Multiple Layers Of Scrutiny Provided U/S 107 BNSS To Ensure Property Attachment Is Not Done At Whims & Fancies Of Investigating Officer: Calcutta High Court

The Calcutta High Court has held that Section 107 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, provides for multiple layers of institutional checks and balances to ensure that the pre-trial attachment of property cannot be done at the whims and fancies of an investigating officer.

It was observed that the provision mandates rigorous dual-level oversight, requiring strict executive scrutiny by senior police officials alongside sequential stages of judicial evaluation by the Magistrate before an asset can be seized.

Setting aside an attachment order passed against a non-accused woman's exclusive and joint properties without statutory notice, the Court emphasized that a casual approach or non-application of mind by subordinate courts while exercising this drastic jurisdiction risks disrupting the structural balance of the law and rendering the newly incorporated provision vulnerable under multiple constitutional protections.

The Bench of Justice Ajoy Kumar Mukherjee observed, "On a bare perusal of section 107 itself, it is clear that before passing an order of attachment by the court, the legislature through sub-section (1) to (4) of section 107 of the BNSS has provided for multiple layers of scrutiny...One prior to issuance of the show cause notice to the person whose property is proposed to be attached under section 107 of BNSS and the second stage of judicial consideration takes place after such persons appear in terms of show cause notice and provide their explanation. Therefore, it is apparent that 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."

Senior Advocate Ayan Bhattacharya appeared for the Petitioners, while Senior Advocate Sandipan Gangully appeared for the Respondents.

The Court also said, "In short, I may conclude that non-application of judicial mind or to take casual approach while dealing with prayer for attachment under section 107, (as has happened in the instant case) may render section 107 vulnerable under multiple constitutional provisions."

Brief Facts

The petitioner, a third party to the criminal proceedings and wife of the principal accused, filed the instant criminal revision petition challenging an order of property attachment passed by the Chief Judicial Magistrate. A criminal case was registered by the police under sections of the Indian Penal Code alleging business discrepancies and financial fraud against the petitioner’s husband and other employees of a company.

During the pendency of the investigation, the investigating officer moved a prayer before the learned Magistrate seeking the attachment and forfeiture of certain properties. Initially, the Magistrate declined the request as the accused persons had not been apprehended. However, upon the subsequent arrest of the accused, the Magistrate passed the impugned order attaching five properties. Out of these, three properties were jointly held by the petitioner and her accused husband, while two properties were under the exclusive ownership of the petitioner.

Contentions of the Parties

It was contended that the Petitioner was never arraigned as an accused in the First Information Report or inducted into the criminal case, making the learned Magistrate's observation that she was an "absconding accused" entirely baseless and legally flawed. It was further argued that the impugned order of attachment was passed completely behind her back in gross violation of the mandatory statutory provisions of the Bharatiya Nagarik Suraksha Sanhita, as no notice or opportunity of being heard was ever afforded to her. The petitioner submitted that her fundamental and constitutional right to property was severely jeopardized without due process of law, discovering the attachment only when a physical notice to vacate was affixed to her premises.

Per contra, the prosecution supported the order of the Magistrate, effectively suggesting that the service of notice upon the principal accused husband was sufficient compliance with the law. It was further implied that the properties in question were purchased in the name of the petitioner as benami holdings using the alleged proceeds of crime, thereby justifying the immediate threshold attachment to prevent dissipation.

Observations of the Court

The High Court observed that Section 107 of the Bharatiya Nagarik Suraksha Sanhita is a standalone, drastic mechanism that permits the attachment and rateable distribution of property even before the conclusion of a trial, thereby demanding strict judicial vigilance and procedural fairness.

It was noted that Section 107(2) of BNSS provides for four steps and/or prerequisites to be followed before passing any order of attachment, which have to be adhered to.

The Court said, "Since the trial Court while passing the impugned order has clearly flouted the mandate of section 107 of BNSS, the matter could have ended here by remanding the case before trial Court for initiating the process of attachment, if any, afresh in accordance with law but the way the trial court brushed off all the warnings laid down in sub section (1) (2) & (3) of section 107 by observing that approval of the Commissioner of Police, Howrah is a technical issue and that service of notice upon Bikash Hari is sufficient compliance of section 107(2),/107(3), since property under attachment was purchased in the benam of present petitioner, being unjustly taking her as “absconding accused”, it tempted me to remind the court below the necessity of following the newly incorporated provisions in the BNSS, in its true letter and spirit."

It was held that Section 107 BNSS introduced a mechanism whereby property can be attached, liquidated and distributed even before the investigation or trial concludes. The understanding of attachment and forfeiture originates from the Criminal Law Ordinance which was designed to prevent dissipation of assets derived from specified offence and attachment. Under the said ordinance, attachment was essentially a civil recovery mechanism and not a punishment, it added.

The Court also observed that the words “approval of superintendent of police” must not be taken as a mere formality but would mean and presuppose a detailed representation to a superior officer by the investigating officer with cogent material and a case docket indicating his reason to believe why such property, which is attempted to be attached, has a link with the proceeds of crime.

The Court observed that Section 107 of the BNSS mandates multiple layers of checks and balances to prevent arbitrary property attachment. This procedural scrutiny operates at two distinct levels: 1.Executive Scrutiny: Initial evaluation by the investigating officer, followed by mandatory independent approval from the Superintendent or Commissioner of Police.

2. Judicial Scrutiny: A two-stage assessment by the Magistrate—first, a preliminary review of the facts before issuing a show-cause notice, and second, a final evaluation after considering the affected person's explanation.

The Court emphasized that these safeguards ensure the attachment process is never left to the whims and fancies of the investigating agency.

It was further observed that taking physical possession of properties at the interim or provisional stage should be an exception rather than the rule, as hasty dispossessions result in grave miscarriage of justice and civil consequences if the parties are subsequently exonerated.

"Needless to say that the term ‘proceeds of crime’ if taken as ‘any property derived or obtained directly or indirectly as a result of criminal activity or from the commission of any offence’, this layer of judicial supervision can be triggered prior to even issuance of any show cause notice to the affected person. Therefore, while the court is going to exercise such power on the basis of ex parte hearing, the court should record material evidence to that effect. ‘Reason to believe’ of the investigating officer in all such cases must be in writing and could be placed before superior police officer or before the court or magistrate", the Court observed.

Finding that the lower court had completely flouted the mandatory rules of natural justice and statutory notice, the High Court set aside the impugned attachment order, while granting liberty to the investigating agency to initiate the process afresh in strict compliance with the letter and spirit of the law.

Cause Title: Puja Hari v. The State of West Bengal & Anr. [Neutral Citation: 2026:CHC-AS:897]

Appearances:

Petitioners: Senior Advocate Ayan Bhattacharya, Advocate Soumyajit Das Mahapatra, Advocate Soumya Basu Roy Chowdhuri, Advocate Upasana Banerjee, Advocate Abir Dalui.

Respondents: Senior Advocate Sandipan Gangully, Senior Advocate Sabyasachi Banerjee, Public Prosecutor Debasish Roy, Additional Public Prosecutor Rudradipta Nandy, Advocate Anirban Dutta, Advocate Dwip Raj Basu, Advocate Suman De, Advocate Sachit Talukdar.

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