# NEVADA PROPERTIES PRIVATE LIMITED THROUGH ITS DIRECTOR v. STATE OF MAHARASHTRA AND ANR

- **Citation:** [2019] 15 S.C.R. 223
- **Court:** Supreme Court of India
- **Decided:** 2019-09-24
- **Case number:** Criminal Appeal No.1481 of 2019
- **Bench:** Ranjan Gogoi, Deepak Gupta, Sanjiv Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nevada-properties-private-limited-through-its-director-v-state-of-maharashtra-33358
- **Pages:** 35

## Headnote

Code of Criminal Procedure, 1973:
s. 102 - Power of police officer to seize certain property -
Immovable property, if would fall under the expression 'any property'
u/s. 102 - Held: Power of a police officer u/s. 102 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 - Word
'property' in a particular section covers only that type of property
in respect of which the offence contemplated in that section can be
committed - This core principle is to be applied when the expression
'any property' used in s. 102 is interpreted - Expression 'any
property' appearing in s. 102 would not include immovable property
- 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 - 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 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 - As far as possession of the
immovable property is concerned, specific provisions in the form of
Sections 145 and 146 can be invoked as per and in accordance
 [2019] 15 S.C.R. 223
223
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with law - Thus, Section 102 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.
ss. 451, 452 and 456 - Provisions dealing with disposal of
property, if defines scope of s. 102 - Held: ss. 451, 452 and 456 do
not directly define the contours and scope of s. 102 - Section 102
is not the primary or the core provision which would make the
provisions of s. 451, 452 or 456 applicable.
Judgment/Order:
Ratio decidendi of a decision - Application of inversion test
- Held: Inversion test is one of the tests applied to decide the ratio
decidendi of a decision - Inversion test states that the court must
first carefully frame the supposed proposition of law and then insert
in the proposition a word reversing its meaning to get the answer
whether or not a decision is a precedent for that proposition - If
the answer is in the affirmative, the case is not a precedent for that
proposition - If the answer is in the negative, the case is a precedent
for the original proposition and possibly for other propositions also
- By applying the inversion test, it can be said that the decision in
Tapas D. Neogy'case did not go into and decide the issue, whether
immovable property would fall under the expression 'any property'
u/s. 102 - Code of Criminal Procedure, 1973 - s. 102.
Ratio decidendi - Meaning of - Held: A decision is only an
authority for what it actually decides - The essence in a decision is
its ratio - Not every observation found therein nor what logically
flows from those observations is the ratio decidendi - Judgment
has to be read as a whole and the observations have to be considered
in light of the instances which were before the court - This is the
way to ascertain the true principles laid down by a decision - Ratio
decidendi cannot be decided by picking out words or sentences
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averse to the context under questi

## Text

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NEVADA PROPERTIES PRIVATE LIMITED
THROUGH ITS DIRECTOR
v.
STATE OF MAHARASHTRA AND ANR.
(Criminal Appeal No.1481 of 2019)
SEPTEMBER 24, 2019
[RANJAN GOGOI, CJI, DEEPAK GUPTA AND
SANJIV KHANNA, JJ.]
Code of Criminal Procedure, 1973:
s. 102 - Power of police officer to seize certain property -
Immovable property, if would fall under the expression 'any property'
u/s. 102 - Held: Power of a police officer u/s. 102 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 - Word
'property' in a particular section covers only that type of property
in respect of which the offence contemplated in that section can be
committed - This core principle is to be applied when the expression
'any property' used in s. 102 is interpreted - Expression 'any
property' appearing in s. 102 would not include immovable property
- 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 - 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 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 - As far as possession of the
immovable property is concerned, specific provisions in the form of
Sections 145 and 146 can be invoked as per and in accordance
 [2019] 15 S.C.R. 223
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with law - Thus, Section 102 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.
ss. 451, 452 and 456 - Provisions dealing with disposal of
property, if defines scope of s. 102 - Held: ss. 451, 452 and 456 do
not directly define the contours and scope of s. 102 - Section 102
is not the primary or the core provision which would make the
provisions of s. 451, 452 or 456 applicable.
