NEVADA PROPERTIES PRIVATE LIMITED THROUGH ITS DIRECTOR versus STATE OF MAHARASHTRA AND ANR. on 24 September 2019

Ratio decidendi

1. The power of a police officer under Section 102 of theCode of Criminal Procedure, 1973 to seize any property, whichmay be found under circumstances that create suspicion of thecommission 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 102of the Code would not include immovable property. Section 102postulates seizure of the property. Immovable property cannot,in its strict sense, be seized, though documents of title, etc. relatingto immovable property can be seized, taken into custody andproduced. Immovable property can be attached and also locked/sealed. It could be argued that the word ‘seize’ would includesuch action of attachment and sealing. Seizure of immovableproperty in this sense and manner would in law require A

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Adispossession of the person in occupation/possession of theimmovable property, unless there are no claimants, which wouldbe rare. Language of Section 102 of the Code does not supportthe interpretation that the police officer has the power todispossess a person in occupation and take possession of anBimmovable property in order to seize it. In the absence of theLegislature conferring this express or implied power underSection 102 of the Code to the police officer, it would not be eldthat this power should be inferred and is implicit in the power toeffect seizure. Equally important, for the purpose of interpretationis the scope and object of Section 102 of the Code, which is toChelp and assist investigation and to enable the police officer tocollect and collate evidence to be produced to prove the chargecomplained of and set up in the charge sheet. The Section is apart of the provisions concerning investigation undertaken bythe police officer. After the charge sheet is filed, the prosecutionDleads and produces evidence to secure conviction. Section 102is not, per se, an enabling provision by which the police officeracts to seize the property to do justice and to hand over theproperty to a person whom the police officer feels is the rightfuland true owner. This is clear from the objective behind SectionE102, use of the words in the Section and the scope and ambit ofthe power conferred on the Criminal Court vide Sections 451 to459 of the Code. The expression ‘circumstances which createsuspicion of the commission of any offence’ in Section 102 doesnot refer to a firm opinion or an adjudication/finding by a policeFofficer to ascertain whether or not ‘any property’ is required tobe seized. The word ‘suspicion’ is a weaker and a broaderexpression than ‘reasonable belief’ or ‘satisfaction’. The policeofficer is an investigator and not an adjudicator or a decisionmaker. This is the reason why the Ordinance was enacted to dealwith attachment of money and immovable properties in cases ofGscheduled offences. In case the police officer is allowed to ‘seize’immovable property on a mere ‘suspicion of the commission ofany offence’, it would mean and imply giving a drastic and extremepower to dispossess etc. to the police officer on a mere conjectureand surmise, that is, on suspicion, which has hitherto not beenHexercised. There is hardly any case where immovable property was seized vide an attachment order that was treated as a seizureorder by police officer under Section 102 of the Code. The reasonis obvious. Disputes relating to title, possession, etc., ofimmovable property are civil disputes which have to be decidedand adjudicated in Civil Courts. Any attempt to convert civildisputes into criminal cases to put pressure on the other sidemust be discouraged and stalled. Thus, it will not be proper tohold that Section 102 of the Code empowers a police officer toseize immovable property, land, plots, residential houses, streetsor similar properties. Given the nature of criminal litigation, suchseizure of an immovable property by the police officer in the formof an attachment and dispossession would not facilitateinvestigation to collect evidence/material to be produced duringinquiry and trial. As far as possession of the immovable propertyis concerned, specific provisions in the form of Sections 145 and146 can be invoked as per and in accordance with law. Section102 of the Code is not a general provision which enables andauthorises the police officer to seize immovable property for beingable to be produced in the Criminal Court during trial. This,however, would not bar or prohibit the police officer from seizingdocuments/papers of title relating to immovable property, as it isdistinct and different from seizure of immovable property.Disputes and matters relating to the physical and legal possessionand 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 particularsection covers only that type of property in respect of which theoffence contemplated in that section can be committed. This, isthe central and core principle which would have to be appliedwhen the expression ‘any property’ used in Section 102 of theCode is interpreted, which is a power conferred upon the policeofficer and relates to the stage of investigation and collection ofevidence to be produced in the Court during trial. [Para 12][242-E-F]

3.1 Section 451 empowers the Criminal Court to pass anorder of proper custody of ‘any property’ pending trial or inquiry.

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AThe Court can also direct disposal in certain circumstances.Explanation to Section 451 states that for the purpose of the saidSection, ‘property’ includes property of any kind or documentwhich is produced before the Court or which is in its custody orany property regarding which an offence appears to have beenBcommitted or which appears to have been used for the commissionof any offence. Section 451 applies during or pending trial, orinquiry (the expression ‘inquiry’ is defined in Section 2(g) of theCode). It has been held that the expression ‘property’ for thepurpose of Section 451 includes immovable property. In fact,preponderance of judicial decisions takes this view, though thereCis no direct judgment of this Court. Same is the position withregard to Section 452, which in sub-section (5) states that theterm ‘property’ includes, in case of property regarding which anoffence appears to have been committed, not only such propertyas was originally in possession or under control of any party, butDalso any property into which the same may have been convertedor exchanged, and anything acquired by such conversion orexchange, whether immediately or otherwise. Section 452 statesthat when an inquiry or trial in a Criminal Court concludes, theCourt may make an order as it thinks fit for the disposal, byEdestruction, confiscation or delivery to any person claiminghimself to be entitled to possession thereof or otherwise, of anyproperty or document produced before it or in its custody, orregarding which an offence appears to have been committed orwhich has been used for the commission of any offence. TheFcontext is wide, albeit the words, “may make such order as itthinks fit” in Section 452 vests the Court with the discretion todispose of the property in any of the three modes specified,namely, destruction, confiscation or delivery to the person entitledto be in possession thereof or otherwise. However, an order underSection 452 is not an order determining title or ownership butGthat of the right to possession, and therefore where serious claimsto ownership are put forward, it would be best if the CriminalCourts directs the parties to establish their claim before the CivilCourt. The Criminal Court can, however, pass appropriate orderof interim nature as it may be appropriate. Thus, Sections 451Hand 452 are broad and wide conferring specific and clear powers

