As per the case facts, a State Cabinet Minister was arrested and subsequently remanded to judicial custody under the Prevention of Money Laundering Act. A writ of Habeas Corpus was ...
No Acts & Articles mentioned in this case
2023 INSC 677 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 2284-2285 of 2023
(@SLP (Criminal) Nos. 8939-8940 of 2023)
V. SENTHIL BALAJI ...APPELLANT
VERSUS
THE STATE REPRESENTED BY
DEPUTY DIRECTOR AND ORS. ...RESPONDENTS
WITH
CRIMINAL APPEAL NOS. 2288-2289 of 2023
(@SLP (Criminal) Nos. 8652-8653 of 2023)
CRIMINAL APPEAL No.__2286 of 2023
(@SLP (Criminal) No.7437/2023)
CRIMINAL APPEAL No._2287__of 2023
(@SLP (Criminal) No.7460/2023)
CRIMINAL APPEAL No.________2290_______of 2023
(@SLP (Criminal) No. 8750/2023)
J U D G M E N T
M.M. SUNDRESH, J.
1.Leave granted.
2.After the Scheduled Offence went through an elongated judicial journey, it is
the turn of the Enforcement Case Information Report under the Prevention of
Money Laundering Act, 2002 (hereinafter referred to as “the PMLA, 2002”).
1
What is under challenge before us are the orders passed by the majority of
the Judges when a reference was made on a difference of opinion by the
Division Bench of the Madras High Court, while dealing with a Writ Petition
filed seeking a writ of Habeas Corpus in pursuance of an arrest made,
followed by a remand to the judicial custody, and then to the authority
concerned. Though arguments at length are made at the Bar, the principal
issue is only on the remand in favour of the investigating agency, without
seeking any specific prayer challenging the remand orders, though additional
grounds were raised.
3.Heard Shri Kapil Sibal and Shri Mukul Rohatgi learned Senior Advocates
appearing for the appellant and Shri Tushar Mehta, learned Solicitor General
appearing for the respondents. We have also perused the documents and the
written arguments filed.
A BIRD’S EYE VIEW:
4.We shall first give a narration of the basic facts sufficient enough to decide
the lis. For a proper understanding, we adopt the appeals arising out of
Special Leave Petition (Criminal) Nos. 8939-8940 of 2023 as the lead case.
The appellant in the appeals arising out of Special Leave Petition (Criminal)
Nos. 8652-8653 of 2023 is none other than the wife of the appellant in the
appeals arising out of Special Leave Petition (Criminal) Nos. 8939-8940 of
2023, being the writ Petitioner before the High Court. Incidentally, the
2
respondents, though filed separate appeals arising out of Special Leave
Petition (Criminal) Nos. 7437 of 2023, 7460 of 2023, and 8750 of 2023, are
appositely referred as respondents.
5.The appellant is a Cabinet Minister of the State of Tamil Nadu. After a see-
saw legal battle, his status remains that of an accused pursuant to the orders
passed by this Court in the Scheduled Offence.
6.A case was registered in Enforcement Case Information Report No. 21 of
2021 by the Respondent No.1 against the appellant and others. It was
followed by summons dated 04.08.2021 and 07.10.2021 requiring the
attendance of the appellant. Further summons were issued on 07.03.2022 and
24.07.2022. A search was conducted by the Authorised Officer invoking
Section 17 of the PMLA, 2002 at his premises on 13.06.2023.
7.Finding that the appellant was not extending adequate cooperation, the
Authority had invoked Section 19 of the PMLA, 2002 by way of an arrest on
14.06.2023. An arrest memo was also prepared. Though grounds of arrest
were furnished, the appellant declined to acknowledge them. The information
pertaining to the arrest was also intimated to his brother, sister-in-law and
wife.
8.The appellant was taken to the Tamil Nadu Government Multi Super
Speciality Hospital, Chennai as he complained of chest pain. His wife rushed
to the High Court and filed a Habeas Corpus petition being HCP No.1021 of
2023 on the very same day. In the meanwhile, the respondents filed an
3
application before the learned Principal Sessions Judge seeking judicial
custody for 15 days. An order of remand was passed sending him to judicial
custody till 28.06.2023.
