Section 107 BNSS: A Sword Too Heavy for the Hands that Hold it

An analysis of Section 107 of the Bharatiya Nagarik Suraksha Sanhita, 2023, examining its broad powers of property attachment and forfeiture, the absence of a structured adjudicatory mechanism and statutory appeal, and concerns regarding its potential impact on property rights and accused persons.

The Nagarik Suraksha Sanhita, 2023 (BNSS) was introduced to replace the earlier Criminal Procedure Code, 1973 (CrPC) with the aim of bringing about positive change to the criminal justice system. While it intended to usher in meaningful reforms, there are certain shortcomings that, in my opinion, may deeply prejudice the rights of an accused. One such shortcoming is the introduction of Section 107 BNSS, which deals with the attachment, forfeiture, or restoration of property. This is a newly introduced provision that found no place in the earlier Criminal Procedure Code, 1898 and CrPC.

Section 107 BNSS is quoted as under:

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 Magistrate exercising jurisdiction to take cognizance of the offence or commit for trial or try the case, for the attachment of such property.

(2) If the Court or the Magistrate has reasons to believe, whether before or after taking evidence, that all or any of such properties are proceeds of crime, the Court or the Magistrate may issue a notice upon such person calling upon him to show cause within a period of fourteen days as to why an order of attachment shall not be made.

(3) Where the notice issued to any person under sub-section (2) specifies any property as being held by any other person on behalf of such person, a copy of the notice shall also be served upon such other person.

(4) The Court or the Magistrate may, after considering the Explanation, if any, to the show-cause notice issued under sub-section (2) and the material fact available before such Court or Magistrate and after giving a reasonable opportunity of being heard to such person or persons, may pass an order of attachment, in respect of those properties which are found to be the proceeds of crime:

Provided that if such person does not appear before the Court or the Magistrate or represent his case before the Court or Magistrate within a period of fourteen days specified in the show-cause notice, the Court or the Magistrate may proceed to pass the ex parte order.

(5) Notwithstanding anything contained in sub-section (2), if the Court or the Magistrate is of the opinion that issuance of notice under the said sub-section would defeat the object of attachment or seizure, the Court or Magistrate may by an interim order passed ex parte direct attachment or seizure of such property, and such order shall remain in force till an order under sub-section (6) is passed.

(6) If the Court or the Magistrate finds the attached or seized properties to be the proceeds of crime, the Court or the Magistrate shall by order direct the District Magistrate to rateably distribute such proceeds of crime to the persons who are affected by such crime.

(7) On receipt of an order passed under sub-section (6), the District Magistrate shall, within a period of sixty days distribute the proceeds of crime either by himself or authorise any officer subordinate to him to effect such distribution.

(8) If there are no claimants to receive such proceeds or no claimant is ascertainable or there is any surplus after satisfying the claimants, such proceeds of crime shall stand forfeited to the Government.

(emphasis added)

A plain reading of the above provision brings forth the following:

1. A police officer (with Superintendent of Police/Commissioner of Police approval) can apply to the court/Magistrate to attach property believed to be proceeds of crime.

2. The court issues a show-cause notice to the person concerned to explain within a period of 14 days as to why attachment should not be ordered.

3. After giving a reasonable opportunity of hearing to the person, the court/Magistrate may pass an order of attachment. An ex parte order may be passed if no response to the show-cause notice.

4. If issuing notice would defeat the purpose, the court can directly order an interim ex parte attachment without prior notice.

5. Confirmed proceeds of crime are distributed by the District Magistrate among victims within 60 days and the unclaimed amounts are forfeited to the government.

The provision is remarkably simple, straightforward and casual for the amount of power it holds. Attachment/forfeiture of property is not alien to criminal law. It occurs often under special statutes such as the Prevention of Money-Laundering Act, 2002 (PMLA), Customs Act, 1962, Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999, etc. However, a common feature across all these statutes is the existence of a specialised mechanism/adjudication process to attach, confiscate and/or distribute attached properties. It is needless to mention that attaching one’s property is a serious matter, and statutory safeguards ought to be given for such a drastic step. This power under Section 107 BNSS conferred upon the police and the Magistrate is unbridled, unstructured and poses a serious threat to a person’s right to property.

Some shortcomings of Section 107 BNSS are as under:

1. Lack of a structured legal framework/mechanism

The absence of a structured statutory framework for such a drastic action of attachment and forfeiture is very worrisome. In many specialised statutes as mentioned above, there is a structured and separate adjudication mechanism provided by the statute to deal with attachment and forfeiture. Few examples of such statutes are as follows:

It is pertinent to note that Section 107 BNSS lays down absolutely no procedure relies solely on the subjective satisfaction of the police officer and the Magistrate, without any statutory framework for adjudication. The provision is, therefore, unfair and warrants a serious revisit.