Judgment/Order:
Ratio decidendi of a decision - Application of inversion test
- Held: Inversion test is one of the tests applied to decide the ratio
decidendi of a decision - Inversion test states that the court must
first carefully frame the supposed proposition of law and then insert
in the proposition a word reversing its meaning to get the answer
whether or not a decision is a precedent for that proposition - If
the answer is in the affirmative, the case is not a precedent for that
proposition - If the answer is in the negative, the case is a precedent
for the original proposition and possibly for other propositions also
- By applying the inversion test, it can be said that the decision in
Tapas D. Neogy'case did not go into and decide the issue, whether
immovable property would fall under the expression 'any property'
u/s. 102 - Code of Criminal Procedure, 1973 - s. 102.
Ratio decidendi - Meaning of - Held: A decision is only an
authority for what it actually decides - The essence in a decision is
its ratio - Not every observation found therein nor what logically
flows from those observations is the ratio decidendi - Judgment
has to be read as a whole and the observations have to be considered
in light of the instances which were before the court - This is the
way to ascertain the true principles laid down by a decision - Ratio
decidendi cannot be decided by picking out words or sentences
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averse to the context under question from the judgment - Thus, it is
clear that Tapas D. Neogy's case did not decide whether or not an
immovable property will fall within the expression 'any property' in
section 102 of the Code - Code of Criminal Procedure, 1973 - s.
102.
Criminal Law Amendment Ordinance, 1944 : Promulgation
of - Held: Was to prevent disposal or concealment of property
procured by means of offences specified in its Schedule, which
include offences punishable u/ss. 406, 408, 409, 411 and 414 IPC
in respect of Government property, property of local authority or a
Corporation established by or under a Central, Provincial or State
Act, etc., and an offence punishable under the Prevention of
Corruption Act, 1988 - This Ordinance is a permanent Ordinance
- It was adopted by the Presidential Adaptation of Laws Order,
1950 making it effective in the territory of India and, thus, continues
to remain in force.
Answering the Reference, the Court
HELD: Per SANJEEV KHANNA J. (for himself, RANJAN
GOGOI, CJI and DEEPAK GUPTA, J.):
1. The power of a police officer under Section 102 of the
Code of Criminal Procedure, 1973 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. [Para 21][252-F]
2.1 The expression 'any property' appearing in Section 102
of the Code would not include immovable property. 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. 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
NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTOR
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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, it would not be eld
that this power should be inferred and is implicit in the power to
effect seizure. Equally important, for the purpose of interpretation
is the scope and object of Section 102 of the Code, which is to
help and assist investigation and to enable the police officer to
collect and collate evidence to be produced to prove the charge
complained of and set up in the charge sheet. The Section is a
part of the provisions concerning investigation undertaken by
the police officer. After the charge sheet is filed, the prosecution
leads and produces evidence to secure conviction. Section 102
is not, per se, an enabling provision by which the police officer
acts to seize the property to do justice and to hand over the
property to a person whom the police officer feels is the rightful
and true owner. This is clear from the objective behind Section
102, use of the words in the Section and the scope and ambit of
the power conferred on the Criminal Court vide Sections 451 to
459 of the Code. The expression 'circumstances which create
suspicion of the commission of any offence' in Section 102 does
not refer to a firm opinion or an adjudication/finding by a police
officer to ascertain whether or not 'any property' is required to
be seized. 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. This is the reason why the Ordinance was enacted to deal
with attachment of money and immovable properties in cases of
scheduled offences. In case the police officer is allowed 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. There is hardly any case where immovable property
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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. Any attempt to convert civil
disputes into criminal cases to put pressure on the other side
must be discouraged and stalled. 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. Given the nature of criminal litigation, such
seizure of an immovable property by the police officer in the form
of an attachment and dispossession would not facilitate
investigation to collect evidence/material to be produced during
inquiry and trial. As far as possession of the immovable property
is concerned, specific provisions in the form of Sections 145 and
146 can be invoked as per and in accordance with law. 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.