“At the request of the Special Public Prosecutor, Enforcement
Directorate, Chennai filed along with ECIR, Remand Report and
other documents I came down to Tamil Nadu, Government Multi
Super Speciality Hospital, Omanthur, Chennai by 3.30 p.m. Dr. J.
CECILY MARY MAJELLA, Associate Professor, Cardiology
certified that the accused Senthil Balaji is conscious and oriented.
Then I met Thiru. V. Senthil Balaji, the accused in the ICU ward
of the said hospital and enquired in the presence of Dr. J.
CECILY MARY MAJELLA. Heard the Special Public Prosecutor
and the Senior Advocate Mr. N. R. Elango, who appeared for the
accused. Grounds of Arrest was said to have been conveyed by
the Investigating Officer, but the accused denied to acknowledge
and signed the same. Also relatives of the accused are said to
have been not available in the place of arrest and they have been
informed through SMS and Email since they didn’t pick the
phone call. Proof has also been produced. I informed the
accused about the grounds of arrest and his right of legal
assistance. The accused complained that he was man handled by
the ED officials but no complaint of any bodily injury. The
prosecution has established prima facie case against the accused
for the offences u/s. 3 of Prevention of Money Laundering Act,
punishable u/s 4 of the said Act. Hence, the accused is remanded
to Judicial custody till 28.06.2023.”
9.Thereafter, the appellant filed an application for bail which was dismissed on
16.06.2023 by a speaking order considering all the contentions. This has
attained finality. The respondents made a further application seeking custody
for further investigation.
10.All the above activities took place on a single day, except the dismissal of the
application for bail. The Habeas Corpus petition filed by the appellant’s wife
was taken up for hearing on 15.06.2023 on an urgent mentioning, whereby
4
the appellant was directed to be shifted to a private hospital of his choice to
undergo a bypass surgery. A surgery was accordingly done.
11.On the application filed by the respondents, the learned Principal Sessions
Judge granted custody to them for a period of 8 days, while dismissing the
bail application as noted earlier.
“24.In the result, the petition is allowed and Shri Karthik
Dasari, Deputy Director, Directorate of Enforcement, Chennai is
permitted to have the custody of the accused Sh. V. Senthil Balaji
for 8 days from 16.06.2023 with the following conditions:
(1)The Deputy Director of Enforcement Directorate shall not
remove the accused from the Kaveri Hospital, who has been
admitted for treatment.
(2)The Deputy Director of Enforcement Directorate shall
interrogate the accused at the hospital by taking into
consideration of his ailments and the treatment given to him
in the hospital after obtaining necessary opinion from the
team of Doctors, who are giving treatment to him about his
fitness for interrogation.
(3)The Deputy Director of Enforcement Directorate interrogate
the accused without any hindrance to the health conditions of
the accused and also the treatment provided to him.
(4)The Deputy Director of Enforcement Directorate is directed to
provide sufficient food and shelter to the accused and they
should not use third degree method and should not cause any
cruelty to the accused.
(5)No threat of coercion will be made on the
Respondent/accused.
(6)The family members of the accused are to be permitted to see
the accused during the custody, subject to the medical advice.
5
(7)The Deputy Director of Enforcement Directorate is directed to
provide necessary security for the accused while he is in his
custody.
(8) The Deputy Director of Enforcement Directorate is directed
to produce the accused on 23.06.2023 by 3.00 p.m. through
video conference and the petition is ordered accordingly.”
12.After filing an application on 17.06.2023, seeking a direction that the first 15
days custody period should not come in the way of actual period of custody,
before the learned Principal Sessions Judge, the respondents approached this
Court in Special Leave Petition (Criminal) No. 7437 of 2023. Incidentally,
another Special Leave Petition (Criminal) No. 7460 of 2023 was filed
assailing the conditions imposed in the order dated 16.06.2023 by which 8
days custody was granted as afore-stated in favour of the respondents.
