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Properties of criminals can`t be confiscated: SC

Last Updated: Tuesday, February 2, 2010 - 00:05

New Delhi: The Supreme Court on Monday ruled
government does not have the powers to seize or attach the
properties of criminals who commit offences within the
territory of India.

A bench of Justices V S Sirpurkar and S S Nijjar held in
a judgement that the forefiture of such ill-gotten property
can be done only in cases where the same has been accumulated
in crimes having international ramifications.
Such a seizure can be done provided there is a treaty
between India and the contracting country, the apex court

The apex court passed the judgement while dismissing the
appeal filed by Madhya Pradesh government which had
confisciated the properties of Balram Mihani, an alleged
criminal who reportedly accumulated huge assets through his
criminal dealing purportedly in the State.

The state had chosen to confiscate the property by
invoking Chapter VII-A of the Code of Criminal Procedure, 1973
which authorised the government to confisicate properites of
criminals under exceptional circumstances.

The trial court had earlier allowed the authorites to
seize the properties Mihani on an application moved by the
Inspector of Itarsi police station who alleged the properties
were earned by criminal activities.

According to the state, the accused was involved in the
criminal activities since long and had accumulated huge wealth
derived directly or indirectly by or such criminal activities.
It was alleged that some of these properties were in the name
of his relatives, which were clearly traceable to the accused.

The trial court permitted the confisciation on the plea
made by the state under CrPC.
The Madhya Pradesh High Court quashed the confisciation,
after the state appealed in the apex court.

Upholding the high court`s verdict, the apex court said
that in the Statement of Objects and Reasons to the Amending
Act 40 of 1993 (CrPC) there is a clear reference that the
government of India had signed an agreement with the
Government of United Kingdom of Great Britain and Northern
Ireland for extending assistance in investigation and
prosecution of crime and the tracing, restraint and
confiscation of the proceeds of crime (including crimes
involving currency transfer) and terrorist funds with a view
to checking terrorist activities in India and the UK, besides
other countries with which such treaties are signed.

"When we see the applications as also the order passed by
the trial court, it is clear that it is only and only in
respect of the local offences like gambling and the offences
under IPC which are local. Even the properties are not shown
to be connected with crimes mentioned in the acts and reasons
of the amended Act. In fact, no connection is established also
between crimes mentioned and the properties," the apex court

The apex court said such properties are clearly not
included in Section 105-C.

"Though the language of Section 105-C (1) is extremely
general, its being placed in Chapter VII-A cannot be lost
sight of. Again, there is a clear cut reference in Sub-section
(2) thereof to the contracting state, the definition of which
is to be found in Section 105-A (a).
"It is, therefore, clear that the property envisaged
in Section 105-C (1) cannot be an ordinary property earned out
of ordinary offences committed in India," the apex court said.

According to the apex court, if the state`s contention
is to be acccepted, it would mean that even for the offences
which are local in nature and committed within the state, the
property connected with those offences shall be
forfeited by the central government.

"That would obviously be an absurd result. Lastly, we
cannot ignore the likely misuse of the provisions in Chapter
VIIA if the whole Chapter is made applicable to the local
offences generally. Such does not appear to be the intendment
of the Legislature in introducing Chapter VII A. In view of
the above, we approve the judgment of Madhya Pradesh High
Court and confirm the same. The appeals are dismissed," the
apex court said in its judgement.


First Published: Tuesday, February 2, 2010 - 00:05

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