upon the Criminal Court, and the language indicates that theycould equally apply to immovable property. These Sections donot make reference to Section 102 of the Code relating to theseizure of property by the police officer. This is equally true ofSection 456 which specifically empowers the Criminal Court torestore possession of immovable property when a person isconvicted of an offence attended by criminal force or show offorce or by criminal intimidation and it appears to the Court thatby such force or show of force or intimidation any person hasbeen dispossessed of the property. This order can be madewithout prejudice to the right or interest to or in such immovableproperty which any person may be able to establish in a civil suit.Section 457 applies when a property has been seized by any policeofficer and is reported to a Magistrate under the provisions ofthe Code and such property is not produced before a CriminalCourt during the course of inquiry or trial. The expression ‘notproduced before a Criminal Court’ used in Section 457 of theCode is significant. Thus, this provision applies to the propertyseized under Section 102 of the Code, but not produced duringthe trial or inquiry. In common parlance, the word ‘produced’ isan expression used to signify actual or physical production whichwould 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 ofProperty’, specifically enable the Court to pass orders relatingto the properties, both movable and immovable. Section 451, doesnot specifically refer to any seizure order under Section 102 ofthe Code but vide Explanation includes such property regardingwhich an offence appears to have been committed or whichappears to have been used for the commission of any offence.Similarly, Section 452 refers to property regarding which anoffence appears to have been committed as has been originallyin possession or under control of any party and also such propertyinto or for which the same may have been converted orexchanged. Again Section 452 per se, does not make any referenceto Section 102 of the Code. This is also true for Section 456 ofthe Code which relates to restoration of possession of immovable ABC

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Aproperty in certain circumstances. These provisions, therefore,do not directly define the contours and scope of Section 102 ofthe Code. On the other hand, it would show that Section 102 isnot the primary or the core provision which would make theprovisions of Section 451, 452 or 456 of the Code applicable.BThe parameters for application of these sections are those as areenumerated in the specific provisions. Sections 451 and 452specifically define the expression ‘property’ for the purpose ofan order of custody and disposal by the Court. Section 456 appliesto the category or type of offences concerning immovable propertyregardless of whether the immovable property is in custody ofCthe Court or has been attached. Power of the Criminal Courtunder these Sections, except Section 457 of the Code, is notrestricted to property seized by the police officer under Section102 of the Code. Section 457, applies to properties which havebeen seized by the police officer under the Code but not producedDduring inquiry or trial.[Para 17][249-B-H]

4. The decision in Tapas D. Neogy’case did not go into anddecide the issue; whether immovable property would fall underthe expression ‘any property’ under Section 102 of the Code.This is said so by applying the inversion test as referred to inEState of Gujarat and Others v. Utility Users’ Welfare Associationand Others, which states that the Court must first carefully framethe supposed proposition of law and then insert in the propositiona word reversing its meaning to get the answer whether or not adecision is a precedent for that proposition. If the answer is inFthe affirmative, the case is not a precedent for that proposition.If the answer is in the negative, the case is a precedent for theoriginal proposition and possibly for other propositions also. Thisis one of the tests applied to decide what can be regarded andtreated as ratio decidendi of a decision. It has been held that aGdecision is only an authority for what it actually decides. What isof the essence in a decision is its ratio. Not every observationfound therein nor what logically flows from those observations isthe ratio decidendi. Judgment in question has to be read as awhole and the observations have to be considered in light of theinstances which were before the Court. This is the way to ascertainH

the true principles laid down by a decision. Ratio decidendi cannotbe decided by picking out words or sentences averse to thecontext under question from the judgment. It is, therefore, clearthat Tapas D. Neogy’s case did not decide the issue in question;whether or not an immovable property will fall within theexpression ‘any property’ in Section 102. [Para 11][241-E-H; 242-A-C]

State of Maharashtra v. Tapas D. Neogy (1999) 7 SCC685 – held inapplicable.

Kishore Shankar Signapurkar v. State of Maharashtraand Others 1997 Vol.IV L J 793; M/s. Bombay Scienceand Research Education Institute v. The State ofMaharashtra and Others 2008 All M.R.(Crl.) 2133;Ms. Swaran Sabharwal v. Commissioner of Police 1988CriLJ 241 (Del) (DB); Jagdish Chander and Others v.State and Others 40 (199) DLT 233; P.K. Parmar andOthers v. Union of India and Another 1992 CriLJ 2499(Del); Bharat Overseas Bank v. Minu Publication 1988MLW (Cri) 106; State of Gujarat and Others v. UtilityUsers’ Welfare Association and Others (2018) 6 SCC21: [2018] 9 SCR 106; U.P. State Electricity Board v.Pooran Chandra Pandey and Others (2007) 11 SCC92 : [2007] 10 SCR 920; Commissioner of Income Taxv. Sun Engineering Works (P) Ltd. (1992) 4 SCC 363 :[1992] 1 Suppl. SCR 732; R.K. Dalmia etc. v. DelhiAdministration 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 Kumarand Others v. State of Bihar and Another (2014) 10SCC 663 : [2014] 11 SCR 85 – referred to.

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232SUPREME COURT REPORTS

[2019] 15 S.C.R.

PER DEEPAK GUPTA, J. (Supplementing):

E1.1 Sub-section (1) of Section 102 of the Code of CriminalProcedure, 1973 empowers a police officer to seize any propertywhich may be alleged or suspected to have been stolen or whichmay be found under circumstances which create suspicion of thecommission of any offence. [Para 3][254-B]

1.2 It is a well settled principle of statutory interpretationthat when construing the words of a statute, they must be read ina manner in which they fit into the section and in the context ofthe purpose sought to be achieved by that particular provision oflaw. [Para 4][254-D-E]

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1.3 Sub-section (1) of Section 102 empowers a police officerto seize any property which may be alleged or suspected to havebeen stolen. Theft can take place only of movable property andnot of immovable property. The word ‘seized’ has been used inthe sense of taking actual physical custody of the property. Sub- G

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section 3 of Section 102 provides that where it is difficult toconveniently transport the property to the court or there isdifficulty in securing proper accommodation for the custody ofthe property, then the property can be given to any person on hisexecuting a bond. This per se indicates that the property must becapable of production in court and also be capable of being keptinside some accommodation. This obviously cannot be done withimmovable property. [Para 5][254-F-G]

1.4 Section 102 has been in the statute book for more thana century. Section 102 corresponds to Section 550 of the Code ofCriminal Procedure, 1898. For more than a century the courtshave 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 Legislaturehas in various provisions specifically used the words ‘movable’and ‘immovable’ property. Section 83 of the Cr.P.C. which relatesto seizure of the property of a proclaimed absconder. TheLegislature in its wisdom uses the words “order the attachmentof any property, movable or immovable or both”. This is incontradistinction 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.20[th] July 1994. This Chapter deals with reciprocal arrangementsfor assistance in certain matters and procedure for attachmentand forfeiture of property. Property has been defined in Section105A(d). This would include property of all kinds, movable andimmovable. The Legislature made it clear that property of allkinds can be attached and forfeited. Reading all these provisionstogether, it is clear that when any court in India has reasonablegrounds to believe that any property has been obtained by anyperson directly or indirectly from the commission of an offence,the Court may make an order for attachment or forfeiture of suchproperty. This Court is not concerned with the procedure to befollowed for attachment and forfeiture of the property but onlythe meaning of the word ‘property’. Thus, Section 105C empowersthe court to order forfeiture of any property which it may feel isderived or obtained directly or indirectly by the commission ofan offence. [Para 7, 8, 9][255-C-F; 256-B, D-E]

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A1.6 The power of attachment and forfeiture is given to courtsand not to police officer. If a police officer is given the power toseize immovable property it may lead to an absolutely chaoticsituation. The power of seizure in Section 102 has to be limitedto movable property. Thus, the phrase ‘any property’ in SectionB102 will only cover moveable property and not immovableproperty. [Para 10, 12][256-F-G; 257-B, C]

State of Maharashtra v. Tapas D. Neogy (1999) 7 SCC685 : [1999] 2 Suppl. SCR 609 – held inapplicable.

