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Authored By
Rajat Jain, Advocate
Vaish Associates Advocates
Email id: rajatjain@vaishlaw.com
Mobile No. 9953887311
LinkedIn: https://www.linkedin.com/in/rajat-jain-75772398/
In Puja Hari v. State of West Bengal & Anr., 2026:CHC-AS:897 and Piyush Sharma v. State of West Bengal & Anr., CRR 4389 of 2025, the Calcutta High Court delivered two significant judgments explaining the scope and safeguards governing attachment of property under Section 107 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ("BNSS"). While recognising that Section 107 introduces a powerful mechanism enabling attachment of property even before conclusion of investigation or trial, the Court cautioned that such power must be exercised with great circumspection, as indiscriminate use may seriously impair the constitutional right to property protected under Article 300A.
The Court emphasised that the statutory requirement of "reason to believe" is a substantive safeguard and not an empty formality. Attachment cannot rest on suspicion, assumptions or mechanical approvals, but must be founded on cogent material establishing a clear nexus between the property sought to be attached and the alleged criminal activity.
Brief Facts
In Puja Hari, the petitioner, who was not an accused, challenged an order of the Chief Judicial Magistrate attaching properties jointly owned by her and her husband (the accused), as well as properties exclusively owned by her. The attachment was ordered under Section 107 BNSS without issuing her any notice or affording an opportunity of hearing, although she was the owner of the attached properties.
In Piyush Sharma, attachment orders were passed over properties alleged to represent proceeds of crime after notices were issued to the affected persons. However, the Revisional Court set aside the attachment holding that the statutory requirement of recording "reason to believe" had not been satisfied. The complainant challenged that order before the High Court.
While deciding both the matters, the High Court comprehensively examined the newly introduced framework under Section 107 BNSS and laid down important principles governing attachment proceedings.
Section 107 of BNSS Introduces a Powerful Pre-Trial Attachment Mechanism
The Court observed that Section 107 of BNSS marks a significant departure from the earlier criminal procedure by introducing a mechanism enabling attachment, liquidation and eventual distribution of property even before investigation or trial concludes. Since such power directly affects proprietary rights, every statutory safeguard incorporated by the legislature must receive strict compliance.
Referring to Article 300A of the Constitution and the Supreme Court's decisions, the Court reiterated that the right to property remains a constitutional right and any law authorising deprivation thereof must be strictly construed.
"Reason to Believe" Is a Jurisdictional Safeguard
A central aspect of both judgments is the Court's interpretation of the expression "reason to believe" occurring in Section 107(1) BNSS.
The Court held that the investigating officer must possess admissible material demonstrating that the property has been derived or obtained directly or indirectly from criminal activity. The attachment must disclose the material forming the basis of such belief, establish a proximate connection between the property and the alleged offence, and, as far as practicable, explain the necessity of attachment from the standpoint of possible concealment. Mere suspicion, non-cooperation by the accused or a general apprehension cannot substitute the statutory requirement of "reason to believe".
The Court further held that the statutory approval required from the Superintendent of Police or Commissioner of Police is not a mechanical or ministerial exercise.
Notice and Opportunity of Hearing Are the Rule
In Puja Hari, the Court held that Sections 107(2) and 107(3) prescribe mandatory procedural safeguards before an order of attachment is passed.
The provision requires: (i) issuance of notice to the person whose property is proposed to be attached; (ii) granting at least fourteen days to respond; (iii) affording a reasonable opportunity of hearing; and (iv) recording satisfaction that the property represents proceeds of crime. These safeguards can be dispensed with only in the limited situations expressly contemplated by the statute, including where issuance of notice would defeat the very purpose of attachment.
Since the petitioner, despite being the owner of the attached properties, had not been served with any notice and had been erroneously treated as an absconding accused, the Court held that the attachment order was passed in complete violation of Section 107 and accordingly set it aside.
Ex Parte Attachment Must Be Invoked Only in Exceptional Cases
The Court also cautioned against routine invocation of the power of ex parte attachment under Section 107(5).
Unlike statutes such as the Prevention of Money Laundering Act, 2002, which prescribe a limited duration for provisional attachment, Section 107 contains no corresponding time limit. Consequently, an ex parte attachment may continue for an indefinite period and substantially prejudice proprietary rights.
The Court therefore held that ex parte attachment should be resorted to only in rare and exceptional cases where the application and the approval specifically demonstrate why prior notice would frustrate the object of attachment.
Courts Must Independently Scrutinise Every Request for Attachment
The High Court emphasised that Section 107 incorporates multiple layers of scrutiny before attachment can be ordered. Apart from the investigating officer and the approving superior officer, the Magistrate is independently required to examine whether the statutory conditions have been fulfilled.
The Court cautioned that failure to undertake meaningful judicial scrutiny may convert criminal proceedings into an impermissible mechanism. Judicial satisfaction cannot therefore be substituted by mechanical acceptance of the investigating agency's request.
Outcome
Applying these principles, the Court in Puja Hari set aside the attachment order for non-compliance with the mandatory requirements of Section 107 while granting liberty to the investigating agency to initiate fresh proceedings strictly in accordance with law.
In Piyush Sharma, the Court upheld the Revisional Court's decision setting aside the attachment being mechanical in nature, while similarly permitting the investigating agency to make a fresh application in compliance with Section 107(1) BNSS.
Conclusion
These judgments constitute one of the earliest and most comprehensive judicial expositions of Section 107 BNSS. The Calcutta High Court has clarified that attachment of property before conclusion of investigation is an extraordinary measure carrying serious consequences for the constitutional right to property under Article 300A. The statutory requirement of "reason to believe", independent approval by senior police officers, meaningful judicial scrutiny and compliance with the mandatory notice and hearing requirements are substantive safeguards that cannot be diluted. The rulings serve as an important reminder that Section 107 is intended to preserve the proceeds of crime and not to facilitate arbitrary deprivation of property or operate as a substitute for civil recovery.
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The content of this article is intended to provide a general guide to the subject matter. Specialist professional advice should be sought about your specific circumstances. The views expressed in this article are solely of the authors of this article.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
