Prior Notice By Police Not Necessary For Property Attachment U/S 106 BNSS: Allahabad High Court

The Allahabad High Court has recently held that for attachment of property by the police under Section 106 of the BNSS, no prior notice is required to be served on the person. It distinguished Section 106 from Section 107 where it specifically provides for the magistrate to issue notice to the person whose property is sought to be attached under Section 107 of BNSS.

Section 106 BNSS empowers police to seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.

Section 107 also talks about attachment of property where the police, to attach the property, after taking prior permission from Superintendent of Police or Commissioner of Police makes an application before the Magistrate with jurisdiction. The Magistrate after issuing show cause notice to the person whose property is sought to be attached and giving reasonable opportunity to be heard, may pass orders regarding attachment. Section 107 provides an elaborate procedure for interim attachment as well.

The bench of Justice Ajit Kumar and Justice Swarupama Chaturvedi held

“Nowhere in the statutory scheme there is any requirement that prior notice must be given to the owner of the property, or that a court order must be obtained before seizure like it is made for the attachment under Section 107 BNSS. The language of the provision is clear, unambiguous, and self-contained that the power to seize vests directly with the police officer, subject to the procedural safeguards envisaged in the statute itself. To interpret Section 106 BNSS as requiring prior intimation or a judicial order would affect the purpose behind the provision, which is protecting the property or getting it misused further for the similar offence.”

Petitioners approached the High Court seeking de-freezing of their bank accounts while investigation of cyber offences regarding their accounts are pending. Many petitioners pleaded that the accounts were frozen without any prior notice or just by oral notice.

The questions before the Court were whether 'property' under Section 106 BNSS includes the entire bank account of the party or only to the amount which was stolen or suspected to be involved in an offence; whether bank accounts can be frozen under Section 106 without prior intimation to the account holder; whether Section 106 and 107 of BNSS operate independently and distinctly.

“Bare reading of the aforementioned provisions indicate that it empowers the investigating agency, to take necessary steps for seizure or securing of property suspected to be connected with the commission of any offence during the course of the investigation. The object underlying the provision is to enable immediate and effective action so as to preserve the subject matter of the offence and to prevent its dissipation, particularly in cases of cyber-crime, where delay may defeat the ends of justice.”

Referring to the decision of the Apex Court in State of West Bengal v. Anil Kumar Dey and State of Maharashtra v. Tapas D. Neogy, the Court held the proviso to Section 106 clarifies that only such property suspected to be stolen or linked to offences can be seized. Accordingly, it was held that the entire bank account cannot be seized and its operation cannot be stopped.

The Court observed that under Section 106, once the police has instructed freezing of the bank account, he has to inform the officer who directed him to do so and thereafter, the jurisdictional Magistrate must be provided with the report regarding seizure of property. It held that the police direct freezing of bank accounts following the procedure under Section 106.

It held that in Section 106, no provision was made for prior notice unlike Section 107 where the Magistrate was required to show cause the person whose property is sought to be attached. It held that any contrary interpretation would curtail the powers of the police.

“However, neither Section 106 and Section 107 of the BNSS, nor any other law, prohibits bank authorities from informing account holders about the operational status of their accounts. While such intimation may not be required prior to seizure, banks shall inform the account holders after the seizure of the account, upon instructions from the investigating agencies. Bank account holders, being consumers of the banks, are at least entitled to be informed of the seizure of their accounts, which renders them non-operational, so as to protect themselves from hardships and to take appropriate legal recourse.”

Further, the Court held that Section 106 and Section 107 operate at different stages, in so far as Section 106 is concerned, it is for immediate action whereas Section 107 is precautionary. It was held that both are independent of each other and applicability of one does not automatically invoke the other provision.

Accordingly, the Court directed that the banks only hold that amount in lien which is concerned with a crime and restore the functions of bank accounts of the petitioner. The Court also gave liberty the petitioners to approach the jurisdictional magistrate where the accounts had been frozen in violation of Section 106 of BNSS.

Case Title: Ashish Rawat v. Union Of India And 6 Others

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