[Para 18, 20][250-A, H; 251-A-H; 252-A-E]
2.2 It can be said that the word 'property' in a particular
section covers only that type of property in respect of which the
offence contemplated in that section can be committed. This, is
the central and core principle which would have to be applied
when the expression 'any property' used in Section 102 of the
Code is interpreted, which is a power conferred upon the police
officer and relates to the stage of investigation and collection of
evidence to be produced in the Court during trial. [Para 12][242E-F]
3.1 Section 451 empowers the Criminal Court to pass an
order of proper custody of 'any property' pending trial or inquiry.
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The Court can also direct disposal in certain circumstances.
Explanation to Section 451 states that for the purpose of the said
Section, 'property' includes property of any kind or document
which is produced before the Court or which is in its custody or
any property regarding which an offence appears to have been
committed or which appears to have been used for the commission
of any offence. Section 451 applies during or pending trial, or
inquiry (the expression 'inquiry' is defined in Section 2(g) of the
Code). It has been held that the expression 'property' for the
purpose of Section 451 includes immovable property. In fact,
preponderance of judicial decisions takes this view, though there
is no direct judgment of this Court. Same is the position with
regard to Section 452, which in sub-section (5) states that the
term 'property' includes, in case of property regarding which an
offence appears to have been committed, not only such property
as was originally in possession or under control of any party, but
also any property into which the same may have been converted
or exchanged, and anything acquired by such conversion or
exchange, whether immediately or otherwise. Section 452 states
that when an inquiry or trial in a Criminal Court concludes, the
Court may make an order as it thinks fit for the disposal, by
destruction, confiscation or delivery to any person claiming
himself to be entitled to possession thereof or otherwise, of any
property or document produced before it or in its custody, or
regarding which an offence appears to have been committed or
which has been used for the commission of any offence. The
context is wide, albeit the words, "may make such order as it
thinks fit" in Section 452 vests the Court with the discretion to
dispose of the property in any of the three modes specified,
namely, destruction, confiscation or delivery to the person entitled
to be in possession thereof or otherwise. However, an order under
Section 452 is not an order determining title or ownership but
that of the right to possession, and therefore where serious claims
to ownership are put forward, it would be best if the Criminal
Courts directs the parties to establish their claim before the Civil
Court. The Criminal Court can, however, pass appropriate order
of interim nature as it may be appropriate. Thus, Sections 451
and 452 are broad and wide conferring specific and clear powers
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upon the Criminal Court, and the language indicates that they
could equally apply to immovable property. These Sections do
not make reference to Section 102 of the Code relating to the
seizure of property by the police officer. This is equally true of
Section 456 which specifically empowers the Criminal Court to
restore possession of immovable property when a person is
convicted of an 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 the property. This order can be made
without prejudice to the right or interest to or in such immovable
property which any person may be able to establish in a civil suit.
Section 457 applies when a property has been seized by any police
officer and is reported to a Magistrate under the provisions of
the Code and such property is not produced before a Criminal
Court during the course of inquiry or trial. The expression 'not
produced before a Criminal Court' used in Section 457 of the
Code is significant. Thus, this provision applies to the property
seized under Section 102 of the Code, but not produced during
the trial or inquiry. In common parlance, the word 'produced' is
an expression used to signify actual or physical production which
would apply to movable property. Immovable property cannot be
'produced' in a Court. [Para 16][247-E-H; 248-A-H; 249-A-B]
3.2 The provisions under Chapter XXXIV-'Disposal of
Property', specifically enable the Court to pass orders relating
to the properties, both movable and immovable. Section 451, does
not specifically refer to any seizure order under Section 102 of
the Code but vide Explanation includes such property regarding
which an offence appears to have been committed or which
appears to have been used for the commission of any offence.