13.Taking note of the pendency of the Habeas Corpus petition, while keeping
the Special Leave Petitions pending, the following order was passed on
21.06.2023,
“1. We have heard Mr. Tushar Mehta, learned Solicitor General
of India on behalf of the petitioner and S/Shri Neeraj Kishan
Kaul, Devadatt Kamat and Vikram Chaudhry, learned Senior
Counsel, who are on caveat, on behalf of the Respondents.
2. The High Court is yet to render its final opinion on the
following issues: -
(i) Re. maintainability of the Habeas Corpus Petition;
(ii) The exclusion of the period of treatment undergone by the
detenu from the period of custodial interrogation.
6
3. Since both these issues are likely to be examined by the High
Court on the date fixed, i.e., 22-06-2023 or soon thereafter, we
deem it appropriate to post these Special Leave Petitions for
further hearing on 04-07-2023.
4. It is clarified that the pendency of these Special Leave
Petitions shall not be taken as a ground to adjourn the matter,
pending adjudication before the High Court.
5. The observations made by the High Court in the interim order
dated 15-06-2023 or any oral observation made by this Court
during the course of hearing shall have no bearing on the merits
of the case.”
14.In the meanwhile, in the pending Habeas Corpus petition additional grounds
were raised questioning the orders of the learned Principal Sessions Judge
granting both judicial and police remand, no specific prayer as such was
sought for.
15.On 22.06.2023, the respondents filed an application before the High Court of
Madras to exclude the period of hospitalisation for the purpose of counting
custody period as no actual custody was taken.
16.By the order dated 04.07.2023, the Judges of the Division Bench differed
with each other. Justice Nisha Banu allowed the Habeas Corpus petition,
though either of the remand orders were not challenged:
“(11) In the result, the Habeas Corpus Petition is allowed in the
following terms:-
1. The Writ of Habeas Corpus Petition is maintainable;
2. Enforcement Directorate is not entrusted with the powers
to seek police custody under the Prevention of Money
Laundering Act, 2002;
3. Miscellaneous petition filed by Respondent 1 seeking
exclusion of the period is dismissed;”
7
17.Justice D. Bharata Chakravarty, recorded his views in differing with the one
expressed by the other learned Judge:
“(i) The Habeas Corpus Petition in H.C.P.No. 1021 of 2023
shall stand dismissed;
(ii) The period from 14.06.2023 till such time the
detenu/accused is fit for custody of the respondent shall be
deducted from the initial period of 15 days under Section
167(2) of the Code of Criminal Procedure;
(iii) The detenu/accused shall continue the treatment at
Cauvery Hospital until discharge or for a period of 10 days
from today whichever is earlier and thereafter, if further
treatment is necessary, it can be only at the Prison/Prison
Hospital as the case may be;
(iv) As and when he is medically fit, the respondents will be
able to move the appropriate Court for custody and the
same shall be considered on its own merits in accordance
with law except not to be denied on the ground of expiry of
15 days from the date of remand;
(v) However, there shall be no order as to costs.”
18.On a reference made, the third learned Judge, Justice C.V. Kartikeyan
extended his concurrence with Justice D. Bharata Chakravarty:
“(i) Whether Enforcement Directorate has the power to seek
custody of a person arrested?
The answer given by this Court is ‘Yes’ in alignment with
the views/opinion expressed by the Hon’ble Justice Mr. D.
Bharatha Chakravarthy.
(ii) Whether the Habeas Corpus Petition itself is maintainable
after a judicial order of remand is passed by a Court of
competent jurisdiction?
The Petition would be maintainable in exceptional
circumstances, but this case does not attract any
exceptional circumstance and consequently since an order
of remand had been passed by a Court of competent
jurisdiction, the relief sought in the petition cannot be
granted. I would align with the view expressed by the
8
Hon’ble Justice Mr. D. Bharatha Chakravarthy, with
respect to this issue.
(iii) The consequential issue is as to whether Enforcement
Directorate would be entitled to seek exclusion of time for
the period of hospitalization beyond the first 15 days from
the date of initial remand.”
