it is a property acquired from the proceeds of crime/offence. The
term "any property" has to be interpreted so as to make the procedural 24
cri.w.p.3198-2009 & Other Petitions.doc
law effective and a restricted meaning to the said words would, at
times, render the Code ineffective. When the words used in the statute
are clear, plain and unambiguous, the Courts have no power to delete or
add any other words in the statute. The judgment in the case of Tapas D.
Neogy (supra) clearly states that the word "any property" cannot be
given a limited meaning and to keep pace with the changing scenario of
different organised crimes, it would be imperative that the words "any
property" must include "movable property" as well as "immovable
property" otherwise the legislature would not have used the adjective
"any" before the word "property". The seizure does not connote merely
taking physical possession of the property by leaving it or removing it.
The requirement of production of the seized property, if the Court so
orders, found in Section 102, does not lead to the conclusion that "any
property" means only movable property. There are several cases where
movable property because of its size, etc., cannot be produced in the
Court. However, in respect of the seized immovable property, title
documents and other documents indicating seizure can be placed before 25
cri.w.p.3198-2009 & Other Petitions.doc
the Court. Therefore, sub-section (3) of Section 102 of the Code cannot
be read so as to indicate that because the immovable property cannot be
produced before the Court the words "any property" must mean only
"movable property". The object behind the action of seizure under
Section 102 of the Code is to preserve and to protect the property which
has been acquired from the proceeds of the crime during the trial.
Section 451 of the Code provides for an order which a Court can pass
pending trial for custody of the property, whereas Section 452 and 456
of the Code speaks about disposal of the property at the completion of
the trial. Section 457 of the Code is the only Section which enables the
Court to preserve and protect the property till the conclusion of the trial
and it can be directly related to Section 102 of the Code. If Section 102
of the Code is given a narrow meaning as suggested by the petitioner it
would curtail the investigating officer's legitimate power and that would
adversely affect the investigation of serious crimes under various penal
provisions general as well as special. The investigating officer may
become totally helpless where he would come to the prima facie 26
cri.w.p.3198-2009 & Other Petitions.doc
conclusion that the property found was under the circumstances which
create suspicion on the commission of any offence. The investigation of
serious offences under the N.D.P.S. Act, Maharashtra Control of
Organised Crime Act, Money Lending Act, the Maharashtra Protection
of Interest of Depositors (In Financial Establishment) Act, 1999 and the
Prevention of Money Laundering Act, 2002 would be adversely
affected. It was further urged that the view taken by the Division Bench
in M/s. Bombay Science & Research Education Institute (supra) is in
keeping with the letter and spirit of the interpretation of Section 102 as
amplified by the Supreme Court in the case of Tapas D. Neogy (supra)
and that the view taken in the case of Kishore Shankar Signapurkar
(supra) is no more a good law. The Criminal Law (amendment)
Ordinance 1944 could not detain, as is clear from the taken by the
Supreme Court in Tapas D. Neogy's case (supra), to take a restricted
view that a property acquired from the proceeds of crime cannot be
seized under Section 102 of the Code, urged the learned Counsel for the
respondents.
27
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9. It may be useful to quote for our ready reference some of
the Sections of the Code including Section 102 which have been
referred to and relied upon during the course of arguments, including
Sections 68-C to 68-F of the N.D.P.S. Act and the Criminal Law
(Amendment) Ordinance 1944.
The Code of Criminal Procedure:
"S.83.(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:
Provided that where at the time of issue of the proclamation the Court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued-
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local jurisdiction of the Court, it may order the attachment simultaneously with the issue of the proclamation. 28
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(2) Such order shall authorise the attachment of any property belonging to such person within the district in which it is made; and it shall authorise the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate.
(3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made-
(a) by seizure; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or
(d) by all or any two of such methods, as the Court thinks fit.
(4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the Collector of the district in which the land is situate, and in all other cases-
(a) by taking possession; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the payment of rent or delivery of property to the proclaimed person or to any one on his behalf; or
(d) by all or any two of such methods, as the Courts thinks fit. 29
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(5) If the property ordered to be attached consists of live-stock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the Court.
(6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908).
S.102 (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, (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 30
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457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.)
