Understanding Section 107 BNSS: Applicability for Attachment of Proceeds of Crime

In the evolving landscape of India's criminal justice system, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) introduces significant updates to address gaps in the erstwhile Code of Criminal Procedure, 1973 (CrPC). One such provision is Section 107 BNSS, which empowers police to seek attachment of property believed to be derived from criminal activities. But what exactly is the 107 BNSS applicability? This blog post delves into its scope, procedure, and practical implications, drawing from legislative intent and judicial interpretations. Whether you're a law enforcement officer, legal practitioner, or individual facing investigation, understanding this provision can be crucial.

Note: This article provides general information based on available sources and is not a substitute for professional legal advice. Consult a qualified lawyer for case-specific guidance.

Main Legal Finding: What Does Section 107 BNSS Entail?

Section 107 of the BNSS is a newly introduced provision that enables the attachment, forfeiture, or restoration of property believed to be derived or obtained, directly or indirectly, from criminal activity or the commission of an offence. It applies during police investigations where there is reason to believe the property qualifies as proceeds of crime. This addresses a key lacuna in the CrPC, which lacked a specific mechanism beyond general seizure powers under Section 102 CrPC (now Section 106 BNSS).2025 0 Supreme(Ker) 1714 2025 0 Supreme(Ker) 2525

The provision fills a critical void, as prior CrPC decisions primarily focused on jurisdictional validity, property definition, or suspicion of crime linkage under Section 102, without a dedicated tool for crime-derived assets.2025 0 Supreme(Ker) 1714

Key Points on Applicability

Here are the core elements defining Section 107 BNSS applicability:

• Trigger: Applies to property derived or obtained, directly or indirectly, as a result of a criminal activity or from the commission of any offence.
• Process: Requires police application to a court or <court>Magistratecourt>, with prior approval from the Superintendent of Police or Commissioner of Police.
• Purpose: Introduced to remedy the CrPC's lack of comprehensive provisions for attaching crime proceeds, except in limited international cooperation scenarios under Chapter VII-A.2025 0 Supreme(Ker) 1714 2025 0 Supreme(Ker) 2525
• Distinction from Seizure: Validity of actions under Section 106 BNSS (ex-Seizure under CrPC 102) remains independent, but Section 107 expands targeted attachment during investigation. Cases like Shento Varghese v. Julfikar Husen highlighted challenges to seizures on jurisdiction or crime nexus, but BNSS 107 offers a proactive mechanism. It is pertinent to note that all the above decisions were rendered with respect to Section 102 of the Code of Criminal Procedure and the Code did not contain any provision for seizure or attachment of the proceeds of crime, except under Chapter VII-A...2025 0 Supreme(Ker) 1714

Legislative Context and Introduction

The BNSS, effective from July 1, 2024, repeals the CrPC and modernizes procedures. Section 107 was incorporated to cure the absence of direct provisions for seizing proceeds of crime in domestic investigations. Retaining Section 102 CrPC as Section 106 BNSS, the new law adds Section 107 for judicially overseen attachments. This ensures a balanced approach with oversight, distinguishing it from ad-hoc seizures. The repeal of the Cr.P.C. led to the dismissal of petitions filed under it after the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023, emphasizing that future filings must comply with the new law.2024 0 Supreme(P&H) 416

Section 531 BNSS acts as a saving clause, allowing applicability of old CrPC provisions in certain ongoing matters, facilitating smooth transition. The other provision is also clear that under Section 531 of BNSS, there is a saving clause while repealing Cr.P.C. regarding applicability of the old Act also.

K. Ramakrishna VS Assistant Director, Directorate of Enforcement

Scope and Procedure for Attachment

The provision activates during an investigation when a police officer has reason to believe that property stems from criminal activity. The full text states: 107. Attachment, forfeiture or restoration of property (1) Where a police officer making an investigation has reason to believe that any property is derived or obtained, directly or indirectly, as a result of a criminal activity or from the commission of any offence, he may, with the approval of the Superintendent of Police or Commissioner of Police, make an application to the Court or the <court>Magistratecourt> exercising jurisdiction to take cognizance of the offence or commit for trial or try the case, for the attachment of such property.2025 0 Supreme(Ker) 2525

Key procedural safeguards include:1. Reasonable Belief: Must be documented robustly.2. Hierarchical Approval: From SP or Commissioner.3. Judicial Application: To the <court>jurisdictional courtcourt>/<court>Magistratecourt> for attachment order.

This setup ensures oversight from the outset, preventing misuse.

Relation to Predecessor Provisions and Challenges

Unlike CrPC Section 102/BNSS 106, whose validity doesn't depend on post-seizure reporting, Section 107 specifically targets proceeds of crime. Precedents under old law challenged seizures on grounds like jurisdiction or insufficient nexus, but BNSS provides clearer contours. It operates prospectively and doesn't retroactively impact pre-BNSS seizures. Challenges may still arise on lack of jurisdiction, improper property classification, or weak crime nexus.2025 0 Supreme(Ker) 1714

Recent cases underscore BNSS's broader applicability shifts. For instance, petitions under repealed CrPC sections post-July 2024 are non-maintainable, directing parties to BNSS equivalents. Petitions filed under the repealed Cr.P.C. after 01.07.2024 are not maintainable.2024 0 Supreme(P&H) 416

Insights from Recent Judicial Interpretations

Courts have clarified BNSS applicability in varied contexts, reinforcing procedural rigor:

• In bail matters, Section 479 BNSS (ex-Section 436A CrPC) doesn't automatically apply for undertrials in serious cases like PMLA frauds involving crores, despite custody duration. When offences are different as well as when more number of cases are registered against petitioner, he cannot invoke proviso under Section 479 of BNSS seeking relief on the ground of one third punishment.

  K. Ramakrishna VS Assistant Director, Directorate of Enforcement

  2024 0 Supreme(Kar) 573

• For FIR registration, exhaust remedies under BNSS Section 175(3) (ex-156(3) CrPC) before writs. The requirement of making an application to the Superintendent of Police... has been made mandatory.2025 0 Supreme(Gau) 609

• Investigations must conclude without delay per Section 193 BNSS (ex-173 CrPC). Completion of investigation without unnecessary delay is the mandate of the law.2025 0 Supreme(MP) 65

These rulings highlight BNSS's emphasis on structured processes, mirroring Section 107's approval and application mandates.

Exceptions, Limitations, and Recommendations

No explicit exceptions exist, but applicability hinges on:- Ongoing investigation.- Reasonable belief linked to specific offence.- Prior approval.

Limitations prevent arbitrary use, with courts verifying linkages akin to CrPC precedents. For police: Document beliefs thoroughly and secure approvals. For courts: Scrutinize nexus. In transitional cases, invoke Section 531 BNSS. 2025 0 Supreme(Ker) 1714 2025 0 Supreme(Ker) 2525

Conclusion and Key Takeaways

Section 107 BNSS marks a proactive step in tackling crime proceeds, enhancing investigative tools with judicial checks. Its applicability during probes with reasoned belief and approvals bridges CrPC gaps, promoting accountability.

Key Takeaways:- Triggers on 'reason to believe' property is crime-derived.- Requires SP/Commissioner nod and court application.- Complements, doesn't replace, Section 106 seizures.- Backed by savings clause for transitions.

Stay informed on BNSS updates, as courts continue shaping its application. For personalized advice, reach out to legal experts.

References: 2025 0 Supreme(Ker) 1714, 2025 0 Supreme(Ker) 2525,

K. Ramakrishna VS Assistant Director, Directorate of Enforcement