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2010 (11) TMI 1019
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.... majority judgment written by Chavan J., for himself and for Dalvi J., holding that the powers of seizure under Section 102 of the Criminal Procedure Code 1973 are not applicable for the immovable property and with respect I could not persuade or agree with the same view. Hence this separate judgment. 2. A Division Bench of this Court while hearing this petition was confronted with two divergent findings on the issue as to whether an immovable property could be seized under Section 102 of the Criminal Procedure Code, 1973 (for short "the Code"). As per the petitioners Section 102 of the Code envisages seizure of only movable property, but the respondents, including the State of Maharashtra, contended before the Division Bench that the word "any property" used in Section 102 of the Code cannot be restricted to movable property alone and immovable property can also be seized under the said Section. The Division Bench in its order dated 1st April, 2010 observed in para 12 as under:- "12. Having gone through Tapas Neogy [(1999) 7 SCC 685], we are inclined to hold that it is possible to urge that in Tapas Neogy, the Supreme Court was primarily considering whether the bank ac....
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....mmovable property can be seized under Section 102 of the Code, and our reply on this single issue will result in deciding all the above stated four issues set out in the referral order. 4. In Kishore Shankar Signapurkar's case the Division Bench considered the following points:- (i) Whether the police can seize immovable property under the provisions of Section 102 of the Code of Criminal Procedure? (ii) Whether the police can seize or freeze Bank accounts under the provisions of section 102 of the Code of Criminal Procedure; (iii) What is the procedure to be followed by the police in respect of the property seized under the provisions of section 102 of the Code of Criminal Procedure. After referring to the arguments advanced by the parties and the judgments cited across the bar the Division Bench concluded its findings, as under on the first two issues framed by it. (a) The word "property" as used in Section 102 of the Cr.P.C. cannot include "immovable property" and (b) the police have no power under the provisions of Section 102 to direct the bank accounts to be freezed and prevent the account holder from operating the bank a....
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....as under:- "10. Now contention of the petitioner is that though Supreme Court held that the bank account as "property" within the meaning of Section 102 of Criminal Procedure Code, but "immovable properties" can not be "properties" within the meaning of Section 102........ 11. We do not find that there is any basis for such distinction to be made in the movable and immovable properties as far as "property" is mentioned in Section 102. All properties whether movable or immovable in our view can be seized by police under Section 102, as there is nothing in the provision to show that the property would include only movable and not immovable. The Supreme Court has held in the para quoted above there was no justification to come to the conclusion that the "property" should be defined in the narrow sense". 6. In Tapas D. Neogy's case (supra) the main question for consideration before the Apex Court was, whether the investigating officer can pass orders freezing the bank account or issue prohibitory orders to the bank not to allow the account holder to operate the account by invoking the powers under Section 102 of the Code. The Supreme Court reproduced the provis....
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....w that the bank account of the accused or any of his relations is "property within the meaning of Section 102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into. The contrary view expressed by the Karnataka, Gauhati and Allahabad High Courts, does not represent the correct law. It may also be seen that under the Prevention of Corruption Act, 1988, in the matter of imposition of fine under sub-section (2) of Section 13, the legislatures have provided that the courts in fixing the amount of fine shall take into consideration the amount or the value of the property which the accused person has obtained by committing the offence or where the conviction is for an offence referred to in clause (e) of sub-section (1) of Section 13, the pecuniary resources or property for which the accused person is unable to account satisfactorily. The interpretation given by us in respect of the power of seizure under Section 102 of the Criminal Procedure Code is in accordance with the intention ....
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....extent that the power under Section 102 of the Code can be invoked for the seizure or freezing of the bank account and it cannot be extended to an immovable property even by inference or implication. Though Section 102 of the Code can be divided in two different parties, in the first part the "property stolen" is different from the words "stolen property" as defined in Section 410 of the I.P.C., and, therefore, the immovable property is not covered in the first part. As regards the second part of Section 102 of the Code, it was submitted that it cannot apply to an immovable property as the word used is "found" and an immovable property cannot be found and it stays where it is. The entire phrase "found in circumstances which creates suspicion of the commission of any offence" which is the second part of Section 102 of the Code would apply only to movable property. Section 102 of the Code finds its place in Chapter VII of the Code and heading of the said Chapter uses the word "things" and, therefore, it is impossible to imagine by the common usage of the word "things" that the same would also mean immovable property as an immoveable property cannot be said to be "things". He also urg....
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....stinction it has used the words "movable property" and "immovable property" in the Code. Reference has also been made to the dictionary meaning of the words "seizure", "attachment" and "disposal", etc. It was submitted that unless the property is seized during the course of investigation by the police, the power of attachment to be invoked by the Magistrate or by the Court cannot be applied effectively, in given cases as the property in the meanwhile would have changed hands, more so if it is a property acquired from the proceeds of crime/offence. The term "any property" has to be interpreted so as to make the procedural law effective and a restricted meaning to the said words would, at times, render the Code ineffective. When the words used in the statute are clear, plain and unambiguous, the Courts have no power to delete or add any other words in the statute. The judgment in the case of Tapas D. Neogy (supra) clearly states that the word "any property" cannot be given a limited meaning and to keep pace with the changing scenario of different organised crimes, it would be imperative that the words "any property" must include "movable property" as well as "immovable property" othe....
