How this manifests with respect to remand and police custody has already been discussed here. This time, we move a little away from personal freedoms and come to property of the accused. What does BNSS allow to be done to the property of an accused person or property that is a ‘proceeds of crime?’ And how does such facilitation by the BNSS fare against the realities of Indian Criminal Justice system. This is the point of discussion forthwith.

Property and criminal justice system

From the Mauryans to the Romans—every kingdom gave itself the power to confiscate the property of criminals. In the ancient and medieval times—we see on paper that if someone is a criminal—i.e., if someone has committed a criminal act and got some value out of it, and if it is proved as such, the property arising out of such criminal act would be forfeited with or without a fine.[1][2] For example, if someone stole cattle, they’d have to give back the cattle and may be some fine apart from the punishment.[3] This got carried onto today. In the CrPC, 1898- the predecessor of CrPC 1973—there were provisions to attach the property until a fine is paid or if there is a dispute over the possession of property that is causing disturbance to peace.[4]

However, with the introduction of the BNSS, a new regime has unfolded. A regime in which property could be attached if the police reasonably believe something (property) to be derived from a crime and could even be liquidated before the crime is proven. Many use the word ‘medieval’ to describe any archaic notions and paradigms and in this case of BNSS and property attachment, using medieval sounds like a medal.

The transition from the Code of Criminal Procedure (CrPC), 1973, to the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, marks a critical shift, particularly in relation to police and judicial powers over property attachment. While CrPC provided limited powers regarding the seizure and attachment of property, especially immovable assets, BNSS introduces an expansive approach, broadening the scope of attachment beyond absconding accused persons to encompass all criminal activities. The Prevention of Money Laundering Act, 2002 (PMLA), as a special law, had already established attachment provisions targeting financial crimes. However, BNSS now extends similar provisions across all criminal cases, raising concerns about the extent of police and judicial discretion.

Attachment of property under CrPC: limited and case-specific

What is an ‘attachment’ is a question we need to have answer for, before any further discussion can happen. Attachment of the property means that the properties in question are held in custodia legis (in the custody of the law).

Under the CrPC, property attachment was primarily governed by Sections 82, 83, and 102. These provisions delineated different contexts in which property could be seized or attached. Section 82 provided for the proclamation of an absconding accused, requiring them to appear before the court within a stipulated period. If the accused failed to comply, Section 83 allowed courts to attach both movable and immovable property of the absconding individual. This attachment served as a coercive measure to ensure the accused’s presence in court. The fundamental premise of this provision was to deal with fugitives rather than to target assets suspected to be linked to criminal activities.

Section 102, on the other hand, was a police power confined strictly to the seizure of movable property. It enabled law enforcement to seize property suspected of being stolen or involved in an offense. However, this provision did not extend to immovable property, a limitation clarified by the Supreme Court in Nevada Properties Private Limited v. State of Maharashtra (2019).[5] The court explicitly ruled that Section 102 only permitted the seizure of movable property, thereby excluding any interpretation that allowed for the attachment of immovable assets. Consequently, under the CrPC, the ability of law enforcement to interfere with immovable property was primarily restricted (in general terms) to cases of absconding accused under Section 83A.[6]

Why did the Supreme Court say that Section 102 of the CrPC only applied to movable property?

Section 102(1) states as follows: Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the Commission of any offence.

A literal interpretation of the word ‘any property’ would enable a court to arrive at both movable and immovable property. The court however frowned at giving the power to the police officers to seize immovable property. It stated as follows:

“In case and if we allow the police officer to ‘seize’ immovable property on a mere ‘suspicion of the commission of any offence’, it would mean and imply giving a drastic and extreme power to dispossess etc. to the police officer on a mere conjecture and surmise, that is, on suspicion, which has hitherto not been exercised. We have hardly come across any case where immovable property was seized vide an attachment order that was treated as a seizure order by police officer under Section 102 of the Code. The reason is obvious. Disputes relating to title, possession, etc., of immovable property are civil disputes which have to be decided and adjudicated in Civil Courts. We must discourage and stall any attempt to convert civil disputes into criminal cases to put pressure on the other side.”