19.However, the learned Judge sent the file back to the Division Bench to
adjudicate upon the date of custody to be reckoned followed by the actual
days that might be required. Aggrieved, the appellant and his wife filed
Special Leave Petition (Criminal) Nos. 8939-8940 of 2023 and Special Leave
Petition (Criminal) Nos. 8652-8653 of 2023 respectively. With the limited
grievance over the file being sent back by the third learned Judge, the
respondents filed Special Leave Petition (Criminal) No. 8750 of 2023. Two
more Special Leave Petitions have been filed by respondents being Special
Leave Petition (Criminal) Nos. 7437 of 2023 and 7460 of 2023, challenging
the interim order of the High Court and the conditions imposed by the
learned Principal Sessions Judge while granting remand and for the exclusion
of 15 days.
SUBMISSIONS OF THE APPELLANT:
20.We have had the pleasure of hearing Shri Kapil Sibal and Shri Mukul
Rohatgi, learned Senior Advocates appearing on behalf of the appellant, at
length. We would like to summarise their submissions in a nutshell together.
9
21.There is no power vested under the PMLA, 2002 to seek custody in favour of
an authorized officer. Such an authorized officer is not a police officer and
therefore, Section 167(2) of the Code of Criminal Procedure, 1973
(hereinafter referred to as “the CrPC, 1973”), with particular reference to a
remand in his favour, is not available. Custody under Section 167(2) of the
CrPC, 1973 can only be in favour of a police officer and not any other
agency. There is no investigation under the PMLA, 2002 since it is to be
taken as synonymous with inquiry. After the completion of 24 hours from the
arrest, there cannot be further custody in favour of an officer. Being a
beneficial legislation, non-compliance of Section 41A of the CrPC, 1973
would vitiate the orders of remand. The learned Principal Sessions Judge
passed a cryptic order ignoring the clear non-compliance of Section 19 of the
PMLA, 2002.
22.The outer limit of 15 days of custody to the police from the date of arrest has
worked itself out. Therefore, no Court can extend it under any circumstance.
The majority judgments did not apply the decision in CBI v. Anupam J.
Kulkarni (1992) 3 SCC 141 as followed thereafter by this Court, in the
correct perspective. Reliance upon CBI v. Vikas Mishra, (2023) 6 SCC 49
is misplaced, with the decisions of the larger Bench and the Co-ordinate
Bench acting as binding precedents. A writ of Habeas Corpus is certainly
maintainable in the present case in view of procedural non-compliance.
10
Provisions of both the CrPC, 1973 and the PMLA, 2002 ought to be
construed and interpreted strictly. There is a total non-application of mind on
the part of the learned Principal Sessions Judge in passing the orders of
remand.
23.The High Court has committed an error in not appreciating the legislative
scheme and the timeline in the light of Article 22 of the Constitution of India,
1950. Articles 21, 22 of the Constitution of India, 1950 and Section 167 of
the CrPC, 1973 ought to be read harmoniously. It is not for the Courts to
legislate to provide extension of the period of 15 days. The decision rendered
in Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440
actually enures to the benefit of the appellant which the majority judgments
failed to appreciate. Since the arrest was based upon the materials, over
which a satisfaction was arrived at creating reasons to believe, the statute
does not facilitate any more custodial interrogation. The appellant can very
well be questioned and interrogated in prison.
SUBMISSIONS OF THE RESPONDENTS:
24.Shri Tushar Mehta, learned Solicitor General, while repelling the contentions
raised, made further submissions.
25.The writ petition, as filed invoking Article 226 of the Constitution of India,
1950 is not maintainable. There was a legal arrest following which the
arrested person was forwarded to the learned Principal Sessions Judge.
11
Orders were passed on merit, both for judicial custody and thereafter in
favour of the respondents. The writ petition was filed only challenging the
arrest as illegal. When it was taken up on 15.06.2023 the accused was
produced already. Thus, even on that day the prayer was not in subsistence.
The respondents did not get the actual custody. The conditions attached are
challenged before this Court. Even the appellant has stated in his arguments
that he was not to be questioned during his so-called ailment in the hospital
but was ready thereafter. The word “custody” cannot be given a restrictive
meaning. The PMLA, 2002 is a special Act having its own distinct
characteristics. It is a sui generis legislation. It provides for an elaborate
mechanism for a thorough investigation through search, seizure and arrest.