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....it of the interpretation of Section 102 as amplified by the Supreme Court in the case of Tapas D. Neogy (supra) and that the view taken in the case of Kishore Shankar Signapurkar (supra) is no more a good law. The Criminal Law (amendment) Ordinance 1944 could not detain, as is clear from the taken by the Supreme Court in Tapas D. Neogy's case (supra), to take a restricted view that a property acquired from the proceeds of crime cannot be seized under Section 102 of the Code, urged the learned Counsel for the respondents. 9. It may be useful to quote for our ready reference some of the Sections of the Code including Section 102 which have been referred to and relied upon during the course of arguments, including Sections 68-C to 68-F of the N.D.P.S. Act and the Criminal Law (Amendment) Ordinance 1944. The Code of Criminal Procedure: "S.83.(1) The Court issuing a proclamation under Section 82 may, for 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: Provided that where at the time of issue of the proclamation the ....
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....lice 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, (or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation) he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same. (Provided that where the property seized under sub-section (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of sections 457 and 458....
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.... any other law for the time being in force." "S.105-E. (1) Where any officer conducting an inquiry or investigation under Section 105-D has a reason to believe that any property in relation to which such inquiry or investigation is being conducted is likely to be concealed, transferred or dealt with in any manner which will result in disposal of such property, he may make an order for seizing such property and where it is not practicable to seize such property, he may make an order of attachment directing that such property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order, and a copy of such order shall be served on the person concerned. (2) Any order made under sub-section (1) shall have no effect unless the said order is confirmed by an order of the said Court, within a period of thirty days of its being made." "S.105-H. Forfeiture of property in certain cases.- (1) The Court may, after considering the explanation, if any, to the show-cause notice issued under section 105-G and the material available before it and after giving to the person affected (and in a case where the person ....
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....bject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908): Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate- (a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him; (b) may make such other incidental or consequential orders as may be just." "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 subject to speedy and natural decay, or if it is otherwise expedient so to do, ....
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....of immovable property.- (1) When a person is convicted of an of 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, 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. The Criminal Law (Amendment) Ordinance, 1944: "4.Ad interim attachment.- (1) Upon receipt of an application under section 3, the District Judge shall, unless for reasons to be recorded in writing he is of the opinion that there exist no prima facie grounds for believe that the person in respect of whom the application is made has committed any scheduled offence or that he has procured thereby any money or other property, pass without delay an ad interim order attaching the money or other property alleged to have been so procured, or if it transpires that such money or other prop....
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....erty (whether or not he received the property directly from the said person) to appear on a date to be specified in the notice and show cause why so much of the transferee's property as is equivalent to the proper value of property transferred should not be attached." "13. Disposal of attached property upon termination of criminal proceedings.- (1) Upon the termination of any criminal proceedings for any scheduled offence in respect of which any order of attachment of property has been made under this Ordinance or security given in lieu thereof, the agent of the (State Government or, as the case may be, the Central Government) shall without delay inform the District Judge, and shall where criminal proceedings have been taken in any Court, furnish the District Judge with a copy of the judgment or order of the trying Court and with copies of the judgments or orders, if any, of the appellate or revisional Courts thereon. (2) Where it is reported to the District Judge under sub-section (1) that cognizance of the alleged scheduled offence has not been taken or where the final judgment or order of the Criminal Court is one of acquittal, the District Judge shal....
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....s the case may be, the remainder of the security returned, under the orders of the District Judge. (6) Every sum ordered to be forfeited under this section in connection with any scheduled offence other than one specified in item I of the Schedule to this Ordinance, shall, after deduction of the costs of attachment as determined by the District Judge, be credited to the Government being a Government referred to in the said Schedule or local authority to which the offence has caused loss, or where there is more than one such Government or local authority, the sum shall, after such deduction as aforesaid, be distributed among them in preparation to the loss sustained by each." "THE SCHEDULE (See section 2) OFFENCES IN CONNECTION WITH WHICH PROPERTY IS LIABLE TO BE ATTACHED 2. An offence punishable under section 406 or section 408 or section 409 of the Indian Penal Code (45 of 1860), where the property in respect of which the offence is committed is property entrusted by His Majesty's Government in the United Kingdom or in any part of His Majesty's dominions or the Central or a State Government or a department of any such Government....
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....ovisions of this Chapter: (Provided that no property shall be forfeited under this Chapter if such property was acquired, by a person to whom this Act applies, before a period of six years from the date he was arrested or against whom a warrant or authorisation of arrest has been issued for the commission of an offence punishable under this Act or from the date the order or detention was issued, as the case may be.) 68-E. Identifying illegally acquired property.- (1) Every officer empowered under section 53 and every officer-in-charge of a police station shall, on receipt of information is satisfied that any person to whom this Chapter applies holds any illegally acquired property, he may, after recording reasons for doing so, proceed to take all steps necessary for tracing and identifying such property.) (2) The steps referred to in sub-section (1) may include any inquiry, investigation or survey in respect of any person, place, property, assets, documents, books of account in any bank or public financial institution or any other relevant matters. (3) Any inquiry, investigation or survey referred to in sub-section (2) shall be carried out by an officer mentioned ....
