'No Investigating Officer Can Flout Procedural Requirements, Proclaim To Be Law Unto Himself': Bombay High Court Slams Cop For House Seizure

Emphasizing on the importance of following all procedural requirements in an investigation, the Bombay High Court severely reprimanded a police officer for seizing a man's house under section 102 of the Cr.P.C. despite seizure of immovable property not being allowed under the said provision.

The division bench of Justice Sunil B. Shukre and Justice M. W. Chandwani of Nagpur said, "In the name of taking action against criminals, outlaws and offenders in serious crimes, no Investigating Officer can flout the procedural requirements, can breach the limits of law, can openly disrespect the law declared by the highest Court of the land and thus, proclaim himself to be the law unto himself".

The court said that the IO "brazenly" threw the law to the winds and is trying to assert his superiority over the law of the land. "Such an attempt must be thwarted at the earliest opportunity or otherwise servant will become master of law and the master will be consigned to a lifetime of servitude of such servant", the court stated.

In the present case, the Investigating Officer (IO) seized the house of the petitioner during investigation for offences under section 420 (cheating), 406 (criminal breach of trust), and 409 (criminal breach of trust by public servant, or by banker, merchant or agent) of the IPC and section 3 (fraudulent default by financial establishment) of the Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999 (MPID Act). He also injuncted the petitioner from selling the property.

The Additional Sessions Judge upheld the notice for seizure dated February 19, 2015. Hence the petitioner approached the high court in the present writ petition.

In Nevada Properties Private Limited v. State of Maharashtra, the Supreme Court has categorically held that seizure of an immovable property by police officer under section 102 of the Cr.P.C. is not permissible.

The court said that under section 102, a Police Officer during the investigation can only seize an object, article, piece of paper etc. which would serve as evidence for proving the charge against the accused and which is capable of being physically produced before the trial court.

Therefore, the court, at the time of the admission of the  petition, had granted an opportunity to the investigating officer to understand the correct position of law and come out with a proposal for rectification of his error. During the final hearing, the IO submitted an affidavit and a copy of the letter sent by him to the Sub Registrar Class II, Nagpur City no.4, Nagpur dated December 12, 2022.

The IO stated in the affidavit that he has cancelled the seizure notice and has also informed the Authority i.e. Sub Registrar that the process of issuance of Notification under Section 4 read with 8 of the MPID Act for attachment of the property is under way.

The court said that the IO has not realised his mistake and is under the impression that whatever he did was correct. The statement that IO only informed the Sub Registrar is half-truth as the letter from IO to the Sub Registrar is not merely to inform but makes a specific request to the Sub Registrar to change his record. The IO requested substitution of the entry in record as per the impugned seizure notice with another entry that the process of issuance of Notification under Sections 4 and 8 of the MPID Act is going on, the court noted.

The court said that this request to change record is an interference with the functioning of the Sub Registrar. The intimation letter dated December 12, 2022 amounts to usurpation of power of Civil Court and also misuse of powers by the IO, the court held.

The court stated that while it will support any lawful action of the IO necessary for catching culprits, it would not uphold illegal acts. Therefore, the court quashed the notice of seizure of the petitioners' property and also set aside the order of the Additional Sessions Judge.

The court also asked the higher police authorities to ensure that no IO seizes immovable property under section 102 of the CrPC, and to issue appropriate instructions to all IOs in the state to comply with the law of the land.

Case no. – Criminal Writ Petition No. 636/2020

Case Title – Vikram S/o Madhukar Labhe and Ors. v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 516  

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