B. H. MARLAPALLE, J.

I have gone through the 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 account of the accused could be property within the Section 102 (1) of the Code and not whether under Section 102 of the Code, immovable property could be seized. That question has been decided by this Court in Kishore Shankar Signapurkar vs. State of Maharashtra & Ors., 1997 Vol. IV LJ 793. It is held therein that under Section 102, immovable 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 (2008 All. M.R. (Cri.) 2133). 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 immoveable property can be seized under Section 102 of the Code. There is, therefore, an apparent conflict between the view expressed in Kishore Signapurkar and M/s.Bombay Science & Research. In our opinion, therefore, the question whether under Section 102 of the Code, immoveable property can be seized needs to be referred to a larger bench as there is conflict between two coordinate benches of this Court.”

In Tapas Neogy's case the Supreme Court has referred to Section 16 of the P. C. Act and hence is presumed to have considered the Criminal Law (Amendment) Ordinance 1944.

2. For the above said reasons the Division Bench framed and referred the following questions to be decided by the larger Bench:-

“(a) Whether the words “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 immovable 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 (supra) 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 (supra).”

3. The main issue which we are required to decide is as to whether an immovable 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