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.... Act, 1984 enactment by the United Kingdom which have been reproduced in the majority judgment. However, we have noted that the power of seizure as envisaged in the scheme of the English Law is in respect of a property located in the premises and the said power could be exercised by the constable if he has reasonable grounds for believing (a) that it has been obtained in consequence of the commission of an offence; and (b) that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed. The constable has also the power of seizing anything which is on the premises and if he has reasonable grounds for believing that (a) it is evidence in relation to an offence which he is investigating or any other offence; (b) that it is necessary to do so in order to prevent it being concealed, lost, tampered with or destroyed. However, such a power cannot be invoked when the constable has reasonable grounds for believing to be a subject to legal privilege. The word "premises" itself would refer to the "immovable property" and "any thing on the premises" would refer to only the "movable property." The above said scheme is not comparable to the scheme ....
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....but Section 410 of the I.P.C., has defined "stolen property" and Section 22 of IPC has defined "movable property" and the said sections are reproduced as under:- "410. Stolen property.--Property, the possession whereof has been tranferred by theft, or by extortion, or by robberry, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property." Whereas "movable property" has been defined under Section 22 of I.P.C. And it reads as under:- "22.Moveable property-- The words "movable property" are intended to include corporal property of every description, except land and things attached to the earth or permanently fastened to anything attached to the earth." Thus what is excepted from Section 22 of the I.P.C. is an immovable property. 13. The words "seizure", "attachment" "freezing", "forfei....
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....able and immovable property". The line of argument advanced by the petitioner is that the scheme of the Code does not envisage the seizure of immovable property under Section 102(1) and more so because as required under sub-section (3) therein the immovable property cannot be produced before the Court. It is also urged that as and when the Code intended to refer to seizure of immovable property it has been so stated and in this regard reliance is placed on the scheme of Sections 83, 105-C, 105-F, 145, 146 and 451 to 457 of the Code. The respondents on the other hand vehemently urged before us that the words "any property" cannot be given a restricted meaning so as to mean "any movable property" only and such an explanation of the word "any property" cannot be accepted, if the Code which is a procedural law, has to remain an effective instrument for investigation and trial of the offences under the I.P.C. as well as the special penal statutes and to do full and complete justice to the victims of modern crimes. 15. When it comes to the interpretation of statutes, it has to be presumed that the legislature does not waste its words and say anything in vain. The construction which at....
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....rted to. It is, therefore, necessary to keep these principles of interpretation in mind while answering the prime question as to whether immovable property could be seized under Section 102 of the Code. 16. The judgment of the Apex Court in the case of Tapas D. Neogy (supra) also clearly goes to show that the statutes ought to be interpreted to meet the demands of time, we live in and with an intention to keep pace for the prevention and deterrence of crimes and must be capable of arresting all the possible loopholes likely to cause impediments in taking the criminal trial to a logical and meaningful conclusion. The Courts cannot afford to interpret the penal statutes or a procedural statute in a manner which would make such laws defective. The Court's interpretations of criminal procedural laws must be capable of dealing with the rampant corruption in public life as well as innovative manipulations of scamsters, underworld dons, cyber crime offenders, corporate manipulators, food and drugs adulterators and crime syndicates. Any narrow interpretation of criminal procedural law, evolved by the Courts, may lead to the defeat of social, public, economic, health, industrial and ....
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....ll heavier punishment when criminal breach of trust is committed by persons mentioned therein i.e. public servant, business banker, merchant, factor, broker, attorney or agent. It would be relevant to reproduce the observations made by the three Judge Bench in paras 47, 48 and 50 of the said judgment: "47. We are of opinion that there is no good reason to restrict the meaning of the word `property' to movable property only when it is used without any qualification in S.405 or in other sections of the Indian Penal Code. Whether the offence defined in a particular section of the Indian Penal Code can be committed in respect of any particular kind of property will depend not on the interpretation of the word `property' but on the fact whether that particular kind of property can be subject to the acts covered by that section. It is in this sense that it may be said that the word `property' in a particular section covers only that type of property with respect to which the offence contemplate in that section can be committed. 48. Section 22 I.P.C. defines `movable property'. The definition is not exhasutive. According to the section the words `movable ....
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....4 of IPC. Similar interpretations and reasoning must apply in the instant case as well. When the Legislature has used the word "any property", it would not be permissible, having regard to the principles of interpretations, as referred to hereinabove, to restrict the meaning of the said word to only "movable property". I, therefore, find that the judgment of the Supreme Court in the case of Dalmia (Supra) does not support the view taken by the Division Bench in Signapurkar's case. 19. Section 102 finds place in Chapter VII which is titled as "Process to Compel the Production of Things". The title of the Chapter does not necessarily be taken support of to interpret the provisions of the Sections thereunder. It cannot be expected that because the Chapter speaks of the "production of things", the words "any property" used in Section 102 (1) of the Code cannot include immovable property. The word "things" may not include a bank account, but it does not mean that the power of seizure under Section 102(1) cannot be invoked by the Police Officer for a bank account and the view otherwise taken by this Court in t he case of Kishore Shankar Signapurkar (supra) has already been set asi....
