Attachment Of Accused's Property U/S 107 BNSS Requires Strict Judicial Scrutiny, Cannot Be Recovery Mechanism: Calcutta High Court

The Calcutta High Court has set aside an order attaching properties belonging to a woman who was not even named as an accused in a criminal case, while issuing significant guidelines on the exercise of powers under Section 107 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).Justice Ajoy Kumar Mukherjee observed that indiscriminate use of the power to attach property under Section 107 BNSS, without strict adherence to statutory safeguards, could seriously imperil the constitutional right to property protected under Article 300A of the Constitution.“Both the investigating agency and the Courts must be vigilant while exercising such jurisdiction as indiscriminate use of such power without application of mind, may cause serious disaster to the constitutional right of 'right to property',” the Court said.The case arose from an order passed by the Chief Judicial Magistrate, Howrah, attaching five immovable properties in connection with a cheating case registered at Sakrail Police Station. Three of the properties were jointly owned by accused Bikash Hari and his wife, Puja Hari, while two properties exclusively belonged to Puja Hari.Challenging the attachment order, Puja Hari contended that she was neither named as an accused nor served any notice before her properties were attached. She argued that the mandatory requirements under Section 107(2) and 107(3) BNSS were completely ignored.Accepting her plea, the High Court found that no notice had been served upon the petitioner despite her being the owner of the attached properties.The Court held that Section 107 BNSS mandates four essential preconditions before an attachment order can be passed:- Service of notice upon the person whose property is sought to be attached;- Grant of a 14-day period to respond;- A reasonable opportunity of hearing; and- A judicial finding that the property constitutes proceeds of crime.Justice Mukherjee noted that the trial court had erroneously treated service of notice upon the husband as sufficient compliance and had even described the petitioner as an “absconding accused” despite her not being arraigned in the case.Criticising the approach adopted by the Magistrate, the Court observed:“The legislature in its wisdom had provided multiple layers of checks and balances both at the executive and judicial level in order to ensure that the process under Section 107 of the BNSS leading to attachment of property cannot be done at the whims and fancies of the investigating officer.”The judgment contains an extensive discussion on the newly introduced attachment mechanism under BNSS. The Court observed that Section 107 creates a standalone regime permitting attachment, liquidation and distribution of alleged proceeds of crime even before completion of investigation or trial.Given the far-reaching consequences of such powers, the Court stressed that the statutory requirement of “reason to believe” must receive strict interpretation.Relying on the Supreme Court's decisions in Arvind Kejriwal v. ED and Vijay Madanlal Choudhary v. Union of India, the Court held that investigating officers must place cogent material on record demonstrating a clear nexus between the property sought to be attached and the alleged criminal activity.The Court further clarified that approval from the Superintendent of Police or Commissioner of Police under Section 107(1) BNSS cannot be treated as a mere formality.“Mere endorsement by the higher official should not be treated as an approval. The approval must satisfy the requirement of attachment as envisaged under Section 107(1) of the BNSS,” the Court observed.Justice Mukherjee also cautioned against routine ex parte attachment orders under Section 107(5) BNSS, holding that such powers should be exercised only in rare and exceptional circumstances where issuance of notice would genuinely frustrate the purpose of attachment.Warning of the constitutional implications of misuse, the Court remarked:“Non application of judicial mind or a casual approach while dealing with prayer for attachment under Section 107... may render Section 107 vulnerable under multiple constitutional provisions.”The Court added that deprivation of property without sound judicial discretion could violate Articles 14 and 300A of the Constitution.Finding a clear violation of the mandatory notice requirements, the High Court allowed the revision petition and quashed the attachment order passed by the CJM, Howrah.However, the Court clarified that the investigating agency would be at liberty to initiate fresh proceedings under Section 107 BNSS in accordance with law within four weeks.Case Title: Puja Hari v. State of West Bengal & Anr.Case No.: CRR 4810 of 2025 Click here to read order

Attachment Of Accused's Property U/S 107 BNSS Requires Strict Judicial Scrutiny, Cannot Be Recovery Mechanism: Calcutta High Court

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Attachment Of Accused's Property U/S 107 BNSS Requires Strict Judicial Scrutiny, Cannot Be Recovery Mechanism: Calcutta High Court

Srinjoy Das

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