CCase Law Reference

[1999] 2 Suppl. SCR 609held inapplicable.Para 6

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.1481 of 2019.D

From the Judgment dated 29.11.2010 of the High Court ofJudicature at Bombay in Crl. Writ Petition No.2137 of 2010.

WITH

ECriminal Appeal Nos.1122 of 2011, 1482-1485 of 2019, 1486 of2019 and 1487 of 2019.

Bharat Sangal, Sr. Adv., Ms. Babita Kushwaha, Ms. ManjulaGupta, Ms. Fauzia Shakil, M. Shoeb Alam, Ujjwal Singh, GautamFPrabhakar, 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.GRajshree Dubey, M. K. Dua, Mahesh Agarwal, Ankur Saigal, Ms. AasthaMehta, Nishant Rao, Rajesh Kumar, E.C. Agrawala, Ms. SangeetaKumar, Ms. Sonia Mathur, Sachin Sharma, Ms. Rachna Sharma, ArvindKumar 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 andArun Mishra, JJ.) vide order dated November 18, 2014, noticing that theissues that arise have far reaching and serious consequences, hadreferred the aforesaid appeals to be heard by a Bench of at least threeJudges. After obtaining appropriate directions from Hon’ble the ChiefJustice, these appeals have been listed before the present Bench.

3. For the sake of convenience, we have treated the CriminalAppeal arising out of Special Leave Petition (Criminal) No. 1513 of2011, filed by Nevada Properties Pvt. Ltd., as the lead case. This appealarises from judgment of the High Court of Judicature at Bombay datedNovember 29, 2010 wherein the majority judgment has held that theexpression ‘any property’ used in sub-section (1) of Section 102 of theCode of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’)does not include immovable property and, consequently, a police officerinvestigating a criminal case cannot take custody of and seize anyimmovable property which may be found under circumstances whichcreate suspicion of the commission of any offence. According to themajority judgment, earlier decision of the Division Bench of the sameHigh Court in Kishore Shankar Signapurkar v. State of Maharashtraand Others[1]lays down the correct ratio and the contrary view expressedin M/s. Bombay Science and Research Education Institute v. TheState of Maharashtra and Others[2]does not lay down the correct law.The minority view holds that the police officer has power to seize anyproperty, whether movable or immovable, under Section 102 of the Codeand the decision of the Division Bench in M/s. Bombay Science andResearch Education Institute (supra) lays down the correct law andthe 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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A4. In order to decide the present controversy which is primarilylegal, we would begin by reproducing Section 102 of the Code, whichreads as under:

“S.102 Power of police officer to seize certain property.

(1) Any police officer may seize any property which may be allegedBor suspected to have been stolen, or which may be found undercircumstances which create suspicion of the commission of anyoffence.

(2) Such police officer, if subordinate to the office in charge of aCpolice station, shall forthwith report the seizure to that officer.

(3) Every police officer acting under sub-section (1) shall forthwithreport the seizure to the Magistrate having jurisdiction and wherethe property seized is such that it cannot be convenientlytransported to the Court, or where there is difficulty in securingDproper accommodation for the custody of such property, or wherethe continued retention of the property in police custody may notbe considered necessary for the purpose of investigation, he maygive custody thereof to any person on his executing a bondundertaking to produce the property before the Court as and whenrequired and to give effect to the further orders of the Court as toEthe disposal of the same.

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Provided that where the property seized under sub-section (1) issubject to speedy and natural decay and if the person entitled tothe possession of such property is unknown or absent and theFvalue of such property is less than five hundred rupees, it mayforthwith be sold by auction under the orders of the Superintendentof Police and the provisions of Sections 457 and 458 shall, asnearly as may be practicable, apply to the net proceeds of suchsale.”

G5. Section 102 of the Code is part of a fasciculus of provisionsunder Chapter VII – ‘Process to Compel the Production of Things’.Part A of the said Chapter deals with Summons to produce; Part B dealswith Search-warrants; Part C deals with General provisions relating tosearches; and Part D, of which Section 102 is the first Section, falls H

under the part described as Miscellaneous. The marginal note of Section102 states – “Power of police officer to seize certain property”. Sub-section (3) of Section 102 was inserted by Act No. 45 of 1978. It waslater 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 insecuring proper accommodation for the custody of such property, orwhere the continued retention of the property in police custody may notbe considered necessary for the purpose of investigation.” Proviso tosub-section (3) was also added by the Amendment Act, 2005. Sub-section(3) to Section 102 is intended to give greater discretion to the policeofficer for releasing seized property, where there is a difficulty in securingproper accommodation for the custody of the property or where thecontinued retention of the property in police custody is not considerednecessary for the purpose of investigation. Proviso states that if theseized property is of perishable nature and the value of such property isless than five hundred rupees and if the person entitled to the possessionof such property is unknown or absent, the police is empowered to sellsuch property by auction under orders of the Superintendent of Police.