Section 65 of the PMLA, 2002 clearly speaks of the overriding effect over
the CrPC, 1973. There is due compliance of Section 19 of the PMLA, 2002.
The appellant has been hoodwinking the investigating agency, as rightly
taken note of by the third learned Judge of the High Court.
26.The application of Sections 167(1) and (2) of the CrPC, 1973 to an
investigation in connection with an offence under the PMLA, 2002, is no
longer res integra in view of the decisions rendered in Deepak Mahajan
(supra), followed by Ashok Munilal Jain v. Directorate of Enforcement,
(2018) 16 SCC 158.
12
27.The reliance placed by the appellant on Anupam J. Kulkarni (supra), as
followed thereafter by this Court is misconceived. In the said case, the facts
are different as it was a case of counting the days after the arrestee was given
custody in favour of the investigating agency, whereas no such custody has
ever been made to the respondents. The principle governing actus curiae
neminem gravabit was not the subject matter of those decisions. All legal
actions taken by the appellant lack bona fides, they are solely to evade
custody. The appellant has not even challenged the rejection of the bail
wherein similar contentions have been taken note of and rejected.
28.To sum up, it is submitted that, both on facts and law, the appellant does not
have a case as there is a complete abuse of the process of law. Incidentally, it
is prayed that the Special Leave Petitions filed by the respondents will have
to be allowed giving sufficient number of days for further investigation.
WRIT OF HABEAS CORPUS:
29.A writ of Habeas Corpus shall only be issued when the detention is illegal.
As a matter of rule, an order of remand by a judicial officer, culminating into
a judicial function cannot be challenged by way of a writ of Habeas Corpus,
while it is open to the person aggrieved to seek other statutory remedies.
When there is a non-compliance of the mandatory provisions along with a
13
total non-application of mind, there may be a case for entertaining a writ of
Habeas Corpus and that too by way of a challenge.
30.In a case where the mandate of Section 167 of the CrPC, 1973 and Section 19
of the PMLA, 2002 are totally ignored by a cryptic order, a writ of Habeas
Corpus may be entertained, provided a challenge is specifically made.
However, an order passed by a Magistrate giving reasons for a remand can
only be tested in the manner provided under the statute and not by invoking
Article 226 of the Constitution of India, 1950. There is a difference between a
detention becoming illegal for not following the statutory mandate and wrong
or inadequate reasons provided in a judicial order. While in the former case a
writ of Habeas Corpus may be entertained, in the latter the only remedy
available is to seek a relief statutorily given. In other words, a challenge to an
order of remand on merit has to be made in tune with the statute, while non-
compliance of a provision may entitle a party to invoke the extraordinary
jurisdiction. In an arrest under Section 19 of the PMLA, 2002 a writ would lie
only when a person is not produced before the Court as mandated under sub-
section (3), since it becomes a judicial custody thereafter and the concerned
Court would be in a better position to consider due compliance.
31. Suffice it is to state that when reasons are found, a remedy over an order of
remand lies elsewhere. Similarly, no such writ would be maintainable when
there is no express challenge to a remand order passed in exercise of a judicial
14
function by a Magistrate. State of Maharashtra v. Tasneem Rizwan
Siddiquee, (2018) 9 SCC 745:
“10. The question as to whether a writ of habeas corpus could be
maintained in respect of a person who is in police custody
pursuant to a remand order passed by the jurisdictional
Magistrate in connection with the offence under investigation,
this issue has been considered in Saurabh Kumar v. Jailor,
Koneila Jail, (2014) 13 SCC 436 : (2014) 5 SCC (Cri) 702
and Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC
314 : (2013) 1 SCC (Cri) 475 . It is no more res integra. In the
present case, admittedly, when the writ petition for issuance
of a writ of habeas corpus was filed by the respondent on 18-
3-2018/19-3-2018 and decided by the High Court on 21-3-
2018 [ Tasneem Rizwan Siddiquee v. State of Maharashtra , 2018
SCC OnLine Bom 2712] her husband Rizwan Alam Siddiquee
was in police custody pursuant to an order passed by the
Magistrate granting his police custody in connection with FIR
No. I-31 vide order dated 17-3-2018 and which police remand
was to enure till 23-3-2018. Further, without challenging the
stated order of the Magistrate, a writ petition was filed
limited to the relief of habeas corpus. In that view of the
matter, it was not a case of continued illegal detention but the
incumbent was in judicial custody by virtue of an order
passed by the jurisdictional Magistrate, which was in force,
granting police remand during investigation of a criminal
case. Resultantly, no writ of habeas corpus could be issued.”
