Section 105C CrPC and Section 115 BNSS: Assistance in Attachment or Forfeiture of Property
Section 105C of the Code of Criminal Procedure, 1973 dealt with judicial assistance for attachment or forfeiture of property connected with an offence, including property located in a contracting State. The corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is Section 115.
Meaning and purpose of Section 105C CrPC
Chapter VII-A of the CrPC provided a framework for reciprocal arrangements with foreign jurisdictions and for tracing, attachment and forfeiture of unlawfully acquired property. Section 105C enabled an Indian court to act on reasonable grounds concerning property derived from an offence, request execution abroad and process qualifying foreign requests through the Central Government.
Section 105C CrPC: Original legal provisions
Sub-section (1): Power to order attachment or forfeiture
Where a Court in India has reasonable grounds to believe that any property obtained by any person is derived or obtained, directly or indirectly, by such person from the commission of an offence, it may make an order of attachment or forfeiture of such property, as it may deem fit under the provisions of sections 105D to 105J (both inclusive).
Sub-section (2): Property suspected to be abroad
Where the Court has made an order for attachment or forfeiture of any property under sub-section (1), and such property is suspected to be in a contracting State, the Court may issue a letter of request to a Court or an authority in the contracting State for execution of such order.
Sub-section (3): Request received from a contracting State
Where a letter of request is received by the Central Government from a Court or an authority in a contracting State requesting attachment or forfeiture of the property in India, derived or obtained, directly or indirectly, by any person from the commission of an offence committed in that contracting State, the Central Government may forward such letter of request to the Court, as it thinks fit, for execution in accordance with the provisions of sections 105D to 105J (both inclusive) or, as the case may be, any other law for the time being in force.
Section 115 BNSS: Present corresponding provision
Section 115 BNSS, titled "Assistance in relation to orders of attachment or forfeiture of property," retains the three-part structure of Section 105C CrPC. The operative cross-reference is now to Sections 116 to 122 BNSS, instead of Sections 105D to 105J CrPC.
| Earlier provision | Current provision | Subject |
|---|---|---|
| Section 105C(1) CrPC | Section 115(1) BNSS | Indian court's power concerning crime-linked property |
| Section 105C(2) CrPC | Section 115(2) BNSS | Letter of request for execution in a contracting State |
| Section 105C(3) CrPC | Section 115(3) BNSS | Foreign request routed by the Central Government to an Indian court |
Important legal definitions
Contracting State
Under Section 111(a) BNSS (formerly Section 105A(a) CrPC), a contracting State is a country or place outside India for which the Central Government has made arrangements with its government through a treaty or otherwise.
Proceeds of crime
Section 111 BNSS includes within this expression property derived or obtained, directly or indirectly, from criminal activity, including crime involving currency transfers, or the value of such property.
Attachment and forfeiture
Attachment is a legal restraint or measure directed at property pending the applicable process; forfeiture is deprivation of property pursuant to a lawful forfeiture order. The statutory safeguards and steps governing these measures must be followed.
Letter of request
A formal request sent to a court or competent authority of a contracting State for assistance in executing an attachment or forfeiture order, subject to the applicable reciprocal arrangements and law.
Procedure and safeguards
- Reasonable grounds: The court must have a legally sufficient basis to connect the property with commission of an offence.
- Judicial order: Any attachment or forfeiture order must comply with the relevant statutory procedure.
- Overseas execution: If the property is believed to be in a contracting State, the court may issue a letter of request.
- Incoming requests: The Central Government may forward a qualifying foreign request to an appropriate court in India.
- Due process: Tracing, seizure, notice, forfeiture and related steps are governed by Sections 116 to 122 BNSS and any other applicable law.
The Supreme Court in State of M.P. v. Balram Mihani (2010) interpreted Chapter VII-A CrPC in the context of international criminal cooperation. This chapter should not be treated as a general substitute for every domestic property attachment power.
Related provisions
Section 105A CrPC - Definitions; Section 105B CrPC - Transfer of persons; Section 105D CrPC - Identifying unlawfully acquired property; and Section 105E CrPC - Seizure or attachment.
Official legislation and references
- National Crime Records Bureau - BNSS chapter and section text
- NCRB - CrPC to BNSS correspondence table
- Bureau of Police Research and Development - BNSS reference PDF
- India Code - Central legislation database
Frequently asked questions
What is Section 105C CrPC?
It provides a mechanism for Indian courts to order attachment or forfeiture of property linked to an offence and to seek assistance from a contracting State.
What is the corresponding provision in BNSS?
Section 115 of the Bharatiya Nagarik Suraksha Sanhita, 2023 corresponds to Section 105C CrPC.
Can a foreign country request attachment of property in India?
Yes. Under Section 115(3) BNSS, the Central Government may forward a qualifying request from a contracting State to an appropriate Indian court for execution under applicable law.