The Calcutta High Court has issued a strong caution to law enforcement and trial courts regarding the indiscriminate attachment of properties under Section 107 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). This measure, which allows for the attachment of property even prior to the conclusion of a trial, was scrutinized in two separate orders delivered on June 23 by Justice Ajoy Kumar Mukherjee.
Interpretation of ‘Reasons to Believe’
Justice Mukherjee emphasized the need for a careful interpretation of the phrase ‘reasons to believe’ as used in Section 107. He highlighted that while the statutory language might appear straightforward, judicial interpretation has transformed it into a nuanced doctrine that mediates between mere suspicion and actual knowledge. The Court stressed that the misuse of this provision could threaten constitutional protections, particularly the right to property.
Case of Financial Misappropriation
These observations arose in a case involving alleged large-scale financial misappropriation, where properties had been attached during the investigation phase. The High Court supported a trial court’s decision to overturn the attachment order, concluding that authorities had acted on assumptions instead of meeting the necessary legal criteria. The distinction between suspicion and legally sustainable belief was clarified by the Court, which indicated that ‘reason to believe’ requires evidence-based conviction rather than speculative assumptions.
Fair Evaluation of Evidence
Referencing the Supreme Court’s findings in Arvind Kejriwal v. ED, the High Court warned against selective evidence evaluation by investigating agencies. The Court stressed that ‘reason to believe’ cannot be formed arbitrarily or selectively, underscoring the need for a fair assessment of all evidence, not just prosecutorial claims.
Guiding Principles for Section 107
The Court reiterated several principles to guide the application of Section 107:
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- ‘Reason to believe’ must be based on sufficient cause, not mere suspicion.
- Authorities must use an objective ‘reasonable person’ test.
- A clear nexus must exist between the material and the belief that property is the proceeds of crime.
- Reasons should be documented and based on tangible evidence.
- The belief should be formed in good faith, not arbitrarily.
- Investigators must consider relevant evidence, including exculpatory material.
- Courts must ensure a fair evaluation of all evidence.
- The power must be exercised with caution to prevent misuse and infringement of property rights.
Case of Uninformed Property Attachment
In another case decided the same day, the High Court annulled an attachment order on properties of a woman who was not even a suspect in the case. The Court found the trial court’s failure to serve notice on her had deprived her of the opportunity to be heard, violating Section 107(2) and (3) of BNSS. The Court criticized the trial court’s approach, noting the lack of a proper belief formation based on evidence.
Need for Caution in Ex Parte Orders
Justice Mukherjee further noted that attachment orders issued without hearing the affected party should be rare and justified with compelling reasons. The Court highlighted the need for rigorous interpretation of such powers, given their potential impact on an individual’s rights.
Senior Advocate Sabyasachi Banerjee and a team of legal representatives appeared for the petitioner, while Senior Advocate Ayan Bhattacharjee represented the opposing party. The State’s legal team was led by Public Prosecutor Debasish Roy.
[Read Orders]
