INTRODUCTION:
There is a question is there any provision which empowers a police officer to seize the property, without the courts’ order under the law. And if it so then, which kind of property or under which circumstances the police officer may be seized the property.
Section 102 of the code of criminal procedure confers power upon the police officer regarding the seizure of the certain property but there is no expressly mentioned that they do so without the court’s order. The police officer may seize any property which may be alleged, or suspected to have been stolen; or which is found under the circumstances which creates suspicion of the commission of any offence.
Before going into the concept of “which property may be seized by a police officer, without the courts order”, we have to understand the concept of namely;
- What is seizure
- Meaning of property
WHAT IS SEIZURE:
A seizure is a forcible act of taking possession of the property by an authorised person under legal process. In a seizure, a person is forcibly or suddenly removed from the possession of the property by the authorized officer because the property which he has owned is illegal. The search is coexisted with a seizure.
Who is authorised to do seizure?
Every competent authority has authorised to do the seizure. A seizure may be imposed by the court, bailiff, police officer and sometimes by the tax committees.
MEANING OF PROPERTY:
Property has a wider meaning in its real sense. Different act of law gives different definition about the property although CrPC does not define the property. Property in a layman’s context means property of any kind whether movable or immovable, tangible or intangible and includes intellectual property.
KINDS OF PROPERTY:
Property is divided into three kinds namely;
- Movable and immovable
- Tangible and intangible
- Intellectual property
MOVABLE PROPERTY:
The different act gives a different definition of movable property. So basically, Movable property includes standing timber, growing crops or grass and property of every other description, except immovable property.
IMMOVABLE PROPERTY:
According to section 3 of the transfer property act, 1927, immovable property does not include standing timber, growing crops or grass.
The immovable property also includes any things attached to the earth or permanently fastened to anything attached to the earth.
TANGIBLE PROPERTY:
Tangible property means any type of property which can be moved, touched or felt. It must necessarily be corporeal but it may be real and personal property.
Tangible property includes such as furniture, machines, computer, clothing, jewellery, art, writing, household, etc.
INTANGIBLE PROPERTY:
Intangible property means any type of property which cannot be touched or felt. It is not physical in nature. It is also known as an incorporeal property.
It includes such as negotiable instrument, securities, goodwill and other intangible assets.
INTELLECTUAL PROPERTY:
Intellectual property is the other types of property which come under the ambit of intangible property. These are recognised by the law and infringement of it provides remedy under the law.
Intellectual Property includes[1]:-
Patents –
Patents are used to protect the new invention which involves an inventive step, and capable of industrial application. Terms of protection are for a limited time of period.
Trademarks –
Trademarks include any device, brand, heading, label, tickets, name, signature, word, letter, numeral, shape of goods, packing or combination of colour or any combination thereof. Terms of protection are for a limited time of period.
A trademark should be capable of distinguishing the goods or services of one person from those of others.
Copyright-
Copyright is used to protect –
- Original literary, musical and artistic works;
- Cinematograph films;
- Sound recording.
Design registration-
Design registration is used to protect the new and original industrial design from others. The design must be such that in the finished article the feature of it “Appeal to and are judged solely by the eye”.
WHICH PROPERTY MAY BE SEIZED BY THE POLICE OFFICER, WITHOUT THE COURTS ORDER?
Section 102 of the code of criminal procedure confers power upon the police officer regarding the seizure of certain property. But this section is silent about whether the police officer does so without the court’s order or not. Supreme Court in the landmark case said that section 102 of CrPC empower the police officer to seize only movable property, not the immovable property. A police officer seizes certain property only when there is allegation or suspicion of the commission of any offence.
SECTION 102 – POWER OF POLICE OFFICER TO SEIZE CERTAIN PROPERTY[2]
- Any police officer may seize any property which may be
- Alleged or suspected to have stolen, or
- Found under circumstances which creates suspicion of the commission of any offence.
- Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.
- Every police officer acting under subsection (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 o bond undertaking to produce the property before the court as and when required and to give effect to the further order of the court as to the disposal of the same.
Provided that where the property seized under subsection (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the order of the superintendent of police and the provision of section 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.
This section authorised the police officer to seize any property but the police officer cannot seize the immovable property. In other words, the immovable property does not come into the ambit of the property word mentioned in the section.
The word “any property” used in section 102 of CrPC includes only movable property and excluded the immovable property stated by the Supreme Court.
Section 102 is not a general provision which authorised or allows the police officer to seize the immovable property for being able to produced in the criminal court during trial.
CASES
NEVADA PROPERTIES PVT. LTD. V/s STATE OF MAHARASHTRA[3]
Date of Judgement: September 24, 2019
Under this case, appeal filed by the Nevada properties Pvt. Ltd. This appeal arises from the judgement of the high court of judicature at Bombay, wherein the majority judgement has held that the expression “Any property” used in sub-section (1) of section 102 of the code of criminal procedure, 1973 does not include immovable property and consequently a police officer during the investigation a criminal case cannot take custody of and seize any immovable property which may be found under the circumstances which create suspicion of the commission of any offence.
The supreme court held that the section 102 of the code of criminal procedure, 1973 which empower the police officer to seize any property, which may be found under the circumstances that create suspicion of the commission of any offence, does not include the power to seize or attach an immovable property.[4]
However, section 102 does not restrict or prohibit the police officer from seizing document/ paper of title relating to immovable property, as it is distinct and different from the seizure of immovable property.
JIGNESH PRAKASH SHAH V/s CENTRAL BUREAU OF INVESTIGATION[5]
Date of Judgement: June 4, 2018
In this case, the issue arises before the hon’ble whether a police officer has the power to seize the passport under section 102 of CrPC.
The action was challenged on the ground that the police officer has no power to seize under section 102 of CrPC. and does not have the power to retain or impounding the same.
The court observed that police may have the power to seize the passport under the section 102 of CrPC but does not have the power to retain or impounding the same because that can be done by the passport authority under section 10 (3) of the passport.[6]
The court further held that if there is no suspicion or allegation of the commission of the offence, the police officer has no power to seize that property.
NISAR HUSAIN V/s STATE OF CHATTISGARH[7]
Date of Judgement: July 6, 2018
In this case, the question comes up for consideration before the Chhattisgarh Hon’ble High Court was whether, under section 102 of the CrPC, the police officer empowered to seal the shop (immovable property) of the petitioner?
The Chhattisgarh Court held that section 102 of the CrPC does not empower the police officer to seize the immovable property. Hence, the police officer has no authority to seize and sealed the shop (immovable property) of the petitioner.[8]
CONCLUSION:
The police officer has the power to seize, attached or sealed the certain property. And this power is recognized by the law under CrPC. Section 102 of the CrPC empower the police officer to seize certain property. Any police officer may seize any property which may be alleged, or suspected to have been stolen; or which is found under the circumstances which creates suspicion of the commission of any offence. Section 102 of the CrPC does not empower the police officer to seize the immovable property but may seize documents and paper of titled related to the immovable property.
References:
[1] V.K AHUJA., Laws relating to intellectual property rights.
[2] Section 102, code of criminal procedure(CrPC)
[3]Criminal appeal no. 1481 of 2019
[4]https://indiankanoon.org
[5]Criminal revision application no. 59 of 2018
[6]https://indiankanoon.org
[7]Writ petition no. 1159 of 2018
[8]https://indiankanoon.org
This article is authored by Rashmi Rawat, Fourth-Year, BBA. LL.B. student at Fairfield Institute of Management and Technology.
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