"105-A. Definitions.- In this Chapter, unless the context otherwise requires,-
(a)"contracting State" means any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country through a treaty or otherwise;
(b) "identifying" includes establishment of a proof that the property was derived from, or used in, the commission of an offence;
(c) "proceeds of crime" means any property derived or obtained directly or indirectly, by any person as a result of criminal activity (including crime involving currency transfers) or the value of any such property;
(d) "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;
(e)"tracing" means determining the nature, source, disposition, movement, title or ownership of property."
"S.105-C. (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 31
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deem fit under the provisions of Sections 105-D to 105-J (both inclusive).
(2) Where the Court has made an order for attachment or forfeiture of any property under sub-section (1), and such property is suspected to be in a contracting state, the Court may issue a letter of request to a Court or an authority in the contracting State for execution of such order.
(3) Where a letter of request is received by the Central Government from a Court or an authority in a contracting State requesting attachment or forfeiture of the property in India, derived or obtained, directly or indirectly, by any person from the commission of an offence committed in that contracting State, the Central Government may forward such letter of request to the Court, as it thinks fit, for execution in accordance with the provisions of Section 105-D to 105-J (both inclusive)or, as the case may be, any other law for the time being in force."
"S.105-E. (1) Where any officer conducting an inquiry or investigation under Section 105-D has a reason to believe that any property in relation to which such inquiry or investigation is being conducted is likely to be concealed, transferred or dealt with in any manner which will result in disposal of such property, he may make an order for seizing such property and where it is not practicable to seize such property, he may make an order of attachment directing that such property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order, and a copy of such order shall be served on the person concerned.
(2) Any order made under sub-section (1) shall have no effect unless the said order is confirmed by an order of the said Court, within a period of thirty days of its being made."
32
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"S.105-H. Forfeiture of property in certain cases.- (1) The Court may, after considering the explanation, if any, to the show-cause notice issued under section 105-G and the material available before it and after giving to the person affected (and in a case where the person affected holds any property specified in the notice through any other person, to such other person also) a reasonable opportunity of being heard, by order, record a finding whether all or any of the properties in question are proceeds of crime:
"S.105-L. Application of this Chapter.- The Central Government may, by notification in the Official Gazette, direct that the application of this Chapter in relation to a contracting State with which reciprocal arrangements have been made, shall be subject to such conditions, exceptions or qualifications as are specified in the said notification."
"D - Disputes as to immovable property.
S. 145. Procedure where dispute concerning land or water is likely to cause breach of peace - (1) whenever an Executive Magistrate is satisfied from a report of police officer or upon other information that a dispute is likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
(2) For the purposes of this section, the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. 33
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"S.146.(1) If the Magistrate at any time after making the order under sub-section (1) of Section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof:
Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.
(2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908):
Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate-
(a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him;
(b) may make such other incidental or consequential orders as may be just."
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"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.- (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. 35
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(3) A Court of Sessions 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."
"456. Power to restore possession of immovable property.- (1) When a person is convicted of an of 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. 36
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The Criminal Law (Amendment) Ordinance, 1944:
"4.Ad interim attachment.- (1) Upon receipt of an application under section 3, the District Judge shall, unless for reasons to be recorded in writing he is of the opinion that there exist no prima facie grounds for believe that the person in respect of whom the application is made has committed any scheduled offence or that he has procured thereby any money or other property, pass without delay an ad interim order attaching the money or other property alleged to have been so procured, or if it transpires that such money or other property is not available for attachment, such other property of the said person of equivalent value as the District Judge may think fit:
Provided that the District Judge may if he thinks fit before passing such order, and shall before refusing to pass such order, examine the person or persons making the affidavit accompanying the application.
(2) At the same time as he passes an order under sub-section (1), the District Judge shall issue to the person whose money or other property is being attached, a notice, accompanied by copies of the order, the application and affidavits and of the evidence, if any, recorded, calling upon him to show cause on a date to be specified in the notice why the order of attachment should not be made absolute.
(3) The District Judge shall also issue, accompanied by copies of the documents accompanying the notice under sub-section (2), to all persons represented to him as having or being likely to claim, any interest or title in the property of the person to whom notice is issued under the said sub-section calling upon each such person to appear on the same date as specified in the notice under the said sub-section and make objection if he so desires to the attachment of the property or any portion thereof on the ground that he has an interest in such property or portion thereof.
