Nevada Properties Private Limited through Its Director vs State of Maharashtra and Anr.

s. 102 – Power of police officer to seize certain property – Immovable property, if would fall under the expression ‘any property’ u/s. 102 – Held: Power of a police officer u/s. 102 to seize any property, which may be found under circumstances that create suspicion of the commission of any offence, would not include the power to attach, seize and seal an immovable property – 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 – This core principle is to be applied when the expression ‘any property’ used in s. 102 is interpreted – Expression ‘any property’ appearing in s. 102 would not include immovable property – Section 102 postulates seizure of the property – 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 – 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 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 – As far as possession of the immovable property is concerned, specific provisions in the form of Sections 145 and 146 can be invoked as per and in accordance with law – Thus, Section 102 is not a general provision which enables and authorises the police officer to seize immovable property for being able to be produced in the criminal court during trial – 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. ss. 451, 452 and 456 – Provisions dealing with disposal of property, if defines scope of s. 102 – Held: ss. 451, 452 and 456 do not directly define the contours and scope of s. 102 – Section 102 is not the primary or the core provision which would make the provisions of s. 451, 452 or 456 applicable.

Judgment/Order:

Ratio decidendi of a decision – Application of inversion test – Held: Inversion test is one of the tests applied to decide the ratio decidendi of a decision – Inversion test 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 – By applying the inversion test, it can be said that the decision in Tapas D. Neogy’case did not go into and decide the issue, whether immovable property would fall under the expression ‘any property’ u/s. 102 – Code of Criminal Procedure, 1973 – s. 102. Ratio decidendi – Meaning of – Held: A decision is only an authority for what it actually decides – 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 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 – Thus, it is clear that Tapas D. Neogy’s case did not decide whether or not an immovable property will fall within the expression ‘any property’ in section 102 of the Code – Code of Criminal Procedure, 1973 – s.

102. Criminal Law Amendment Ordinance, 1944 : Promulgation of – Held: Was to prevent disposal or concealment of property procured by means of offences specified in its Schedule, which include offences punishable u/ss. 406, 408, 409, 411 and 414 IPC in respect of Government property, property of local authority or a Corporation established by or under a Central, Provincial or State Act, etc., and an offence punishable under the Prevention of Corruption Act, 1988 – This Ordinance is a permanent Ordinance – It was adopted by the Presidential Adaptation of Laws Order, 1950 making it effective in the territory of India and, thus, continues to remain in force.

Answering the Reference, the Court

HELD: Per SANJEEV KHANNA J. (for himself, RANJAN GOGOI, CJI and DEEPAK GUPTA, J.):

1. The power of a police officer under Section 102 of the Code of Criminal Procedure, 1973 to seize any property, which may be found under circumstances that create suspicion of the commission of any offence, would not include the power to attach, seize and seal an immovable property. [Para 21][252-F]

2.1 The expression ‘any property’ appearing in Section 102 of the Code would not include immovable property. Section 102 postulates seizure of the property. 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, it would not be eld that this power should be inferred and is implicit in the power to effect seizure. Equally important, for the purpose of interpretation is the scope and object of Section 102 of the Code, which is to help and assist investigation and to enable the police officer to collect and collate evidence to be produced to prove the charge complained of and set up in the charge sheet. The Section is a part of the provisions concerning investigation undertaken by the police officer. After the charge sheet is filed, the prosecution leads and produces evidence to secure conviction. Section 102 is not, per se, an enabling provision by which the police officer acts to seize the property to do justice and to hand over the property to a person whom the police officer feels is the rightful and true owner. This is clear from the objective behind Section 102, use of the words in the Section and the scope and ambit of the power conferred on the Criminal Court vide Sections 451 to

459 of the Code. The expression ‘circumstances which create suspicion of the commission of any offence’ in Section 102 does not refer to a firm opinion or an adjudication/finding by a police officer to ascertain whether or not ‘any property’ is required to be seized. The word ‘suspicion’ is a weaker and a broader expression than ‘reasonable belief’ or ‘satisfaction’. 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 the police officer is allowed 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. There is hardly any case where immovable property was seized vide an attachment order that was treated as a seizure order by police officer under Section 102 of the Code. The reason is obvious. Disputes relating to title, possession, etc., of immovable property are civil disputes which have to be decided and adjudicated in Civil Courts. Any attempt to convert civil disputes into criminal cases to put pressure on the other side must be discouraged and stalled. Thus, it will not be proper to hold that Section 102 of the Code empowers a police officer to seize immovable property, land, plots, residential houses, streets or similar properties. Given the nature of criminal litigation, such seizure of an immovable property by the police officer in the form of an attachment and dispossession would not facilitate investigation to collect evidence/material to be produced during inquiry and trial. As far as possession of the immovable property is concerned, specific provisions in the form of Sections 145 and

146 can be invoked as per and in accordance with law. Section

102 of the Code is not a general provision which enables and authorises the police officer to seize immovable property for being able to be produced in the Criminal Court during trial. 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. [Para 18, 20][250-A, H; 251-A-H; 252-A-E]

2.2 It can be said 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. This, is the central and core principle which would have to be applied when the expression ‘any property’ used in Section 102 of the Code is interpreted, which is a power conferred upon the police officer and relates to the stage of investigation and collection of evidence to be produced in the Court during trial. [Para 12][242E-F]