(emphasis supplied)
SECTION 41A OF THE CODE OF CRIMINAL PROCEDURE, 1973
VIS-À-VIS SECTION 19 OF THE PREVENTION OF MONEY
LAUNDERING ACT, 2002:
Section 41A
“41A. Notice of appearance before police officer.—(1) The
police officer shall, in all cases where the arrest of a person is not
required under the provisions of sub-section (1) of Section 41,
issue a notice directing the person against whom a reasonable
complaint has been made, or credible information has been
received, or a reasonable suspicion exists that he has committed a
15
cognizable offence, to appear before him or at such other place as
may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the
duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with
the notice, he shall not be arrested in respect of the offence
referred to in the notice unless, for reasons to be recorded, the
police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the
terms of the notice or is unwilling to identify himself, the police
officer may, subject to such orders as may have been passed by a
competent Court in this behalf, arrest him for the offence
mentioned in the notice.”
32.Due interpretation of this provision of utmost importance has been given by
this Court on more than one occasion [Arnesh Kumar v. State of Bihar,
(2014) 8 SCC 273 and Satender Kumar Antil v. CBI, (2022) 10 SCC 51].
The Interpretation of this provision, meant to preserve and safeguard the
liberty of a person, is taken note of in the afore-stated judgments. This
provision cannot be termed as a supplement to Section 19 of the PMLA,
2002. The PMLA, 2002 being a sui generis legislation, has its own
mechanism in dealing with arrest in the light of its objectives. The concern of
the PMLA, 2002 is to prevent money laundering, make adequate recovery
and punish the offender. That is the reason why a comprehensive procedure
for summons, searches, and seizures etc., has been clearly stipulated under
Chapter V of the PMLA, 2002. An arrest shall only be made after due
compliance of the relevant provisions including Section 19 of the PMLA,
16
2002. Therefore, there is absolutely no need to follow and adopt Section 41A
of the CrPC, 1973 especially in the teeth of Section 65 of the PMLA, 2002.
33.In the absence of any mandate, one cannot force the Authorized Officer to
ensure due compliance of Section 41A of the CrPC, 1973 especially when a
clear, different and distinct methodology is available under the PMLA, 2002.
Following Section 41A of the CrPC, 1973 for an arrest under the PMLA,
2002 would only defeat and destroy the very inquiry/investigation under the
PMLA, 2002. Till summons are issued to a person, he is not expected to be in
the know-how. Any prior intimation, other than what is mandated under the
PMLA, 1973 might seriously impair the ongoing investigation.
34.The Explanation to Section 45 of the PMLA, 2002 once again reiterates the
role required to be performed by an Authorized Officer, duly fulfilling the
conditions adumbrated under Section 19 of the PMLA, 2002. The
Explanation goes on to state by way of a clarification that all offences under
the Act shall be cognizable and non-bailable offences, notwithstanding
anything contained to the contrary in the CrPC, 1973. Vijay Madanlal
Choudhary v. Union of India, 2022 (10) SCALE:
“THE 2002 ACT
19. The Act was enacted to address the urgent need to have a
comprehensive legislation inter alia for preventing money-
laundering, attachment of proceeds of crime, adjudication
and confiscation thereof including vesting of it in the Central
Government, setting up of agencies and mechanisms for
coordinating measures for combating money-laundering and
17
also to prosecute the persons indulging in the process or
activity connected with the proceeds of crime. This need was
felt world over owing to the serious threat to the financial
systems of the countries, including to their integrity and
sovereignty because of money-laundering. The international
community deliberated over the dispensation to be provided to
address the serious threat posed by the process and activities
connected with the proceeds of crime and integrating it with
formal financial systems of the countries. The issues were
debated threadbare in the United Nation Convention Against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances,
Basle Statement of Principles enunciated in 1989, the FATF
established at the summit of seven major industrial nations held
in Paris from 14th to 16th July, 1989, the Political Declaration
and Noble Programme of Action adopted by United Nations
General Assembly vide its Resolution No. S-17/2 of 23.2.1990,
the United Nations in the Special Session on countering World
Drug Problem Together concluded on the 8th to the 10th June,
1998, urging the State parties to enact a comprehensive
legislation. This is evident from the introduction and Statement of
Objects and Reasons accompanying the Bill which became the
2002 Act…”
xxx xxx xxx
PREAMBLE OF THE 2002 ACT
23. The Preamble of the 2002 Act reads thus:
“An Act to prevent money-laundering and to provide for
confiscation of property derived from, or involved in,
money-laundering and for matters connected therewith or
incidental thereto.
