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2024 Supreme(Ker) 1512
IN THE HIGH COURT OF KERALA AT ERNAKULAM
KAUSER EDAPPAGATH, J.
Vishnu Rajendra Prasad – Appellant
Versus
Sub-Registrar – Respondent
WP(C) NO. 39968 OF 2023
Decided on : 21-10-2024
Advocate Appeared:
For the Appellant : C.S.MANU, C.A.ANUPAMAN, DILU JOSEPH, T.B.SIVAPRASAD, C.Y.VIJAY KUMAR, MANJU E.R., ANANDHU SATHEESH, ALINT JOSEPH, PAUL JOSE
For the Respondent: SRI.RAJEEV JYOTHISH GEORGE, GP
IMPORTANT POINT
Police officers lack authority to attach immovable property during investigations; such actions must be court-ordered.
Headnote:
(A) Code of Criminal Procedure, 1973 - Section 102 - Registration Act, 1908 - Sections 89(5) & (6) - Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999 - Police powers regarding attachment of property - Police officer cannot seize or attach immovable property during a criminal investigation under Section 102 - Attachment order must originate from a court order or under the Revenue Recovery Act. (Paras 5 and 6)
(B) Writ Petition - Jurisdiction of police in property matters - The police officer's role is limited to investigation and does not extend to adjudicating property rights. (Paras 4 and 6)
Facts of the case:
The petitioner challenged an entry in the Encumbrance Certificate indicating an attachment of his property by police, claiming no right existed for such action.
Findings of Court:
The court held that the police do not have the authority to attach immovable property during a criminal investigation.
Issues: The primary issue was the legality of the police's attachment of immovable property.
Ratio Decidendi: The court ruled that the police officer's powers are confined to movable property under Section 102 and that only courts can order the attachment of immovable property.
Result: The entry in the Encumbrance Certificate was quashed.
JUDGMENT :
The petitioner is aggrieved by the entry in Ext.P3 Encumbrance Certificate relating to his property that there is an attachment over the property effected as per the instructions of the 3rd respondent/Police Inspector.
2. The petitioner is the owner in possession of 14.66 Ares of land covered by Ext.P1 sale deed. The petitioner applied for the Encumbrance Certificate of the property covered by Ext.P1 and was issued with Ext.P3 Encumbrance Certificate, which carried an entry dated 4/6/2022 stating that the property is attached by the 3rd respondent. According to the petitioner, the 3rd respondent has no right to issue an attachment order in respect of the property and even if there is an attachment order, such an entry ought not have been entered in Ext.P3. It is in these circumstances that the petitioner has approached this Court to quash the said entry in Ext.P3.
3. I have heard Sri.C.S.Manu, the learned counsel for the petitioner and Smt.Deepa V., the learned Government Pleader.
4. The learned Government Pleader made available to me a copy of the communication issued by the 3rd respondent dated 02.05.2022. In the said communication, it is stated that a crime has been registered as Crime No.137 of 2022 under Sections 420 and 406 of IPC r/w Section 3 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999, against the accused, namely Sreekumar Shankara Pillai, the Director of S.Kumar Gold and Diamond, West Mumbai. During the course of the investigation of the said crime, it was revealed that the accused had purchased so many properties, including the property covered by Ext.P1. Therefore, the 3rd respondent, who is the investigating officer of the above-mentioned crime, gave a direction to the 1st respondent not to allow the transfer or sale of the said property. Based on the said communication, it appears that the entry has been made in Ext.P3 Encumbrance Certificate.
5. Section 102 of Cr. P.C deals with the power of the police officer investigating a crime to seize certain property which may be found under circumstances that create suspicion of the commission of any offence. However, the said power granted to a police officer would not include the power to seize and attach an immovable property. The phrase ‘any property’ in Section 102 will only cover movable property and not immovable property. The police officer is an investigator, not an adjudicator or a decision-maker. The immovable property cannot be seized or attached by a police officer during a criminal probe under the exercise of power under Section 102 of Cr. P.C (Nevada Properties Private Limited through its Directors v. State of Maharashtra, AIR 2019 SC 4554). Even as per the newly introduced Section 107 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the power to order attachment of property categorized as “proceeds of crime” during an ongoing investigation vest only with the court at the request of a police officer conducting the investigation, that too after giving a show cause notice and reasonable opportunity of being heard to the owner of the property.
6. Section 89(5) & (6) of the Registration Act, 1908 deals with the communication of any order regarding the attachment of the property and making entry to that effect in Book No.1. As per these provisions, every court passing an order for the attachment of immovable property or for the release of any immovable property from attachment and every officer issuing a written demand before the attachment of the immovable property of a defaulter under the Revenue Recovery Act shall send a copy of such decree or order or written demand, as the case may be, together with a memorandum describing the property to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the immovable property is situate, and such officer shall file the copy and memorandum in Book No.1. Thus, the Sub Registrar can act upon only as per the order issued by t
