Notice Under Section 107 BNSS Mandatory Before Attaching Property; Right To Property Is A Constitutional Right: Calcutta High Court

"Legislature in its wisdom made a specific provision for attachment mandating service of notice upon the person whose property would be attached and as such it made the room for the opportunity of being heard," Calcutta High Court, in a significant ruling, held that the service of notice under Section 107(2) and (3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) is a mandatory prerequisite before any order of property attachment can be passed.

A single-judge bench of Justice Ajoy Kumar Mukherjee observed that the right to property is a constitutional right protected under Article 300A, and any deprivation of such right without following the prescribed legal procedure is unsustainable. The court emphasized that the newly incorporated provisions of the BNSS must be followed in their true letter and spirit to prevent the misuse of investigative powers.

The case arose from a challenge by the petitioner, Puja Hari, against an order passed by the Chief Judicial Magistrate (CJM), Howrah, which attached five properties—three held jointly with her husband and two owned exclusively by her. The attachment was sought by the investigating officer in connection with a fraud case registered against the petitioner's husband under sections 420, 426, 120B, and 34 of the IPC. Although the petitioner was not named as an accused in the FIR, the properties were attached on the grounds that she was allegedly "absconding," a finding the High Court later termed as "flawed."

The primary question before the court was whether a Magistrate could bypass the mandatory notice requirement under Section 107 of the BNSS while ordering the attachment of property belonging to a non-accused person. The court was also called upon to determine the standard of "reason to believe" required for such an invasive procedure and whether the trial court had appropriately applied the "multiple layers of scrutiny" intended by the legislature under the new criminal code.

Mandatory Procedure For Attachment Under Section 107 BNSS

The Court observed that Section 107 of the BNSS prescribes a specific four-step procedure that must be adhered to before an order of attachment is passed. This includes the issuance of a notice to the owner, a mandatory 14-day response period, a reasonable opportunity for a hearing, and a logical conclusion that the property constitutes "proceeds of crime." Justice Mukherjee noted that the legislature provided these checks and balances to ensure that the process of attachment is not carried out at the "whims and fancies" of the investigating officer.

"The legislature in its wisdom had provided multiple layers of checks and balances both at the executive and judicial level in order to ensure that the process under section 107 of the BNSS leading to attachment of property cannot be done at the whims and fancies of the investigating officer."

'Reason To Believe' Requires Strict Interpretation

Drawing a distinction between the investigative stages, the Court held that the "reason to believe" required for attachment under Section 107 is a much higher threshold than the "reason to suspect" mentioned in Section 176 of the BNSS. Relying on the Supreme Court’s judgment in Arvind Kejriwal Vs. ED (2025), the bench stated that this term must receive a strict interpretation. The investigating officer must base their belief on hard, admissible material in their possession that clearly indicates guilt or a direct link to the proceeds of crime.

"The term ‘reason to believe’ must get strict interpretation. For commencement of investigation, the threshold limit is ‘reason to suspect’... Therefore, the provisions under section 107 of BNSS should not be invoked by an investigating officer without proper investigation."

Attachment Is Not A Punishment But A Recovery Mechanism

The Court clarified that the attachment and forfeiture of property do not constitute "punishment" under Section 4(d) of the Bharatiya Nyaya Sanhita (BNS) but are intended as a mechanism to prevent the dissipation of assets. Justice Mukherjee referred to the Vijay Madan Lal Chowdhury vs. Union of India (2023) judgment to explain that taking physical possession of attached property should be an exception rather than a rule. The court warned that indiscriminate use of attachment powers without application of mind could lead to a "serious disaster" regarding the constitutional right to property.

"Indisputably, statutory rules... regarding taking possession of attached or frozen properties... should be an exception and not a rule. That issue will have to be considered on case-to-case basis."

"If a right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law."

Strict Scrutiny For Ex-Parte Interim Orders

Regarding Section 107(5) of the BNSS, which allows for ex-parte interim attachment orders, the Court held that such powers should be invoked only in "rare cases." The Magistrate must demonstrate the specific reasons for haste and the necessity of such an order to prevent the object of attachment from being defeated. The court observed that because the BNSS does not prescribe a specific time limit for final adjudication after an interim order, an individual could be deprived of their property indefinitely without an effective remedy.

"Once such interim order is passed there is likelihood that it may continue indefinitely, because the statute does not prescribe any time limit for final adjudication and it may create a situation where individual may be deprived of his property for prolonged period without effective remedy."

Flawed Observation Regarding Non-Accused Being 'Absconding'

The Court took sharp exception to the Magistrate's observation that the petitioner had no right of audience because she was "absconding." Justice Mukherjee pointed out that since the petitioner was neither named in the FIR nor inducted into the case as an accused, the question of her absconding could not arise. The court noted that the trial court had "brushed off" the statutory warnings by labeling the lack of proper approval from the Commissioner of Police as a mere "technical issue."

"Learned magistrate without any reason has held that the right of audience of the present petitioner Puja Hari is not available as she is absconding. Such observation is a flawed observation because she was neither named as an accused in the FIR nor she has been inducted in the present case."

In conclusion, the High Court set aside the CJM’s order dated September 24, 2025, for being in clear violation of the mandatory provisions of Section 107(2) and (3) of the BNSS. The court allowed the investigating authority to initiate the process afresh within four weeks, strictly adhering to the legal requirements. The bench reiterated that any deprivation of property not based on sound judicial discretion would violate Articles 14 and 300A of the Constitution of India.

Date of Decision: 23 June 2026