The main legal point established in the judgment is that the power of seizure under Section 102 of the Code of Criminal Procedure, 1973 is limited to movable property and does not extend to immovable property.

JUDGMENT

Suresh Kumar Kait, J. -

The hearing has been conducted through video conferencing.

W.P.(Crl.) 1256/2020 & Crl.M.A.11172/2020 (stay)

1. Present petition has been filed under section 226 of the Constitution of India read with section 482 Cr.P.C. seeking directions thereby against respondent no.1 for quashing of order/notice dated 05.08.2019 bearing No.531/R-ACP/SEC-V/EOW issued by the office of the Offences Wing, New Delhi to the Sub-Registrar-IIA, Punjabi Bagh, Nangloi, Delhi under section 102 of the Code of Criminal Procedure, 1973.

2. Counsel for the petitioner submits that the petitioner herein is a Non-Banking Financial Company, registered with the Reserve Bank of India and also a financial institution under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The petitioner has granted two loans against a property to respondent nos. 4 to 10 and upon failure to pay EMI's on time, the loan accounts of the said respondents were declared Non-Performing Assets (NPA) and statutory proceedings under the SARFAESI Act were conducted.

3. Counsel for the petitioner further submits that the property in question bearing Plot No. 32, Road No. 42, Punjabi Bagh (West), Delhi 110026 is mortgaged, however, vide impugned notice dated 05.08.2019, ACP/EOW communicated to the Sub-Registrar II-A, Punjabi Bagh, Nangloi, Delhi as reproduced under:

"Investigation of the above said case is being conducted by the undersigned at Section V, EOW, Mandir Marg, New Delhi.

Brief facts of the case are that Rajesh Project (I) Pvt. Ltd. whose managing Director is Mr. Rajesh Goyal had launched a residential housing project "RG Luxury Homes" in Greater Noida UP. He collected more than 600 crore from 1672 flat buyer 2010 onwards for the said project but the abovesaid company could not complete the project. All the money collected from the complainants/ investors were siphoned off to the different accounts.

The transaction related to this property is subject matter of investigation of the above mentioned FIR. It is also apprehended that the property may be further transferred.

In view of the above facts, it would be appropriate to place an embargo on the further sale/transfer on the above said property i.e. Plot no. 32, road no. 42 registered in the name of M/s R K Sons (HUF) / Rajesh Goyal in Punjabi Bagh West New Delhi under the provision of 102 Cr.P.C. Confirmation regarding placing embargo on the above land may also be intimated to the undersigned. Larger public interest is involved in the matter and therefore, earliest action and confirmation is desirable."

4. Counsel for petitioner submits that the impugned order is in direct contravention of Section 102 Cr.P.C. as the said provision does not grant any power for the seizure of immovable properties and same is against law and deserves to be set aside. Accordingly, for convenience, section 102 of Cr.P.C. is reproduced as under:

"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 officer in charge of a police station, shall forthwith report the seizure to that officer.

(3) 1 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.]"

5. To strengthen his arguments, counsel for the petitioner has relied upon the case of Nevada Properties Private Limited vs. State of Maharashtra,2019 SCCOnLineSC 1247, wherein the Hon'ble