Guest Post: Attachment without Safeguards? Section 107 of the BNSS

(This is a guest post by Dhruvika P)

Recently various High Courts across the country have clarified that the Bharatiya Nagarik Suraksha Sanhita (“BNSS”) does not permit unilateral police action under Section 107 of BNSS. In Headstar Global Pvt Ltd v. State of Kerala, the Kerala High Court held that the attachment of property cannot circumvent procedural safeguards and judicial scrutiny. In this case the move to freeze bank accounts under Section 107 of the BNSS without referring it to a magistrate was held to be clearly impermissible. The High Court also distinguished between Section 106 (seizing of property by police) and Section 107, affirming that under Section 107 attachment can only be ordered by a magistrate. Similar concerns have been addressed by the Delhi and Bombay High Courts. Following the reasoning of the Kerala High Court observing “blanket freezing” of bank accounts violates fundamental rights under Article 19 and 21. Seemingly, these rulings appear to reinforce procedural safeguards by judicial oversight. However, they raise a deeper and more troubling question: does involvement of a magistrate in attachment reasonably constraint exercise of arbitrary authority, or does it merely formalise a weakly regulated framework?

This post argues that Section 107 of the BNSS, despite requiring Magistrate approval, continues to enable broad and less regulated powers of attachment. In fact, compared to the much criticised Prevention of Money Laundering Act, 2002 (“PMLA”), the BNSS attachment regime lacks comparable safeguards and accountability mechanisms. Further leading to a paradox of how general procedural law is permitting attachment with fewer safeguards than a specialised penal statute. By examining Section 107 through the lens of the PMLA, this piece contends that judicial involvement alone does not cure the underlying defects in the BNSS framework. Instead, the statute allows exercise of excessive discretion thereby raising serious concerns about constitutional guarantees of fairness, proportionality, and due process.

Attachment: From CrPC to BNSS

The Code of Criminal Procedure (“CrPC”) contained limited provisions for property attachment. Section 83 dealt with attachment of property of proclaimed offenders and Section 102 allowed for seizures of movable property and bank accounts. As compared to CrPC provisions, Section 107 of BNSS introduces broader powers for attachment of proceeds of crime.

However, the BNSS does not clearly define the term "proceeds of crime" within the operative provision itself. Instead, reference must be made to Section 111 which appears in a different chapter dealing with reciprocal arrangements and procedures for attachment and forfeiture of property. According to this, “proceeds of crime” encompasses property derived directly or indirectly from criminal activities. This structural displacement creates interpretive ambiguity, as it is unclear whether the definition is intended to apply uniformly across the statute. The absence of an explicit and clear definition under Section 107 creates gaps in the definition and authorises for a broader application of this definition by investigating officers.

This ambiguity becomes significant when contrasted with the PMLA definition. PMLA is a special statute for serious economic offences and provides clear definition under Section 2(1)(u) which defines proceeds of crime comprehensively to include property derived from or generated from criminal activity related to scheduled offences (and includes property of equivalent value). 

Despite their different purposes, both the BNSS and the PMLA empower the State to attach property at the pre-trial stage. While the underlying objectives may differ in both the statutes, the means through which this power is exercised, that is the procedural framework governing attachment are structurally similar. This similarity of provisions has also been argued in Pay 10 Services Private Limited v. Union of India to prove consequences of attachment under BNSS. It is this convergence in procedure that provides a room for comparative analysis between BNSS and the PMLA provisions on attachment.

Procedural Safeguards: A Comparative Analysis

According to Section 5(1) of the PMLA property can be attached where the Director or any other officer not below the rank of Deputy Director authorised by the Director believes it to be proceeds of crime. The reason to believe has to be based on material in their possession. In contrast, according to Section 107(1) of the BNSS a police officer investigating with the approval of the Superintendent of Police or Commissioner of Police, may make an application to the Court or the Magistrate exercising jurisdiction to take cognizance of the offence or commit for trial or try the case, for attachment of proceeds of crime. Further according to Section 107(2) if the Court or Magistrate has reasons to believe, whether before or after taking evidence, that all or any of such properties are proceeds of crime, it may issue a notice upon such person calling upon him to show cause within a period of fourteen days as to why an order of attachment shall not be made.