Similarly, Section 452 refers to property regarding which an
offence appears to have been committed as has been originally
in possession or under control of any party and also such property
into or for which the same may have been converted or
exchanged. Again Section 452 per se, does not make any reference
to Section 102 of the Code. This is also true for Section 456 of
the Code which relates to restoration of possession of immovable
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property in certain circumstances. These provisions, therefore,
do not directly define the contours and scope of Section 102 of
the Code. On the other hand, it would show that Section 102 is
not the primary or the core provision which would make the
provisions of Section 451, 452 or 456 of the Code applicable.
The parameters for application of these sections are those as are
enumerated in the specific provisions. Sections 451 and 452
specifically define the expression 'property' for the purpose of
an order of custody and disposal by the Court. Section 456 applies
to the category or type of offences concerning immovable property
regardless of whether the immovable property is in custody of
the Court or has been attached. Power of the Criminal Court
under these Sections, except Section 457 of the Code, is not
restricted to property seized by the police officer under Section
102 of the Code. Section 457, applies to properties which have
been seized by the police officer under the Code but not produced
during inquiry or trial.[Para 17][249-B-H]
4. The decision in Tapas D. Neogy'case did not go into and
decide the issue; whether immovable property would fall under
the expression 'any property' under Section 102 of the Code.
This is said so by applying the inversion test as referred to in
State of Gujarat and Others v. Utility Users' Welfare Association
and Others, which states that the Court must first carefully frame
the supposed proposition of law and then insert in the proposition
a word reversing its meaning to get the answer whether or not a
decision is a precedent for that proposition. If the answer is in
the affirmative, the case is not a precedent for that proposition.
If the answer is in the negative, the case is a precedent for the
original proposition and possibly for other propositions also. This
is one of the tests applied to decide what can be regarded and
treated as ratio decidendi of a decision. It has been held that a
decision is only an authority for what it actually decides. What is
of the essence in a decision is its ratio. Not every observation
found therein nor what logically flows from those observations is
the ratio decidendi. Judgment in question has to be read as a
whole and the observations have to be considered in light of the
instances which were before the Court. This is the way to ascertain
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the true principles laid down by a decision. Ratio decidendi cannot
be decided by picking out words or sentences averse to the
context under question from the judgment. It is, therefore, clear
that Tapas D. Neogy's case did not decide the issue in question;
whether or not an immovable property will fall within the
expression 'any property' in Section 102. [Para 11][241-E-H; 242A-C]
State of Maharashtra v. Tapas D. Neogy (1999) 7 SCC
685 - held inapplicable.
Kishore Shankar Signapurkar v. State of Maharashtra
and Others 1997 Vol.IV L J 793; M/s. Bombay Science
and Research Education Institute v. The State of
Maharashtra and Others 2008 All M.R.(Crl.) 2133;
Ms. Swaran Sabharwal v. Commissioner of Police 1988
CriLJ 241 (Del) (DB); Jagdish Chander and Others v.
State and Others 40 (199) DLT 233; P.K. Parmar and
Others v. Union of India and Another 1992 CriLJ 2499
(Del); Bharat Overseas Bank v. Minu Publication 1988
MLW (Cri) 106; State of Gujarat and Others v. Utility
Users' Welfare Association and Others (2018) 6 SCC
21: [2018] 9 SCR 106; U.P. State Electricity Board v.
Pooran Chandra Pandey and Others (2007) 11 SCC
92 : [2007] 10 SCR 920; Commissioner of Income Tax
v. Sun Engineering Works (P) Ltd. (1992) 4 SCC 363 :
[1992] 1 Suppl. SCR 732; R.K. Dalmia etc. v. Delhi
Administration AIR 1962 SC 1821 : [1963] SCR 253;
N. Madhavan v. State of Kerala (1979) 4 SCC 1 : [1980]
1 SCR 228; Teesta Atul Setalvad v. State of Gujarat
(2018) 2 SCC 372 : [2017] 12 SCR 774; Binod Kumar
and Others v. State of Bihar and Another (2014) 10
SCC 663 : [2014] 11 SCR 85 - referred to.
