Supreme Court of India
NEVADA PROPERTIES PRIVATE LIMITED THROUGH ITS DIRECTORversusSTATE OF MAHARASHTRA AND ANR.
- Citation
- 2019 INSC 1077
- Decided
- 24 September 2019
- Disposal
- Reference answered
Holding
Section 102 of the Code of Criminal Procedure, 1973 authorises seizure only of movable property and does not extend to immovable property.
Summary
The Supreme Court examined whether the phrase “any property” in Section 102 of the Code of Criminal Procedure, 1973 includes immovable property. It held that the provision confers power only to seize movable property, as the word “seize” implies taking physical custody, which is impossible for immovable assets. The Court explained that immovable property can be attached or sealed under other specific provisions, but not seized by police under Section 102. It also clarified that the earlier decision in State of Maharashtra v. Tapas D. Neogy did not decide the immovable‑property issue. Consequently, the police officer cannot attach, seize or seal immovable property under Section 102, and disputes over title must be resolved by civil courts. The reference was answered, affirming the lower court’s view.
Issues considered
- Whether the expression ‘any property’ in Section 102 of the CrPC includes immovable property.
- Whether a police officer has the power to attach, seize and seal immovable property under Section 102.
- Whether the decision in State of Maharashtra v. Tapas D. Neogy decides the above issue.
- How Section 102 should be interpreted in light of Sections 451, 452, 456 and 457 of the CrPC.
- Scope of police powers for seizure versus attachment and forfeiture provisions.
Legislation cited
- Code of Criminal Procedure, 1973s. 102, s. 145, s. 146, s. 451, s. 452, s. 456, s. 457, s. 458, s. 459
- Criminal Law Amendment Ordinance, 1944
- Indian Penal Code, 1860s. 120, s. 405, s. 420, s. 467, s. 468, s. 471
- Prevention of Corruption Act, 1988
- Sales of Goods Act, 1930s. 7
Subjects
Section 102immovable propertypolice seizureCriminal Procedure Codestatutory interpretationattachmentdisposal of propertyinversion testratio decidendi
Judgment
[2019] 15 S.C.R. 223 223
NEVADA PROPERTIES PRIVATE LIMITED A
THROUGH ITS DIRECTOR
v.
STATE OF MAHARASHTRA AND ANR.
B
(Criminal Appeal No.1481 of 2019)
SEPTEMBER 24, 2019
[RANJAN GOGOI, CJI, DEEPAK GUPTA AND
SANJIV KHANNA, JJ.]
C
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
D
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 E
‘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 F
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 G
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
H
223
224 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 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
B 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
C 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:
D 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
E 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
F 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
G 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
H
NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTOR 225
v. STATE OF MAHARASHTRA
averse to the context under question from the judgment – Thus, it is A
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 B
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 C
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. D
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 E
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 F
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/
G
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
H
226 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 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
B 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
C
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
D 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
E 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
F 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
G
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
H exercised. There is hardly any case where immovable property
NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTOR 227
v. STATE OF MAHARASHTRA
was seized vide an attachment order that was treated as a seizure A
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 B
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
C
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 D
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. E
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 F
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 G
evidence to be produced in the Court during trial. [Para 12][242-
E-F]
3.1 Section 451 empowers the Criminal Court to pass an
order of proper custody of ‘any property’ pending trial or inquiry.
H
228 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 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
B 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
C
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
D 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
E 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
F 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
G
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
H and 452 are broad and wide conferring specific and clear powers
NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTOR 229
v. STATE OF MAHARASHTRA
upon the Criminal Court, and the language indicates that they A
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 B
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
C
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 D
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 E
‘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 F
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 G
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
H
230 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 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.
B 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
C
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
D 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
E 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
F 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
G 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
H
NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTOR 231
v. STATE OF MAHARASHTRA
the true principles laid down by a decision. Ratio decidendi cannot A
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; 242- B
A-C]
State of Maharashtra v. Tapas D. Neogy (1999) 7 SCC
685 – held inapplicable.
Kishore Shankar Signapurkar v. State of Maharashtra C
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 D
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. E
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; F
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.
