Cops cannot attach immovable property under section 102

A full bench of the Bombay High Court on Monday gave a split judgment on attachment of property of the accused in criminal cases, with the majority observing that police cannot attach immovable property under Section 102 of the CrPC.

The majority ruling was that the police cannot attach 'immovable property', in any criminal offence they are investigating as prescribed under Section 102 of the Criminal Procedure Code (CrPC). The term property, which police can attach, is only is 'movable'.

The bench comprised Justice B H Marlapalle, Justice R C Chavan and Justice R S Dalvi.

Justice Chavan and Justice Dalvi held that only movable property can be attched under Section 102. "There have been several civil wrongs which have been treated as crimes also, for which both civil remedies are availableż this does not mean civil remedies are abolished or cannot be resorted to, or can be treated as inefficacious."

Justice Marlapalle differed with this view and said, "It may make investigation into a crime an exercise in futility and hamper the powers of the court to do complete justice in the course of the trial of crimes".

The judgment came during hearing of a writ petition filed by a resident of Pune, Sudhir Karnataki, who had challenged an order of the Pune police issued on July 7, 2009, for seizing his property. A division bench of Justice Ranjana Desai and Justice M R Bhatkar had referred it to the full bench for making it clear whether Section 102 (1) of the CrPC included both moveable and immoveable property.

The majority bench observed, "By definition of theft, immovable property cannot be "stolen". As to "finding" it under circumstances that create suspicion of commission of an offence, it is difficult to conceive as to how immovable property itself could give rise to the suspicion.

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