Calcutta HC Sets Aside Property Attachment Order Against Non-Accused Wife, Lays Down Procedural Safeguards Under Section 107 BNSS
The Calcutta High Court quashed an attachment order against a woman not named in any FIR, holding that mandatory notice under Section 107(2) and (3) of the BNSS was never served on her.
The Calcutta High Court has set aside an order by which the Chief Judicial Magistrate, Howrah attached five properties — three jointly held by an accused and his wife, and two belonging exclusively to the wife — without serving any notice on the wife, who was not an accused in the underlying case. Dr. Justice Ajoy Kumar Mukherjee, sitting singly in the Criminal Revisional Jurisdiction, held that the attachment violated the mandatory procedural requirements of Section 107(2) and (3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The judgment goes beyond the immediate facts to set out detailed guidelines on how courts and investigating agencies must exercise the attachment power under Section 107, warning that casual or mechanical invocations of the provision risk violating Article 300-A and Article 14 of the Constitution.
The Dispute Before the High Court
The underlying criminal case began on 20 May 2025, when Manoj Agarwal, a representative of Utkarsh India Limited, lodged a written complaint at Sakrail Police Station, Howrah. The complaint alleged that one Shyam Kumar Gupta, representative of Shree Shyam Road Safety, and its sole proprietor Lalita Devi had approached the company in 2020, leading to a business relationship. Discrepancies were subsequently discovered in the ledger of Shree Shyam Road Safety for the period 16 April 2022 to 22 February 2024.
On the basis of this complaint, Sakrail P.S. Case No. 433/2025 dated 20 May 2025 was registered under Sections 420, 426, 120B and 34 of the IPC against Bikash Hari and other employees of the company. Bikash Hari's wife, Puja Hari, was not named as an accused in the FIR.
During the investigation, the investigating officer applied on 10 July 2025 for an order of forfeiture of properties under Section 107 of the BNSS. The CJM declined to pass any order at that stage because the accused persons had not yet been arrested. After the accused persons were arrested, the CJM on 24 September 2025 passed an order attaching five properties — three jointly held by Bikash Hari and Puja Hari, and two owned exclusively by Puja Hari. The CJM further directed the investigating officer to take physical possession of the attached properties.
Puja Hari learnt of the attachment order only on 11 October 2025, when she found a notice pasted on her properties directing her to vacate. She had received no prior notice of the attachment proceedings. She filed Criminal Revision CRR 4810 of 2025 before the Calcutta High Court challenging the CJM's order.
The Legal Issue: Notice to a Non-Accused Property Owner
The central question was whether the CJM could attach properties belonging to a person who had not been arraigned as an accused, without serving any notice on her under Section 107(2) and (3) of the BNSS.
Section 107(2) requires the court, before passing an attachment order, to issue a notice calling upon the concerned person to show cause within fourteen days why attachment should not be ordered. Section 107(3) requires that where the notice specifies property held by any other person on behalf of the noticee, a copy of the notice must also be served on that other person.
The CJM had taken the position that service of notice on Bikash Hari was sufficient compliance with Section 107(2) and (3), since the properties were allegedly purchased in the name of Puja Hari as a benam transaction. The CJM also held that Puja Hari had no right of audience because she was absconding. The CJM treated the requirement of approval from the Commissioner of Police under Section 107(1) as a mere technical issue.
Puja Hari's counsel argued before the High Court that she was neither named as an accused in the FIR nor inducted into the case as an accused at any stage, and therefore the question of her absconding did not arise at all. Even if she had been an absconding accused, the law permits service of notice by pasting it on the house of the concerned person — a step that was never taken.
How the Bench Reasoned
Justice Mukherjee identified four pre-requisites that Section 107(2) of the BNSS mandates before any attachment order can be passed: notice to the person whose property is proposed to be attached; a period of fourteen days for response; a reasonable opportunity of being heard; and a finding that the property is actually proceeds of crime. The court found that none of these steps had been followed in respect of Puja Hari.
The CJM's reasoning that notice on Bikash Hari sufficed was rejected. Puja Hari was the owner of all five properties under attachment. There was nothing on record to show that any notice had been served on her before the impugned order was passed. The CJM's characterisation of her as an absconding accused was described as a “flawed observation” because she had never been named as an accused in the case.