G
Case Law Reference
1997 Vol.IV L J 793 Referred to Para 3
2008 All M.R.(Crl.) 2133 Referred to Para 3
H
232 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 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
B 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
C
[1992] 1 Suppl. SCR 732 Referred to Para 11
[1963] SCR 253 Referred to Para 12
[1980] 1 SCR 228 Referred to Para 16
D [2017] 12 SCR 774 Referred to Para 19
[2014] 11 SCR 85 Referred to Para 20
PER DEEPAK GUPTA, J. (Supplementing):
E 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]
F 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]
G 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-
H
NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTOR 233
v. STATE OF MAHARASHTRA
section 3 of Section 102 provides that where it is difficult to A
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 B
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 C
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 D
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. E
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
F
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 G
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] H
234 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 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
B 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.
C Case Law Reference
[1999] 2 Suppl. SCR 609 held inapplicable. Para 6
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1481 of 2019.
D
From the Judgment dated 29.11.2010 of the High Court of
Judicature at Bombay in Crl. Writ Petition No.2137 of 2010.
WITH
E
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
F 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.
G 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.
H
NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTOR 235
v. STATE OF MAHARASHTRA
The Judgments of the Court were delivered by A
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 B
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.
C
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
D
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 E
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. F
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. G
1
1997 Vol.IV L J 793
2
2008 All M.R. (Crl.) 2133
H
236 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 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
B
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
C 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
D 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
E 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
F 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.”
G 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
H
NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTOR 237
v. STATE OF MAHARASHTRA [SANJIV KHANNA, J.]
under the part described as Miscellaneous. The marginal note of Section A
102 states – “Power of police officer to seize certain property”. Sub-
section (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 B
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
C
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 D
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 E
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 F
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 G
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 H
238 SUPREME COURT REPORTS [2019] 15 S.C.R.
A “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
B 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
C
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
D 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
E 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
F 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
G
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
H
NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTOR 239
v. STATE OF MAHARASHTRA [SANJIV KHANNA, J.]
legislature engrafted in Section 16 of the Prevention of Corruption A
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 B
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 C
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 D
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 E
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
F
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 G
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 H
240 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 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
B 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
C
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
D 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
E 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
F 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
G 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
H 1988 MLW (Cri) 106
NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTOR 241
v. STATE OF MAHARASHTRA [SANJIV KHANNA, J.]
the property or its restitution. The provision empowering seizure was A
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. The judgment also refers to restoration of
immovable property under certain circumstances dealt with under Section
456 of the Code. B
10. The reason why we have referred to the two decisions in P.K.
Parmar (supra) and Bharat Overseas Bank (supra) is to notice the
wide range of issues and contentions with reference to the term ‘property’
that could arise for consideration while interpreting the power of the
police officer to effect seizure under Section 102 of the Code, albeit this C
Court did not deal with and express an opinion on several issues in Tapas
D. Neogy (supra) and the judgment was confined and limited to the
question; whether bank accounts would fall within the category of ‘any
property’. Holding that the bank accounts would fall under the expression
‘any property’ under Section 102 of the Code, it was observed that there D
was no justification or reason to give a narrow interpretation to the words
to exclude bank accounts, elucidating that corruption in public offices
has become rampant and this aspect has to be borne in mind while
interpreting the provisions of Section 102 of the Code and the underlying
object engrafted in the provision.
E
11. It follows from the aforesaid discussion that the decision in
Tapas D. Neogy (supra) did not go into and decide the issue; whether
immovable property would fall under the expression ‘any property’ under
Section 102 of the Code. We say so by applying the inversion test as
referred to in State of Gujarat and Others v. Utility Users’ Welfare
Association and Others8, which states that the Court must first carefully F
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 G
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.
Reference in this regard can also be made to the decisions of this Court
in U.P. State Electricity Board v. Pooran Chandra Pandey and
8
(2018) 6 SCC 21 H
242 SUPREME COURT REPORTS [2019] 15 S.C.R.
A Others9, Commissioner of Income Tax v. Sun Engineering Works
(P) Ltd.10 and other cases which hold 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
B
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 averse to the context under
question from the judgment. It is, therefore, clear to us that Tapas D.
Neogy (supra) did not decide the issue in question; whether or not an
C immovable property will fall within the expression ‘any property’ in Section
102 of the Code. We will have to, therefore, examine the issue and
answer the same.