6. The minority judgment and the contention of the appellant issubstantially predicated on the words ‘any property’ in sub-section (1)of Section 102. Reference was made to the decision of this Court inState of Maharashtra v. Tapas D. Neogy[3]. To avoid prolixity, we arenot referring to the contentions raised by both sides as the same wouldbe referred to and examined during the course of our reasoning. At theoutset, we must begin by referring to the decision in Tapas D. Neogy(supra), a case arising from three First Information Reports under Sections120-B, 467, 468, 471 and 420 of the Indian Penal Code, 1860 (hereinafterreferred 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 abank 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 theInvestigating Officer has the power to seize the bank account or issue aprohibitory order restraining operation of the bank account. Referencewas made to several judgments of the High Courts, some of which wouldbe discussed later, to hold as under:

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A“12. Having considered the divergent views taken by differentHigh Courts with regard to the power of seizure under Section102 of the Code of Criminal Procedure, and whether the bankaccount can be held to be “property” within the meaning of thesaid Section 102(1), we see no justification to give any narrowBinterpretation to the provisions of the Criminal Procedure Code.It is well known that corruption in public offices has become sorampant that it has become difficult to cope up with the same.Then again the time consumed by the courts in concluding thetrials is another factor which should be borne in mind in interpretingthe provisions of Section 102 of the Criminal Procedure Code andCthe underlying object engrafted therein, inasmuch as if there canbe no order of seizure of the bank account of the accused thenthe entire money deposited in a bank which is ultimately held inthe trial to be the outcome of the illegal gratification, could bewithdrawn by the accused and the courts would be powerless toDget the said money which has any direct link with the commissionof the offence committed by the accused as a public officer. Weare, therefore, persuaded to take the view that the bank accountof the accused or any of his relations is “property” within themeaning of Section 102 of the Criminal Procedure Code and aEpolice officer in course of investigation can seize or prohibit theoperation of the said account if such assets have direct links withthe commission of the offence for which the police officer isinvestigating into. The contrary view expressed by the Karnataka,Gauhati and Allahabad High Courts, does not represent the correctFlaw. It may also be seen that under the Prevention of CorruptionAct, 1988, in the matter of imposition of fine under sub-section(2) of Section 13, the legislatures have provided that the courts infixing the amount of fine shall take into consideration the amountor the value of the property which the accused person has obtainedby committing the offence or where the conviction is for an offenceGreferred to in clause (e) of sub-section (1) of Section 13, thepecuniary resources or property for which the accused person isunable to account satisfactorily. The interpretation given by us inrespect of the power of seizure under Section 102 of the CriminalProcedure Code is in accordance with the intention of the H

NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTORv. STATE OF MAHARASHTRA [SANJIV KHANNA, J.]

legislature engrafted in Section 16 of the Prevention of CorruptionAct referred to above. In the aforesaid premises, we have nohesitation to come to the conclusion that the High Court of Bombaycommitted error in holding that the police officer could not haveseized the bank account or could not have issued any direction tothe bank officer, prohibiting the account of the accused from beingoperated upon. Though we have laid down the law, but so far asthe present case is concerned, the order impugned has alreadybeen given effect to and the accused has been operating hisaccount, and so, we do not interfere with the same.”

7. Money, as per clause (7) of Section 2 of the Sales of GoodsAct, 1930, is neither goods nor movable property, albeit Section 22 ofthe IPC defines the term ‘movable property’ to include corporeal propertyof every description, except land and things attached to the earth orpermanently fastened to anything which is attached to the earth. Theexpression ‘movable property’ has not been specifically defined in theCode. In terms of Section 2(y) of the Code, words and meanings definedin the IPC would equally be applicable to the Code. Money, therefore,would be property for the purposes of the Code. Money is not animmovable property.

8. Decision of this Court in Tapas D. Neogy (supra) was in respectof the bank accounts and it did not examine and answer the questionwhether 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 Courtin Ms. Swaran Sabharwal v. Commissioner of Police[4] in which it washeld that Section 102 requires that the seized property by itself shouldlead to the suspicion that some offence has been committed. In otherwords, the discovery of the offence should be a sequel to the discoveryof that property and not the other way around. Reference in this regardcan also be made to Jagdish Chander and Others v. State and Others[5],wherein the petitioner had challenged the seizure action of the police onthe ground that the word ‘seizure’ appearing in Section 102 of the Codewould 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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Aimmovable property. This contention was not answered and left open asthe Delhi High Court came to the conclusion that the seizure order thereinunder Section 102 of the Code was not in accordance with the statutoryrequirement as the property should be discovered under circumstanceswhich create a suspicion of the commission of an offence, that is, theBpolice officer should come across certain property in circumstances whichcreate in his mind a suspicion that an offence has been committed. Section102, it was held, would not be attracted where the property has not beentraced or discovered which leads to a suspicion of an offence havingbeen committed. Discovery of property should precede the detection of

crime. This ratio was subsequently followed in P.K. Parmar and OthersCv. Union of India and Another[6]in which the Delhi High Court hadreiterated that unless discovery of the property leads to a suspicion of anoffence having been committed, Section 102 of the Code cannot beinvoked for seizing such properties. The Delhi High Court examined thequestion; whether the discovery of the bank accounts had preceded theDsuspicion of the offences having been committed and held that therewere good reasons, in view of the attending circumstances, which hadled Central Bureau of Investigation (hereinafter referred to as the ‘CBI’)to be suspicious of an offence having been committed in relation to suchaccounts. The accounts were found either in the name of non-existentEpersons or in bogus names and all such accounts were allegedly beingmaintained by the principal accused. There was sufficient cause for theCBI to set the criminal law into motion. In this case, the allegation wasthat subsidies were obtained illegally and without entitlement from theGovernment of India, and the amounts so received were deposited inFthe bank accounts that had prima facie linked the accused with variousoffences with which they were charged. The cause of action, therefore,for seizing the bank accounts arose when a suspicion was created relatingto the multiple and spurious handling of bank accounts.

9. Tapas D. Neogy (supra) had also referred to the judgment ofGa Single Judge of the Madras High Court in Bharat Overseas Bank v.Minu Publication[7], which had made reference to Sections 451, 452,453, 456 and 457 of the Code to observe that these provisions seek toreimburse or compensate victims of crime and bring about restoration of 6 1992 CriLJ 2499 (Del)H7 1988 MLW (Cri) 106

the property or its restitution. The provision empowering seizure wasnecessary to preserve the property for the purpose of enabling theCriminal Court to pass suitable orders under the aforesaid provisions atthe conclusion of the trial. The judgment also refers to restoration ofimmovable property under certain circumstances dealt with under Section456 of the Code.

10. The reason why we have referred to the two decisions in P.K.Parmar (supra) and Bharat Overseas Bank (supra) is to notice thewide range of issues and contentions with reference to the term ‘property’that could arise for consideration while interpreting the power of thepolice officer to effect seizure under Section 102 of the Code, albeit thisCourt did not deal with and express an opinion on several issues in TapasD. Neogy (supra) and the judgment was confined and limited to thequestion; whether bank accounts would fall within the category of ‘anyproperty’. Holding that the bank accounts would fall under the expression‘any property’ under Section 102 of the Code, it was observed that therewas no justification or reason to give a narrow interpretation to the wordsto exclude bank accounts, elucidating that corruption in public officeshas become rampant and this aspect has to be borne in mind whileinterpreting the provisions of Section 102 of the Code and the underlyingobject engrafted in the provision.

