Invalidates transfers of property made to defeat attachment or forfeiture proceedings.
Prevents concealment or disposal of unlawfully acquired assets during investigation.
Introduction
Section 122 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) declares that any transfer of property made after initiation of proceedings relating to attachment or forfeiture shall be null and void if such transfer is intended to defeat the purposes of the proceedings. The provision ensures that persons under investigation cannot evade legal consequences by transferring unlawfully acquired property to others.
It plays a crucial role in preserving effectiveness of asset recovery mechanisms under the Sanhita.
Objective of the Provision
The objectives of Section 122 BNSS are
- to prevent disposal of property during forfeiture proceedings
- to ensure availability of unlawfully acquired assets for attachment
- to stop fraudulent transfers intended to defeat legal action
- to strengthen enforcement of confiscation orders
The provision safeguards integrity of property-related proceedings.
Meaning / Concept
Transfers Intended to Defeat Proceedings
Transfers include
- sale
- gift
- mortgage
- lease
- assignment
- or any other mode of alienation of property
made after initiation of proceedings and intended to avoid attachment or forfeiture.
Such transfers are treated as legally ineffective.
Null and Void Transfers
When a transfer is declared null and void under this section
- it has no legal effect against attachment or forfeiture proceedings
- the property continues to be treated as belonging to the person under investigation
- authorities may proceed against the property as if no transfer occurred
Thus, the provision neutralizes attempts to defeat confiscation mechanisms.
Detailed Explanation of the Section
Section 122 BNSS provides that
- where proceedings have been initiated for attachment or forfeiture of property
- any transfer of such property made thereafter
- shall be treated as null and void if it is intended to frustrate those proceedings
The section ensures that
- subsequent transfers do not affect jurisdiction of competent authority
- transferees cannot claim protection where transfer is fraudulent
- proceedings continue unaffected by such alienation
Key features include
- applicability after initiation of attachment or forfeiture proceedings
- invalidation of transfers intended to defeat proceedings
- protection of State’s right to recover unlawfully acquired property
- preservation of effectiveness of confiscation orders
These safeguards prevent misuse of property transfer mechanisms during investigation.
Procedure or Legal Framework
The procedural framework under Section 122 BNSS generally includes
- initiation of proceedings under Sections 116 to 120 BNSS
- identification of transfer of property after initiation
- determination whether transfer was intended to defeat proceedings
- declaration that such transfer is null and void
- continuation of attachment or forfeiture proceedings against property
This ensures that unlawful transfers do not obstruct recovery processes.
Judicial Interpretation
Courts have consistently emphasized that transfers intended to defeat legal proceedings relating to property forfeiture cannot be recognized in law.
In Attorney General for India v. Amratlal Prajivandas (1994) 5 SCC 54, the Supreme Court upheld statutory provisions invalidating transfers of illegally acquired property made to frustrate confiscation proceedings.
In State of Maharashtra v. Tapas D. Neogy (1999) 7 SCC 685, the Court recognized that property connected with criminal activity must remain available for investigation despite attempts to transfer ownership.
In Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh (1982) 1 SCC 39, the Supreme Court reiterated that deprivation or regulation of property must follow lawful procedure but may include restrictions preventing misuse.
These decisions support the protective purpose of Section 122 BNSS.
Importance of the Provision
Section 122 BNSS is important because
- it prevents fraudulent transfer of unlawful assets
- it preserves effectiveness of attachment and forfeiture proceedings
- it ensures recovery of proceeds of crime
- it protects integrity of criminal asset recovery framework
The provision plays a critical role in preventing evasion of confiscation proceedings.
Connection with Other Sections
Section 122 BNSS operates alongside related provisions governing attachment and forfeiture of unlawful property
- Section 116 BNSS – Identifying unlawfully acquired property
- Section 117 BNSS – Seizure or attachment of property
- Section 119 BNSS – Notice of forfeiture of property
- Section 120 BNSS – Forfeiture of property in certain cases
- Section 121 BNSS – Fine in lieu of forfeiture
Corresponding Provision under Old Law
Section 122 BNSS corresponds to Section 105J of the Code of Criminal Procedure, 1973.
Illustrative Example
After initiation of forfeiture proceedings against property suspected to be purchased using illegal funds, the accused attempts to transfer the property to a relative through a gift deed. The transfer is declared null and void and proceedings continue against the property. This action is valid under Section 122 BNSS.
Conclusion
Section 122 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ensures that transfers of property made to defeat attachment or forfeiture proceedings are treated as null and void. By preventing evasion of confiscation mechanisms, the provision strengthens enforcement of asset recovery measures in criminal justice administration.