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.... or immovable, tangible or intangible and deeds and instruments evidencing title to, or interest in, such property or assets derived or used in the commission of an offence and includes property obtained through proceeds of crime. The scheme of Chapter VII-A of the Code, deals with reciprocal arrangement for assistance, in relation to a criminal matter and the property in a contracting State or within the country. The term "contracting State" means any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country through a treaty or otherwise. The actions of attachment, forfeiture or seizure of the property envisaged under the said Chapter are to be at the instance of the Court and by the officer not below the rank of Sub Inspector of Police as directed by the Court. Section 105-C is in relation to the orders of attachment or forfeiture of property whereas Section 105-E is regarding seizure or attachment of property while conducting an enquiry or investigation under Section 105-D which enquiry is for identifying unlawfully acquired property. Section 105-A provides for the management of the property seize....
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.... 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. As per Section 458(1) of the Code if no person within such period establishes his claim to such property and if the person in whose possession such property was found is unable to show that it was legally acquired by him, the Magistrate may by order direct that such property shall be at the disposal of the State Government and may be sold by that Government and the proceeds of such sale shall be dealt with in such manner as may be prescribed. Such an order passed by the Magistrate under sub-section (1) is appealable under sub- section (2) of Section 458 and the appeal will lie to the Court to which the appeals ordinarily lie on conviction by the Magistrate. 22. The scheme of Sections 457 and 458 of the Code if read together would go to show that the powers under section 102 of the Code of seizure are also applicable to an immovable property and it cannot be said that the police officer has no power to seize the immovable property and the said powers can be exercised only in respect of the movab....
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....xt and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature......" It is also clear from the said judgment that it is always safer to apply plain and primary rule of construction. The first and primary rule of construction is that the intention of the legislature is to be found in the words used by the legislature itself. The true or legal meaning of an enactment is derived by construing the meaning of the word in the light of the discernible purpose or object which comprehends the mischief and its remedy to which an enactment is directed. 24. Section 102 of the Code has used the words "any property" and it must be read in the same manner and the word "any" cannot be redundant. As noted earlier Section 105A of the Code has defined the term "property" and it means property and assets of every description whether corporeal or incorporeal, movable or immovable, tangible or intangible and deeds and instruments evidencing title to, o....
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....e by the Court in a criminal trial. If an immovable property has been acquired from the proceeds of crime and the crime is under investigation by the police, it is not enough to say that the Court will pass an order of attachment of such immovable property and the police officer cannot exercise the powers of seizure of the said property. By the time the Court is called upon to pass such an order of attachment, the property may not disappear, but it may have changed hands, and probably in multiple transactions. In such a situation, it would be difficult or in some cases impossible for the Court to bring the property acquired from the proceeds of the crime within its folds even by passing an order of attachment. The recommendations of the Malimath Committee suggesting for amendment in Section 102 of the Code could be read as an intention to make the law more specific and without leaving any doubt for interpretation and such a recommendation cannot be taken to support the contentions that the words "any property" used in Section 102 of the Code means "any movable property" and such an interpretation finds support from the reasons set out in Tapas D. Neogy's case (supra) by the Ape....
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....s "any property" used in sub-section (1) of Section 102 of the Code of Criminal Procedure, 1973 would mean to include "immoveable property"? (b) Whether a police officer can take control of any immoveable property which may be found under circumstances which create suspicion of the commission of any offence? (c) Which of the above two judgments lay down correct law in respect of the powers of a police officer to seize any immoveable property under Section 102 of the Code of Criminal Procedure? (d) Whether the law laid down by the Supreme Court in case of State of Maharashtra v. Tapas D. Neogy (1999) 7 SCC 685 is restricted to seizure of bank accounts only or it can be extended to immoveable property also, as interpreted by the Division Bench in the case of M/s. Bombay Science and Research Education Institute v. The State of Maharashtra & Ors. 2008 All M.R. (Cri.) 2133?" 28. The need to make this reference arose since a Division Bench of this Court in Kishore Shankar Signapurkar v. State of Maharashtra & Ors., reported in 1997 Vol.IV LJ 793 had held that under Section 102 of the Code of Criminal Procedure immovable property could not be seized. That Ben....
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....) contemplate the property to be capable of being produced before the Court and being transported, and in as much as the immovable property would be incapable of being transported or so produced, we are of the opinion that the word "property" as used in section 102 of the Cr.P.C. cannot include "immovable property". "28. .... Therefore, on reading the provisions of section 102 which, in our opinion, are clear and unambiguous, we are of the opinion that an immovable property cannot be seized by the police under the provisions of section 102 of the Code of Criminal Procedure." 30. On the second question, the Bench held in paragraph Nos.34 and 36 as under:- "34. .... We are of the opinion that so far as the nature of the amount in Bank is concerned, we are bound by the decision of the Division Bench of this Court. That being the nature of the amount in an account in a Bank, we are of the opinion that though such funds are property, it is not such a property which is capable of being produced in Court and, therefore, outside the purview of the provisions of section 102 of the Code of Criminal Procedure." "36. .... On consideration of the entire matter, we ....
