Procedure of attachment, forfeiture and restoration of property derived from proceed of crime- A critical analysis

 

Bhartiya Nagrik Suraksha Sanhita 2023 ( BNSS) introduced new section 107 in Sanhita which was earlier not there in Cr.P.C.1974. The purpose of the section is to attach, forfeit the property derived from proceeds of crime and restore it the person/victim who are legally entitled to it.

Section 107 BNSS is complete code in itself and provides:-

(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.

The procedure mentioned above looks simple, but is not. Property derived from proceeds of crime need to be identified. Approval of S.P.or Commissioner of police is required for filling application in Court of Magistrate. Show cause notice to be served promptly, how it will be served not mentioned in section, theoretically procedure applicable for serving the summons will be followed in serving the show cause notice. In case of non-appearance only remedy is to proceed ex-party. Non appearance in the miscellaneous case registered under section 107 BNSS will not result in issue of warrant or proclamation.

Further a person who is not absconding, his property can be attached if found to be proceed of crime.

Though provision is made for rateable distribution of proceeds of crime rateably among the persons affected by the crime by DM within 60 days, it will be a challenge for investigating agency to find out the persons affected by the crime.

The section does not prescribe the procedure in case where immoveable property is proceed of crime. Presumably the DM will auction the property and distribute the proceeds of crime or if property has been taken wrongfully by the accused as proceeds of crime.

The person against whom the order under this section is issued will definitely approach the higher court by way of revision or writ as the case may be. But the fact is that the section if used in its right spirit will be a nightmare for those who are building properties from proceeds of crime whether by cyber crime or economic offences or chit fund scams or by extortion etc.

Identification and attachment of property of proclaimed person in BNSS 2023

 

Section 84 of  BNSS 2023 lays down the procedure for declaring a person accused of an offence, proclaimed offender.  Procedure includes declaring absconding accused as proclaimed person in 84(1) BNSS followed by proclaimed offender  in 84(4) BNSS. Issue of proclamation as earlier in Cr.P.C. is subject to issue of warrant.

As usual if a proclaimed person/offender fails to appear before court or police, his property can be attached under section 85 BNSS ( 83 Cr.P.C.).

 Section 86 BNSS is newly added section which does not existed in Cr.P.C. and provides as under:-

Section 86:- Identification and attachment of property of proclaimed person

“ The court may, on the written request from a police officer not below the rank of Superintendent of Police or Commissioner of police , initiate the process of requesting assistance from a court or an authority in the  contracting State for identification, attachment and forfeiture of property belonging to a proclaimed person in accordance with the procedure provided in chapter VIII.”

Contracting State has been defined in section 111(a) of BNSS which provides that “ Contracting State means any country or place outside Indian in respect of which arrangements have been made by the Central Government with the Government of such country through a treaty or otherwise”

Chapter VIII of BNSS actually contain provisions for reciprocal arrangements with respect to execution of arrest warrants, summons, production of prisoner, attachment of property derived from proceeds of crime etc.

The attachment of property under section 86 BNSS is different than the attachment of property under section 85 BNSS, where the property is situated in India. Section 86 BNSS will come into operation where there is possibility that property of accused person may be outside the country in Contracting State.  

Section 86 is supplementary to section 85BNSS and can be used only after following the procedure of 84 BNSS. A written application is required to be submitted to court by the Superintendent of Police or Commissioner of police for initiating the process of section 86 BNSS.

 

 

POWER OF POLICE TO SUMMON DOCUMENT OR THINGS DURING INVESTIGATION IN BNSS 2023

 

Section 91 of Cr.P.C. contained the provisions for production of document or things. The provision has been reproduced as Section 94 of Bhartiya Nagarik Suraksha Sanhita 2023.

Section 94 of the BNSS provides that:-

 (1) Whenever any Court or any officer in charge of a police station considers that the production of any document, electronic communication, including communication devices, which is likely to contain digital evidence or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Sanhita  by or before such Court or officer, such Court may issue a summons or such officer may, by a written order, either in physical form or in electronic form, require the person in whose possession or power such document or thing is believed to be, to attend and produce it, or to produce it, at the time and place stated in the summons or order.

