Calcutta High Court cautions against arbitrary attachment of property under Section 107 BNSS

The Calcutta High Court recently cautioned police and trial courts against casually attaching properties under Section 107 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

In two separate orders passed on June 23, Justice Ajoy Kumar Mukherjee noted that Section 107 BNSS grants wide powers to attach property even before conclusion of trial.

However, the Court cautioned that if exercised casually or without proper safeguards, such powers could undermine constitutional protections, particularly the right to property. It thus called for a balanced interpretation of the legal standard required for such action.

“The words ‘reasons to believe’ used in section 107 is to be interpreted in its true perspective so that the provision does not reflect a structural imbalance between state power and individual rights...While the statutory language appears straightforward , the judicial interpretation has progressively shaped the definition ‘reasons to believe’ into a nuanced doctrinal tool that mediates between mere suspicion and actual knowledge,” observed the Court.

The observations came in a case relating to alleged large-scale financial misappropriation, where properties had been attached during investigation. The High Court upheld the setting aside of the attachment order by a trial court, finding that the authorities had relied on assumptions rather than meeting the required legal threshold. Clarifying the distinction between suspicion and legally sustainable belief, the Court said,

“The court reiterates that suspicion represents a lower grade of satisfaction and cannot justify arrest. ‘Reason to believe’ on the other hand holds a higher threshold conveying a conviction founded on an evidence regarding the existence of a fact. The court reinforces that the believe must be evidence-based and not speculative and must be grounded in material, that has a rational connection with the conclusion reached. It explicitly states that the reasons must not be extraneous or irrelevant and must bear a nexus to the formation of believe.”

While referring to apex court's findings in Arvind Kejriwal v ED, the Court warned against selective reliance on evidence by investigating agencies.

“The court also underscores that ‘reason to believe’ cannot be formed selectively or arbitrarily. The authority cannot pick and choose only incriminating materials while ignoring exculpatory evidence. The exercise of power cannot be based on whims and fancies and subjectively is not a license to disregard relevant material. This introduces an important requirement of fair evaluation of the entire material, not merely a prosecution oriented selection."

The Court summed up the key principles laid down in various judgments to guide the use of Section 107, as:

• “Reason to believe” must be based on sufficient cause, not mere suspicion;

• Authorities must apply an objective “reasonable person” test, not subjective satisfaction;

• There must be a clear nexus between the material and the belief that property is proceeds of crime;

• Reasons should be recorded and based on tangible material, such as evidence or recoveries;

• The belief must be formed in good faith, not arbitrarily or mechanically

• Investigating agencies must rely on relevant material, not ignore exculpatory evidence;

• Courts must ensure fair evaluation of all material, not just prosecution claims;

• The power must be exercised cautiously to prevent misuse and violation of property rights.

In a separate case decided the same day, the High Court set aside an attachment order passed by a trial court against properties belonging to a woman who was not even an accused in the case. The Court found that since no notice had been served on her, she was deprived of an opportunity to be heard as required under Section 107(2) and (3) of BNSS.

Criticising the approach of the trial court, the High Court said that even the basic requirement of forming a proper belief based on evidence had not been satisfied.

“The investigating officer must base their belief on hard admissible material in their actual possession and that material must clearly indicate guilt. Mere non co-operation with question or a general ‘reason to suspect’ does not meet the ‘sufficient cause...but not otherwise’ threshold required to deprive an individual of their liberty,” observed the Court.

The Court further highlighted that attachment orders, passed without hearing the affected person, must be used sparingly and only in exceptional circumstances.

“In a case of exparte order under section 107(5) of the BNSS, the court should be more careful and should be invoked in rare cases which must demonstrate the reasons for such haste in the application as well as in the approval. Since the process of attachment has a deleterious effect on the right of a citizen, therefore, the same must be interpreted rigorously,” stated the Court.

Senior Advocate Sabyasachi Banerjee appeared for the petitioner, assisted by Advocates Soumya Nag, Abhinav Rakshit and Atrayee Chatterjee.

Senior Advocate Ayan Bhattacharjee, along with Advocate Sagnik Mukherjee, appeared for the opposite party.

In the connected matter, Senior Advocate Ayan Bhattacharya, along with Advocates Soumyajit Das Mahapatra, Soumya Basu Roy Chowdhuri, Upasana Banerjee and Abir Dalui, appeared for the petitioner in one matter.

Senior Advocates Sandipan Gangully and Sabyasachi Banerjee, along with Advocates Anirban Dutta and Dwip Raj Basu, represented the opposite party.

The State was represented in both matters by Public Prosecutor Debasish Roy, along with Additional Public Prosecutors Rudradipta Nandy and advocates Suman De, Sachit Talukdar and Bikram Mitra.

[Read Orders]