12. This Court in R.K. Dalmia etc. v. Delhi Administration11
had interpreted the word ‘property’ in Section 405 and other sections of
D the IPC to opine that there was no good reason to restrict the meaning
of the word ‘property’ to movable property when the word was used
without any qualification in Section 405 or in other sections of the IPC.
At the same time, this Court had cautioned that whether an offence
defined in a particular section of the IPC can be committed in respect of
any particular kind of property, will depend not on the interpretation of
E the word ‘property’ but on the fact that whether that particular kind of
property can be subject to acts covered by that section. In that sense, 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, we would observe, is the central
F and core principle which would have to be applied when we interpret
the expression ‘any property’ used in Section 102 of the Code, which as
noticed above and elucidated below 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.
G 13. Before we proceed further, we would like to refer to the
Criminal Law Amendment Ordinance, 1944 (No. XXXVIII of 1944)
which was promulgated in exercise of powers conferred under Section
9
(2007) 11 SCC 92
10
(1992) 4 SCC 363
11
H AIR 1962 SC 1821
NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTOR 243
v. STATE OF MAHARASHTRA [SANJIV KHANNA, J.]
72 of the Ninth Schedule of the Government of India Act, 1935 to prevent A
disposal or concealment of property procured by means of offences
specified in its Schedule, which include offences punishable under
Sections 406, 408, 409, 411 and 414 of the 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
B
under the Prevention of Corruption Act, 1988, an insertion made by the
Prevention of Corruption Act, 1988. It sets out the procedure when the
Central/State Government has a reason to believe that a person has
committed any scheduled offence, whether or not the Court has taken
cognisance of the said offence, by attachment of money or other property
which the Central/State Government believes that the person has procured C
by means of the scheduled offence, and if such money or property cannot
for any reason be attached, any other property of the said person of
value as nearly as may be equivalent to that of the aforesaid money or
property. This enactment mandates application of provisions of Order
XXVII of the Code of Civil Procedure, 1908 with a provision for filing
D
an application before the District Judge who is entitled to pass an ad
interim attachment order after following the prescribed procedure
including examination and investigation of objections to attachment of
the property. The District Judge can pass an order either making the
interim attachment absolute or varying it by releasing the property or
portion thereof or withdrawing the order on satisfaction of certain E
conditions. Other sections contained in the Ordinance provide for
attachment of property of mala fide transferees, execution of orders of
attachment, security in lieu of attachment, administration of attached
property, duration of attachment, appeals, power of Criminal Court to
evaluate property procured by scheduled offences and disposal of
F
attached property upon termination of criminal proceedings. Section 14
bars legal proceedings in other Courts in respect of the property attached
under the Ordinance. The Ordinance is a permanent Ordinance which
was promulgated during the Second World War. It was adopted by the
Presidential Adaptation of Laws Order, 1950 issued under the powers
conferred by clause (2) of Article 372 of the Constitution, thus, making it G
effective in the territory of India and, therefore, continues to remain in
force.
14. Similarly, there are provisions in the form of Sections 145,
146, 165 amongst others in the Code which specifically relate to immovable
properties. Chapter VIIA – ‘Reciprocal Arrangements for Assistance . H
244 SUPREME COURT REPORTS [2019] 15 S.C.R.
A in Certain Matters and Procedure for Attachment and Forfeiture of
Property’ specifically includes immovable properties under the expression
‘property’ for the purpose of the said Chapter unless the context otherwise
requires. Similarly, we have specific provisions relating to and dealing
with immovable property under the Narcotics, Drugs and Psychotropic
B Substances Act, 1985.
15. We would now refer to Chapter XXXIV of the Code, which
has the heading ‘Disposal of Property’ and consists of Sections 451 to
459. We would like to reproduce Sections 451, 452, 453, 454, 456 and
457 of the Code, which read as under:
C “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
D 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–
E (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.
F 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
G 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.
H
NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTOR 245
v. STATE OF MAHARASHTRA [SANJIV KHANNA, J.]
(2) An order may be made under sub-section (1) for the delivery A
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
B
or revision.
(3) A Court of Session 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.
C
(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.
D
(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 E
immediately or otherwise.