The court also took issue with the CJM's direction to the investigating officer to take physical possession of the attached properties. Drawing on the Supreme Court's observations in Vijay Madan Lal Chowdhury v. Union of India reported in (2023) 12 SCC 1, Justice Mukherjee held that physical dispossession before a formal confiscation order is an exceptional step, not a routine one. The direction to take physical possession was therefore an additional infirmity in the CJM's order.
Justice Mukherjee then set out broader guidelines for the exercise of the Section 107 power, which he described as a standalone mechanism introduced by the BNSS for attachment, liquidation and distribution of property even before investigation or trial concludes.
On the threshold for invoking Section 107, the court held that the investigating officer's “reason to believe” must be recorded in writing in the application forwarded to the superior officer. The application must demonstrate a close connection between the property and the criminal activity under investigation, and must additionally show the necessity of attachment from the perspective of concealment or transfer. Mere endorsement by the superior officer does not constitute approval; the approval must reflect application of mind on the basis of cogent material.
The court drew a distinction between the threshold for commencing investigation (“reason to suspect” under Section 176 of the BNSS) and the threshold for invoking Section 107 (“reason to believe”). The latter is a higher standard and must receive strict interpretation. The court relied on the Supreme Court's judgment in Arvind Kejriwal v. Enforcement Directorate reported in (2025) 2 SCC 248 for the proposition that “reason to believe” must be based on hard admissible material in the actual possession of the officer, and that the officer cannot selectively pick material implicating the person while ignoring material that exonerates.
On ex parte orders under Section 107(5), the court held that such orders can be passed only in rare cases where the application and the approval both demonstrate the reasons for urgency. The court pointed to a structural gap in Section 107: unlike the Prevention of Money Laundering Act, which limits provisional attachment to 180 days, Section 107 of the BNSS prescribes no time limit for final adjudication. This means an ex parte interim attachment could continue indefinitely, depriving a person of property without effective remedy. The court also noted that while the heading of Section 107 refers to “restoration of property”, the section itself is silent on the mode or manner of restoration.
The court further observed that the terms “criminal activity” and “proceeds of crime” are not defined in the chapter of the BNSS that contains Section 107. The definition of “proceeds of crime” in Section 111(c) of the BNSS is restricted to Chapter VIII and is of limited assistance. This definitional gap, the court warned, leaves the provision susceptible to misuse and could allow criminal prosecution to be used as a tool of recovery, which is impermissible.
Justice Mukherjee also noted that Section 107 applies to “any offence” without distinguishing between serious economic crimes and minor offences, making vigilance by both investigating agencies and courts all the more necessary. Indiscriminate use of the power without application of mind, the court held, may cause serious damage to the constitutional right to property under Article 300-A, as recognised in N. Padmamma v. S. Ramkrishan Reddy reported in (2008) 15 SCC 517 and K.T. Plantation Pvt. Ltd. v. State of Karnataka reported in (2011) 9 SCC 1. Arbitrary exercise of the power may also violate Article 14 in the light of E.P. Royappa v. State of Tamil Nadu reported in (1974) 4 SCC 3 and Maneka Gandhi v. Union of India reported in (1978) 1 SCC 248.
The court summarised the multiple layers of scrutiny that Section 107(1) to (4) contemplates: first, the investigating officer's own assessment; second, the approval of the Superintendent of Police or Commissioner of Police; third, judicial scrutiny before issuance of the show-cause notice; and fourth, judicial consideration after the noticee appears and provides an explanation. The CJM's order had bypassed all of these layers in respect of Puja Hari.
Order
The revision petition CRR 4810 of 2025 was allowed. The order dated 24 September 2025 passed by the CJM, Howrah in GR No. 2801 of 2025 was set aside.
The court clarified that the order does not prevent the investigating authority from initiating the attachment process afresh, strictly in compliance with Section 107 of the BNSS, within four weeks from the date of the judgment. If any fresh prayer is made under Section 107(2) or (3), the court below is directed to dispose of it strictly in accordance with the law as discussed in the judgment.
The connected application IA No. CRAN 1 of 2026 was also disposed of accordingly.