Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 1066

SUPREME COURT OF INDIA
RANJAN GOGOI, CJI., DEEPAK GUPTA, SANJIV KHANNA, JJ.
NEVADA PROPERTIES PRIVATE LIMITED THROUGH ITS DIRECTORS – APPELLANT(S)
VERSUS
STATE OF MAHARASHTRA AND ANOTHER – RESPONDENT(S)
CRIMINAL APPEAL NO. 1481 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO. 1513 OF 2011) WITH CRIMINAL APPEAL NO. 1122 OF 2011 CRIMINAL APPEAL NOS. 1482-1485 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NOS.891-894 OF 2011) CRIMINAL APPEAL NO. 1486 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO. 4360 OF 2011) A N D CRIMINAL APPEAL NO. 1487 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO. 3958 OF 2013)
Decided On : 24-09-2019

Advocates Appeared:
For the Petitioner(s) [SLP 1513/11 & SLP 4078/11]:Bharat Sangal, Babita Kushwaha, Manjula Gupta, Advocates
For the Petitioner(s) [Crl.A.1122/11]:Fauzia Shakil, M. Shoeb Alam, Ujjwal Singh, Gautam Prabhakar, Mojahid Karim Khan, Advocates
For the Petitioner(s) [SLP 891-94/11 & SLP 3958/13]:Nishant Ramakantrao Katneshwarkar, Advocates
For the Petitioner(s) [SLP 4360/13]:Shivaji M. Jadhav, Advocate
For the Petitioner(s) [SLP 6420/14]:Manoj K. Mishra, Umesh Dubey, Jyoti Mishra, Sukumar, Bheem Pratap Singh, Advocates
For the Respondent(s):Nishant Ramakantrao Katneshwarkar, P. K. Manohar, Ugra Shankar Prasad, Aman Vachher, Dhiraj, Ashutosh Dubey, Abhishek Chauhan, Madhurima Mridul, Anshu Vachher, Arun Nagar, Rajshree Dubey, M. K. Dua, Shivaji M. Jadhav, Mahesh Agarwal, Ankur Saigal, Aastha Mehta, Nishant Rao, Rajesh Kumar, E. C. Agrawala, Sangeeta Kumar, Sonia Mathur, Sachin Sharma, Rachna Sharma, Arvind Kumar Sharma, Mukesh Kumar Maroria, Advocates

IMPORTANT POINT
Immovable property is not covered in ‘any property’ u/s 102.

Headnote:
(a) Interpretation of judgment - Ratio decidendi - Whether a precedent -Tests - Inversion test - Carefully framed supposed proposition of law - Then inserting in the proposition a word reversing its meaning to get the answer whether or not a decision is a precedent for that proposition - Answer if in the affirmative, case not a precedent for that proposition - Answer if in the negative, case is a precedent for the original proposition and possibly for other propositions also. (Para 11)
(b) Code of Criminal Procedure, 1973 - Section 102 and Sections 451 to 459, r/w Criminal Law Amendment Ordinance, 1944 (No. XXXVIII of 1944) - Procedure for attachment - Application of Order XXVII, Code of Civil Procedure, 1908 mandated. (Para 13)
(c) Code of Criminal Procedure, 1973 - Section 102 - Any ‘property’ - Word ‘property’ in a particular section covers only that type of property in respect of which the offence contemplated in that section can be committed. (Para 13, 14, 16)
(d) Code of Criminal Procedure, 1973 - Section 102 - ‘Any property’ - Relates to property which may be alleged or suspected to have been stolen - Relates to the property which may be found by a police officer under circumstances creating suspicion of the commission of any offence and which may be seized and produced in the court - Held, immovable property not capable of being stolen, seized and produced in court, not covered in ‘any property’ u/s 102. (Para 18, 19, 20)
(e) Words and Phrases - Word ‘suspicion’ is a weaker and a broader expression than ‘reasonable belief’ or ‘satisfaction’. (Para 20)
(f) Code of Criminal Procedure, 1973 - Section 102 - Not an enabling provision - Police officer not authorized to seize and adjudicate upon seized property. (Para 20)
(g) Administration of justice - Civil disputes and criminal cases - Attempts to convert civil disputes into criminal cases - Must be discouraged and stalled. (Para 20)
Per Deepak Gupta, J. (Concurring)
(h) Code of Criminal Procedure, 1973 - Section 102 - Immovable property not being capable of being stolen, seized and produced in court, held, not covered u/s 102. (Para 5)
(i) Code of Criminal Procedure, 1973 - Section 102 - Property and procedure for attachment of property - Distinction - Held, the phrase ‘any property’ will only cover moveable property and not immovable property. (Para 8, 9, 12)
Facts of the case:
The controversy in this batch of cases, on reference to larger Bench, is whether the expression ‘any property’ used in sub-section (1) of Section 102 of the Code of Criminal Procedure, 1973 include immovable property and, consequently, a police officer investigating a criminal case cannot take custody of and seize any immovable property which may be found under circumstances which create suspicion of the commission of any offence.
Finding of the Court:
Facts of the case:
The controversy in this batch of cases, on reference to larger Bench, is whether the expression ‘any property’ used in sub-section (1) of Section 102 of the Code of Criminal Procedure, 1973 include immovable property and, consequently, a police officer investigating a criminal case cannot take custody of and seize any immovable property which may be found under circumstances which create suspicion of the commission of any offence.
Finding of the Court:
Immovable property is not covered in ‘any property’ u/s 102.

JUDGMENT

SANJIV KHANNA, J.

Leave granted in Special Leave Petitions.

2. A Division Bench of this Court (Jagdish Singh Khehar and Arun Mishra, JJ.) vide order dated November 18, 2014, noticing that the issues that arise have far reaching and serious consequences, had referred the aforesaid appeals to be heard by a Bench of at least three Judges. After obtaining appropriate directions from Hon’ble the Chief Justice, these appeals have been listed before the present Bench.

3. For the sake of convenience, we have treated the Criminal Appeal arising out of Special Leave Petition (Criminal) No. 1513 of 2011, filed by Nevada Properties Pvt. Ltd., as the lead case. This appeal arises from judgment of the High Court of Judicature at Bombay dated November 29, 2010 wherein the majority judgment has held that the expression ‘any property’ used in sub-section (1) of Section 102 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’) does not include immovable property and, consequently, a police officer investigating a criminal case cannot take custody of and seize any immovable property which may be found under circumstances which create suspicion of the commission of any offence. According to the majority judgment, earlier decision of the Division Bench of the same High Court in Kishore Shankar Signapurkar v. State of Maharashtra and Others, 1997 4 LLJ 793 lays down the correct ratio and the contrary view expressed in M/s. Bombay Science and Research Education Institute v. The State of Maharashtra and Others, 2008 AllMR(Cri) 2133 does not lay down the correct law. The minority view holds that the police officer has power to seize any property, whether movable or immovable, under Section 102 of the Code and the decision of the Division Bench in M/s. Bombay Science and Research Education Institute (supra) lays down the correct law and the ratio in Kishore Shankar Signapurkar (supra) is not good law.

4. In order to decide the present controversy which is primarily legal, we would begin by reproducing Section 102 of the Code, which reads as under:

“S.102 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 office 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 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.”

5. Section 102 of the Code is part of a fasciculus of provisions under Chapter VII – ‘Process to Compel the Production of Things’. Part A of the said Chapter deals with Summons to produce; Part B deals with Search-warrants; Part C deals with General provisions relating to searches; and Part D, of which Section 102 is the first Section, falls under the part described as Miscel