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....icates that the police officer has the power to seize any property which may be found under circumstances creating suspicion of the commission of any offence. The legislature having used the expression "any property" and "any offence" have made the applicability of the provisions wide enough to cover offences created under any Act. But the two preconditions for applicability of section 102(1) are that it must be "property" and secondly, in respect of the said property there must have been suspicion of commission of any offence. In this view of the matter the two further questions that arise for consideration are whether the bank account of an accused or of his relation can be said to be "property" within the meaning of sub- section (1) of Section 102 CrPC and secondly, whether circumstances exist, creating suspicion of commission of any offence in relation to the same. ...." "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....
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....d any direction to the bank officer, prohibiting the account of the accused from being operated upon. Though we have laid down the law, but so far as the present case is concerned, the order impugned has already been given effect to and the accused has been operating his account, and so, we do not interfere with the same." (emphasis supplied) 34. Following this Judgment another Division Bench of this Court in M/s. Bombay Science & Research Education Institute v. State of Maharashtra & Ors, reported in 2008 ALL MR (Cri) 2133 held that police could seize even immovable property under Section 102 of the Criminal Procedure Code. In that case, police had presumably seized immovable properties purchased from crores of rupees collected from students by cheating them to enroll for courses which were not recognized. In this context the Bench held in paragraph Nos.9 to 11 as under:- "9. The Petitioners learned submits igcounsel that the for the immovable property cannot be attached and the learned counsel for the Petitioner had relied on some judgments of the High Courts. We do not think that the question is res integra in view of the judgment of State of Maharashtra Vs.....
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....ovable property cannot be seized. Unfortunately, attention of the Division Bench of this court was not drawn to this judgment when it decided M/s. Bombay Science & Research. Reliance placed by the Division Bench in M/s. Bombay Science & Research on Tapas Neogy does not appear to us to be apt because in that case, the Supreme Court was not considering whether immovable property can be seized under Section 102 of the Code." 36. Considering these reasons, we would first consider question (d) referred to us - namely whether the Judgment of Supreme Court in Tapas Neogy's case (supra) is restricted only to Bank accounts. 37. We have heard the learned counsel appearing for the respective parties in the respective applications, as also the learned APPs, all of whom have advanced well- researched and erudite arguments. The learned Counsel for petitioners contended that observations in Tapas Neogy could not be extended to cover seizure of immovable properties, as had been done in Bombay Science And Research Education Institute by a Division Bench of this Court. Their adversaries, on the other hand, submitted that the observations of the Supreme Court in paragraph 6 to the effect th....
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....Division Bench of High Court which were confirmed by Supreme Court in that case and urges that the real question there was whether the fundamental right guaranteed by Article 19(1)(c) of the Constitution could be claimed in view of the notification issued under Section 4 of the Defence of India Act and the Army Rules. We are unable to appreciate this submission. When a question is answered expressly or by necessary implication we cannot ignore the answer by referring to the decisions appealed against and holding that the real question that must be considered to have been answered was something else. That is not our understanding of the law of precedents. What the judges expressly decided or what they must be considered to have decided by necessary implication by reference to the facts stated by the judges themselves are what constitute precedents. We cannot traverse (sic travel) beyond the judgment, ignoring what has been said in the judgment. We have therefore, no option but to dismiss the writ petition." 40. In paragraph 26 of Judgment in National Insurance Company's case (supra) the Supreme Court held that obiter dicta of the Supreme Court are binding on the High Courts, ....
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....asted with bank accounts about which there was a doubt which was set at rest by the Supreme Court), still the question as to whether immovable property could be seized under Section 102 remains and would have to be decided by reading Section 102 in its entirety, since in Tapas Neogy there is not even a faint whisper about seizure of immovable property. The question is whether by process of logical deduction, the observations of the Supreme Court could be held to cover immovable property as well. Judgments of the Courts cannot be read, interpreted and applied like statutes. While in the case of a statutory provision, it may be possible to interpret the words therein in order to apply them to a situation which even the Legislature may not have contemplated, or to indulge in logical deductions and extensions permissible from the words used therein, the same does not hold good about words in a Judgment. A Judgment is an authority only for what it decides and not for what logically follows from it, as held by the Supreme Court in U.P. State Electricity Board v. Pooran Chandra Pandey and others, reported in (2007) 11 SCC 92 as under:- "12. As observed by this Court in State of O....
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....s without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton [1951 AC 737: (1951) 2 All ER 1 (HL)] (AC at p.761) Lord MacDermott observed: (All ER p.14 C-D) `The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that mos....