Here, the court recognised the power of police, the inherent power imbalance and therefore did not go with the reading which would have resulted in Section 102 applying to immovable property.

BNSS’s expansion: section 106 & section 107

The BNSS largely retains Sections 82 and 83 from the CrPC but significantly alters the landscape of property attachment by bifurcating Section 102 into two separate provisions—Sections 106 and 107. Section 106 of BNSS serves as a direct successor to Section 102 of the CrPC, retaining its essence by allowing police to seize movable property linked to a criminal offense. However, a major development appears in Section 107, which significantly expands the police and judicial powers regarding property attachment. We could understand Section 107 of BNSS (Police power to apply for attachment and court’s power to liquidate the property) as a combination of Section 102 of CrPC (Police power to seize) plus Section 83 of the CrPC (Attaching the property of the absconder).

Section 107 of BNSS allows the police to apply to a magistrate for the attachment of property reasonably believed to be proceeds of a crime. Unlike Section 83 of the CrPC, which was confined to absconding accused, Section 107 applies to any criminal activity, making it far more expansive. The magistrate, upon satisfaction that the property is linked to a crime, may issue a Show Cause Notice (SCN) to the owner. If the owner fails to respond within 14 days, the magistrate can order an ex-parte attachment, meaning that property can be attached without the owner’s presence or contestation. This represents a dramatic shift in power, allowing attachment of property at an early stage of criminal proceedings without a final conviction.

Immovable property too can be attached under section 107

Under Section 107, the terms “property” and “proceeds of crime” are defined in Section 111. “Proceeds of crime” refers to any property that has been gained directly or indirectly from criminal activities, including those involving money transfers. “Property,” on the other hand, is broadly defined to include all types of assets—whether physical or intangible, movable or immovable. It also covers documents proving ownership or interest in such assets, as well as any property obtained through proceeds of crime. This broad definition means that even assets not directly involved in a crime but somehow linked to it can be attached or liquidated, widening the scope of police action under BNSS.

Liquidation of assets under section 107

A controversial aspect of Section 107 is its provision for liquidation of the attached property before the trial concludes. If the court determines that the property is indeed the proceeds of crime, it may order its liquidation and distribution to victims or, in the absence of claimants, its forfeiture to the government. This raises serious concerns about property rights, particularly in cases where the accused is later acquitted but their property has already been liquidated.

This is what the relevant provision related to liquidation says:

Section 107(6): (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.

What we do not get to see in this sub-section is a requirement for the court to first satisfy itself that the crime has occurred, and the property is a proceed of such crime.  All it needs to satisfy itself is that the property is a proceed of crime. Which crime? We will not know.

Expansive powers impacting civilians

One of the most concerning aspects of Section 107 is its potential for misuse against ordinary civilians. Consider a case where a small business owner is falsely implicated in a financial fraud case. Under BNSS, their property could be attached and liquidated before they even get a chance to prove their innocence. Unlike under PMLA, which limits attachment to scheduled offenses, BNSS allows attachment for any criminal activity, meaning even minor accusations could lead to serious consequences. If the business owner is later acquitted, there is no clear mechanism for restoring their property, as the law does not provide for post-liquidation restitution.

Similarly, consider a tenant whose landlord is accused of a crime. Under Section 107, if the authorities suspect that rent payments were linked to criminal proceeds, the property could be attached. The tenant could be evicted without any means of legal recourse, illustrating how BNSS’s sweeping powers could inadvertently impact uninvolved third parties.

