Section 102 of CrPC gives the power to police to seize certain properties which may be alleged or suspected to have been stolen or which may be found under circumstance which may create suspicion of commission of any offence. The section does not explicitly talk about whether the word ‘property’ is inclusive of immovable property or not creating a room for a lot of debate.
Over the years, the issue has arisen in the courts of law and the Supreme Court in the case of
Nevada Properties Private Limited through Its Directors v. State Of Maharashtra and Another (2019) settled the issue by stating that the word ‘property’ under section 102 CrPC is does not include immovable property.
Section 22 of IPC defines movable property as “The words “movable property” are intended 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.”
CrPC does not specifically define the movable property. According to section 2(y) of CrPC the words and terms defined in IPC are equally applicable to it.
Section 102 CrPC
Section 102 CrPC states that –
- Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offense.
- Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.
- Every police officer acting under subsection (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of the investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same. Provided that where the property seized under subsection (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of Sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.
This section has basically provided two conditions in order to be fulfilled –
- If the officer is below the rank of an inspector of the police station, he has to, as given above, report the seize to his senior.
- In turn, that senior official shall report the seize to magistrate of that jurisdiction.
The power of the police under this section is discretionary and it creates no mandate on the police to seize property in all cases of theft, robbery, homicide etc. But if the suspected property is seized, the police has to create and duly submit the report to the court.
Nevada Properties Private Limited through Its Directors v. State Of Maharashtra And Another
Present appeal arises out of Criminal Appeal stemming from Special Leave Petition filed by Nevada Properties Pvt Ltd on the 2010 full bench judgment of Bombay High Court wherein the majority held that the word ‘any property’ under the Section 102 CrPC is not inclusive of ‘immovable property’ and hence, any police officer cannot take custody of or seize any immovable property under this section.
The majority judgment supports the law laid down by the Bombay High Court in Kishore Shankar Signapurkar v. State of Maharashtra and Orsand has regarded the law laid down in Bombay Science and Research Education Institute v. The State of Maharashtra and Orsnot good.
The question before the court was that whether the expression ‘any property’ under Section 102 CrPC is encompasses ‘immovable property’?
The judgment was pronounced by a 3 judge bench comprising the Chief Justice of IndiaRanjanGogoi, Justice Deepak Gupta and Justice Sanjiv Khanna.
The court analysed the intent of the legislature behind the enactment of this provision. This provision allows for seizing the property which creates suspicion. But in the strict sense only movable property can be seized not immovable. Although the title documents of the suspected property can be taken into custody. But ‘immovable property’ particularly can’t be seized.
The court further stated that as per the concern of seizure of ‘immovable property’ section 145 and 146 of CrPC can be invoked as per the law. But section 102 is not an enabling provision which can authorise or empower the police to dispossess a man of his immovable property to produce the property in the court.
The court also analysed the phrase ‘circumstances which create suspicion of the commission of any offence’. It stated that ‘suspicion’ is a broader and weaker term than reasonable satisfaction. This does not give the power to police to have a firm opinion and assess or adjudicate on the matter of immovable property. Adjudication is the power of the court, the function of police is to investigate. By including immovable property under the ambit of section 102, the police will have a very drastic power to seize someone’s immovable property based merely on a conjecture.
The court further mentioned that a dispute regarding land, house etc. is a civil dispute and has to be decided in a civil court, any attempt to convert a civil dispute into a criminal dispute should be discouraged.
The court referred to the following case laws –
- Teesta AtulSetalvad v. State of Gujarat – In this case the petitioner plead that the continued seizure of her account by the police is not related to the crime and her account should be defreezed. The court ruled that ‘bank account’ is property under section 102 and the police is right in freezing the account of plaintiff. The court overruled the judgement given in the case of State of Maharashtra vs. Tapas Neogy in which the high court had opined that bank account of an accused is not ‘property’ under the ambit of section 102.
- RK Dalmia etc. vs. Delhi Administration– In this case, the court ruled that the phrase ‘any property’ in section 102 CrPC has to be interpreted as per the definition given under the Indian Penal Code 1860 which Is not restricted to movable property only. In fact as per IPC if a particular provision will cover the particular property or not will depend upon whether the property is a subject to the offence or not.
- State of Gujarat and others v. Utility Users’ Welfare Association and Others– In this case, the court took the view that to find whether a case will be a precedent for a particular provision for not, the court should form the particular proposition and then insert the word reversing its meaning. If the answer is contrary, the case will be a precedent and vice versa.