11. It follows from the aforesaid discussion that the decision inTapas D. Neogy (supra) did not go into and decide the issue; whetherimmovable property would fall under the expression ‘any property’ underSection 102 of the Code. We say so by applying the inversion test asreferred to in State of Gujarat and Others v. Utility Users’ WelfareAssociation and Others[8], which states that the Court must first carefullyframe the supposed proposition of law and then insert in the propositiona word reversing its meaning to get the answer whether or not a decisionis a precedent for that proposition. If the answer is in the affirmative, thecase is not a precedent for that proposition. If the answer is in thenegative, the case is a precedent for the original proposition and possiblyfor other propositions also. This is one of the tests applied to decidewhat can be regarded and treated as ratio decidendi of a decision.Reference in this regard can also be made to the decisions of this Courtin U.P. State Electricity Board v. Pooran Chandra Pandey and A

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AOthers[9], Commissioner of Income Tax v. Sun Engineering Works(P) Ltd.[10] and other cases which hold that a decision is only an authorityfor what it actually decides. What is of the essence in a decision is itsratio. Not every observation found therein nor what logically flows fromthose observations is the ratio decidendi. Judgment in question has tobe read as a whole and the observations have to be considered in light ofBthe instances which were before the Court. This is the way to ascertainthe true principles laid down by a decision. Ratio decidendi cannot bedecided by picking out words or sentences averse to the context underquestion from the judgment. It is, therefore, clear to us that Tapas D.Neogy (supra) did not decide the issue in question; whether or not anCimmovable property will fall within the expression ‘any property’ in Section102 of the Code. We will have to, therefore, examine the issue andanswer the same.

12. This Court in R.K. Dalmia etc. v. Delhi Administration[11]had interpreted the word ‘property’ in Section 405 and other sections ofDthe IPC to opine that there was no good reason to restrict the meaningof the word ‘property’ to movable property when the word was usedwithout any qualification in Section 405 or in other sections of the IPC.At the same time, this Court had cautioned that whether an offencedefined in a particular section of the IPC can be committed in respect ofany particular kind of property, will depend not on the interpretation ofEthe word ‘property’ but on the fact that whether that particular kind ofproperty can be subject to acts covered by that section. In that sense, itcan be said that the word ‘property’ in a particular section covers onlythat type of property in respect of which the offence contemplated inthat section can be committed. This, we would observe, is the centralFand core principle which would have to be applied when we interpretthe expression ‘any property’ used in Section 102 of the Code, which asnoticed above and elucidated below is a power conferred upon the policeofficer and relates to the stage of investigation and collection of evidenceto be produced in the Court during trial.

G13. Before we proceed further, we would like to refer to theCriminal Law Amendment Ordinance, 1944 (No. XXXVIII of 1944)which was promulgated in exercise of powers conferred under Section 9 (2007) 11 SCC 9210 (1992) 4 SCC 363H11 AIR 1962 SC 1821

72 of the Ninth Schedule of the Government of India Act, 1935 to preventdisposal or concealment of property procured by means of offencesspecified in its Schedule, which include offences punishable underSections 406, 408, 409, 411 and 414 of the IPC in respect of Governmentproperty, property of local authority or a Corporation established by orunder a Central, Provincial or State Act, etc., and an offence punishableunder the Prevention of Corruption Act, 1988, an insertion made by thePrevention of Corruption Act, 1988. It sets out the procedure when theCentral/State Government has a reason to believe that a person hascommitted any scheduled offence, whether or not the Court has takencognisance of the said offence, by attachment of money or other propertywhich the Central/State Government believes that the person has procuredby means of the scheduled offence, and if such money or property cannotfor any reason be attached, any other property of the said person ofvalue as nearly as may be equivalent to that of the aforesaid money orproperty. This enactment mandates application of provisions of OrderXXVII of the Code of Civil Procedure, 1908 with a provision for filingan application before the District Judge who is entitled to pass an adinterim attachment order after following the prescribed procedureincluding examination and investigation of objections to attachment ofthe property. The District Judge can pass an order either making theinterim attachment absolute or varying it by releasing the property orportion thereof or withdrawing the order on satisfaction of certainconditions. Other sections contained in the Ordinance provide forattachment of property of mala fide transferees, execution of orders ofattachment, security in lieu of attachment, administration of attachedproperty, duration of attachment, appeals, power of Criminal Court toevaluate property procured by scheduled offences and disposal ofattached property upon termination of criminal proceedings. Section 14bars legal proceedings in other Courts in respect of the property attachedunder the Ordinance. The Ordinance is a permanent Ordinance whichwas promulgated during the Second World War. It was adopted by thePresidential Adaptation of Laws Order, 1950 issued under the powersconferred by clause (2) of Article 372 of the Constitution, thus, making iteffective in the territory of India and, therefore, continues to remain inforce.

14. Similarly, there are provisions in the form of Sections 145,146, 165 amongst others in the Code which specifically relate to immovableproperties. Chapter VIIA – ‘Reciprocal Arrangements for Assistance .

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Ain Certain Matters and Procedure for Attachment and Forfeiture ofProperty’ specifically includes immovable properties under the expression‘property’ for the purpose of the said Chapter unless the context otherwiserequires. Similarly, we have specific provisions relating to and dealingwith immovable property under the Narcotics, Drugs and PsychotropicBSubstances Act, 1985.

15. We would now refer to Chapter XXXIV of the Code, whichhas the heading ‘Disposal of Property’ and consists of Sections 451 to459. We would like to reproduce Sections 451, 452, 453, 454, 456 and457 of the Code, which read as under:

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C“451. Order for custody and disposal of property pendingtrial in certain cases.— When any property is produced beforeany Criminal Court during any inquiry or trial, the Court may makesuch order as it thinks fit for the proper custody of such propertypending the conclusion of the inquiry or trial, and, if the property isDsubject to speedy and natural decay, or if it is otherwise expedientso to do, the Court may, after recording such evidence as it thinksnecessary, 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 beforethe Court or which is in its custody, (b) any property regarding which an offence appears to havebeen committed or which appears to have been used for thecommission of any offence.

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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, bydestruction, confiscation or delivery to any person claiming to beentitled to possession thereof or otherwise, of any property orGdocument produced before it or in its custody, or regarding whichany offence appears to have been committed, or which has beenused for the commission of any offence.

NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTORv. STATE OF MAHARASHTRA [SANJIV KHANNA, J.]

(2) An order may be made under sub-section (1) for the deliveryof any property to any person claiming to be entitled to thepossession thereof, without any condition or on condition that heexecutes a bond, with or without sureties, to the satisfaction ofthe Court, engaging to restore such property to the Court if theorder made under sub-section (1) is modified or set aside on appealor revision.