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....3 SC 43 which read as under:- "39. .... It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this court, divorced from the context of the question under consideration and treat it to be the complete `law' declared by this court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings. In Madhav Rao Jiwaji Rao Scindia Bahadur v. Union of India, (1971) 3 SCR 9: (AIR 1971 SC 530 at p.578) this Court cautioned: "It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the quest....
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....nt ruled out adequacy of mechanism under the ordinance and impliedly held that Rule 102 of the Code of Criminal Procedure is in consonance of the provisions of the Ordinance. It would be too strained a logic to conclude that though the Supreme Court did not even note provisions of Criminal Law (Amendment) Ordinance, its finding in respect of seizure of a bank account ruled out adequacy of mechanism under the ordinance and impliedly held that Rule 102 of the Code of Criminal Procedure could encompass even immovable property. Rather, it may be arguable that had the Supreme Court noticed the provisions of Criminal Law (Amendment) Ordinance, the Court would certainly have held that bank accounts could be seized in view of these specific provisions, as the offence involved in that case was one included in the Schedule to the Ordinance. Therefore, in the light of Judgments on the use of precedents referred to in the preceding paragraphs, the question (d) would have to be answered thus:- The law laid down by the Surpeme Court in State of Maharashtra v. Tapas D. Neogy (supra) is restricted to seizure of bank account and cannot be extended to immovable property also, as interpreted....
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.... interpretation to the provisions of the Criminal Procedure Code" would have to be borne in mind while interpreting Section 102. (v) If the provisions are not so interpreted, offenders would be able to walk away with the property acquired from proceeds of crime. 51. In support of their respective contentions the learned counsel for the parties took us through all the relevant provisions of the Code and relied on the Judgments which have a bearing on the issues involved. 52. It has been suggested that the conclusions drawn in Signapurkar's case are not supportable and may be in conflict with the judgment of the Supreme Court in R.K. Dalmia v. The Delhi Administration, reported in AIR 1962 SC 1821, which was considered by the Division Bench. In that case, the Supreme Court was considering the provisions of Sections 403 to 409 of the IPC, in order to find out if reference to "property" in those sections also included all species of property. The Supreme Court held that the word "property" in Sections 403 to 409 of the IPC would include all corporeal property except property excluded from the definition. At first blush it may seem that in the face of this judgment of....
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....elevant enactments. In Amrit Lal Kumawat & Ors. v. State of Rajastan & Anr., reported in 1998 Cri.L.J 3032, a learned Single Judge of the High Court of Rajasthan held, after an elaborate analysis of the relevant provisions, that police had no power to seize disputed immovable property under Section 102 of the Criminal Procedure Code. 55. In Bisweswar Singh and others v. Bhola Nath Pathuk, reported in 1914 Vol.XXII Indian Cases 751, the Calcutta High Court held that Section 517 of the 1898 Code had no application to immovable property. Section 517 of the 1898 Code roughly corresponds to Section 452 of the 1973 Code. 56. To support their contention that immovable property was not contemplated as capable of being seized under Section 102 of the Code of Criminal Procedure, 1973, the learned Counsel for the petitioners placed reliance on a Judgment in Anwar Ahmad Vs. State of U.P., reported at AIR 1976 SC 680. The Supreme Court was considering enforceability of a bond on which property had been returned by police, under the old Code. The Court pointed to an omission in the new (1973) Code in paragraph 4 as under:- "4. Before closing this judgment, we would like to observe....
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....ute itself, or General Clauses Act in that order of preference. If such an interpretation leads to ambiguity then the Court may look elsewhere. Again here, the order in which other sources could be invoked would be, first, other provisions of the same statute; next, similar provisions in other statutes; and next, the object of legislation with reference to the mischief rule. If, and only if, there is still an ambiguity can a Court, look at the consequences, and then may utilise tools like adding or deleting a word to ensure that the construction is harmonious, does not lead to absurdity and achieves the object, subject to the limitations on such exercise expressed in M/s. Mandvi Co-op. Bank Ltd. v. Nimesh B. Thakore, reported at AIR 2010 Supreme Court 1402 and Union of India and another, v. Deoki Nandan Aggarwal, reported at AIR 1992 Supreme Court 96. Dictionaries are undoubtedly a help in interpreting words, but since dictionaries may list several meanings against a word, the meaning appropriate to the occasion has to be contextually gathered. Therefore, attachment and seizure being shown as synonymous in dictionaries is irrelevant. Every synonym has a contextual usage and one wor....
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....two of such methods, as the Courts thinks fit. (5) If the property ordered to be attached consists of live-stock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the Court. (6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908)." "S.102 (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, (or where there is difficulty in securing proper accommodation for the custody of such property, or where th....
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....ection 105-D has a reason to believe that any property in relation to which such inquiry or investigation is being conducted is likely to be concealed, transferred or dealt with in any manner which will result in disposal of such property, he may make an order for seizing such property and where it is not practicable to seize such property, he may make an order of attachment directing that such property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order, and a copy of such order shall be served on the person concerned. "S.105-L. Application of this Chapter.- The Central Government may, by notification in the Official Gazette, direct that the application of this Chapter in relation to a contracting State with which reciprocal arrangements have been made, shall be subject to such conditions, exceptions or qualifications as are specified in the said notification." Chapter X Maintenance of Public Order & Tranquility "D - Disputes as to immovable property. S. 145. Procedure where dispute concerning land or water is likely to cause breach of peace - (1) whenever an Executive Magistrate is....
