Is Section 107 under BNSS a Better Criminal Assets Handler?

1.      Introduction

The Bharatiya Nyaya Sanhita, 2023 (BNSS) represents a major overhaul of India’s criminal procedural framework. It aims to enhance the efficacy and responsiveness of the justice system. One of the most transformative aspects is its approach to property attachment, forfeiture, and restoration. Section 107 under BNSS grants magistrates broad powers to attach and forfeit properties suspected to be from criminal offenses. This provision addresses the shortcomings of earlier laws like the Code of Criminal Procedure (CrPC). It offers a more robust mechanism for dealing with the proceeds of crime.

This blog will provide an in-depth analysis of Section 107 in BNSS. It dissects its expansive scope, covering all criminal offenses under BNSS. We will explore procedural nuances of attachment, including ex parte and interim orders. The implications of these powers on due process and constitutional rights will also be assessed. The discussion will cover unique features like liquidating attached properties and distributing proceeds before trial concludes. This marks a departure from traditional post-trial forfeiture models in earlier legislation.

Section 107 in BNSS and existing special statutes

Additionally, we will examine the interplay between Section 107 in BNSS and existing special statutes like the Prevention of Money Laundering Act (PMLA) and the Prevention of Corruption Act (PCA). This comparison will highlight both the innovations introduced by the BNSS and the potential overlaps and conflicts with established legal frameworks. Finally, the blog will address the gaps and challenges associated with Section 107 in BNSS, particularly concerning the restoration of properties and the constitutional implications of pre-trial asset forfeiture. Through this detailed exploration, we aim to shed light on the profound impact of the BNSS on India’s criminal justice system and the broader legal landscape.

2.     Overview of Section 107 in BNSS: Attachment and Forfeiture of Property

A.    Introduction and Purpose

Section 107 in BNSS establishes a comprehensive framework for the identification, attachment, and forfeiture of properties believed to be proceeds of crime. This is a novel addition, addressing a gap in the previous Code of Criminal Procedure (CrPC) by providing a structured approach to handling property derived from criminal activities. The primary objective of this section is to ensure that properties linked to criminal enterprises can be promptly seized and repurposed for the benefit of victims or forfeited to the government.

[i]

B.     Scope and Coverage

One of the most striking aspects of Section 107 in BNSS is its broad application. Unlike previous laws such as the Prevention of Money Laundering Act, 2002 (PMLA) or the Prevention of Corruption Act, 1988 (PCA), which restrict attachment to specific scheduled offenses, Section 107 extends to all criminal activities under the BNSS. This expansive scope encompasses a wide range of offenses, potentially making the provision susceptible to overbroad application. The extension of powers to include all criminal activities raises concerns about proportionality and fairness, as it may lead to excessive and unjustified attachments.

 [ii] The expansive nature of Section 107 could result in constitutional challenges, particularly under Articles 14[iii] (right to equality) and 21[iv] (right to life and personal liberty) of the Indian Constitution. The broad definition of “proceeds of crime” could lead to excessive or arbitrary application, potentially infringing upon fundamental rights. The absence of safeguards typically associated with more narrowly defined statutes may lead to legal disputes challenging the provision’s constitutionality.[v]

3.     Detailed Analysis of Interim and Ex Parte Orders under Section 107 in BNSS

A.    Ex Parte Interim Orders

Section 107(5) in BNSS grants magistrates or criminal courts the power to issue ex parte interim attachment orders. This allows for the attachment of property without prior notice to the affected parties if notifying them would undermine the attachment’s objective. While this provision aims to prevent the evasion or concealment of assets, it also introduces potential risks related to procedural fairness.

[vi]

The lack of procedural safeguards for ex parte orders in Section 107 in BNSS is a significant concern. Unlike PMLA, which provides for provisional attachment with a clear timeline and notice period, Section 107 lacks similar protections. The indefinite duration of interim orders and the absence of specified timelines for final adjudication may result in prolonged and potentially unjust deprivation of property. The affected parties may face difficulties challenging or modifying such orders, raising concerns about due process and fairness.

[vii]

B.     Application and Challenges

Under Section 107 in BNSS, the process begins with a police officer seeking approval from the Superintendent or Commissioner of Police to apply for attachment. Following approval, the application is submitted to the court or Magistrate. The court then issues a show cause notice to the concerned individual, providing them with fourteen days to respond. If the response is unsatisfactory or absent, an ex parte order may be issued. The court may also issue an interim ex parte order if it deems necessary.

 [viii] Once an interim order is issued, it remains in force until a final decision is made. The absence of a specified timeline for the duration of attachment could lead to extended periods during which the affected person has no recourse to challenge the order. This could result in prolonged deprivation of property, potentially violating principles of fairness and due process.

4.     Pre-Trial Attachment and Liquidation under Section 107 in BNSS

A.    Pre-Trial Measures

Section 107 in BNSS allows for the attachment and liquidation of properties even before the conclusion of the trial related to the associated criminal offense. This provision represents a departure from traditional legal practices, where forfeiture typically occurs only after a conviction. By allowing pre-trial liquidation and distribution of proceeds, Section 107 in BNSS seeks to expedite the process of addressing the consequences of criminal activities.

