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2024 DIGILAW 1348 (KER)

Vishnu Rajendra Prasad v. Sub-Registrar

2024-10-21

KAUSER EDAPPAGATH

body2024
JUDGMENT : The petitioner is aggrieved by the entry in Ext.P3 Encumbrance Certificate relating to his property that there is an attachment over the property effected as per the instructions of the 3rd respondent/Police Inspector. 2. The petitioner is the owner in possession of 14.66 Ares of land covered by Ext.P1 sale deed. The petitioner applied for the Encumbrance Certificate of the property covered by Ext.P1 and was issued with Ext.P3 Encumbrance Certificate, which carried an entry dated 4/6/2022 stating that the property is attached by the 3rd respondent. According to the petitioner, the 3rd respondent has no right to issue an attachment order in respect of the property and even if there is an attachment order, such an entry ought not have been entered in Ext.P3. It is in these circumstances that the petitioner has approached this Court to quash the said entry in Ext.P3. 3. I have heard Sri.C.S.Manu, the learned counsel for the petitioner and Smt.Deepa V., the learned Government Pleader. 4. The learned Government Pleader made available to me a copy of the communication issued by the 3rd respondent dated 02.05.2022. In the said communication, it is stated that a crime has been registered as Crime No.137 of 2022 under Sections 420 and 406 of IPC r/w Section 3 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999, against the accused, namely Sreekumar Shankara Pillai, the Director of S.Kumar Gold and Diamond, West Mumbai. During the course of the investigation of the said crime, it was revealed that the accused had purchased so many properties, including the property covered by Ext.P1. Therefore, the 3rd respondent, who is the investigating officer of the above-mentioned crime, gave a direction to the 1st respondent not to allow the transfer or sale of the said property. Based on the said communication, it appears that the entry has been made in Ext.P3 Encumbrance Certificate. 5. Section 102 of Cr. P.C deals with the power of the police officer investigating a crime to seize certain property which may be found under circumstances that create suspicion of the commission of any offence. However, the said power granted to a police officer would not include the power to seize and attach an immovable property. The phrase ‘any property’ in Section 102 will only cover movable property and not immovable property. However, the said power granted to a police officer would not include the power to seize and attach an immovable property. The phrase ‘any property’ in Section 102 will only cover movable property and not immovable property. The police officer is an investigator, not an adjudicator or a decision-maker. The immovable property cannot be seized or attached by a police officer during a criminal probe under the exercise of power under Section 102 of Cr. P.C (Nevada Properties Private Limited through its Directors v. State of Maharashtra, AIR 2019 SC 4554 ). Even as per the newly introduced Section 107 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the power to order attachment of property categorized as “proceeds of crime” during an ongoing investigation vest only with the court at the request of a police officer conducting the investigation, that too after giving a show cause notice and reasonable opportunity of being heard to the owner of the property. 6. Section 89(5) & (6) of the Registration Act, 1908 deals with the communication of any order regarding the attachment of the property and making entry to that effect in Book No.1. As per these provisions, every court passing an order for the attachment of immovable property or for the release of any immovable property from attachment and every officer issuing a written demand before the attachment of the immovable property of a defaulter under the Revenue Recovery Act shall send a copy of such decree or order or written demand, as the case may be, together with a memorandum describing the property to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the immovable property is situate, and such officer shall file the copy and memorandum in Book No.1. Thus, the Sub Registrar can act upon only as per the order issued by the Court or notice issued under the Revenue Recovery Act. A police officer investigating a crime cannot give a direction to the Sub Registrar not to allow the transfer or sale of the property allegedly involved in the said crime; nor can the Sub Registrar make an entry into Book No.1 regarding the encumbrance of the property based on the information received from a police officer. 7. A police officer investigating a crime cannot give a direction to the Sub Registrar not to allow the transfer or sale of the property allegedly involved in the said crime; nor can the Sub Registrar make an entry into Book No.1 regarding the encumbrance of the property based on the information received from a police officer. 7. For the reasons stated above, I have no hesitation in holding that Ext.P3 Encumbrance Certificate to the extent of the entry dated 4/6/2022 relating to the attachment of the property covered by Ext.P1 as encumbrance of the property is liable to be quashed. Hence, the 1st respondent is directed to delete the entry regarding the attachment in Book No.1 and to issue an Encumbrance Certificate to the petitioner without showing such an entry. The writ petition is disposed of accordingly.