3.1 Section 451 empowers the Criminal Court to pass an order of proper custody of ‘any property’ pending trial or inquiry. The Court can also direct disposal in certain circumstances. Explanation to Section 451 states that for the purpose of the said Section, ‘property’ includes property of any kind or document which is produced before the Court or which is in its custody or any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence. Section 451 applies during or pending trial, or inquiry (the expression ‘inquiry’ is defined in Section 2(g) of the Code). It has been held that the expression ‘property’ for the purpose of Section 451 includes immovable property. In fact, preponderance of judicial decisions takes this view, though there is no direct judgment of this Court. Same is the position with regard to Section 452, which in sub-section (5) states that the term ‘property’ includes, in case of property regarding which an offence appears to have been committed, not only such property as was originally in possession or under control of any party, but also any property into which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise. Section 452 states that when an inquiry or trial in a Criminal Court concludes, the Court may make an order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming himself to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which an offence appears to have been committed or which has been used for the commission of any offence. The context is wide, albeit the words, “may make such order as it thinks fit” in Section 452 vests the Court with the discretion to dispose of the property in any of the three modes specified, namely, destruction, confiscation or delivery to the person entitled to be in possession thereof or otherwise. However, an order under Section 452 is not an order determining title or ownership but that of the right to possession, and therefore where serious claims to ownership are put forward, it would be best if the Criminal Courts directs the parties to establish their claim before the Civil Court. The Criminal Court can, however, pass appropriate order of interim nature as it may be appropriate. Thus, Sections 451 and 452 are broad and wide conferring specific and clear powers upon the Criminal Court, and the language indicates that they could equally apply to immovable property. These Sections do not make reference to Section 102 of the Code relating to the seizure of property by the police officer. This is equally true of Section 456 which specifically empowers the Criminal Court to restore possession of immovable property when a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation and it appears to the Court that by such force or show of force or intimidation any person has been dispossessed of the property. This order can be made without prejudice to the right or interest to or in such immovable property which any person may be able to establish in a civil suit. Section 457 applies when a property has been seized by any police officer and is reported to a Magistrate under the provisions of the Code and such property is not produced before a Criminal Court during the course of inquiry or trial. The expression ‘not produced before a Criminal Court’ used in Section 457 of the Code is significant. Thus, this provision applies to the property seized under Section 102 of the Code, but not produced during the trial or inquiry. In common parlance, the word ‘produced’ is an expression used to signify actual or physical production which would apply to movable property. Immovable property cannot be ‘produced’ in a Court. [Para 16][247-E-H; 248-A-H; 249-A-B]

3.2 The provisions under Chapter XXXIV-‘Disposal of Property’, specifically enable the Court to pass orders relating to the properties, both movable and immovable. Section 451, does not specifically refer to any seizure order under Section 102 of the Code but vide Explanation includes such property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence. Similarly, Section 452 refers to property regarding which an offence appears to have been committed as has been originally in possession or under control of any party and also such property into or for which the same may have been converted or exchanged. Again Section 452 per se, does not make any reference to Section 102 of the Code. This is also true for Section 456 of the Code which relates to restoration of possession of immovable property in certain circumstances. These provisions, therefore, do not directly define the contours and scope of Section 102 of the Code. On the other hand, it would show that Section 102 is not the primary or the core provision which would make the provisions of Section 451, 452 or 456 of the Code applicable. The parameters for application of these sections are those as are enumerated in the specific provisions. Sections 451 and 452 specifically define the expression ‘property’ for the purpose of an order of custody and disposal by the Court. Section 456 applies to the category or type of offences concerning immovable property regardless of whether the immovable property is in custody of the Court or has been attached. Power of the Criminal Court under these Sections, except Section 457 of the Code, is not restricted to property seized by the police officer under Section

102 of the Code. Section 457, applies to properties which have been seized by the police officer under the Code but not produced during inquiry or trial.[Para 17][249-B-H]

4. The decision in Tapas D. Neogy’case did not go into and decide the issue; whether immovable property would fall under the expression ‘any property’ under Section 102 of the Code. This is said so by 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. It has been held 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. It is, therefore, clear that Tapas D. Neogy’s case did not decide the issue in question; whether or not an immovable property will fall within the expression ‘any property’ in Section 102. [Para 11][241-E-H; 242A-C]

State of Maharashtra v. Tapas D. Neogy (1999) 7 SCC

685 – held inapplicable.

Kishore Shankar Signapurkar v. State of Maharashtra and Others 1997 Vol.IV L J 793; M/s. Bombay Science and Research Education Institute v. The State of Maharashtra and Others 2008 All M.R.(Crl.) 2133; Ms. Swaran Sabharwal v. Commissioner of Police 1988 CriLJ 241 (Del) (DB); Jagdish Chander and Others v. State and Others 40 (199) DLT 233; P.K. Parmar and Others v. Union of India and Another 1992 CriLJ 2499 (Del); Bharat Overseas Bank v. Minu Publication 1988 MLW (Cri) 106; State of Gujarat and Others v. Utility Users’ Welfare Association and Others (2018) 6 SCC 21: [2018] 9 SCR 106; U.P. State Electricity Board v. Pooran Chandra Pandey and Others (2007) 11 SCC

92 : [2007] 10 SCR 920; Commissioner of Income Tax v. Sun Engineering Works (P) Ltd. (1992) 4 SCC 363 : [1992] 1 Suppl. SCR 732; R.K. Dalmia etc. v. Delhi Administration AIR 1962 SC 1821 : [1963] SCR 253; N. Madhavan v. State of Kerala (1979) 4 SCC 1 : [1980]

1 SCR 228; Teesta Atul Setalvad v. State of Gujarat (2018) 2 SCC 372 : [2017] 12 SCR 774; Binod Kumar and Others v. State of Bihar and Another (2014) 10 SCC 663 : [2014] 11 SCR 85 – referred to.