(3) A Court of Session may, instead of itself making an orderunder sub-section (1), direct the property to be delivered to theChief Judicial Magistrate, who shall thereupon deal with it in themanner provided in sections 457, 458 and 459.

(4) Except where the property is livestock or is subject to speedyand natural decay, or where a bond has been executed in pursuanceof sub-section (2), an order made under sub-section (1) shall notbe carried out for two months, or when an appeal is presented,until such appeal has been disposed of.

(5) In this section, the term “property” includes, in the case ofproperty regarding which an offence appears to have beencommitted, not only such property as has been originally in thepossession or under the control of any party, but also any propertyinto or for which the same may have been converted or exchanged,and anything acquired by such conversion or exchange, whetherimmediately or otherwise.

453. Payment to innocent purchaser of money found onaccused.- When any person is convicted of any offence which includes, oramounts to, theft or receiving stolen property, and it is proved thatany other person bought the stolen property from him withoutknowing or having reason to believe that the same was stolen,and that any money has on his arrest been taken out of thepossession of the convicted person, the Court may, on theapplication of such purchaser and on the restitution of the stolenproperty to the person entitled to the possession thereof, orderthat out of such money a sum not exceeding the price paid bysuch purchaser be delivered to him.

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A454. Appeal against orders under section 452 or section453.-

(1) Any person aggrieved by an order made by a Court undersection 452 or section 453, may appeal against it to the Court towhich appeals ordinarily lie from convictions by the former Court.

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(2) On such appeal, the Appellate Court may direct the order tobe stayed pending disposal of the appeal, or may modify, alter orannul the order and make any further orders that may be just.

(3) The powers referred to in sub-section (2) may also be exercisedCby a Court of appeal, confirmation or revision while dealing withthe case in which the order referred to in sub-section (1) wasmade.

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D456. Power to restore possession of immovable property.-

(1) When a person is convicted of an offence attended by criminalforce or show of force or by criminal intimidation, and it appearsto the Court that, by such force or show of force or intimidation,any person has been dispossessed of any immovable property,Ethe Court may, if it thinks fit, order that possession of the same berestored to that person after evicting by force, if necessary, anyother person who may be in possession of the property:

Provided that no such order shall be made by the Court more thanone month after the date of the conviction.

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(2) Where the Court trying the offence has not made an orderunder sub-section (1), the Court of appeal, confirmation or revisionmay, 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), theprovisions of section 454 shall apply in relation thereto as theyapply in relation to an order under section 453.

(4) No order made under this section shall prejudice any right orinterest to or in such immovable property which any person maybe 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 isreported to a Magistrate under the provisions of this Code, andsuch property is not produced before a Criminal Court during aninquiry or trial, the Magistrate may make such order as he thinksfit respecting the disposal of such property or the delivery of suchproperty to the person entitled to the possession thereof, or ifsuch person cannot be ascertained, respecting the custody andproduction of such property.

(2) If the person so entitled is known, the Magistrate may orderthe property to be delivered to him on such conditions (if any) asthe Magistrate thinks fit and if such person is unknown, theMagistrate may detain it and shall, in such case, issue aproclamation specifying the articles of which such propertyconsists, and requiring any person who may have a claim thereto,to appear before him and establish his claim within six monthsfrom the date of such proclamation.”

16. Section 451 empowers the Criminal Court to pass an order ofproper custody of ‘any property’ pending trial or inquiry. The Court canalso direct disposal in certain circumstances. Explanation to Section 451states that for the purpose of the said Section, ‘property’ includes propertyof any kind or document which is produced before the Court or which isin its custody or any property regarding which an offence appears tohave been committed or which appears to have been used for thecommission 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 thepurpose of Section 451 includes immovable property. In fact,preponderance of judicial decisions takes this view, though there is nodirect judgment of this Court. Same is the position with regard to Section452, which in sub-section (5) states that the term ‘property’ includes, incase of property regarding which an offence appears to have been A

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Acommitted, not only such property as was originally in possession orunder control of any party, but also any property into which the samemay have been converted or exchanged, and anything acquired by suchconversion or exchange, whether immediately or otherwise. Section 452states that when an inquiry or trial in a Criminal Court concludes, theCourt may make an order as it thinks fit for the disposal, by destruction,Bconfiscation or delivery to any person claiming himself to be entitled topossession thereof or otherwise, of any property or document producedbefore it or in its custody, or regarding which an offence appears to havebeen committed or which has been used for the commission of anyoffence. The context is wide, albeit the words, “may make such orderCas it thinks fit” in Section 452 vests the Court with the discretion todispose of the property in any of the three modes specified, namely,destruction, confiscation or delivery to the person entitled to be inpossession thereof or otherwise (see N. Madhavan v. State of Kerala[12]).However, an order under Section 452 is not an order determining title orownership but that of the right to possession, and therefore where seriousDclaims to ownership are put forward, it would be best if the CriminalCourts directs the parties to establish their claim before the Civil Court.The Criminal Court can, however, pass appropriate order of interim natureas it may be appropriate. What is important and relevant for our discussionis that the Sections 451 and 452 are broad and wide conferring specificEand clear powers upon the Criminal Court, and the language indicatesthat they could equally apply to immovable property. These Sections donot make reference to Section 102 of the Code relating to the seizure ofproperty by the police officer. This is equally true of Section 456 whichspecifically empowers the Criminal Court to restore possession ofimmovable property when a person is convicted of an offence attendedFby criminal force or show of force or by criminal intimidation and itappears to the Court that by such force or show of force or intimidationany person has been dispossessed of the property. This order can bemade without prejudice to the right or interest to or in such immovableproperty which any person may be able to establish in a civil suit. SectionG457 applies when a property has been seized by any police officer and isreported to a Magistrate under the provisions of the Code and suchproperty is not produced before a Criminal Court during the course ofinquiry or trial. The expression ‘not produced before a Criminal Court’

12 (1979) 4 SCC 1H

used in Section 457 of the Code is significant. Thus, this provision appliesto the property seized under Section 102 of the Code, but not producedduring the trial or inquiry. In common parlance, the word ‘produced’ isan expression used to signify actual or physical production which wouldapply to movable property. Immovable property cannot be ‘produced’ ina Court.

