Case BriefsCOVID 19High Courts

Karnataka High Court: A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathnna, J. held that , owners of seized vehicles due to breach of COVID-19 Guidelines may approach jurisdictional Police Officers for the same.

An interlocutory application has been tendered wherein it has been stated that from 25-03-2020 till date, approximately 35,000 vehicles have been seized within the limits of Bengaluru City for violating of Section 188 of Penal Code, 1860 and clause (b) of sub-section (1) of Section 51 of Disaster Management Act, 2005.

Further with regard to the release of the above vehicles, it has been pointed out that owner will have to file applications before the Jurisdictional Magistrates.

Courts of the jurisdictional Magistrates will be flooded with such applications and will lead to crowding of Courts.

Thus in view of the above, State Government sought direction permitting jurisdiction Police Officers to exercise the power under sub-section (3) of Section 102 of CrPC to handover the custody of seize vehicles.

In view of the huge number of vehicles beings seized, a great deal of urgency  was seen and thus the State Government was requested to immediately take up present IA.

AGA while pointing out sub-section (3) of Section 102 CrPC, submitted that firstly, such large number of vehicles cannot be conveniently transported to the jurisdictional Courts and secondly, it is difficult to secure a proper accommodation for safe custody of such large number of vehicles.

He also submitted that along with the above stated Sections for penalisation, Section 179 of Motor Vehicles Act, 1988 may also be attracted.

Bench agreeing with the AGA’s submission stated that,

in case of such seizure of vehicles for the offences relating to breach of the directions concerning COVID-19, it will be open for the jurisdictional Police Officers to exercise the powers under sub- section (3) of Section 102 of Cr.P.C and to give custody of the vehicles in terms of sub-section (3) of Section 102 to the owners.

It will be appropriate if the power under sub-section (3) of Section 102 of CrPC is exercised by the jurisdictional Police Officers on an application made by the owners of the vehicles.

Court’s Order

  • Persons claiming to be the owners of the vehicles which have been seized for violation of various orders issued concerning COVID-19 make an application to the jurisdictional Police Officers to grant custody of the seized vehicles, after verification of the ownership of the applicants, it will be open for the jurisdictional Police Officers to give custody of the seized vehicles to the owners by exercising the powers under Section 102 (3) of CrPC.
  • Prosecution of the alleged offenders will remain unaffected.
  • Present Order will apply only to seizure of the vehicles within the limits of Bruhat Bengaluru Mahanagara Palike.
  • In future, if vehicles are seized within the limits of BBMP by the jurisdictional Police Officers for the similar breaches, the custody of the vehicles can be given to owners on the same terms and conditions.

[Mohammed Arif Jameel v. Union of India, 2020 SCC OnLine Kar 448  , decided on 30-04-2020]

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 BriefsSupreme Court

Supreme Court: The bench of Dipak Misra, CJ and AM Khanwilkar, J dismissed Teesta Setalvad’s plea seeking de-freezing of her accounts that have been seized in the matter relating to collection of huge funds as donation to 2 trusts in the name of providing legal assistance to the 2002 Gujarat Riot Victims.

The Court said that since the investigation was still in progress, the suspicion entertained by the investigating agency as to how the appellants appropriated huge funds, which in fact were meant to be disbursed to the unfortunate victims of 2002 riots will have to be explained by the appellants and they can apply for de-freezing of accounts only after completion of the investigation.

The major circumstances that create a strong suspicion against the appellants are:

  • donations received by the two Trusts had never reached the victims i.e. the members of the Gulberg Society.
  • final account did not tally with the accounts and the appellants did not offer credible explanation for the same.
  • appellants provided incorrect information and suppressed material facts i.e. that they have opened new accounts and transferred huge sums of money after knowing that stated bank accounts of the appellants were seized on 21.01.2014 by the investigating agency.

Hence, regarding the power of the investigation officer to seize the accounts of appellants under Section 102 of the Code of Criminal Procedure, 1973, the Court said:

“the Investigating Officer was in possession of materials pointing out circumstances which create suspicion of the commission of an offence, in particular, the one under investigation and he, having exercised powers under Section 102 of the Code, which he could, in law, therefore, could legitimately seize the bank accounts of the appellants after following the procedure prescribed in sub-Section (2) and sub-Section (3) of the same provision.”

The Court, however, said that once the investigation is complete and police report is submitted to the concerned Court, it would be open to the appellants to apply for de-freezing of the bank accounts and persuade the concerned Court that the said bank accounts are no more necessary for the purpose of investigation, as provided in subsection (3) of Section 102 of the Code. It will be open to the concerned Court to consider that request in accordance with law after hearing the investigating agency, including to impose conditions as may be warranted in the fact situation of the case.

The Court also clarified that if at any stage or upon completion of the investigation, the Investigating Officer is satisfied with the explanation offered by the appellants and is of the opinion that continuance of the seizure of the stated bank accounts or any one of them is not necessary, he will be well advised to issue instruction in that behalf. [Teesta Atul Setalvad v. State of Gujarat, 2017 SCC OnLine SC 1490, decided on 15.12.2017]