NEVADA PROPERTIES PRIVATE LIMITED THROUGH ITS DIRECTORS v. STATE OF MAHARASHTRA
2019-09-24
DEEPAK GUPTA, RANJAN GOGOI, SANJIV KHANNA
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JUDGMENT Deepak Gupta, J. I have gone through the judgment delivered by my brother, Justice Sanjiv Khanna. I agree with the finding in the said 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.
(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 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.” Sub-section (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.
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. 5. Sub-section (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. Sub-section 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, AIR 1960 AII 405 : WP(C) No. 12275 of 2012, Judgment dated 26.07.2012 (Ker HC) : 2016(3) PLJR 464 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. Neogy (1999) 7 SCC 685 . 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.
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:...” 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 commission of an offence, the Court may make an order for attachment or forfeiture of such property. 9.
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 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.