2. The scope of the provision is vague and ambiguous

Firstly, the term “any property” used in Section 107 BNSS is wide enough to permit the police to make an application for attachment for both movable as well as immovable properties. The term “property” is not defined in Section 2 BNSS or even the Nyaya Sanhita, 2023 (BNS). Only the term “movable property” is defined under Section 2(21) BNS. This open-ended position leaves room for wider interpretation, thereby vesting police officers with unchecked power that is susceptible to misuse.

Secondly, the provision does not clarify in respect of what category of offences can the police invoke this provision. It is unclear whether it is restricted to economic offences alone, or whether it extends to all offences under the BNS including bodily offences. This ambiguity could lead to a chaotic situation. Consider a scenario where a landlord and tenant engage in a physical altercation over a rented property, in such a case, it would be open to the police officers to apply for attachment of the tenanted premises. Such an outcome would fundamentally undermine and render meaningless the very purpose of rent legislation. Similarly, imagine a situation where an individual fabricates a will and attempts to claim ownership of property based on that fraudulent document. Should a police officer then be vested with the authority to attach all property, both movable and immovable, referenced in that forged instrument? The answer must unequivocally be “no”. Accepting such a position would produce absurd consequences that the legislature could not, by any reasonable interpretation, have intended or foreseen.

The Supreme Court in Nevada Properties (P) Ltd. v. State of Maharashtra¹ while interpreting the power of the police to seize properties under Section 102 CrPC held that the power cannot extend to immovable properties. The said judgment, however, was on the power of seizure by police, it assumes significance in the context of Section 107 BNSS. Certain observations are noteworthy which is as under:

32. 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. We have hardly come across 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. We must discourage and stall any attempt to convert civil disputes into criminal cases to put pressure on the other side (see Binod Kumar v. State of Bihar²). 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.

Thus, having such a vague, ambiguous and draconian provision is extremely dangerous and can lead to misuse, especially when there is clear lack of a structured procedure established by law.

3. Silence on the interplay between Section 107 BNSS and the trial

Curiously, the legislature is silent on whether the procedure under Section 107 BNSS is dependent or independent of the outcome of the trial. A bare reading of the provision would demonstrate the utter disregard to the offence in question and the fate of the trial. The provision is capable of being interpreted as being independent of any final determination of guilt. This itself raises serious concern. It is pertinent to note that in special statutes such as the PMLA, NDPS Act, Electricity Act, 2003, etc. there is interdependence of the outcome of the trial with the attachment of property. For instance, under the PMLA, the forfeiture of property is dependent on the result of the trial as per Section 8 PMLA. Section 107 BNSS is silent on this aspect, thereby leaving it open to interpret that the proceeds from the property may be distributed even during the pendency of the trial, and that an ultimate verdict of acquittal or conviction is irrelevant to the process. This in my humble opinion cannot be the intent of the law. If the property is attached during the course of investigation as can be discerned by reading sub-section (1), the same cannot be distributed while the case remains pending before the court.

What happens if the person is ultimately acquitted off the offence? Further what happens if after investigation the police concludes that no offence is made out? The strict timeline prescribed under Section 107 BNSS would ensure that the attachment and distribution is expedited, potentially resulting in an irreversible state of affairs. The provision does not provide for return of the property back to the accused/property owner in the event the accused in discharged or acquitted. Hence, the provision would lead to an absurdity and is capable of causing utmost chaos, ultimately prejudicing the rights of an accused/owner of the attached property.

4. No statutory appeal provided against an order passed under Section 107 BNSS

It is unusual and troubling that the legislature has not provided for any statutory appeal against an order passed under Section 107 BNSS which determines the rights of a person finally with respect to their property. Every other special statute which provides for attachment and forfeiture of property also provides statutory appeal against such an order before a higher court/tribunal. A statutory appeal is not merely a remedy but is a substantial right given to a party. The absence of any appeal leaves the affected party without recourse and entirely at the mercy of the higher courts, whether under their revisional or inherent jurisdiction, as the case may be. This amounts to grave injustice, especially when the valuable right of property is being decided when there is no adjudicating process in place.

Conclusion

The upshot of the above analysis is that Section 107 BNSS as it stands is unfit for the Statute Book. The vires of the provision is challenged and tested before the Supreme Court in a batch of petitions³ and the same is pending adjudication. The provision confers vast powers while offering little by way of safeguard, structure, or accountability. The attachment and forfeiture of property is a step with far-reaching civil and constitutional consequences and cannot be left to an unguided, ambiguous, and appeal-less procedure. The legislature’s silence on several critical aspects, including the scope of the provision, its relationship with the trial, and the absence of any statutory appeal, renders it not merely deficient but potentially unconstitutional. A provision of this nature demands what every analogous legislation under Indian law has consistently provided which is a defined scope, a structured adjudicatory mechanism, interdependence with the outcome of the trial, and a meaningful right of appeal. Moreover, the unbridled power bequeathed to the police and the Magistrate Courts requires a stricter legislation to avoid misuse of the same. Until such amendments are made, Section 107 BNSS risks becoming an instrument of oppression rather than a tool of justice.