453.Payment to innocent purchaser of money found on
accused.-
When any person is convicted of any offence which includes, or F
amounts to, theft or receiving stolen property, and it is proved that
any other person bought the stolen property from him without
knowing or having reason to believe that the same was stolen,
and that any money has on his arrest been taken out of the
possession of the convicted person, the Court may, on the
application of such purchaser and on the restitution of the stolen G
property to the person entitled to the possession thereof, order
that out of such money a sum not exceeding the price paid by
such purchaser be delivered to him.
H
246 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 454. Appeal against orders under section 452 or section
453.-
(1) Any person aggrieved by an order made by a Court under
section 452 or section 453, may appeal against it to the Court to
which appeals ordinarily lie from convictions by the former Court.
B
(2) On such appeal, the Appellate Court may direct the order to
be stayed pending disposal of the appeal, or may modify, alter or
annul the order and make any further orders that may be just.
(3) The powers referred to in sub-section (2) may also be exercised
C by a Court of appeal, confirmation or revision while dealing with
the case in which the order referred to in sub-section (1) was
made.
xx xx xx
D 456. Power to restore possession of immovable property.-
(1) 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 any immovable property,
E 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.
F
(2) Where the Court trying the offence has not made an order
under sub-section (1), the Court of appeal, confirmation or revision
may, if it thinks fit, make such order while disposing of the appeal,
reference or revision, as the case may be.
G (3) Where an order has been made under sub-section (1), the
provisions of section 454 shall apply in relation thereto as they
apply in relation to an order under section 453.
H
NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTOR 247
v. STATE OF MAHARASHTRA [SANJIV KHANNA, J.]
(4) No order made under this section shall prejudice any right or A
interest to or in such immovable property which any person may
be able to establish in a civil suit.
457. Procedure by police upon seizure of property.-
(1) Whenever the seizure of property by any police officer is B
reported to a Magistrate under the provisions of this Code, and
such property is not produced before a Criminal Court during an
inquiry or trial, the Magistrate may make such order as he thinks
fit respecting the disposal of such property or the delivery of such
property to the person entitled to the possession thereof, or if
such person cannot be ascertained, respecting the custody and C
production of such property.
(2) If the person so entitled is known, the Magistrate may order
the property to be delivered to him on such conditions (if any) as
the Magistrate thinks fit and if such person is unknown, the
Magistrate may detain it and shall, in such case, issue a D
proclamation specifying the articles of which such property
consists, and requiring any person who may have a claim thereto,
to appear before him and establish his claim within six months
from the date of such proclamation.”
E
16. Section 451 empowers the Criminal Court to pass an order of
proper custody of ‘any property’ pending trial or inquiry. 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 F
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).
There are judgments that hold that the expression ‘property’ for the
purpose of Section 451 includes immovable property. In fact,
G
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
H
248 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 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,
B
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
C 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 (see N. Madhavan v. State of Kerala12).
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
D
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. What is important and relevant for our discussion
is that the Sections 451 and 452 are broad and wide conferring specific
E and clear powers 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
F
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
G 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’
12
(1979) 4 SCC 1
H
NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTOR 249
v. STATE OF MAHARASHTRA [SANJIV KHANNA, J.]
used in Section 457 of the Code is significant. Thus, this provision applies A
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.
B
17. We have referred to the said provisions under Chapter XXXIV
– ‘Disposal of Property’, as this would be of significance and, addresses
the argument and concern expressed by the appellant – Nevada
Properties Pvt. Ltd. and some of the State Governments. These
provisions, specifically enable the Court to pass orders relating to the C
properties, both movable and immovable. We have referred to Section
451, which 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 D
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 property E
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
F
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 G
Section 457 of the Code, is not restricted to property seized by the police
officer under Section 102 of the Code. Section 457, as noticed, applies
to properties which have been seized by the police officer under the
Code but not produced during inquiry or trial.
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250 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 18. Having held and elucidated on the power of the Criminal Court,
we find good ground and reason to hold that the expression ‘any property’
appearing in Section 102 of the Code would not include immovable
property. We would elucidate and explain.