WHEREAS the Political Declaration and Global
Programme of Action, annexed to the resolution S-17/2 was
adopted by the General Assembly of the United Nations at its
seventeenth special session on the twenty-third day of
February, 1990;
AND WHEREAS the Political Declaration adopted by the
Special Session of the United Nations General Assembly held
18
on 8th to 10th June, 1998 calls upon the Member States to
adopt national money-laundering legislation and programme;
AND WHEREAS it is considered necessary to implement
the aforesaid resolution and the Declaration.”
Even the Preamble of the Act reinforces the background in
which the Act has been enacted by the Parliament being
commitment of the country to the international community. It
is crystal clear from the Preamble that the Act has been
enacted to prevent money-laundering and to provide for
confiscation of property derived from or involved in money-
laundering and for matters connected therewith or incidental
thereto. It is neither a pure regulatory legislation nor a pure
penal legislation. It is amalgam of several facets essential to
address the scourge of money-laundering as such. In one
sense, it is a sui generis legislation.
xxx xxx xxx
ARREST
88. Section 19 of the 2002 Act postulates the manner in which
arrest of person involved in money-laundering can be
effected. Subsection (1) of Section 19 envisages that the
Director, Deputy Director, Assistant Director, or any other
officer authorised in this behalf by the Central Government,
if has material in his possession giving rise to reason to
believe that any person has been guilty of an offence
punishable under the 2002 Act, he may arrest such person.
Besides the power being invested in high-ranking officials,
Section 19 provides for inbuilt safeguards to be adhered to by
the authorised officers, such as of recording reasons for the
belief regarding the involvement of person in the offence of
money-laundering. That has to be recorded in writing and
while effecting arrest of the person, the grounds for such
arrest are informed to that person. Further, the authorised
officer has to forward a copy of the order, along with the
material in his possession, in a sealed cover to the
Adjudicating Authority, who in turn is obliged to preserve the
same for the prescribed period as per the Rules. This
safeguard is to ensure fairness, objectivity and accountability
of the authorised officer in forming opinion as recorded in
19
writing regarding the necessity to arrest the person being
involved in offence of money-laundering. Not only that, it is
also the obligation of the authorised officer to produce the
person so arrested before the Special Court or Judicial
Magistrate or a Metropolitan Magistrate, as the case may be,
within twenty-four hours. This production is also to comply
with the requirement of Section 167 of the 1973 Code. There
is nothing in Section 19, which is contrary to the requirement
of production under Section 167 of the 1973 Code, but being
an express statutory requirement under the 2002 Act in terms
of Section 19(3), it has to be complied by the authorised
officer. Section 19, as amended from time to time, reads
thus…”
(emphasis supplied)
35.In light of the aforesaid discussion, an Authorized Officer under the PMLA,
2002 is not duty bound to follow the rigor of Section 41A of the CrPC, 1973
as against the binding conditions under Section 19 of the PMLA, 2002. The
above discussion would lead to the conclusion that inasmuch as there is
already an exhaustive procedure contemplated under the PMLA, 2002
containing sufficient safeguards in favour of the person arrested, Section 41A
of the CrPC, 1973 has no application at all.
