Section 102 CrPC is about the power of police officer to seize certain property. Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances that create suspicion of the commission of any offence.
Nisar Hussain a scrap dealer ran his business under name Nisar Traders , his shop was situated at Hirri Mines, Parsada, District Bilaspur was locked and sealed without jurisdiction and authority of law. After hearings in Chhattisgarh High Court in Nisar Hussain vs. State of Chhattisgarh held that the police have no power to seal the immovable property and the word ‘seize’ used in Section 102 CrPC would mean only actual taking possession of the movable property.
The view taken by full bench of Bombay High Court was agreed by Justice Sanjay K Agrawal in Sudhir Vasant Karnataki Mohideen Mohammed Sheik Dawood v. The State of Maharashtra, wherein it held that a police officer in exercise of power under Section 102 of the CrPC cannot attach immovable property.
In this case, with reference to a Jharkhand High Court judgment in Bishwanath Paul v. State of Jharkhand in which it was held that for the purpose of facilitating the investigation, the police under Section 102 of the CrPC have no power to put seal on immovable property. The police had sealed a shop on the ground that the properties stored in the shop in relation to which there existed suspicion of some cognizable offence having been committed in relation thereto, could not be conveniently transported to some other place or because of the difficulties in securing proper accommodation for the custody thereof.
The Bombay high court ruled that the police did not have the power to attach immovable properties of a person. Under Section 102 CrPC, but gives police the power to seize only certain properties that may alleged be or suspected to be stolen.
The 173 page judgment given by Justice B H Marlapalle, Justice R C Chavan and Justice Roshan Dalvi ruled that the police did not have the power to seize immovable property. “By definition of theft, an immovable property cannot be ‘stolen’. As to ‘finding’ it under circumstances that raise suspicion of the commission of the offence, it is difficult to conceive how an immovable property itself could give rise to such a suspicion.” of commission of offence.” The judgment was passed with a majority of 2:1, with Justice R C Chavan and Justice Roshan Dalvi disagreeing with Justice B H Marlapalle who said the police did have the power to seize an immovable property.
The judgment says there have “been several civil wrongs which have been treated as crimes, 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”.
The advocate Kunal Cheema said,”The matter was referred to the three-judge bench after two conflicting judgments of two division benches of the HC were pointed out while hearing Karnataki’s petition” .
Justice Marlapalle said in a dispute between private individuals, the police did have the power to seize an immovable property whereas the other two did agree .The court sympathizing with the police, said, “They are anyway overburdened with criminal matters.”
The judgment added, “Convictions in criminal courts in India is miniscule compared to the number of charge sheets filed. There is growing tendency to add to burden of the already inadequate police force. Without augmenting their strength and without enhancing their skills if new kind of work is passed on to them, there would be even more failures.”