On a careful reading of Section 102 of the Criminal Procedure Code; it is difficult to hold that this section empowers a police officer to seize immovable property like plots of land, residential houses, mountains, rivers streets or similar properties. There are several reasons for arrivingat the aforesaid conclusion. The first is that no useful purpose is going to be served by the seizure of the immovable property of the above kind so far as the object of investigation is concerned; Therefore, it cannot be inferred that for the purpose of facilitating investigation, inquiry or trial seizure of immovable property of above kind is permissible. So far as the title to immovable property is concerned it is the competent civil Court or revenue Court which is empowered by law to adjudicate the disputed questions relating to title. The investigation by the police has nothing to do with the disputes relating to title to any immovable property. So far as the possession of immovable property is concerned, in case of dispute, the Executive Magistrate may take appropriate action under Sections 145 and 146 of the Criminal Procedure Code; if the conditions laid down for exercise of power u/s 146(1) of the Criminal Procedure Code are satisfied. The Executive Magistrate may attach the disputed property subject to the provisions of that Section Seizure by the police of immovable properties, even if there is a dispute about the possession thereof, cannot be inferred in view of the provisions of Sections 145 and 146 of the Criminal Procedure Code. The rule that if there are special provisions in the statute to deal with a certain matter then the general provisions do not apply to that matter, is applicable in the case. Therefore, even if there are disputes about immovable property and attachment of the property is necessary for preventing the breach, of peace it is the Executive Magistrate who is specialty empowered under Sections 145 and 146 of the Criminal Procedure Code to pass suitable orders for attachment. The power of police to seize immovable property, in cases in which there is a dispute about the possession cannot, therefore, be inferred from provisions of Section 102 of the Criminal Procedure Code.
Immovable property cannot be stolen because it is incapable of being removed from the possession of any person. Even in those cases where a person who was in possession of immovable property has been deprived of his possession by a trespasser and it is considered necessary to restore possession of the property to the complainant, it is Section 456 of the Criminal Procedure Code which gives a limited jurisdiction to the Court in which the trial is conducted. Sub-section (1) of Section 456 of the Criminal Procedure Code provides that when a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation and if appears to the Court that, by such force, or show of force or intimidation, any person has been dispossessed of any immovable property, the Court may, if it thinks fit, order that possession of the same be restored to that person after evicting by force, if necessary, any person who may be in possession of the property. The proviso given in Sub-section (1) of Section 456 provides that no such order shall be made by the Court more than one month after the date of the conviction. Sub-section (2) of Section 456 provides that where the Court trying the offence has not made an order under Sub-section (1), the Court of appeal, confirmation or revision may, if it thinks fit, make such order while disposing of the appeal, reference or revision, as the case may be; and, Sub-section (3) of Section 456 provides that where an order has been made under Sub-section (1), the provisions of Section 454 shall apply in relation thereto as they apply in relation to an order u/s 453. The cases in which a person has been deprived of the possession of his immovable property by use of force or show of force or by intimidation are covered by Section 456 of the Criminal Procedure Code and, in such cases, the jurisdiction to restore possessions is vested in the Court which tried and convicted the accused or in the Court of appeal or revision and the aforesaid jurisdiction can be exerci sed only in the event of the conviction of the offender. There is no mention in Section 456 of the Criminal Procedure Code about the seizure of the property u/s 102 or about the passing of order by Court u/s 451 of the Criminal Procedure Code. It is, therefore, proper to infer that the legislature does not contemplate that the property in respect of which the trial Court, appellate Court, or revisional Court may pass an order of restoration of property u/s 456 of the Criminal Procedure Code, may be seized by the police during investigation or may be dealt with by the Magistral u/s 451 of the Criminal Procedure Code. lf the legislature had intended that such property should be seized by the police officer there wasi nothing to prevent the legislature from indicating in Section 102 of the Criminal Procedure Code that immovable property can also be seized by the police officer. If the legislature had intended that a Magistrate would be competent u/s 451 to pass orders regarding the immovable property the legislature would not have required the production of the property in the Court because immovable property is incapable of being prof duced in the Court and, in any case, in Section 456 of the Criminal Procedure Code the legislature must have referred to the seizure of the property by the police u/s 102 and the orders passed by the legislature u/s 451 of the Criminal Procedure Code.