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.... "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 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- (a) property of any kind or document which ig 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." "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....
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....ed in writing he is of the opinion that there exist no prima facie grounds for believe that the person in respect of whom the application is made has committed any scheduled offence or that he has procured thereby any money or other property, pass without delay an ad interim order attaching the money or other property alleged to have been so procured, or if it transpires that such money or other property is not available for attachment, such other property of the said person of equivalent value as the District Judge may think fit: Provided that the District Judge may if he thinks fit before passing such order, and shall before refusing to pass such order, examine the person or persons making the affidavit accompanying the application. ... "6. Attachment of property of mala fide transferees.- (1) Where the asset available for attachment of a person believed to have committed scheduled offence are found to be less than the amount or value which he is believed to have procured by means of such offence, and where the District Judge is satisfied, by affidavit, or otherwise, that there is reasonable cause for believing that the said person has, after the date on which t....
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.... may order, without prejudice to any other mode of recovery, that the said fine shall be recovered from the residue of the said attached property or of the security given in lieu of attachment. "THE SCHEDULE (See section 2) OFFENCES IN CONNECTION WITH WHICH PROPERTY IS LIABLE TO BE ATTACHED 2. An offence punishable under section 406 or section 408 or section 409 of the Indian Penal Code (45 of 1860), where the property in respect of which the offence is committed is property entrusted by His Majesty's Government in the United Kingdom or in any part of His Majesty's dominions or the Central or a State Government or a department of any such Government or a local authority [or a corporation established by or under a Central, provincial or State Act, or an authority or a body owned or controlled or aided by Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956), or a society aided by such corporation, authority, body or Government company] or a person acting on behalf of any such Government or department or authority [or corporation or body or Government company or society]. 3. An offence punishable under section 411 or....
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....ity shall be duly informed of any order made under this sub-section and a copy of such an order shall be sent to the competent authority within forty-eight hours of its being made. (2) Any order made under sub-section (1) shall have no effect unless the said order is confirmed by an order of the competent authority within a period of thirty days of its being made. Explanation.- For the purposes of this section, property" means any disposition, conveyance, assignment, settlement, delivery, payment or other alienation of property and, without limiting the generality of the foregoing, includes- (a) the creation of a trust in property; (b) the grant or creation of any lease, mortgage, charge, easement, licence, power, partnership or interest in property; (c) the exercise of a power of appointment of property (d) any transaction entered into by any person with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of any other person." (underlining is ours) 61. If every species of property could be seized, under Section 102 of the Code it may have been unnecessa....
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....nto Court and held subject to further orders of the Court. 54. Attachment of immovable property (1) Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge. (1-A) The order shall also require the judgment-debtor to attend Court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale. (2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house, and also where the property is land paying revenue to the Government, in the office of the Collector of the District in which the land is situate (and, where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village.)." 63. Though on a plain reading of Section 102 of the Code it may appear that since the word "property" is ....
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....or development in violation of building bye-laws. Construction or development of property in violation of law may come nearest to the property itself creating suspicion of commission of an offence. But even here, a closer look would show that rarely would the property itself create a suspicion of commission of offence - but, activities thereon, which could be objectively observed, may create such suspicion and could be proved by objective observations at the trial. The purpose which Section 102 which is supposed to serve is to enable police officer to collect evidence. The provision is procedural in nature and not penal even in the widest sense of putting any temporary restraint on a suspect, as a part of investigation, or for ensuing a fair trial. 65. If it is taken for a while that Section 102 of the Code provided for seizure of immovable property for the purpose of ensuring that offenders do not derive benefits from the property which they got as a result of crime as well, then it would have been unnecessary for the Legislature to provide for attachment and, eventually, forfeiture of such property under the Criminal Law (Amendment) Ordinance, as also the provisions of Section....
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....s, sale deed or any other document whereby immovable property was acquired would be an evidence which would create suspicion of commission of an offence. It is hard to conceive that the immovable property in itself would provide any evidence of its having been acquired from the proceeds of crime. Therefore, if the argument is that Section 102 of the Code is to be interpreted to include immovable property to ensure that criminals do not walk away with the property acquired from the proceeds of crime, it would amount to attempting to put Section 102 to an use to which it was not intended to provide for. 69. Nothing prevents the Legislature from enacting provisions like Criminal Law (Amendment) Ordinance or to include such property in the Schedule to the ordinance which already exists. As may be seen from the Schedule, right now stolen properties of the Government/State in respect of which offences punishable under Section 411 or 414 of the IPC are committed, or properties of the Government in respect of which offences punishable under Sections 408, 409, 417 or 420 of the IPC are committed, is included in the Schedule. Should the Legislature so decide, it could remove from the Sche....
