Supreme Court on police and Sec 102

Delhi: In an important ruling that will have a far-reaching effect, the Supreme Court on Tuesday held that the power of a police officer under Section 102 of the Code of Criminal Procedure (CrPc) to seize any property would not include the power to attach, seize and sell an immovable property.

A three-judge bench comprising of the Chief Justice of India (CJI) Ranjan Gogoi, Justices Sanjiv Khanna and Deepak Gupta came to this decision while disposing the Special Leave Petition filed by the Maharashtra State Government challenging the judgment of the Full Bench of the Mumbai High Court, which had, by a majority decision in 2010, held that the expression 'any property' used in sub section (1) of Section 102 of CrPC did not include immovable property.

Justice Sanjiv Khanna, writing the judgment held, “Language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossess a person in occupation and take possession of the immovable property in order to seize it. In the absence of the Legislature conferring this express or implied power under Section 102 of the Code to the police officer, we would hesitate and not hold that this power should be inferred and is implicit in the power to effect seizure.”

It was also stated that “as far as possession of the immovable property is concerned, specific provisions in the form of Sections 145 and 146 of the Code can be invoked as per and in accordance with the 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 the trial. This, however, would not bar or prohibit the police officer from seizing documents/ papers of title relating to immovable property, as it is distinct and different from the seizure of immovable property. Disputes and matters relating to the physical and legal possession and title of the property must be adjudicated upon by a Civil Court”.

In a separate but concurring opinion, Justice Deepak Gupta held that the phrase ‘any property’ in Section 102 will only cover moveable property and not immovable property.

Section 102 of the CrPC, which confers upon the police the power to seize certain property, reads as follows:

(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.