- Binod Kumar vs. State of Biharthe plaintiff had filed a case in the civil court due to non-completion of the construction of his building in the decided time. Later, the respondent of the case filed a criminal complaint in the civil case due to non payemtnof the decided amount. The court went on to rule that any attempt to convert a civil case into criminal case should be discouraged.
Justice Gupta delivered a separate concurring judgment in which he stated the vision of Section 102 CrPC did not have the police seize the property but the court. He also examined the assumed consequences of including seize of immovable property in this section. He added ‘in a dispute between landlords and tenants, the rented property will be seized which will be a mockery of rent laws.
Further he also talked about the situation in which a person forges a will. In such a case the ‘will’ will be seized not the property willed. Because the seizure of an immovable property will create a very chaotic situation.
Analysis of the judgment
The judgment in Nevada Properties Private Limited through Its Directors v. State Of Maharashtra And Another is absolutely correct in ruling that Section 102 does not cover immovable property within its ambit due to the following reasons –
- Section 102 uses the word ‘seize’ which is indicative of taking physical custody of the property.
- An immovable property cannot be physically seized or taken into custody, it can only be attached or sealed.
- Section 102 talks about the property which has been stolen, robbed etc. and an ‘immovable’ property cannot be stolen
- Sub section (3) of the section says that the property has to be ‘produced’ and ‘accommodated’, both these words cannot stand true for an immovable property.
- The power to annex or seal any immovable property lies with the court only as given in chapter VII A of CrPC.
Provisions related to seizing immovable property in other jurisdictions
Seizing and taking custody of any suspicious property of an accused person is an important part of the investigation procedure in order to produce investigations. But rights of the accused person also needs to be taken into cognizance.
Following are rules and laws related to seizure of property in different countries-
In contradiction to the Indian judgment, the Canadian Criminal Procedure makes no bifurcation between movable and immovable property for the purpose of seizure by police officials. Section 489 of the procedure states that the police has the authority to seize and take custody of any suspicious property, which is object of an offence or is suspected to be used for an offence, with or without a warrant.
Similarly in the United States, the Civil Forfeiture and the Criminal Forfeiture allows the police authority to seize both immovable and movable property if it is engaged or suspected to be engaged for an offence. 
In South Africa as well, the court has empowered the police to seize any property of the accused if it is proved that there if proof of commission of an offence or the proof that an offence was planned. The court has even ruled that the word ‘seizure’ will not only comprise taking possession of the suspected property but also further detention.
For decades, the Indian courts debated on the issue whether ‘any property’ in section 102 CrPC is inclusive of immovable property or not. By the Nevada properties judgement, the courts finally settled that ‘immovable properties will not come under the ambit of this section
The court explored various situations in which immovable property can be seized and how it will go against various provisions of the law. Legislations like the Indian Forests Act, 1927 and the Narcotic Drugs and Psychotropic Substance Act, 1882 also provides for seizure of ‘movable property’ only by the concerned officer.
Section 102 CrPC talks about properties which are suspected or alleged to have been stolen. Since, immovable properties cannot be stolen, they cannot be included under ‘property’ in this section.
The apex court in the case of Nevada Properties has well established the law that the word ‘property’ in concerned section is not inclusive of immovable property which will resolve the concerns and protect the rights of an accused persons.
Nevada Properties Private Limited through Its Directors v. State Of Maharashtra and Another, (2019) SCC Online SC 1247.
Indian Penal Code, 1860, § 22.
Criminal Procedure Code, 1973, § 2 (y).
Kishore Shankar Signapurkar v. State of Maharashtra and Ors,2003 (4) MhLj 938.
M/s. Bombay Science and Research Education Institute v. The State of Maharashtra and Ors., (2008) All M.R. (Crl.) 2133.
Teesta AtulSetalvad v. State of Gujarat, (2018) 2 SCC 372.
State of Maharashtra v. Tapas D. Neogy, (1999) 7 SCC 685.
R.K. Dalmia etc. v. Delhi Administration, AIR 1962 SC 1821.
State of Gujarat and others v. Utility Users’ Welfare Association and Others, (2018) 6 SCC 21.
Binod Kumar v. State of Bihar, (2014) 10 SCC 663.
Canadian Criminal Procedure, § 489.
Radley Balko, Gothamist on asset forfeiture abuse on NYPD, The Washington Post (Jan. 16. 2014, 3:03 A.M.), https://www.washingtonpost.com/news/opinions/wp/2014/01/15/gawker-on-asset-forfeiture-abuse-at-nypd/.
Ntoyakhe v Minister of Safety and Security (2000) 1 SA 257.
Indian Forests Act, 1927.
Narcotic Drugs and Psychotropic Substance Act, 1882.