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....f he has reasonable grounds for believing- (a) that it is evidence in relation to an offence which he is investigating or any other offence; and, (b) it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed. (4) The constable may require any information which is contained in a computer and is accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible if he has reasonable grounds for believing- (a) that - (i) it is evidence in relation to offence which he is investigating or any other offence; or (ii) it has been obtained in ig consequence of the commission of an offence; and (b) it is necessary to do so in order to prevent it being concealed, lost, tampered with or destroyed. (5) The powers conferred by this section are in addition to any power otherwise conferred. (6) No power of seizure conferred on a constable under any enactment (including an enactment contained in an Act passed after this Act) is to be taken to authorise the seizure of an item which the constable exercising the pow....
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....eving that to do so would prejudice - (a) that investigation ; (b) the investigation of an offence other than the offence for the purposes of investigation which the thing was seized; or (c) any criminal proceedings which may be brought as a result of - (i) the investigation of which he is in charge; or (ii) any such investigation as is mentioned in paragraph (b) above." "22._(1) Subject to subsection (4) below, anything which has been seized by a constable or taken away by a constable following a requirement made by virtue of section 19 or 20 above may be retained so long as is necessary in all the circumstances. (2) Without prejudice to the generality of subsection(1) above- (a) anything seized for the purpose of a criminal investigation may be retained, except as a provided by sub section (4) below___ (i) for use as evidence at a trial for an offence; or (ii) for forensic examination or for investigation in connection with an offence; and (b) anything may be retained in order to establish its lawful owner, where there are reasonable grounds for believing that it has been obtained i....
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....seize and retain premises when they are immovable property because of the physical impossibility of doing so. That practical barrier does not exist where the premises are readily movable such as a vehicle or a tent or a caravan. In my judgment there is no reason why the word "anything" contained in s.18(2) and s.19(2) and (3) should not include "everything" where the nature of the premises makes it physically possible for the totality of the premises to be seized and retained by the police, and where practical considerations make that desirable. In this case there were two practical reasons why the removal of the vehicle to the police station was desirable and necessary. First, the police wished to fingerprint the vehicle to see if the fingerprints of any of the children were to be found in or on the vehicle. The police would not know where such finger prints might be found and a thorough investigation required that the whole vehicle should be available for fingerprinting. Second, if the vehicle were to be left in the street opposite the appellant's home, then there would be a high risk of the vehicle being interfered with by others, for example the parents of children who had ....
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....the Courts to do complete justice or that such interpretation would render the Code toothless or that it would make trial Courts powerless is misleading and flows from a failure to make distinction between powers of police and powers of Courts. Section 102 refers to powers of police to seize properties. As far as Courts are concerned, the powers to deal with property which is ill-gotten or is proceeds of crime need not be sought in the procedural code itself. First, the Schedule to Criminal Law (Amendment) Ordinance takes care of even ill-gotten wealth by corrupt means and property of State misappropriated by committing an offence. 75. If a private citizen is aggrieved about misappropriation of his property he can always knock the doors of a civil Court and such property - if immovable - is subject matter of such suit it would be virtually frozen in view of the provisions of Section 52-A of the Transfer of Property Act. Thus the citizen is not rendered remedyless nor are Courts rendered powerless to deal with such a situation. To insist that only the criminal Courts ought to be able to exercise such powers would amount to over-look the purpose of system of criminal justice - whi....
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....ld ever be found under the circumstances which could create suspicion of commission of any offence, (except the cases in which the immovable property is itself acquired from the proceeds of a crime such as in cases of disproportionate assets under the Prevention of Corruption Act, 1987 or 1988, and which can be sufficiently and adequately dealt with by the police officer during investigation by its attachment under the Criminal Law (Amendment) Act (supra),) there could be no question of police officer being in a position to take control of such immovable property. In view of this, we hold that police officer may not be required to take control of any immovable property since such property could ordinarily not be found under the circumstances which create suspicion of commission of any offence. The question (b) is, therefore, answered in the negative. 78. It has been submitted that due to changing times, it is necessary to interpret the provisions in a manner which will ensure that criminals do not reap the benefits of crime. It is also suggested that delay in securing an order of attachment from the Court would harm interest of the victim of crime is fallacious. This argument, S....
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....r properties of only the State which are misappropriated would be dealt with under the provisions of the Ordinance. It would be inappropriate for the Courts to hold that properties of even private individuals could be dealt with likewise (like fees wrongfully taken from students by educational institutions) when the State has chosen not to include such properties in the Criminal Law (Amendment) Ordinance. 82. Victimology undoubtedly has a significant place in Criminal jurisprudence. But this cannot be stretched too far and only if the victim is under any disability should there be occasion for the State (or Courts) to help him. Otherwise, he must pursue such legal remedies as are available. 83. As regards Question (c), in the light of the foregoing discussion, we hold that the judgment in Kishore Shankar Signapurkar v. State of Maharashtra (supra), and not that in M/s. Bombay Science & Research Education Institute v. State of Maharashtra (supra) lays down the correct law and the judgment of the Supreme Court in State of Maharashtra v. Tapas D. Neogy (supra) has not been correctly interpreted in M/s. Bombay Science & Research Education Institute v. State of Maharashtra (supra)....