Section 105E CrPC - Seizure or Attachment of Property
Section 105E of the Code of Criminal Procedure, 1973 empowered an officer conducting an inquiry or investigation under Section 105D to prevent specified property from being concealed, transferred or otherwise disposed of by ordering seizure or, where seizure was not practicable, attachment.
Text of Section 105E CrPC
105E. Seizure or attachment of property.
(1) Where any officer conducting an inquiry or investigation under section 105D has a reason to believe that any property in relation to which such inquiry or investigation is being conducted is likely to be concealed, transferred or dealt with in any manner which will result in disposal of such property, he may make an order for seizing such property and where it is not practicable to seize such property, he may make an order of attachment directing that such property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order, and a copy of such order shall be served on the person concerned.
(2) Any order made under sub-section (1) shall have no effect unless the said order is confirmed by an order of the said Court, within a period of thirty days of its being made.
Meaning and Scope of Section 105E
Section 105E formed part of Chapter VII-A of the CrPC dealing with reciprocal arrangements for assistance in certain matters and the procedure for attachment and forfeiture of property. It operated after the tracing and identification process contemplated by Section 105D CrPC.
The provision was preventive in character. Its purpose was to preserve property connected with the inquiry or investigation so that the property was not concealed, transferred or otherwise dealt with in a way that would result in its disposal before the legal process concerning that property could be completed.
Conditions for Seizure or Attachment
- The officer must be conducting an inquiry or investigation under Section 105D CrPC.
- The officer must have reason to believe that the property under inquiry or investigation is likely to be concealed, transferred or otherwise dealt with so as to result in its disposal.
- The officer may order seizure of the property.
- If physical seizure is not practicable, the officer may order attachment and prohibit transfer or other dealing without prior permission.
- A copy of the order must be served on the person concerned.
- The order is not effective unless confirmed by the Court within thirty days from the date on which it was made.
Seizure and Attachment: Practical Difference
Seizure under Section 105E contemplated taking control of the property where that course was practicable. Attachment was the alternative where seizure was not practicable. An attachment order restricted transfer or other dealing with the property except with prior permission of the officer who made the order.
The statutory language therefore made attachment an alternative preservation mechanism rather than an unrestricted power to dispose of or forfeit property. Forfeiture was dealt with separately under the succeeding provisions of the Chapter.
Mandatory Court Confirmation Within Thirty Days
Sub-section (2) imposed an express judicial safeguard. An order of seizure or attachment made under sub-section (1) had no effect unless the Court confirmed it within thirty days of the order. The statutory scheme therefore subjected the officer's provisional action to timely Court confirmation.
Relationship With Sections 105D to 105J
| Provision | Subject |
|---|---|
| Section 105D | Identifying unlawfully acquired property |
| Section 105E | Seizure or attachment of property |
| Section 105F | Management of properties seized or forfeited under the Chapter |
| Section 105G | Notice of forfeiture of property |
| Section 105H | Forfeiture of property in certain cases |
| Section 105I | Fine in lieu of forfeiture |
| Section 105J | Certain transfers to be null and void |
Position After 1 July 2024
The Bharatiya Nagarik Suraksha Sanhita, 2023 replaced the CrPC with effect from 1 July 2024. Section 117 BNSS is the corresponding provision dealing with seizure or attachment of property, and it refers to an inquiry or investigation under Section 116 BNSS. The core mechanism remains seizure where practicable, attachment where seizure is not practicable, service of the order on the person concerned, and Court confirmation within thirty days.
This article is retained as a reference to the CrPC position before implementation of the BNSS and for matters in which the former Code continues to be relevant under applicable savings provisions.
Key Takeaway
Section 105E CrPC was a property-preservation provision linked to an inquiry or investigation under Section 105D. It permitted seizure, or attachment where seizure was impracticable, when there was reason to believe that the property might otherwise be concealed, transferred or disposed of. The safeguard at the centre of the provision was the requirement of Court confirmation within thirty days.