Case Law Reference
1997 Vol.IV L J 793
Referred to
Para 3
2008 All M.R.(Crl.) 2133
Referred to
Para 3
NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTOR
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1988 CriLJ 241 (Del) (DB)
Referred to
Para 8
40 (199) DLT 233
Referred to
Para 8
1992 CriLJ 2499 (Del)
Referred to
Para 8
1988 MLW (Cri) 106
Referred to
Para 9
(1999) 7 SCC 685
held inapplicable
Para 11
[2018] 9 SCR 106
Referred to
Para 11
[2007] 10 SCR 920
Referred to
Para 11
[1992] 1 Suppl. SCR 732
Referred to
Para 11
[1963] SCR 253
Referred to
Para 12
[1980] 1 SCR 228
Referred to
Para 16
[2017] 12 SCR 774
Referred to
Para 19
[2014] 11 SCR 85
Referred to
Para 20
PER DEEPAK GUPTA, J. (Supplementing):
1.1 Sub-section (1) of Section 102 of the Code of Criminal
Procedure, 1973 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. [Para 3][254-B]
1.2 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. [Para 4][254-D-E]
1.3 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. The word 'seized' has been used in
the sense of taking actual physical custody of the property. Sub-
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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. [Para 5][254-F-G]
1.4 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.
[Para 6][254-H; 255-A]
1.5 In the Code of Criminal Procedure itself the Legislature
has in various provisions specifically used the words 'movable'
and 'immovable' property. Section 83 of the Cr.P.C. which relates
to seizure of the property of a proclaimed absconder. 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.
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). 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. 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. 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. [Para 7, 8, 9][255-C-F; 256-B, D-E]
NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTOR
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1.6 The power of attachment and forfeiture is given to courts
and not to police officer. If a police officer is given the power to
seize immovable property it may lead to an absolutely chaotic
situation. The power of seizure in Section 102 has to be limited
to movable property. Thus, the phrase 'any property' in Section
102 will only cover moveable property and not immovable
property. [Para 10, 12][256-F-G; 257-B, C]
State of Maharashtra v. Tapas D. Neogy (1999) 7 SCC
685 : [1999] 2 Suppl. SCR 609 - held inapplicable.
Case Law Reference
[1999] 2 Suppl. SCR 609
held inapplicable.
Para 6
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1481 of 2019.
From the Judgment dated 29.11.2010 of the High Court of
Judicature at Bombay in Crl. Writ Petition No.2137 of 2010.
WITH
Criminal Appeal Nos.1122 of 2011, 1482-1485 of 2019, 1486 of
2019 and 1487 of 2019.
Bharat Sangal, Sr. Adv., Ms. Babita Kushwaha, Ms. Manjula
Gupta, Ms. Fauzia Shakil, M. Shoeb Alam, Ujjwal Singh, Gautam
Prabhakar, Mojahid Karim Khan, Nishant Ramakantrao Katneshwarkar,
Shivaji M. Jadhav, Manoj K. Mishra, Umesh Dubey, Ms. Jyoti Mishra,
Sukumar, Bheem Pratap Singh, P.K. Manohar, Ugra Shankar Prasad,
Aman Vachher, Dhiraj, Ashutosh Dubey, Abhishek Chauhan,
Mrs. Madhurima Mridul, Mrs. Anshu Vachher, Arun Nagar, Mrs.
Rajshree Dubey, M. K. Dua, Mahesh Agarwal, Ankur Saigal, Ms. Aastha
Mehta, Nishant Rao, Rajesh Kumar, E.C. Agrawala, Ms. Sangeeta
Kumar, Ms. Sonia Mathur, Sachin Sharma, Ms. Rachna Sharma, Arvind
Kumar Sharma, Mukesh Kumar Maroria, Advs. for the appearing parties.
