Section 107 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
Section 107 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 empowers law enforcement authorities to attach, forfeit, or restore property suspected to be proceeds of crime during the investigation of an offense. This provision aims to prevent the dissipation of illicit assets and facilitate restitution to victims.
📜 Text of Section 107
Attachment, Forfeiture, or Restoration of Property
Police Application for Attachment:
A police officer conducting an investigation may, with the approval of the Superintendent or Commissioner of Police, apply to the Court or Magistrate with jurisdiction to attach property believed to be derived from criminal activity.
Show-Cause Notice:
If the Court or Magistrate believes that the property is proceeds of crime, a notice is issued to the person holding the property, requiring them to show cause within 14 days why the property should not be attached.
Service of Notice:
If the property is held by another person on behalf of the accused, a copy of the notice is served to that person as well.
Order of Attachment:
After considering the response to the notice and providing a reasonable opportunity to be heard, the Court or Magistrate may order the attachment of the property found to be proceeds of crime. If the person does not respond within 14 days, an ex parte order may be passed.
Interim Attachment:
If issuing a notice would defeat the purpose of attachment, the Court or Magistrate may pass an interim ex parte order for attachment or seizure, effective until a final order is made.
Distribution to Victims:
If the attached property is confirmed as proceeds of crime, the Court or Magistrate directs the District Magistrate to distribute the proceeds to affected persons.
Timely Distribution:
Upon receiving the order, the District Magistrate must distribute the proceeds within 60 days, either personally or through an authorized officer.
Forfeiture to Government:
If there are no claimants or any surplus remains after satisfying the claimants, the proceeds are forfeited to the Government.
⚖️ Legal Implications
Attachment During Investigation: Unlike traditional procedures where property is attached post-conviction, Section 107 allows for attachment during the investigation phase, potentially before the completion of the trial.
Ex Parte Orders: The provision permits ex parte orders for attachment if notifying the concerned party could hinder the investigation, raising concerns about due process and the protection of property rights.
Distribution to Victims: The law facilitates the distribution of proceeds to victims, aiming to compensate those affected by the crime. However, the process of identifying rightful claimants and ensuring fair distribution may present challenges.
Forfeiture to Government: Unclaimed or surplus proceeds are forfeited to the Government, which may raise questions about the handling and utilization of such assets.
📌 Example Scenario
Scenario: A police officer investigates a case of embezzlement and suspects that certain properties are proceeds of the crime. With the approval of the Superintendent of Police, the officer applies to the Court for the attachment of these properties. The Court issues a show-cause notice to the individual holding the properties, who fails to respond within the stipulated 14 days. Consequently, the Court passes an ex parte order for the attachment of the properties. Upon confirmation that the properties are proceeds of crime, the Court directs the District Magistrate to distribute the proceeds to the affected parties within 60 days
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