17. We have referred to the said provisions under Chapter XXXIV– ‘Disposal of Property’, as this would be of significance and, addressesthe argument and concern expressed by the appellant – NevadaProperties Pvt. Ltd. and some of the State Governments. Theseprovisions, specifically enable the Court to pass orders relating to theproperties, both movable and immovable. We have referred to Section451, which does not specifically refer to any seizure order under Section102 of the Code but vide Explanation includes such property regardingwhich an offence appears to have been committed or which appears tohave been used for the commission of any offence. Similarly, Section452 refers to property regarding which an offence appears to have beencommitted as has been originally in possession or under control of anyparty and also such property into or for which the same may have beenconverted or exchanged. Again Section 452 per se, does not make anyreference to Section 102 of the Code. This is also true for Section 456 ofthe Code which relates to restoration of possession of immovable propertyin certain circumstances. These provisions, therefore, do not directlydefine the contours and scope of Section 102 of the Code. On the otherhand, it would show that Section 102 is not the primary or the coreprovision which would make the provisions of Section 451, 452 or 456 ofthe Code applicable. The parameters for application of these sectionsare those as are enumerated in the specific provisions. Sections 451 and452 specifically define the expression ‘property’ for the purpose of anorder of custody and disposal by the Court. Section 456 applies to thecategory or type of offences concerning immovable property regardlessof whether the immovable property is in custody of the Court or hasbeen attached. Power of the Criminal Court under these Sections, exceptSection 457 of the Code, is not restricted to property seized by the policeofficer under Section 102 of the Code. Section 457, as noticed, appliesto properties which have been seized by the police officer under theCode but not produced during inquiry or trial.

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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 immovableproperty. We would elucidate and explain.

19. The first part of sub-section (1) of Section 102 of the CodeBrelates to the property which may be alleged or suspected to have beenstolen. Immovable property certainly cannot be stolen and cannot fall inthis part. The second part relates to the property which may be found bya police officer under circumstances which create suspicion of thecommission of any offence. We have already referred to the judgmentsCof the Delhi High Court in the case of P.K. Parmar (supra), Ms. SwaranSabharwal (supra), and Jagdish Chander (supra), which haveelucidated and in a restricted and narrow manner defined the requirementfor invoking the second part. However, we have come across a decisionof this Court in Teesta Atul Setalvad v. State of Gujarat[13], on an appealDfrom the judgment of the Gujarat High Court and had dealt with a situationwhen an act of freezing the accounts was a sequel to the crime as thecrime was detected earlier. The Gujarat High Court took a somewhatcontrary view, by not interfering and directing defreezing, observing thateven if the action of the investigating agency at the inception to seizemay not be regular, the Court cannot be oblivious to the collection ofEsubstantial material by the investigating agency which justifies its actionunder Section 102 of the Code. Further when the investigation hadprogressed to a material point, de-freezing the bank accounts on thebasis of such arguments would paralyse the investigation which wouldnot be in the interest of justice. After referring to the factual matrix inFTeesta Atul Setalvad (Supra), this Court observed that the InvestigatingOfficer was in possession of material pointing out to the circumstancesthat had created suspicion of the commission of an offence, in particularthe one under investigation, and therefore exercise of power under Section102 of the Code would be in law legitimate as it was exercised afterGfollowing the procedure prescribed in sub-sections (2) and (3) of thesame provision.

20. Section 102 postulates seizure of the property. Immovableproperty cannot, in its strict sense, be seized, though documents of title,

etc. relating to immovable property can be seized, taken into custodyand produced. Immovable property can be attached and also locked/sealed. It could be argued that the word ‘seize’ would include such actionof attachment and sealing. Seizure of immovable property in this senseand manner would in law require dispossession of the person inoccupation/possession of the immovable property, unless there are noclaimants, which would be rare. Language of Section 102 of the Codedoes not support the interpretation that the police officer has the powerto dispossess a person in occupation and take possession of an immovableproperty in order to seize it. In the absence of the Legislature conferringthis express or implied power under Section 102 of the Code to thepolice officer, we would hesitate and not hold that this power should beinferred and is implicit in the power to effect seizure. Equally important,for the purpose of interpretation is the scope and object of Section 102of the Code, which is to help and assist investigation and to enable thepolice officer to collect and collate evidence to be produced to prove thecharge complained of and set up in the charge sheet. The Section is apart of the provisions concerning investigation undertaken by the policeofficer. After the charge sheet is filed, the prosecution leads and producesevidence to secure conviction. Section 102 is not, per se, an enablingprovision by which the police officer acts to seize the property to dojustice and to hand over the property to a person whom the police officerfeels is the rightful and true owner. This is clear from the objectivebehind Section 102, use of the words in the Section and the scope andambit of the power conferred on the Criminal Court vide Sections 451 to459 of the Code. The expression ‘circumstances which create suspicionof the commission of any offence’ in Section 102 does not refer to a firmopinion or an adjudication/finding by a police officer to ascertain whetheror not ‘any property’ is required to be seized. The word ‘suspicion’ is aweaker and a broader expression than ‘reasonable belief’ or‘satisfaction’. The police officer is an investigator and not an adjudicatoror a decision maker. This is the reason why the Ordinance was enactedto deal with attachment of money and immovable properties in cases ofscheduled offences. In case and if we allow the police officer to ‘seize’immovable property on a mere ‘suspicion of the commission of anyoffence’, it would mean and imply giving a drastic and extreme power todispossess etc. to the police officer on a mere conjecture and surmise, AB

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Athat is, on suspicion, which has hitherto not been exercised. We havehardly come across any case where immovable property was seizedvide an attachment order that was treated as a seizure order by policeofficer under Section 102 of the Code. The reason is obvious. Disputesrelating to title, possession, etc., of immovable property are civil disputesBwhich have to be decided and adjudicated in Civil Courts. We mustdiscourage and stall any attempt to convert civil disputes into criminalcases to put pressure on the other side (See Binod Kumar and Othersv. State of Bihar and Another[14]). Thus, it will not be proper to hold thatSection 102 of the Code empowers a police officer to seize immovableproperty, land, plots, residential houses, streets or similar properties. GivenCthe nature of criminal litigation, such seizure of an immovable propertyby the police officer in the form of an attachment and dispossessionwould not facilitate investigation to collect evidence/material to beproduced during inquiry and trial. As far as possession of the immovableproperty is concerned, specific provisions in the form of Sections 145Dand 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 andauthorises the police officer to seize immovable property for being ableto be produced in the Criminal Court during trial. This, however, wouldnot bar or prohibit the police officer from seizing documents/ papers ofEtitle relating to immovable property, as it is distinct and different fromseizure of immovable property. Disputes and matters relating to thephysical and legal possession and title of the property must be adjudicatedupon by a Civil Court.

21. In view of the aforesaid discussion, the Reference is answeredFby holding that the power of a police officer under Section 102 of theCode to seize any property, which may be found under circumstancesthat create suspicion of the commission of any offence, would not includethe power to attach, seize and seal an immovable property.

