Code:
(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.
Explanation
Section 107 BNSS provides a detailed process for the attachment of properties derived from criminal activity or obtained as a result of any crime. It involves the police, the Court, and the Magistrate in identifying and confiscating properties believed to be proceeds of crime. The section outlines the steps from investigation by police officers, the issuance of show-cause notices, the attachment of property, and the distribution of proceeds of crime to those affected. Furthermore, it allows for the forfeiture of unclaimed or surplus proceeds to the Government.
Key Points:
- Police Investigation: The police officer may apply for the attachment of property linked to criminal activity with the approval of the Senior Police officer.
- Notice to Show Cause: The person involved is given 14 days to show cause as to why their property should not be attached.
- Interim Orders: In certain cases, interim orders for attachment or seizure of property can be passed without notice.
- Distribution of Proceeds: Once property is seized and determined to be proceeds of crime, the District Magistrate is tasked with distributing the proceeds to affected parties within 60 days.
Illustration
Example 1: Property Attachment After Investigation
A police officer investigates a case of money laundering and suspects that a significant portion of the assets in a suspect’s name are proceeds from the crime. The officer, with approval from the Superintendent of Police, applies to the Court for the attachment of the property. The Court issues a notice to the individual involved to show cause why the property should not be attached. After hearing the case, the Court attaches the property and orders it be distributed to the affected individuals.
Example 2: Ex Parte Order for Property Seizure
In a case involving narcotics trafficking, the Court believes that issuing a notice to the accused would delay the attachment of the assets. The Magistrate, acting in the interest of justice, passes an ex parte order for the seizure of the property immediately, which remains in effect until further orders are issued.
Common Questions and Answers
1. What happens if a person does not respond to the show-cause notice within 14 days?
- Answer: If the person fails to appear before the Court or Magistrate within the specified period, the Court or Magistrate can pass an ex parte order of attachment.
2. Can the Court attach property without notifying the person involved?
- Answer: Yes, if the Court or Magistrate believes that issuing a notice would defeat the objective of attaching or seizing the property, an interim ex parte order for attachment or seizure can be passed.
3. What happens to the proceeds of crime if no claimants are identified?
- Answer: If no one claims the proceeds of crime, or if there is a surplus after satisfying claims, the proceeds are forfeited to the Government.
Conclusion
Section 107 BNSS ensures that properties derived from criminal activity can be legally seized and redistributed or forfeited to the Government. The section outlines a clear procedure for police, Courts, and Magistrates to follow, ensuring that justice is served while allowing affected parties to claim compensation from the proceeds of crime.