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(4) Any person claiming an interest in the attached property or any portion thereof may, notwithstanding that no notice has been served upon him under this section, make an objection as aforesaid to the District Judge at any time before an order is passed under sub-section (1) or sub-section (3), as the case may be, of section 5."
"6. Attachment of property of mala fide transferees.- (1) Where the asset available for attachment of a person believed to have committed scheduled offence are found to be less than the amount or value which he is believed to have procured by means of such offence, and where the District Judge is satisfied, by affidavit, or otherwise, that there is reasonable cause for believing that the said person has, after the date on which the offence is alleged to have been committed, transferred (whether after the commencement of this Ordinance or not) any of his property otherwise than in good faith and for consideration, the District Judge may by notice, require any transferee of such property (whether or not he received the property directly from the said person) to appear on a date to be specified in the notice and show cause why so much of the transferee's property as is equivalent to the proper value of property transferred should not be attached."
"13. Disposal of attached property upon termination of criminal proceedings.- (1) Upon the termination of any criminal proceedings for any scheduled offence in respect of which any order of attachment of property has been made under this Ordinance or security given in lieu thereof, the agent of the (State Government or, as the case may be, the Central Government) shall without delay inform the District Judge, and shall where criminal proceedings have been taken in any Court, furnish the District Judge with a copy of the judgment or order of the trying Court and with copies of the judgments or orders, if any, of the appellate or revisional Courts thereon.
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(2) Where it is reported to the District Judge under sub-section (1) that cognizance of the alleged scheduled offence has not been taken or where the final judgment or order of the Criminal Court is one of acquittal, the District Judge shall forthwith withdrawn any orders of attachment of property made in connection with the offence, or where security has been given in lieu of such attachment, order such security to be returned.
(3) Where the final judgment or order of the Criminal Courts is one of conviction, the District Judge shall order that from the property of the convicted person attached under this Ordinance or out of the security given in lieu of such attachment, there shall be forfeited to Government such amount or value as is found, in the final judgment or order of the Criminal Courts in pursuance of section 12 to have been procured by the convicted person by means of the offence, together with the costs of attachment as determined by the District Judge and where the final judgment or order of the Criminal Courts have imposed or upheld a sentence of fine on the said person (whether alone or in conjunction with any other punishment), the District Judge may order, without prejudice to any other mode of recovery, that the said fine shall be recovered from the residue of the said attached property or of the security given in lieu of attachment.
(4) Where the amounts ordered to be forfeited or recovered under sub-section (3) exceed the value of the property of the convicted person attached, and where the property of any transferee of the convicted person has been attached under section 6, the District Judge shall order that the balance of the amount ordered to be forfeited under sub-section (3) together with the costs of attachment of the transferee's property is determined by the District Judge shall be forfeited to Government from the attached property of the transferee or out of the security given in lieu of such attachment; and the District Judge may order, without prejudice to any other mode of recovery, that any fine 39
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referred to in sub-section (3) or any person thereof not recovered under that sub-section shall be recovered from the attached property of the transferee or out of security given in lieu of such attachment.
(5) If any property remains under attachment in respect of any scheduled offence of any security given in lieu of such attachment remains with the District Judge after his orders under sub-sections (3) and (4) have been carried into effect, the order of attachment in respect of such property remaining shall be forthwith withdrawn or as the case may be, the remainder of the security returned, under the orders of the District Judge.
(6) Every sum ordered to be forfeited under this section in connection with any scheduled offence other than one specified in item I of the Schedule to this Ordinance, shall, after deduction of the costs of attachment as determined by the District Judge, be credited to the Government being a Government referred to in the said Schedule or local authority to which the offence has caused loss, or where there is more than one such Government or local authority, the sum shall, after such deduction as aforesaid, be distributed among them in preparation to the loss sustained by each."
