A Critical Analysis Of Section 107 BNSS And Property Attachment Under The PMLA
Ishaan Majumder, St Xavier’s University, Kolkata
ABSTRACT
In essence, the provision envisages a consolidated framework of attachment, forfeiture and restoration of the property assumed to be obtained from proceeds of an offense. In this way, it confers uncharacteristic powers to both the investigative agencies and the criminal courts where any moveable or immovable property assumed to be a proceed of any offense under the Bharatiya Nyaya Sanhita, 2023, may be attached by an investigating agency. Also, this is a deviation from the present criminal procedural law which envisages the forfeiture and restoration of any property of the offenders only at the conclusion of the trial proceedings. For the first time, this section empowers the courts to initiate the attachment proceedings or even the disposal of the proceed of the offense even at the preliminary stage before the conclusion of trial. In my opinion, though it seeks to empower the recovery mechanism and also compensates victim's loss but it raises significant constitutional and procedural issue.
The paper argues that S. 107 confers a wide and sweeping power to deprive individuals of property without incorporating the essential procedural safeguards, i.e., limitations in duration, remedies of appeal, remedies of restoration, and the doctrine of proportionality. It is possible that ex-parte interim attachment, as well as the liquidation of property prior to the finding of guilt and conviction, would be detrimental to the right of due process, fairness, and the presumption of innocence envisaged under art. 141 & 212 of the Indian Constitution. In fine, the paper is of the opinion that although S. 107 tries to make up the loopholes in the criminal procedure, as far as the proceeds of the offence are concerned, a good amount of procedural safeguards and judicial interpretations of S.107 are needed to avoid the arbitrary application of the power.
Keywords: Section 107 Bharatiya Nagarik Suraksha Sanhita, 2023 Attachment of Property, PMLA, Proceeds of crime, Due process, Article 14, Article 21, Criminal procedure, Presumption of innocence.
