Cops cannot attach immovable property under section 102

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 available¿ 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.

Justice Marlapalle observed,“Section 102 would be rendered toothless and result in complete denial of justice and may cripple trial. Further it may result in complete denial of justice to victims of crime. More particularly to victims of organised blood crime. We cannot allow trial courts to become powerless in their duty to do full justice to the victims of crime.”

The majority bench noted on the low rate of conviction,“The proportion of conviction in criminal courts in India is miniscule as compared to the chargesheets filed. There is a growing tendency to add to the burden of the already inadequate police force. Without augmenting their strength and without enhancing their skills to deal with new type of work that is passed on to them,there would be even more failures.”

For the police probing organized crime,land-grabbing and economic offences like duping of investors the ruling has come as a setback.