Power of Police to seize any property during investigation

Is it not scary that police having power to seize any property during an investigation. It will create chaos in mind that police will seize any property whether movable or immovable. So to make this clear the conception let’s look into the concept.  The term seize under section 102 means to take actual physical custody/control of the property. This can only be done for the moveable property because immovable property can’t be taken away physically. Section 102 of the CrPC provides police officers with the power to seize any of your property Whether police officials are authorized to seize both immovable and movable property under the purview of Section 102 of CrPC or not. Moreover, there are also some suggestions and recommendations that can be applied or taken care of, in the further amendments related to the seizure of immovable property by police officials.

Section 102 of the Code of Criminal Procedure

Section 102 of CrPC, 1973 validates the power of police officers to seize certain property.

According to Section 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 that create suspicion of the commission of any offence.

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 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.

This section emphasis a few conditions to be fulfilled –

  • If the seizing police officer is below the rank of inspector as given under the section 102 then he or she should immediately submit the report of the seizure to the police station in-charge or senior.
  • Later on, the senior should have to submit the report of seized property to the magistrate of that jurisdiction.

According to this Section, the power of the police is discretionary in nature, and it does not make it mandatory to seize property in each and every case of robbery, theft, homicide, etc.

Grounds of seizing the property-

According to the law, the police may have the power to seize the property of the accused under following four main grounds:

1.For the Safekeeping:

The police have the authority to seize valuable property like money, expensive electronics, jewelry etc. and For investigation of the any case & to protect such property from any kind of further damage/harm or crime. Sometimes, it is that police officials do such things to protect it from any kind of tampering by the accused or criminal.

2.Forfeiture: 

 the police have the power to seize certain property if they have reason to believe that such property was taken into use for the commission of the crime or procured during the commission of that crime.

Some examples of properties that can be forfeited:

i. Certain vehicles can be confisticate or forfeited in a variety of situations or circumstances, which are somehow related to the crime or offense.

ii. The amount of money that might be given or taken for some criminal offense like for unlawful dealings of drugs or illegal gambling.

iii. Any kind of electronic devices of the suspected persons, which are somehow connected to that particular crime or offense may be it is camera, etc. 

3. Contraband:

 It refers to such property which might be seized by police officers because it’s already a crime to have such things in the first place. These kinds of property include illegal drugs, unlicensed handguns, etc.

4.Evidence

Thepolice can have power to  detain the property, which can help to form the evidence against the accused person.   

SALIENT FEATURES OF SECTION 102

• According to this section, if the police officer who’s seizing the property is of a rank below than the police officer who’s in charge of the police station, also that police officer who’s a rank below has to inform and submit a report of seizure to the inspector in charge of the police station. In other words, any police officer, other than the inspector in charge of the police station, has seized the property, also that police officer has to submit the report to the inspector in charge.

 • Once the report has been submitted to the elderly police officer or the inspector in charge, also that elderly officer has to further submit the report to the justice of that governance where the police station is positioned.

 • This section isn’t a obligatory provision and is only optional in nature. Subclause 1 of this section gives discretion to the police officer to seize property. This means that it isn’t obligatory for the police officer to seize property in case of any offence. The word ‘ may ’ in subclause 1 points towards the discretion of the police officer. Had it been ‘ shall ’ rather of ‘ may ’ in subclause 1, also this provision would have been obligatory in nature.

• Property appertained to in this section is of two kinds- portable property and irremovable property.

 • portable property is defined under section 22 of the Indian Penal Code( IPC). It includes any kind of property except land, anything attached to the land, anything fastened to commodity attached to the land. In other words, anything which is attached to the earth isn’t portable property and will be considered irremovable under the law. The word ‘ property ’ in section 102 includes ONLY portable property and doesn’t include irremovable property. This will be further explained in the coming sections and case laws.

 • Analysis of the section brings out the fact that the property which is seized shouldn’t be harmed or left to decay or damaged under the police guardianship, that’s the reason it’s mentioned in section 102( 3) that when the police suppose that the guardianship of property is no longer necessary, they should assign to someone who can watch for the property and bring it to the court as and when needed.