Shifting power to the police and the role of judicial oversight

A crucial issue with BNSS’s Section 107 is the unprecedented shift in power to the police, who serve as the initiators of the attachment process. Under this provision, law enforcement officers have the discretion to determine whether a property is linked to a crime and seek a magistrate’s order for its attachment. This centralization of authority with the police raises significant concerns, as it places immense power in their hands over civilians’ property rights.

Given India’s historical challenges with police accountability and instances of abuse of power, the ability of law enforcement to attach and cause liquidation of property before a trial is concluded is particularly alarming. Without strict judicial vigilance, there is a high risk that Section 107 could be misused for political vendettas, personal grudges, or as a coercive tool to extract compliance from individuals accused of minor offenses. Judicial officers must exercise stringent oversight to ensure that ex-parte attachments are granted only in the most compelling cases, and that property liquidation does not occur without exhaustive scrutiny of the alleged criminal link. If the judiciary fails to curb potential excesses, Section 107 could become a powerful mechanism for state overreach at the cost of due process and individual rights.

Lack of restoration despite mention in section’s marginal note

A striking irony in Section 107 is the mention of “restoration” in its marginal note, despite no actual provision for returning property once liquidated. This is what the marginal note says: Attachment, forfeiture or restoration of property.

This contradiction is concerning because, once an asset is liquidated, it ceases to exist in its original form, making restoration impossible even if the accused is acquitted. This deviates from principles of justice, where wrongful deprivation should ideally be rectified. Unlike PMLA, which offers procedural checks before permanent forfeiture, BNSS provides no such recourse, exacerbating concerns about potential injustices.

Conclusion

Bharatiya Nagarik Suraksha Sanhita (BNSS), despite being positioned as a general statute intended to replace and modernize the Code of Criminal Procedure, has introduced attachment and liquidation provisions that reach beyond the stringent framework once reserved for specialized laws like PMLA. By normalizing expansive police powers—even in cases that fall outside the realm of serious financial crimes—BNSS tips the balance starkly in favour of law enforcement, often at the expense of individual property rights and due process. The risk here is not only theoretical: without clear judicial safeguards and robust accountability mechanisms, individuals and even third parties can find themselves embroiled in sweeping asset seizures with little chance of recuperation if later proven innocent. Rather than reinforcing the principle that one is presumed innocent until proven guilty, these new provisions hasten punitive actions that can effectively punish the accused long before any judicial determination. This gap—between the power of the state and the shrinking protections afforded to its citizens—poses a grave concern for the integrity of India’s criminal justice system. If left unchecked, these types of provisions could erode core democratic principles, overshadow existing specialized legislation, and embolden overreach by authorities, thereby undermining the very notion of Suraksha the BNSS promises to uphold.

(The legal researcher is part of the organisations legal research team)

[1] Ubale, S.V. and Salgar, P.B., 2021. Evaluating the Concept of Corruption through Kautilya’s Arthashastra: A Comparative Study in View of Modern Application. Issue 3 Int’l JL Mgmt. & Human., 4, p.4025.

[2] Loewenstein, K., 1973. The Administration of Justice. In The Governance of ROME (pp. 179-191). Dordrecht: Springer Netherlands.

[3] García, A.B.Z., 2022. Confiscation of assets as an accessory penalty. Revista Diálogos Mediterrânicos, (22), pp.95-111.

[4] Section 139, CrPC, 1898. Available at: https://cvc.gov.in/files/vigilance-manual-pdf/vm21ch5/vm17ch5/Code%20of%20Criminal%20Procedure%201898%20(repealed).pdf

[5] [2019] 15 S.C.R. 223

[6] A separate Chapter VII A exists for dealing with attachments of “proceeds of crimes” which involve other countries.

Related:

Strengthening safeguards against arbitrary arrests, Supreme Court bars WhatsApp & Email notices under Section 41A CrPC/Section 35 BNSS

Police Custody: How the BNSS has tilted the balance of power in favour of the state

Amend Sec 187(3) BNSS in line with Sec 167(2) CrPC: PUCL to HM and Law Minister

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