Section 107 BNSS: Attachment, Forfeiture or Restoration of Property
Section 107 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides a court-supervised procedure for attaching property believed to be derived or obtained from criminal activity, hearing affected persons, distributing proceeds of crime to victims, and forfeiting unclaimed proceeds to the Government.
BNSS effective from 1 July 2024.
What Section 107 BNSS means
In simple terms, Section 107 allows an investigating police officer to seek attachment of property suspected to represent the proceeds of crime. The police officer cannot make the attachment application independently: approval of the Superintendent of Police or Commissioner of Police is required before approaching the competent Court or Magistrate.
Section 107 - statutory provision
107. (1) Where a police officer making an investigation has reason to believe that any property is derived or obtained, directly or indirectly, as a result of a criminal activity or from the commission of any offence, he may, with the approval of the Superintendent of Police or Commissioner of Police, make an application to the Court or the Magistrate exercising jurisdiction to take cognizance of the offence or commit for trial or try the case, for the attachment of such property.
(2) If the Court or the Magistrate has reasons to believe, whether before or after taking evidence, that all or any of such properties are proceeds of crime, the Court or the Magistrate may issue a notice upon such person calling upon him to show cause within a period of fourteen days as to why an order of attachment shall not be made.
(3) Where the notice issued to any person under sub-section (2) specifies any property as being held by any other person on behalf of such person, a copy of the notice shall also be served upon such other person.
(4) The Court or the Magistrate may, after considering the explanation, if any, to the show-cause notice issued under sub-section (2) and the material fact available before such Court or Magistrate and after giving a reasonable opportunity of being heard to such person or persons, may pass an order of attachment, in respect of those properties which are found to be the proceeds of crime.
Provided that if such person does not appear before the Court or the Magistrate or represent his case before the Court or Magistrate within a period of fourteen days specified in the show-cause notice, the Court or the Magistrate may proceed to pass the ex parte order.
(5) Notwithstanding anything contained in sub-section (2), if the Court or the Magistrate is of the opinion that issuance of notice under the said sub-section would defeat the object of attachment or seizure, the Court or Magistrate may by an interim order passed ex parte direct attachment or seizure of such property, and such order shall remain in force till an order under sub-section (6) is passed.
(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.
(7) On receipt of an order passed under sub-section (6), the District Magistrate shall, within a period of sixty days distribute the proceeds of crime either by himself or authorise any officer subordinate to him to effect such distribution.
(8) If there are no claimants to receive such proceeds or no claimant is ascertainable or there is any surplus after satisfying the claimants, such proceeds of crime shall stand forfeited to the Government.
How attachment under Section 107 works
- The investigating police officer must have reason to believe that property is directly or indirectly derived or obtained from criminal activity or an offence.
- The officer must obtain approval from the Superintendent of Police or Commissioner of Police.
- An application is then made to the competent Court or Magistrate.
- If the Court or Magistrate has reason to believe the property is proceeds of crime, a 14-day show-cause notice may be issued.
- The affected person must be given a reasonable opportunity of being heard before a final attachment order is passed.
- If advance notice would defeat the purpose of attachment or seizure, an interim ex parte order can be made.
- Once the property is found to be proceeds of crime, the District Magistrate is directed to distribute it rateably among persons affected by the crime.
- The distribution is to be completed within 60 days of receipt of the order. Unclaimed proceeds or surplus stand forfeited to the Government.
Important legal safeguards
| Safeguard | Section 107 requirement |
|---|---|
| Senior police approval | Approval of the Superintendent of Police or Commissioner of Police before the application. |
| Judicial supervision | Attachment is sought before the competent Court or Magistrate. |
| Show-cause notice | Ordinarily, 14 days are given to explain why attachment should not be ordered. |
| Third-party notice | A person holding specified property on behalf of another must also receive a copy of the notice. |
| Hearing | A reasonable opportunity of being heard is required before final attachment. |
| Urgent protection | Ex parte interim attachment or seizure is permitted where notice would defeat the object. |
| Victim restitution | Proceeds of crime found by the Court or Magistrate are to be distributed rateably to affected persons. |
What are "proceeds of crime" for Section 107?
Section 107 uses the expression "proceeds of crime" for property that the Court or Magistrate finds to be derived or obtained, directly or indirectly, as a result of criminal activity or the commission of an offence. The section therefore links attachment to the criminal origin of the property rather than merely to possession by an accused person.
Interim ex parte attachment
Normally, the affected person receives a 14-day show-cause notice. However, sub-section (5) contains an overriding exception. If the Court or Magistrate considers that issuing notice would defeat the object of attachment or seizure, an interim ex parte attachment or seizure order may be made. That interim order continues until an order under sub-section (6) is passed.
Distribution to victims and forfeiture
If the attached or seized property is found to be proceeds of crime, the Court or Magistrate must direct the District Magistrate to distribute the proceeds rateably among persons affected by the crime. The District Magistrate must complete the distribution within 60 days. Where no claimant exists, no claimant can be identified, or a surplus remains after claims are satisfied, that amount stands forfeited to the Government.
Note: Section 107 BNSS operates within the broader criminal-procedure framework. Its application depends on the facts of the investigation, the nature and source of the property, the material placed before the Court or Magistrate, and compliance with the statutory notice and hearing requirements.
Official legal resources
For the current statutory text, consult the India Code portal. The commencement notification appointing 1 July 2024 as the date on which the BNSS provisions came into force is available from the Ministry of Home Affairs.