RELEVANT CASE LAWS UNDER SECTION 102

1.  Nevada Properties Private Limited Through Its Directors v. The State of Maharashtra and Another

Facts – this case was the result of an appeal that arose from the case adjudicated in the High court namely Kishore Shankar Signapurkar vs. The State of Maharashtra. In this case, the High court had held that the term’ property ‘under section 102 does not include immovable property. This case was hence brought before the Supreme court by way of an appeal. 

Issue- Whether the term ‘property’ under section 102 of CrPC includes immovable property.

Held – the Supreme Court answered in the negative and taken side with the decision of the High Court. The court stated that the property seized under this section is seized on mere suspicion. If the law puts discretion on the police officers to seize immovable property also only on the basis of discretion, that will give a lot of uncensored power to the police officers and the ends of justice will never be met. 

2.  State of Maharashtra vs. Tapas D. Neogey

Facts- in this case, the property which was seized was the bank account of the indicted. There were some illegal plutocrat transfers made into the account of the indicted. The High Court said that a bank account can not be considered property under section 102 CrPC. The case went to the Supreme court.

 Issue- whether bank accounts of the indicted can be seized as property under section 102.

 Judgement- The Supreme court capsized the judgement of the High Court and stated that bank accounts can be seized if there’s any direct link of the account seized with the commission of the offence. This is because if the bank accounts aren’t allowed to be seized under this section, the indicted gets a lot of time to move that plutocrat or withdraw it before the court can look into the account.

 3. Ms. Swaran Sabharwal vs. Commission of Police

Facts-  in this case, the bank account of the petitioner was seized, and the investigation officer said that the seizure was necessary because one of the accused in this case transferred some money to the petitioner’s account. 

Issue- Whether the seizing of property, in this case, was valid.

Held – the High court refuted the argument put forward by the Investigating officer and said that section 102 requires the police officer to seize only that property which leads the officer to believe that some crime has been committed as against or in connection with the property which has been seized. In this case, the police officer could not establish a connection between the crime that took place and the account of the petitioner which was seized. Hence, the seizure was held invalid. 

Conclusion

For many years, in the Indian courts, it was a searing topic of debate that whether immovable property comes under the scope of Section 102 CrPC or not and with the Nevada properties judgment, the Court ultimately deduced that the immovable property couldn’t  be seized under Section 102 CrPC.

The statutes like the Indian Forests Act, 1927 and the Narcotic Drugs and Psychotropic Substance Act, 1985 also have provisions to seize ‘movable property’ by the concerned officers only.

As of now, we all know that Section 102 talks about such properties which might be suspected or alleged to have been stolen or robbed. But this is something that is not possible with the immovable property as it cannot be stolen or robbed.

The adjudication  of the Apex Court in Nevada Properties we seen that judgement has very well demarcated the expression ‘any property’ in subsection (1) of Section 102 CrPC. The Court’s decision that the immovable property is not incorporated in Section 102 of CrPC, will solved t various concerns and also protect the rights of an accused person.  

 

 

 

References

1.Indian Penal Code, 1860

2.Criminal Procedure Code, 1973

3.https://www.scconline.com/blog/post/2019/09/24/section-102-crpc-doesnt-empower-police-to-attach-seize-and-seal-an-immovable-property/

4.https://advocatechenoyceil.com/2020/02/21/can-a-police-officer-seize-any-property-in-the-course-of-an-investigation/

5.https://www.mondaq.com/india/crime/969562/whether-seizure-of-an-immovable-property-falls-under-the-purview-of-s102-of-the-criminal-procedure-code-when-reference-is-made-to-any-property39

6.https://core.ac.uk/download/pdf/43166635.pdf

7.Ratanlal & Dhirajlal, Revised by B.M. Prasad & Manish Mohan, The Code of Criminal Procedure, LexisNexis, 2016

8.Law Commission of India, 14th Report, on “Reforms of Judicial Administration, 1958”

 

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