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The Judgments of the Court were delivered by
SANJIV KHANNA, J.
1. Leave granted in Special Leave Petitions.
2. A Division Bench of this Court (Jagdish Singh Khehar and
Arun Mishra, JJ.) vide order dated November 18, 2014, noticing that the
issues that arise have far reaching and serious consequences, had
referred the aforesaid appeals to be heard by a Bench of at least three
Judges. After obtaining appropriate directions from Hon'ble the Chief
Justice, these appeals have been listed before the present Bench.
3. For the sake of convenience, we have treated the Criminal
Appeal arising out of Special Leave Petition (Criminal) No. 1513 of
2011, filed by Nevada Properties Pvt. Ltd., as the lead case. This appeal
arises from judgment of the High Court of Judicature at Bombay dated
November 29, 2010 wherein the majority judgment has held that the
expression 'any property' used in sub-section (1) of Section 102 of the
Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code')
does not include immovable property and, consequently, a police officer
investigating a criminal case cannot take custody of and seize any
immovable property which may be found under circumstances which
create suspicion of the commission of any offence. According to the
majority judgment, earlier decision of the Division Bench of the same
High Court in Kishore Shankar Signapurkar v. State of Maharashtra
and Others1 lays down the correct ratio and the contrary view expressed
in M/s. Bombay Science and Research Education Institute v. The
State of Maharashtra and Others2 does not lay down the correct law.
The minority view holds that the police officer has power to seize any
property, whether movable or immovable, under Section 102 of the Code
and the decision of the Division Bench in M/s. Bombay Science and
Research Education Institute (supra) lays down the correct law and
the ratio in Kishore Shankar Signapurkar (supra) is not good law.
1 1997 Vol.IV L J 793
2 2008 All M.R. (Crl.) 2133
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4. In order to decide the present controversy which is primarily
legal, we would begin by reproducing Section 102 of the Code, which
reads as under:
"S.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 office 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."
5. Section 102 of the Code is part of a fasciculus of provisions
under Chapter VII - 'Process to Compel the Production of Things'.
Part A of the said Chapter deals with Summons to produce; Part B deals
with Search-warrants; Part C deals with General provisions relating to
searches; and Part D, of which Section 102 is the first Section, falls
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under the part described as Miscellaneous. The marginal note of Section
102 states - "Power of police officer to seize certain property". Subsection (3) of Section 102 was inserted by Act No. 45 of 1978. It was
later amended by section 13(a) of the Cr.P.C. Amendment Act, 2005
(Act 25 of 2005) by adding the expression "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." Proviso to
sub-section (3) was also added by the Amendment Act, 2005. Sub-section
(3) to Section 102 is intended to give greater discretion to the police
officer for releasing seized property, where there is a difficulty in securing
proper accommodation for the custody of the property or where the
continued retention of the property in police custody is not considered
necessary for the purpose of investigation. Proviso states that if the
seized property is of perishable nature and the value of such property is
less than five hundred rupees and if the person entitled to the possession
of such property is unknown or absent, the police is empowered to sell
such property by auction under orders of the Superintendent of Police.
6. The minority judgment and the contention of the appellant is
substantially predicated on the words 'any property' in sub-section (1)
of Section 102. Reference was made to the decision of this Court in
State of Maharashtra v. Tapas D. Neogy3. To avoid prolixity, we are
not referring to the contentions raised by both sides as the same would
be referred to and examined during the course of our reasoning. At the
outset, we must begin by referring to the decision in Tapas D. Neogy
(supra), a case arising from three First Information Reports under Sections
120-B, 467, 468, 471 and 420 of the Indian Penal Code, 1860 (hereinafter
referred to as the 'IPC') and Section 13(2) read with Section 13(1)(d)
of the Prevention of Corruption Act, 1988. The question was whether a
bank account of an accused or any relation of the accused was 'property'
within the meaning of Section 102 of the Code and if so, whether the
Investigating Officer has the power to seize the bank account or issue a
prohibitory order restraining operation of the bank account. Reference
was made to several judgments of the High Courts, some of which would
be discussed later, to hold as under:
3 (1999) 7 SCC 685
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"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 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 deposited in a bank which is ultimately 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 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
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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 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."
