BNSS Section 107: Attachment, Forfeiture Or Restoration Of Property.
This section of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which replaces the corresponding section in the Code of Criminal Procedure (CrPC), deals with the process of attaching, forfeiture or restoration of property that is suspected to be the proceeds of crime.
Code:
1. Application for Attachment:
A police officer who believes property is derived from criminal activity may apply to the court or magistrate for an order to attach the property, with approval from the superintendent or commissioner of police.
2. Issuance of Notice:
If the court or magistrate believes the property is proceeds of crime, they may issue a notice requiring the person in possession to show cause within fourteen days.
3. Serving Notice to Other Persons:
If the notice specifies that another person holds the property on behalf of the person under investigation, then the authorities must also serve a copy of the notice to that other person.
4. Passing the Order of Attachment:
After considering the explanation and evidence, the court or magistrate may issue an order to attach properties found to be proceeds of crime.
– If the person does not appear or represent their case within the fourteen-day period, the Court or Magistrate may pass the order ex parte.
5. Interim Order of Attachment or Seizure:
– If the Court or Magistrate believes that issuing a notice would defeat the purpose of attachment or seizure, they may pass an interim ex parte order to attach or seize the property. This order remains in force until the court makes a decision under Sub-section (6)
6. Distribution of Proceeds:
– If the Court or Magistrate determines that the attached or seized properties are proceeds of crime, they will order the District Magistrate to distribute the proceeds of crime rateably to the affected persons.
7. Implementation of Distribution:
Upon receiving the order, the District Magistrate must then distribute the proceeds of crime within sixty days. You can distribute this either personally or through an authorized subordinate officer.
8. Forfeiture to the Government:
If no claimants or ascertainable claimants exist for the proceeds of crime, or if any surplus remains after satisfying all claims, the government will forfeit the proceeds of crime.
Explanation: Attachment, Forfeiture Or Restoration Of Property
Section 107 empowers police officers to apply to a court or magistrate to attach property suspected of being derived from criminal activity. This process involves:
- Police Officer’s Application: An investigating officer, with the approval of the Superintendent of Police or Commissioner of Police, can approach the court or magistrate with an application for attachment.
- Make this application when the officer believes the property results from criminal activity.
- Court or Magistrate’s Inquiry: The court or magistrate, upon receiving the application, examines the evidence. Authorities decide whether there is reason to believe that the property is the proceeds of crime. If the court finds sufficient reason, it issues a notice to the person holding the property.
- Show Cause Notice:
- The notice directs the person to explain within 14 days why the court should not issue an attachment order. The property maybe held by someone else on behalf of the individual. The authorities subsequently serve the person a copy of the notice.
- Attachment Order: After considering the explanation, the evidence, and hearing the person’s arguments, the court or magistrate may pass an attachment order. This order applies to the properties found to be proceeds of crime. An ex- aparte order can be issued by the court if the person fails to appear within 14 days.
- Interim Attachment: There might be cases where issuing a notice might hinder the attachment process. The court or magistrate can pass an interim ex parte order for attachment. This order will therefore remain in force until the authorities pass a final order.
- Distribution of Proceeds: The attached properties maybe confirmed as proceeds of crime. The court will order the District Magistrate to distribute the proceeds to the victims of the crime. Within 60 days is the completion of distribution.
- Forfeiture: Absence of a claimer leads to the government forfeiting the property.
Illustration:
Suppose a police investigation reveals that a suspect, Mr. X, has acquired a luxury car. Investigators later confirmed that the car was, in fact, the proceeds of drug trafficking. The investigating officer, with the Superintendent’s approval, approaches the court with an application for attachment of the car. The court, after considering the evidence, issues a show cause notice to Mr. X. If Mr. X fails to provide a satisfactory explanation, the court may order the attachment of the car. Hence, the court will direct the District Magistrate to distribute the proceeds.
Common Questions and Answers:
Q: What constitutes “proceeds of crime”?
A: This refers to any property derived directly or indirectly from criminal activity. It can include money, assets, real estate, or any other valuable item.
Q: Can someone challenge an attachment order?
A: Yes, if their property is attached, a person can challenge an attachment order in the High Court
Q: What happens if the proceeds of crime cannot be recovered?
A: The court may consider other remedies, such as imposing fines or ordering restitution from the offender.
