In CRIMINAL APPEAL NO. 1481 OF 2019, NEVADA PROPERTIES PRIVATE LIMITED vs STATE OF MAHARASHTRA, in view of the seriousness of the matter, this appeal along with several others were referred to the a larger bench by the Division Bench of the Supreme Court.
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 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 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.
The Supreme Court observed that the minority judgment based their decisions on the judgment of the Supreme Court in State of Maharashtra v. Tapas D. Neogy.
The question was whether the said judgment deal with the issue of immovable property in relation to Section 102. For this, the court referred to various major decisions of the Supreme Court. The court decided that the Tapas Neogy judgment did not examine and answer the question whether the expression ‘any property’ would include immovable property. This observation was based on applying the inversion test as referred to in State of Gujarat and Others v. Utility Users’ Welfare Association and Others, which states that the Court must first carefully frame the supposed proposition of law and then insert in the proposition a word reversing its meaning to get the answer whether or not a decision is a precedent for that proposition. If the answer is in the affirmative, the case is not a precedent for that proposition. If the answer is in the negative, the case is a precedent for the original proposition and possibly for other propositions also. This is one of the tests applied to decide what can be regarded and treated as ratio decidendi of a decision. Reference was also made to decisions of this Court in U.P. State Electricity Board v. Pooran Chandra Pandey and Others, Commissioner of Income Tax v. Sun Engineering Works (P) Ltd.10 and other cases which hold that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio. Not every observation found therein nor what logically flows from those observations is the ratio decidendi. Judgment in question has to be read as a whole and the observations have to be considered in light of the instances which were before the Court. This is the way to ascertain the true principles laid down by a decision. Ratio decidendi cannot be decided by picking out words or sentences averse to the context under question from the judgment.
As the Tapas Neogy judgment did not decide the question, the Supreme Court bench decided to specifically examine the issue and answer the same.
The Court observed that R.K. Dalmia etc. v. Delhi Administration had interpreted the word ‘property’ in Section 405 and other sections of the IPC to opine that there was no good reason to restrict the meaning of the word ‘property’ to movable property when the word was used without any qualification in Section 405 or in other sections of the IPC. However, the judgment also held that the 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.
The court observed that the first part of sub-section (1) of Section 102 of the Code relates to the property which may be alleged or suspected to have been stolen. Immovable property certainly cannot be stolen and cannot fall in this part. The second part relates to the property which may be found by a police officer under circumstances which create suspicion of the commission of any offence. However, Immovable property cannot, in its strict sense, be seized, though documents of title, etc. relating to immovable property can be seized, taken into custody and produced. Immovable property can be attached and also locked/sealed. It could be argued that the word ‘seize’ would include such action of attachment and sealing. Seizure of immovable property in this sense and manner would in law require dispossession of the person in occupation/possession of the immovable property, unless there are no claimants, which would be rare. Language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossess a person in occupation and take possession of an immovable property in order to seize it. In the absence of the Legislature conferring this express or implied power under Section 102 of the Code to the police officer, we would hesitate and not hold that this power should be inferred and is implicit in the power to effect seizure.
The court held that the police officer is an investigator and not an adjudicator or a decision maker. This is the reason why the Ordinance was enacted to deal with attachment of money and immovable properties in cases of scheduled offences. In case and if we allow the police officer to ‘seize’ immovable property on a mere ‘suspicion of the commission of any offence’, it would mean and imply giving a drastic and extreme power to dispossess etc. to the police officer on a mere conjecture and surmise, that is, on suspicion, which has hitherto not been exercised. This, however, would not bar or prohibit the police officer from seizing documents/ papers of title relating to immovable property, as it is distinct and different from seizure of immovable property. Disputes and matters relating to the physical and legal possession and title of the property must be adjudicated upon by a Civil Court.
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