Introduction 

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) which came into force on 1st July, 2024, introduced Section 107 as a significant addition to India's legal framework for dealing with properties constituting "proceeds of crime." This provision represents a paradigm shift in the approach towards attachment, forfeiture, and distribution of criminal assets, expanding the scope of such powers beyond what was previously available under specialized legislations like the Prevention of Money Laundering Act (PMLA), 2002, and the Fugitive Economic Offenders Act (FEOA), 2018. 

Section 107 empowers courts to attach any property derived from criminal activities and, under certain conditions, to forfeit such proceeds to the government for distribution among victims. This provision fills a legislative vacuum that previously existed under the Code of Criminal Procedure (CrPC) and represents the legislature's intent to enable expeditious disposal and distribution of proceeds of crime to rightful claimants. 

Expansive Scope and Definition of Proceeds of Crime 

• Wide Net of Offences: 
  • Section 107 applies to properties derived from "any criminal activity or from the commission of any offence" under the Bharatiya Nyaya Sanhita (BNS), 2023.  
  • This expansive language covers all criminal offences, unlike specialized statutes such as PMLA and FEOA, which are limited to specific scheduled offences.  
  • The broad application encompasses offences ranging from minor infractions to serious economic crimes, potentially making the provision susceptible to overbroad application. 
• Definition and Scope: The term "proceeds of crime" under Section 111(c) of BNSS includes: 
  • Any property derived or obtained directly or indirectly by any person as a result of criminal activity; or 
  • The value of any such property 
  • This definition allows attachment of both tainted property (directly derived from crime) and untainted property of equivalent value, similar to provisions under PMLA. 

Authority and Procedure for Attachment 

• Initiating Authority:  
  • A police officer conducting an investigation, with approval from the Superintendent of Police or Commissioner of Police, may apply to the court or Magistrate for attachment of property if he has reason to believe that the property constitutes proceeds of crime. 
  • Procedural Requirements: The attachment process involves: 
    • Filing an application with the competent court or magistrate. 
    • Issuance of a show-cause notice providing 14 days for response. 
    • Consideration of explanations and material facts. 
    • Passing of attachment order after providing reasonable opportunity of hearing. 
• Threshold for Attachment:  
  • Unlike PMLA and FEOA, which require the Director to record reasons in writing based on material in possession, Section 107 does not mandate such detailed recording of reasons by the investigating police officer. 

Ex Parte Interim Attachment Powers 

• Extraordinary Powers:  
  • Section 107(5) grants magistrates and criminal courts the power to issue ex parte interim attachment orders without prior notice if they believe that issuing notice would defeat the object of attachment or seizure.  
  • This provision represents one of the most significant features of Section 107, allowing immediate action to prevent asset dissipation. 
• Concerns with Ex Parte Orders: 
  • No guidance provided to courts regarding circumstances for exercising such extreme powers 
  • Interim orders remain in force until final adjudication under sub-section (6) 
  • Absence of specified timelines for final decision-making 
  • Limited recourse for affected persons to challenge or modify such orders 

Pre-Trial Attachment and Liquidation 

• Departure from Traditional Practice:  
  • Section 107 permits attachment and liquidation of properties even before the conclusion of trial related to the associated criminal offense.  
  • This represents a significant departure from traditional legal practices where forfeiture typically occurs only after conviction. 
• Constitutional Concerns:  
  • The pre-trial forfeiture mechanism potentially undermines the fundamental principle of presumption of innocence.  
  • Unlike PMLA, which does not permit confiscation before trial conclusion, Section 107's approach may face constitutional challenges under Articles 14 and 21 of the Constitution. 
• Distribution Mechanism:  
  • Once property is confirmed as proceeds of crime, the court directs the District Magistrate to distribute such proceeds among crime victims within 60 days. 
  • Any surplus or unclaimed proceeds are forfeited to the government. 

Absence of Temporal Limitations 

• No Time Restrictions:  
  • Unlike PMLA and FEOA, which provide for maximum attachment periods of 180 days, Section 107 does not stipulate any time limit for attachment duration.  
  • This absence of temporal safeguards could result in indefinite attachment periods. 

Limited Procedural Safeguards 

• Notice Period: Section 107 provides only 14 days for response to show-cause notices, compared to PMLA's 30-day notice period for disclosure proceedings. 
• Right to be Heard: While Section 107 mandates providing reasonable opportunity of hearing, the provision for ex parte orders under sub-section (5) significantly limits this right in cases where courts believe notice would defeat the attachment's purpose. 

Gap in Restoration Provisions 

• Major Legislative Lacuna: Despite the marginal note referring to "attachment," "forfeiture," and "restoration," Section 107 provides detailed procedures only for attachment and forfeiture while remaining silent on restoration mechanisms. 
• Contrast with Other Laws: 
  • The 1944 Ordinance contained detailed provisions for release or withdrawal of attachment orders. 
  • PMLA provides restoration mechanisms under Section 8(6). 
  • Section 107 lacks any guidance on when and how restoration should occur. 

Conclusion 

Section 107 of BNSS represents a bold and progressive step in India's approach to combating economic crimes and ensuring swift justice for victims. The provision's ability to facilitate rapid attachment, forfeiture, and distribution of criminal proceeds addresses longstanding gaps in the legal framework and demonstrates the legislature's commitment to disrupting the financial benefits of criminal activities.