B.     ProceduralAspects

• Filing of Application: A police officer must file an application for attachment with the court or magistrate exercising jurisdiction over the offense.
• Evidence and Show Cause: The court considers evidence presented to determine whether a show cause notice should be issued. The magistrate evaluates the response and materials to decide on the attachment.
• Liquidation and Distribution: If the property is confirmed as proceeds of crime, the court directs the District Magistrate to distribute the proceeds to victims within sixty days. Any surplus or unclaimed proceeds are forfeited to the government. [ix]

C.     Constitutional Concerns

The pre-trial forfeiture of property may undermine the principle of presumption of innocence. Unlike other laws such as PMLA, which do not permit confiscation before conviction, Section 107’s approach could face challenges for being disproportionate and potentially violating constitutional guarantees under Articles 14 and 21. The provision’s alignment with principles of justice and fairness will be critical in determining its constitutional validity.[x]

5.     Restoration of Property

Section 107 outlines procedures for attachment and forfeiture but does not address the restoration of property if it is later determined not to be proceeds of crime. This omission represents a significant gap, contrasting with other laws like the 1944 Ordinance and PMLA, which include detailed provisions for the release or restoration of property. The absence of a clear procedure for restoration may result in prolonged deprivation of property without adequate redress. To address this gap, an amendment to Section 107 may be necessary to provide a mechanism for the restoration of property in cases where attachment is later deemed unjustified. Ensuring that affected persons have a clear path to reclaim their property is essential for upholding principles of justice and fairness.[xi]

6.     Comparison with Existing Legislation

A.    Prevention of Money Laundering Act (PMLA)

The PMLA includes provisions for provisional attachment, valid for up to 180 days, and requires a 30-day notice period. These safeguards balance the need for immediate action with the rights of property owners. In contrast, Section 107 lacks similar protections, which could lead to potential abuses and extended attachment periods without recourse. Under PMLA, property owners have the right to challenge attachment orders. Section 107, however, does not specify mechanisms for challenging interim orders, potentially resulting in indefinite attachment without opportunities for redress.[xii]

B. Prevention of Corruption Act (PCA) and 1944 Ordinance

The PCA and 1944 Ordinance provided detailed procedures for the attachment and restoration of property. Section 107 deviates from these detailed standards, raising questions about consistency and effectiveness. The historical context of these laws provides valuable insights into the principles underlying property attachment and restoration. Section 5 of BNSS gives primacy to existing special laws, such as PMLA and PCA. However, the broader scope of BNSS may create conflicts and inconsistencies with these special statutes, necessitating careful consideration of jurisdictional overlaps and procedural differences.[xiii]

7.     Constitutional and Legal Challenges

The broad scope of Section 107 and the power to issue ex parte orders could conflict with constitutional principles of fairness and due process. Challenges may arise under Articles 14 and 21 of the Indian Constitution [xiv], questioning the proportionality and fairness of the BNSS’s provisions. Ensuring that the new provisions align with constitutional guarantees will be essential for their successful integration. The overlap between BNSS and special statutes like PMLA could lead to jurisdictional conflicts and procedural inconsistencies. Clarifying the interaction between BNSS and these statutes will be crucial for effective implementation and legal clarity. Addressing potential conflicts will help ensure a coherent legal framework for property attachment and forfeiture.[xv]

8.     Conclusion

The introduction of Section 107 in BNSS signifies a major shift in India’s approach to handling criminal assets. By enabling the attachment, forfeiture, and even pre-trial liquidation of property linked to criminal activities, this provision aims to disrupt the financial benefits of crime and ensure that victims are compensated in a timely manner. This progressive step underscores a strong commitment to justice and accountability.

However, the broad scope and procedural aspects of Section 107 in BNSS also present potential challenges. The expansive definition of “proceeds of crime,” the lack of defined safeguards, and the interplay with existing special statutes may pose risks to fairness and due process. Balancing these innovative measures with constitutional principles and established legal safeguards will be crucial for the BNSS to achieve its intended objectives without compromising fundamental rights.   [i] Bharatiya Nagarik Suraksha Sanhita, 2023, § 107. [ii] Asif Ahmed and Arnab Ray, Attachment of Property Linked to Proceeds of Crime—Changes introduced under Bharatiya Nagarik Suraksha Sanhita 2023, AZB Partners (July 01, 2024) https://www.azbpartners.com/wp-content/uploads/2024/07/This-is-it.pdf. [iii] INDIAN CONSTI art 14. [i] INDIAN CONSTI art 21. [v] Joginder Singh Rohilla, Section 107 of the Bhartiya Nagrik Suraksha Sahita (BNSS): Attachment, Forfeiture, or Restoration of Property, Linkedin (July 19, 2024) https://www.linkedin.com/pulse/section-107-bhartiya-nagrik-suraksha-sahita-bnss-property-rohilla-yiv4f/. [vi] Bharatiya Nagarik Suraksha Sanhita, 2023, § 107. [vii] Ahmed and Ray, supra note 2. [viii] Id. [ix] Soumya Gulati et al., Navigating Through Criminal Law Reforms: Part II - Review of Bharatiya Nagarik Suraksha Sanhita, 2023, replacing the Code of Criminal Procedure, 1973, Nishith Desai & Associates (Jan. 31, 2024) https://www.nishithdesai.com/NewsDetails/14897. [x] Id. [xi] Susanah Naushad, Primer on the Bharatiya Nagarik Suraksha Sanhita, 2023, LEXOLOGY (Feb. 19, 2024) https://www.lexology.com/library/detail.aspx?g=add91fba-71e4-4069-809c-6339b64bd9ed. [xii] Id. [xiii] Bharatiya Nagarik Suraksha Sanhita, 2023, § 5. [xiv] INDIAN CONSTI art 21. [xv] Rohilla, supra note 5.