Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Sanjiv Khanna, JJ has held that the power of a police officer under Section 102 of the Criminal Procedure Code, 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. Khanna, J, writing the judgment for the bench, however, clarified,

“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.”

The verdict came in a reference made by a Division Bench of Jagdish Singh Khehar and Arun Mishra, JJ vide order dated November 18, 2014, noticing that the issues that arise have far reaching and serious consequences.

Interpreting Section 102, the bench said that the 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. 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.

It further explained that 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 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.”

It was further held that the disputes relating to title, possession, etc., of immovable property are civil disputes which have to be decided and adjudicated in Civil Courts. The Court said,

“We must discourage and stall any attempt to convert civil disputes into criminal cases to put pressure on the other side.”

Gupta, J wrote a separate concurring verdict where he highlighted that the Code of Criminal Procedure itself the Legislature has in various provisions specifically used the words ‘movable’ and ‘immovable’ property as opposed to the words ‘any property’ under in Section 102, hence, the phrase ‘any property’ in Section 102 will only cover moveable property and not immovable property.

[Nevada Properties Pvt. Ltd. State of Maharashtra, 2019 SCC OnLine SC 1247, decided on 24.09.2019]

Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J.  allowed a petition filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter ‘CrPC’) by the accused who were charged with the offences of criminal breach of trust, forgery and criminal conspiracy under Sections 406, 466, 467, 471 and 120B of Penal Code, 1860 (hereinafter ‘IPC’).

In the instant case, the partition of a family property took place and a part of the common property was set aside for conducting certain divine and charitable acts. This property was to be managed by the eldest member of the family as a trustee. First petitioner, who was the member of the family managed the aforementioned property as a trustee for the other members of the family since 1970. In order to grab this property, the first petitioner entered into a conspiracy with the Village Officer and forged the public register substituted his name as the owner of the property. Thereafter, the first petitioner gifted the aforesaid property to the second petitioner, his daughter. Execution of this settlement deed was in violation of the provisions contained in the partition deed. Thus, petitioners had committed the offences punishable under Sections 406, 466, 467, 471 and 120B of IPC.

K. Gopalakrishna Kurup, learned counsel for the petitioners argued that it was doubtful that immovable property can be the subject matter of the offence of criminal breach of trust. He also contended that the affirmations in the complaint did not clarify the offences alleged against the petitioners.

The learned counsel for complainants, Alex M. Scaria contended that the court must take into consideration each of the allegations made in the complaint as accurate to determine if the ingredients of the offences alleged were made out or not.

Reliance was laid upon R.K. Dalmia v. Delhi Admn., AIR 1962 SC 1821 to observe that the term ‘Property’ under Section 405 of IPC was not restricted to ‘movable’ property. Therefore, the immovable property can also be the subject matter of commission of an offence of criminal breach of trust. The Court noted that there was an absence of any averment in the complaint regarding entrustment of property in question. With such absence, one of the basic ingredients of the offence of criminal breach of trust was not made out against the accused.

Moreover, the Court cited Ramesh Dutt v. State of Punjab, (2009) 15 SCC 429 to observe that the execution of the settlement deed by the first petitioner in favor of his daughter did not constitute the offence of forgery. Furthermore, the Court held that an attempt was made by the complainant to showcase a matter of civil nature, as a matter of criminal nature. In these circumstances, the first information report, which was based on the complaint, was liable to be quashed. Consequently, the petition was allowed.[Damodara Panicker v. State Of Kerala, 2019 SCC OnLine Ker 1789, decided on 06-06-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: A Division bench comprising of Mushir Alam and Sajjad Ali Shah, JJ. while hearing a civil petition for leave to appeal, held that objections as to territorial jurisdiction must be raised at the earliest possible opportunity.

Respondent company, which was in the possession of mining lease for certain areas by way of assignments and agreements had filed a suit in trial court seeking an injunction against petitioner to not carry out mining activity in those areas. The trial court decreed in favour of the respondent/ plaintiff, and against this order, the petitioner/ defendant filed an appeal in High Court raising objections as to territorial jurisdiction. The High Court held that since the matter in issue pertained to an area of mining lease and rights thereon, it did not directly relate to right and interest in the immovable property, and thus the suit could be filed at the place where the cause of action had arisen in whole or in part. It was further held that since the petitioner had not raised the said objection timely, it amounted to waiver on his part. Aggrieved by the said order of High Court, the present petition was filed by petitioner.

At the outset, the Supreme Court relied on Australian Apex Court’s case of Sojitz Coal Resources Pty. Ltd. v Commissioner of State Revenue, (2015) QSC 9 to hold that mining lease means rights and interest in mines/minerals in and on the surface of the land. Therefore, a mining lease does not constitute an estate or interest in land but is instead regarded as movable property.

Further, the  Court held that as per Section 21 of the Code of Civil Procedure, 1908 objections as to territorial jurisdiction must be raised before the Court of first instance at the earliest possible opportunity. Such objections can be considered by the appellate or revisional court only if the three conditions set down in Section 21 CPC are met viz.: (i) objection as to territorial jurisdiction was raised in the Court of the first instance, (ii) such objection is raised at the earliest opportunity, and (iii) there has been consequent failure of justice. It relied on the judgment of Indian Supreme Court in Pathumma v Kuntalan Kutty, (1981) 3 SCC 589 to hold that the aforesaid three conditions must co-exist in order that an appellate or revisional court consider a territorial jurisdiction objection.

The Court noted that in the instant case, the petitioner instead of raising objections as to territorial jurisdiction in the trial court at the earliest opportunity had engaged in a long drawn battle in High Court and Supreme Court. Thus, the present petition was dismissed for lack of merits. [Malik Khan Muhammad Tareen v. Nasir & Brother Coal Company,2018 SCC OnLine Pak SC 1, decided on 03-10-2018]