G22. The Registry is directed to list the individual appeals for disposalbefore the appropriate Bench.

DEEPAK GUPTA, J.

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 afew additional reasons of my own.

2. Since brother Khanna in his judgment has given elaboratereasons 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 thesake of brevity.

3. The main issue involved is what is the meaning to be given tothe word ‘property’ occurring in Section 102 of the Code of CriminalProcedure which reads as follows:- “Power of police officer to seize certain property. - (1) Any policeofficer may seize any property which may be alleged or suspectedto have been stolen, or which may be found under circumstanceswhich create suspicion of the commission of any offence.

(2) Such police officer, if subordinate to the officer in charge of apolice station, shall forthwith report the seizure to that officer.

(3) Every police officer acting under sub-section (1) shall forthwithreport the seizure to the Magistrate having jurisdiction and wherethe property seized is such that it cannot be convenientlytransported to the Court,or where there is difficulty in securingproper accommodation for the custody of such property, or wherethe continued retention of the property in police custody may notbe considered necessary for the purpose of investigation, he maygive custody thereof to any person on his executing a bondundertaking to produce the property before the Court as and whenrequired and to give effect to the further orders of the Court as tothe 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 tothe possession of such property is unknown or absent and thevalue of such property is less than five hundred rupees, it may A

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Aforthwith be sold by auction under the orders of the Superintendentof Police and the provisions of Sections 457 and 458 shall, asnearly as may be practicable, apply to the net proceeds of suchsale.”

Sub-section (1) of Section 102 empowers a police officer to seizeBany property which may be alleged or suspected to have been stolen orwhich may be found under circumstances which create suspicion of thecommission of any offence. On behalf of the appellant it is urged thatthe word ‘any property’ is of very wide amplitude and will cover movableand immovable properties. This stand is also supported by the State ofCMaharashtra. On the other hand, it is contended by the respondents thatin the context in which the word ‘any property’is used in the Section, ithas to be limited to movable property and cannot be extended to immovableproperty.

4. At first blush, the arguments on behalf of the appellant seemDattractive because normally the words ‘any property’ would meanproperty of any kind or description. However, it is a well settled principleof statutory interpretation that when construingthe words of a statute,they must be read in a manner in which they fit into the section and inthe context of the purpose sought to be achieved by that particularEprovision of law.

5. Sub-section (1) of Section 102 empowers a police officer toseize any property which may be alleged or suspected to have beenstolen. Theft can take place only of movable property and not ofimmovable property. In my view, the word ‘seized’ has been used in theFsense of taking actual physical custody of the property. Sub-section 3 ofSection 102 provides that where it is difficult to conveniently transportthe property to the court or there is difficulty in securing properaccommodation for the custody of the property, then the property canbe given to any person on his executing a bond. This per se indicatesGthat the property must be capable of production in court and also becapable of being kept inside some accommodation. This obviously cannotbe 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 CriminalH

NEVADA PROPERTIES PVT. LTD. THROUGH ITS DIRECTORv. STATE OF MAHARASHTRA [DEEPAK GUPTA, J.]

Procedure, 1898. For more than a century the courts have read thewords ‘any property’to mean movable property[123 ]and no decision to thecontrary was brought to our notice. Reliance is only placed on thejudgment of this Court in State ofMaharashtravs.Tapas D. Neogy[4].In that case, the question was totally different and this court only decidedthat a bank account of an accused was property within the meaning ofSection 102. The Court did not go into the question of movable orimmovable property and, therefore, this judgment would not be applicable.

7. I would also like to point out that in the Code of CriminalProcedure itselfthe Legislature has in various provisions specifically usedthe words ‘movable’ and ‘immovable’ property. Some of those havebeen dealt with by my learned brother. In this regard reference may bemade to Section 83 of the Cr.P.C. which relates to seizure of the propertyof a proclaimed absconder. Sub-section 1 of Section 83 reads as follows:- “(1)The Court issuing a proclamation under section 82 may, forreasons to be recorded in writing, at any time after the issue ofthe proclamation, order the attachment of any property, movableor immovable, or both, belonging to the proclaimed person:...”

The Legislature in its wisdom uses the words “order the attachmentof any property, movable or immovable or both”. This is incontradistinction to the words‘any property’ used in Section 102.

8. Chapter VIIA was introduced in Cr.P.C. vide Act 40 of 1993w.e.f. 20[th] July 1994. This Chapter deals with reciprocal arrangementsfor assistance in certain matters and procedure for attachment andforfeiture of property. Property has been defined in Section 105A(d) asfollows:- “‘Property’ means property and assets of every descriptionwhether corporeal or incorporeal, movable or immovable, tangibleor intangible and deeds and instruments evidencing title to, orinterest 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)

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Acommission of an offence and includes property obtained throughproceeds of crime.”

This would include property of all kinds, movable and immovable.The Legislature made it clear that property of all kinds can be attachedand forfeited.B

Section 105C (1) reads as follows:-

“S.105C (1) Where a Court in India has reasonable grounds tobelieve that any property obtained by any person is derived orobtained, directly or indirectly, by such person from the commissionCof an offence, it may make an order of attachment or forfeitureof such property, as it may deem fit under the provisions of Section105D to 105J (both inclusive).”

Reading all these provisionstogether, it is clear that when any courtDin India has reasonable grounds to believe that any property has beenobtained by any person directly or indirectly from the commission of anoffence, the Court may make an order for attachment or forfeiture ofsuch property.

9. This Court isnot concerned with the procedure to be followedEfor attachment and forfeiture of the property but only the meaning of theword ‘property’. Thus, Section 105C empowers the court to orderforfeiture of any property which it may feel is derived or obtained directlyor indirectly by the commission of an offence.

10. If the argument of the appellant and the State of MaharashtraFis accepted then there was no need for the legislature to have introducedChapter VIIA. It would also be pertinent to mention that the power ofattachment and forfeiture is given to courts and not to police officer. Aspointed out in the judgment of my learned brother, if a police officer isgiven the power to seize immovable property it may lead to an absolutelyGchaotic situation. To give an example, if there is a physical fight betweenthe landlord and the tenantover the rented premises andif the version ofthe appellant is to be accepted, the police official would be entitled toseize 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

property on the basis of the forged will,can the police officer be giventhe 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 havebeen envisaged by the Legislature. The power of seizure in Section 102has to be limited to movable property.

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 andtherefore, I would refrain from saying anything about that.

12. In view of the above, I would answer the reference by holdingthat the phrase ‘any property’ in Section 102 will only cover moveableproperty and not immovable property.

Nidhi Jain

Reference answered.

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