Earlier in section 91 Cr.P.C. the officer-in-charge or the court was empowered to issue order or summon to any person  to produce any document or thing necessary for investigation, inquiry, trial or other proceeding under Cr.P.C. Section 94 BNSS now empowers the officer-in-charge of police station and the court to issue order or summons to any person to produce any document or thing or electronic communication including the communication devices which is likely to contain digital evidence if such document or thing or electronic communication or communication device is necessary for investigation etc.

So as per the definition of electronic communication in  section 2(i) of BNSS a person may be asked to produce any  written, verbal, pictorial information or video content transmitted or transferred (whether from one person to another or from one device to another or from a person to a device or from a device to a person) by means of an electronic device including a telephone, mobile phone, or other wireless telecommunication device, or a computer, or audio-video player or camera or any other electronic device or electronic form.

Further he can also be asked to produce communication devices which is likely to contain digital evidence .

Hence , phone call records, e mail, facebook posts, messages, whatsapp messages, text messages, pictorial messages, GIFs,  uploaded or downloaded files, attachment , inbox messages, messages generated by machines, instagram messages or anything which is covered in the definition of electronic communication  can be asked under section 94 BNSS. Production of devices likely to contain digital evidence for example computers, laptops, cell phones, tablets, etc .can also be asked under this section.

The definition is illustrative not exhaustive and definition can be expended any time by Central Government by issuing a notification.

However the section 94 BNSS is not applicable to any letter, parcel  or document in the custody of postal authorities.

Section does not affect the provisions of section 129 and 130 of the Bharatiya Sakshya Adhiniyam, 2023 or the Bankers' Books Evidence Act, 1891.

In State Of Bombay Vs Kathi Kalu Oghad   Air 1961 Sc 1808 Supreme Court held that provisions of section 91 does not apply to accused person.

In case of  State Of Orissa Vs Debendra Nath Padhi, Crl App 497/2001 decided On 29-11-2004 SC held that accused can also use the provision of 91 Cr.P.C. when he enters in his defence.

Intentional  omission to produce a document, electronic communication , communication device or any other thing as required by this section is punishable under section 210 of BNS 2023.

SUBSTANTIAL CHANGE IN PROCEDURE FOR DECLARING A PERSON ‘PROCLAIMED OFFENDER’

 

Procedure for declaring a person accused of an offence as proclaimed offender is being governed by the provisions of section 82 Cr.P.C. From 1/7/24 after BNSS 2023 will come in force, procedure prescribed in section 84 BNSS will be followed.

Section 84 (1) (2) (3)  BNSS contain the same provision as it was there in Section 82 (1) (2) (3) of Cr.P.C. which provided that:-

(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.

(2) The proclamation shall be published as follows:—

(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

 (b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;

(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;

 (ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.

 (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.

The change which has been brought by section 84 BNSS is specially in respect of declaring a person as proclaimed offender under sub section (4)  i.e. old section 82 (4) Cr.P.C.

In Cr.P.C.a person can be declared as proclaimed offender only if he commits any of the 19  offences mentioned in section  82 (4), however in BNSS any person who has committed an offence punishable with imprisonment of ten years or more , life imprisonment or death  whether under Bhartiya Nyay Sanhita  2023 or any other law for the time being in force can be declared as proclaimed offender  under section 84 (4) of BNSS 2023.

It is worthwhile to mention that in order to declare a person as proclaimed offender, first he should be declared as proclaimed person in 84(1) BNSS and if he fails to appear within the specified time, can be declared as Proclaimed Offender on the application of investigating officer, provided his case falls under sub-section 4 of section 84 BNSS.

If a person against whom a proclamation has been issued under section 84(1) or 84(4) of BNSS fails to appear before the court within specified time, he commits an offence under section 209 of BNS 2023 which is cognizable and non-bailable offence, punishable with imprisonment for 3 and 7 years  respectively.

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