19. The first part of sub-section (1) of Section 102 of the Code
B relates to the property which may be alleged or suspected to have been
stolen. Immovable property certainly cannot be stolen and cannot fall in
this part. The second part relates to the property which may be found by
a police officer under circumstances which create suspicion of the
commission of any offence. We have already referred to the judgments
C of the Delhi High Court in the case of P.K. Parmar (supra), Ms. Swaran
Sabharwal (supra), and Jagdish Chander (supra), which have
elucidated and in a restricted and narrow manner defined the requirement
for invoking the second part. However, we have come across a decision
of this Court in Teesta Atul Setalvad v. State of Gujarat13, on an appeal
D from the judgment of the Gujarat High Court and had dealt with a situation
when an act of freezing the accounts was a sequel to the crime as the
crime was detected earlier. The Gujarat High Court took a somewhat
contrary view, by not interfering and directing defreezing, observing that
even if the action of the investigating agency at the inception to seize
may not be regular, the Court cannot be oblivious to the collection of
E
substantial material by the investigating agency which justifies its action
under Section 102 of the Code. Further when the investigation had
progressed to a material point, de-freezing the bank accounts on the
basis of such arguments would paralyse the investigation which would
not be in the interest of justice. After referring to the factual matrix in
F Teesta Atul Setalvad (Supra), this Court observed that the Investigating
Officer was in possession of material pointing out to the circumstances
that had created suspicion of the commission of an offence, in particular
the one under investigation, and therefore exercise of power under Section
102 of the Code would be in law legitimate as it was exercised after
G following the procedure prescribed in sub-sections (2) and (3) of the
same provision.
20. Section 102 postulates seizure of the property. Immovable
property cannot, in its strict sense, be seized, though documents of title,
13
H (2018) 2 SCC 372
NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTOR 251
v. STATE OF MAHARASHTRA [SANJIV KHANNA, J.]
etc. relating to immovable property can be seized, taken into custody A
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 dispossession of the person in
occupation/possession of the immovable property, unless there are no B
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
C
police officer, we would hesitate and not hold 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 D
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 E
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 F
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
G
to deal with attachment of money and immovable properties in cases of
scheduled offences. In case and if we allow the police officer 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,
H
252 SUPREME COURT REPORTS [2019] 15 S.C.R.
A that is, on suspicion, which has hitherto not been exercised. We have
hardly come across any case where immovable property 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
B which have to be decided and adjudicated in Civil Courts. We must
discourage and stall any attempt to convert civil disputes into criminal
cases to put pressure on the other side (See Binod Kumar and Others
v. State of Bihar and Another14). 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
C
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
D and 146 of the Code 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
E 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.
21. In view of the aforesaid discussion, the Reference is answered
F by holding that the power of a police officer under Section 102 of the
Code 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.
G 22. The Registry is directed to list the individual appeals for disposal
before the appropriate Bench.
14
H (2014) 10 SCC 663
NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTOR 253
v. STATE OF MAHARASHTRA
DEEPAK GUPTA, J. A
1. 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.
B
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 C
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 D
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.
E
(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 F
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: G
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
H
254 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 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
B 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
C 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
D
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 construingthe 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
E 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
F
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
G 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
H
NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTOR 255
v. STATE OF MAHARASHTRA [DEEPAK GUPTA, J.]
Procedure, 1898. For more than a century the courts have read the A
words ‘any property’to mean movable property123 and no decision to the
contrary was brought to our notice. Reliance is only placed on the
judgment of this Court in State ofMaharashtravs.Tapas D. Neogy4.
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 B
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 itselfthe Legislature has in various provisions specifically used
the words ‘movable’ and ‘immovable’ property. Some of those have C
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
D
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 E
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 F
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
G
interest in, such property or assets derived or used in the
1
AIR 1960 AII 405
2
WP(C) No. 12275 of 2012, Judgment dated 26.07.2012 (Ker HC)
3
2016(3) PLJR 464
4
(1999) 7 SCC 685 H
256 SUPREME COURT REPORTS [2019] 15 S.C.R.
A 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.
B
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
C 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 provisionstogether, it is clear that when any court
D 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. This Court isnot concerned with the procedure to be followed
E 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
F 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
G chaotic situation. To give an example, if there is a physical fight between
the landlord and the tenantover the rented premises andif 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
H
NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTOR 257
v. STATE OF MAHARASHTRA [DEEPAK GUPTA, J.]
property on the basis of the forged will,can the police officer be given A
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. B
11. As far as the meaningof 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 C
that the phrase ‘any property’ in Section 102 will only cover moveable
property and not immovable property.
Nidhi Jain Reference answered.
D
E
F
G
H
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