"THE SCHEDULE
(See section 2)
OFFENCES IN CONNECTION WITH WHICH PROPERTY IS LIABLE TO BE ATTACHED
2. An offence punishable under section 406 or section 408 or section 409 of the Indian Penal Code (45 of 1860), where the property in respect of which the offence is committed is property entrusted by His Majesty's Government in the United Kingdom or in any part of His Majesty's dominions or the Central or a State Government 40
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or a department of any such Government or a local authority [or a corporation established by or under a Central, provincial or State Act, or an authority or a body owned or controlled or aided by Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956), or a society aided by such corporation, authority, body or Government company] or a person acting on behalf of any such Government or department or authority [or corporation or body or Government company or society].
3. An offence punishable under section 411 or section 414 of the Indian Penal Code (45 of 1860), where the stolen property in respect of which the offence is committed is property such as is described in the proceeding item and in respect of which an offence punishable under section 406 or section 408 or section 409 of the said Code has been committed.
4. An offence punishable under section 417 or section 420 of the Indian Penal Code (45 of 1860), where the person deceived is His Majesty's Government in the United Kingdom or in any part of His Majesty's dominions or the Central or State Government or a department of any such Government or a local authority or a corporation established by o under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956) or a society aided by such corporation, authority, body or Government Company or a person acting on behalf of any such Government or department (or authority or corporation or body or Government company or society).
[4-A. An offence punishable under the Prevention of Corruption Act, 1988 (49 of 1988)]
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5.Any conspiracy to commit or any attempt to commit or any abetment or any of the offences specified in [items 2, 3, 4 and 4-A]."
The Narcotic Drugs and Psychotropic Substances Act:
"68-C. Prohibition of holding illegally acquired property.- (1) As from the commencement of this Chapter, it shall not be lawful for any person to whom this Chapter applies to hold any illegally acquired property either by himself or through any other person on his behalf.
(2) Where any person holds any illegally acquired property in contravention of the provisions of sub-section (1), such property shall be liable to be forfeited to the Central Government in accordance with the provisions of this Chapter:
(Provided that no property shall be forfeited under this Chapter if such property was acquired, by a person to whom this Act applies, before a period of six years from the date he was arrested or against whom a warrant or authorisation of arrest has been issued for the commission of an offence punishable under this Act or from the date the order or detention was issued, as the case may be.)
68-E. Identifying illegally acquired property.- (1) Every officer empowered under section 53 and every officer-in-charge of a police station shall, on receipt of information is satisfied that any person to whom this Chapter applies holds any illegally acquired property, he may, after recording reasons for doing so, proceed to take all steps necessary for tracing and identifying such property.)
(2) The steps referred to in sub-section (1) may include any inquiry, investigation or survey in respect of any person, place, property, 42
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assets, documents, books of account in any bank or public financial institution or any other relevant matters.
(3) Any inquiry, investigation or survey referred to in sub- section (2) shall be carried out by an officer mentioned in sub-section (1) in accordance with such directions or guidelines as the competent authority may make or issue in this behalf.
68-F. Seizure or freezing of illegally acquired property.- (1) Where any officer conducting an inquiry or investigation under section 68-E has reason to believe that any property in relation to which such inquiry or investigation is being conducted is an illegally acquired property and such property is likely to be concealed, transferred or dealt with in any manner which will result in frustrating any proceeding relating to forfeiture of such property under this Chapter, he may make an order for seizing such property and where it is not practicable to seize such property, he may make an order that such property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order, or of the competent authority and a copy of such order shall be served on the person concerned:
Provided that the competent authority shall be duly informed of any order made under this sub-section and a copy of such an order shall be sent to the competent authority within forty-eight hours of its being made.
(2) Any order made under sub-section (1) shall have no effect unless the said order is confirmed by an order of the competent authority within a period of thirty days of its being made.
Explanation.- For the purposes of this section, "transfer of property" means any disposition, conveyance, assignment, settlement, 43
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delivery, payment or other alienation of property and, without limiting the generality of the foregoing, includes-
(a) the creation of a trust in property;
(b) the grant or creation of any lease, mortgage, charge, easement, licence, power, partnership or interest in property;
(c) the exercise of a power of appointment of property vested in any person, not the owner of the property, to determine its disposition in favour of any person other than the donee of the power; and
(d) any transaction entered into by any person with intent thereby to diminish directly or indirectly
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