Procedurally, Section 5 (1) PMLA provides more safeguards as compared to BNSS 107(1) & (2). According Section 5(1) of PMLA, the reasons for attachment have to be in writing and only an officer not below the rank of deputy director can attach. BNSS provision lacks explicit mention of written explanation and allows the magistrate to attach if they have reasons to believe. There are two concerns in BNSS. First, absence of explicit mention of written explanation. The Supreme Court in Kranti Associates Private Limited v. Masood Ahmed Khan has reiterated that “reason is the soul of justice”. It was also noted that reasoning should not be done merely for the sake of procedure but it must be done to serve the wider principles of justice. Second, the procedure to seek approval is unclear. It merely states that approval must be sought from the Superintendent of Police or Commissioner of Police but does not prescribe the manner, standard, or material basis for such approval. The vagueness of this requirement may result in approvals being treated as a mere formality.

Concerns with Adjudication of Attached Property

With regards to adjudication of attachment, PMLA under Section 8 empowers an adjudicating authority to decide these issues. BNSS empowers the court and the magistrate to decide such matters. Under PMLA there is a period of provisional attachment of 180 days. If the adjudication is not completed under 180 days the provisional attachment order becomes void. However in BNSS, there is only a period of 14 days to reply to the show cause notice if issued by the court or the magistrate, post the 14 days period an ex parte attachment or seizure of such property can follow, and it shall remain in force till a distribution order under 107(6) is passed.

Both the statutes deprive an individual’s right to enjoy property. In PMLA it is temporarily for a period of 180 days without any justification. The BNSS does not specify any time limits or mandatory review mechanisms. It is unclear and arbitrary in BNSS. PMLA’s framework includes specific provisions for modification or revocation of attachment orders. Section 5(5) allows affected persons to apply for order modification. BNSS lacks at least similar provisions, leaving remedies to general appellate mechanisms under the code.

In this light, the BNSS attachment provisions seem relatively ambiguous and underdeveloped in terms of procedural safeguards when contrasted with the PMLA framework. This procedural ambiguity regarding adjudication under BNSS also hampers judicial decisions that have established practical guidelines for the custody and disposal of property seized during criminal proceedings under CrPC regime.

Constitutional Standards and the Draconian Risk

The constitutional validity of Section 107 must be seen against the guarantees of Article 14 and 21 along with constitutional right to property. As established in EP Royappa v. State of Tamil Nadu, arbitrariness is antithetical to equality, and any arbitrary state action necessarily violates Article 14. This principle was subsequently strengthened in Maneka Gandhi and its just fair and reasonable standard. Section 107 BNSS, when tested against this standard, raises three at least concerns. First, absence of a mandatory requirement to record reasons at the investigative stage creates a risk of arbitrariness. Second, lack of clear thresholds guiding approvals, resulting in an open-ended and weakly-structured check. Third, lack of review mechanisms allowing for prolonged and disproportionate deprivation of property. Hence, these deficiencies also dilute the quality of judicial scrutiny itself.

The decision in Vijay Madanlal Choudhary v. Union of India further strengthens the case against Section 107. The Supreme Court’s reasoning to uphold the constitutionality of the PMLA attachment provisions, despite its severity rested on the structured safeguards within the PMLA framework. Section 107 BNSS, by contrast, replicates the coercive effects of attachment without incorporating equivalent safeguards even that of PMLA. As a general procedural provision, it cannot rely on the same exceptional rationale that underpinned the Court’s reasoning in Vijay Madanlal.

Conclusion

A more balanced attachment framework under Section 107 of the BNSS may be developed that requires states to ensure attachment of proceeds of crimes are complemented by adequate procedural safeguards. International scholarship suggests that these concerns are not unique to India. Modern attachment regimes struggle to harmonise between asset recovery and guarantees under rule of law. In AGOSI v. UK, the European Court of Human Rights held that in the confiscatory process, authorities must maintain a “fair balance” between public interest in combating crimes and protection of individual property rights. 

Legal developments in India indicate a need for attachment frameworks to retain sufficient procedural safeguards along with their effectiveness in attaching “proceeds of crime”. By explicitly mentioning recorded reasons, ensuring adequate judicial review, and providing meaningful opportunities to challenge attachment, the new BNSS attachment regime can avoid structural weaknesses that render a general criminal procedural law draconian.