7. Money, as per clause (7) of Section 2 of the Sales of Goods
Act, 1930, is neither goods nor movable property, albeit Section 22 of
the IPC defines the term 'movable property' to include corporeal property
of every description, except land and things attached to the earth or
permanently fastened to anything which is attached to the earth. The
expression 'movable property' has not been specifically defined in the
Code. In terms of Section 2(y) of the Code, words and meanings defined
in the IPC would equally be applicable to the Code. Money, therefore,
would be property for the purposes of the Code. Money is not an
immovable property.
8. Decision of this Court in Tapas D. Neogy (supra) was in respect
of the bank accounts and it did not examine and answer the question
whether the expression 'any property' would include immovable property.
This question was, however, noticed in paragraph 6 in Tapas D. Neogy
(supra), which had made reference to a decision of the Delhi High Court
in Ms. Swaran Sabharwal v. Commissioner of Police4 in which it was
held that Section 102 requires that the seized property by itself should
lead to the suspicion that some offence has been committed. In other
words, the discovery of the offence should be a sequel to the discovery
of that property and not the other way around. Reference in this regard
can also be made to Jagdish Chander and Others v. State and Others5,
wherein the petitioner had challenged the seizure action of the police on
the ground that the word 'seizure' appearing in Section 102 of the Code
would imply actual taking of possession and, therefore, would not include
4 1988 CriLJ 241 (Del) (DB)
5 40 (199) DLT 233
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immovable property. This contention was not answered and left open as
the Delhi High Court came to the conclusion that the seizure order therein
under Section 102 of the Code was not in accordance with the statutory
requirement as the property should be discovered under circumstances
which create a suspicion of the commission of an offence, that is, the
police officer should come across certain property in circumstances which
create in his mind a suspicion that an offence has been committed. Section
102, it was held, would not be attracted where the property has not been
traced or discovered which leads to a suspicion of an offence having
been committed. Discovery of property should precede the detection of
crime. This ratio was subsequently followed in P.K. Parmar and Others
v. Union of India and Another6 in which the Delhi High Court had
reiterated that unless discovery of the property leads to a suspicion of an
offence having been committed, Section 102 of the Code cannot be
invoked for seizing such properties. The Delhi High Court examined the
question; whether the discovery of the bank accounts had preceded the
suspicion of the offences having been committed and held that there
were good reasons, in view of the attending circumstances, which had
led Central Bureau of Investigation (hereinafter referred to as the 'CBI')
to be suspicious of an offence having been committed in relation to such
accounts. The accounts were found either in the name of non-existent
persons or in bogus names and all such accounts were allegedly being
maintained by the principal accused. There was sufficient cause for the
CBI to set the criminal law into motion. In this case, the allegation was
that subsidies were obtained illegally and without entitlement from the
Government of India, and the amounts so received were deposited in
the bank accounts that had prima facie linked the accused with various
offences with which they were charged. The cause of action, therefore,
for seizing the bank accounts arose when a suspicion was created relating
to the multiple and spurious handling of bank accounts.
9. Tapas D. Neogy (supra) had also referred to the judgment of
a Single Judge of the Madras High Court in Bharat Overseas Bank v.
Minu Publication7, which had made reference to Sections 451, 452,
453, 456 and 457 of the Code to observe that these provisions seek to
reimburse or compensate victims of crime and bring about restoration of
6 1992 CriLJ 2499 (Del)
7 1988 MLW (Cri) 106
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the property or its restitution. The provision empowering seizure was
necessary to preserve the property for the purpose of enabling the
Criminal Court to pass suitable orders under the aforesaid provisions at
the conclusion of the trial.