Power of a Police Officer does not extend to seizure of an immovable property

Nevada Properties Pvt Ltd  Vs.  The State Of Maharashtra
Supreme Court Criminal Appeal No.1481 of 2019 [@ S L P (CRL) No. 1513 of 2011]
Dated 24/09/2019

The Apex Court held that – the power of a Police Officer does not extend to seizure of an immovable property.

SECTION 102 IN THE CODE OF CRIMINAL PROCEDURE, 1973

Power of police officer to seize certain property.

(1) Any police officer, may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.

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

(3) Every police officer acting under sub- section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, 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.

BRIEF FACTS

Section 102 of the Cr.P.C. provides for power of police officer to seize certain property. Whether the term 'anyproperty' includes immovable property also was answered affirmatively by some High courts and negatively bysome. 

A Division Bench of Supreme Court , vide order dated November 18, 2014, noticing that the issues thatarise have far reaching and serious consequences, had referred the aforesaid appeals to be heard by a Bench ofat least three Judges. After obtaining appropriate directions from Hon'ble the Chief Justice, these appeals havebeen listed before the present Bench.

DECISION & REASON

Having held and elucidated on the power of the Criminal Court, we find good ground and reason to hold thatthe expression 'any property' appearing in Section 102 of the Code would not include immovable property. Wewould elucidate and explain. 

Section 102 postulates seizure of the property. Immovable property cannot, in itsstrict sense, be seized, though documents of title, etc. relating to immovable property can be seized, taken intocustody and produced. 

Immovable property can be attached and also locked/sealed. It could be argued that theword 'seize' would include such action of attachment and sealing. 

Seizure of immovable property in this senseand 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 of the Code does not support the interpretation that the police officer has the powerto dispossess a person in occupation and take possession of an immovable property in order to seize it. In theabsence of the Legislature conferring this express or implied power under Section 102 of the Code to the policeofficer, we would hesitate and not hold that this power should be inferred and is implicit in the power to effectseizure. 

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 beproduced to prove the charge complained of and set up in the charge sheet.

The Section is a part of the provisions concerning investigation undertaken by the police officer. After the charge sheet is filed, the prosecution leads and produces evidence to secure conviction. Section 102 is not, perse, an enabling provision by which the police officer acts to seize the property to do justice and to hand over the property to a person whom the police officer feels is the rightful and true owner. 

This is clear from the objective behind Section 102, use of the words in the Section and the scope and ambit of the power conferred on theCriminal Court vide Sections 451 to 459 of the Code. The expression 'circumstances which create suspicion ofthe commission of any offence' in Section 102 does not refer to a firm opinion or an adjudication/finding by apolice 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 policeofficer is an investigator and not an adjudicator or a decision maker. This is the reason why the Ordinance wasenacted to deal with attachment of money and immovable properties in cases of scheduled offences. In caseand if we allow the police officer to 'seize' immovable property on a mere 'suspicion of the commission of any, it would mean and imply giving a drastic and extreme power to dispossess etc. to the police officer on a mereconjecture and surmise, 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 wastreated as a seizure order by police officer under Section 102 of the Code. 

The reason is obvious. Disputes relatingto title, possession, etc., of immovable property are civil disputes which have to be decided and adjudicatedin Civil Courts. We must discourage and stall any attempt to convert civil disputes into criminal cases to put pressure on the other side. 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 thenature of criminal litigation, such seizure of an immovable property by the police officer in the form of anattachment and dispossession would not facilitate investigator 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 145and 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 fromseizing documents/ papers of title relating to immovable property, as it is distinct and different from seizure ofimmovable property. 

Disputes and matters relating to the physical and legal possession and title of the propertymust be adjudicated upon by a Civil Court. 

CONCLUSION

In view of the aforesaid discussion, the Reference is answered by holding that the power of a police officer under Section 102 of the Code to seize any property, which may befound under circumstances that create suspicion of the commission of any offence, would not include the powerto attach, seize and seal an immovable property.