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.