36.The need for the introduction of Section 41A has also been taken note of by
the Law Commission in Chapter Five of its 177
th
Report:
“But then it is said that since the conviction rate is very low, the
very fact of arrest is a sort of punishment that can be meted out to
the guilty. This argument is again misleading and unacceptable.
Guilt or innocence has to be determined by the courts and not by
the police. Police merely prosecutes on being satisfied that a
person is guilty of an offence; it doesn’t punish. It is also
suggested that there is a distinct increase in crime because of
20
enormous increase in population, unemployment and lack of
adequate resources. May be so. But how does this
phenomenon militate against the proposed changes in law. In
fact, the attention of the police must be more on serious
offences and economic offences and not so much on minor
offences. The undesirable practice of arresting persons for
minor offences and keeping them in jail for long periods
(either because they cannot move for bail or because they
cannot furnish bail to the satisfaction of the court – all
because of their poverty) must come to an end. In fact, this
aspect has already engaged the attention of the Supreme
Court, which has given several directions for
release/discharge of accused in case of minor offences and
offences punishable up to seven years excepting therefrom the
economic offences…”
(emphasis supplied)
37.From the above, we could appreciate one of the main reasons for such
introduction. It was meant not to be applied to certain categories of offences,
including economic offences, but only to minor offences under the Indian
Penal Code, 1860.
RELEVANT PROVISIONS OF THE PREVENTION OF MONEY
LAUNDERING ACT, 2002:
“All power is of an encroaching nature”
Justice Frankfurter of the U.S. Supreme Court
Trop v. Dulles (1958).
38.Chapter V of the PMLA, 2002 deals with the power of an authority to
conduct survey, search and seizure of both a place and a person followed by
arrest, if so required. The provisions are step-in-aid in the conduct of
inquiry/investigation.
21
Section 19
“19. Power to arrest.--(1) If the Director, Deputy Director,
Assistant Director, or any other officer authorized in this behalf
by the Central Government by general or special order, has on the
basis of material in his possession reason to believe (the reason
for such belief to be recorded in writing) that any person has been
guilty of an offence punishable under this Act, he may arrest such
person and shall, as soon as may be, inform him of the grounds
for such arrest.
(2) The Director, Deputy Director, Assistant Director or any other
officer shall, immediately after arrest of such person under sub-
section (1), forward a copy of the order, along with the material
in his possession, referred to in that sub-section, to the
Adjudicating Authority, in a sealed envelope, in the matter, as
may be prescribed and such Adjudicating authority shall keep
such order and material for such period, as may be prescribed.
(3) Every person arrested under sub-section (1) shall within
twenty-four hours, be taken to a [Special Court or] Judicial
Magistrate or a Metropolitan Magistrate, as the case may be,
having jurisdiction:
Provided that the period of twenty-four hours shall exclude the
time necessary for the journey from the place of arrest to the
[Special Court or] Magistrate’s Court.”
39.To effect an arrest, an officer authorised has to assess and evaluate the
materials in his possession. Through such materials, he is expected to form a
reason to believe that a person has been guilty of an offence punishable under
the PMLA, 2002. Thereafter, he is at liberty to arrest, while performing his
mandatory duty of recording the reasons. The said exercise has to be
followed by way of an information being served on the arrestee of the
grounds of arrest. Any non-compliance of the mandate of Section 19(1) of
the PMLA, 2002 would vitiate the very arrest itself. Under sub-section (2),
the Authorised Officer shall immediately, after the arrest, forward a copy of
22
the order as mandated under sub-section (1) together with the materials in his
custody, forming the basis of his belief, to the Adjudicating Authority, in a
sealed envelope. Needless to state, compliance of sub-section (2) is also a
solemn function of the arresting authority which brooks no exception.
40.Thereafter, the arrestee has to be taken to the Special Court, or the Judicial
Magistrate or the Metropolitan Magistrate, as the case may be, having the
jurisdiction within 24 hours of such arrest. While complying with this
mandate the time spent on the journey to the Court shall stand excluded.
Vijay Madanlal Choudhary (supra):
“89... The safeguards provided in the 2002 Act and the
preconditions to be fulfilled by the authorised officer before
effecting arrest, as contained in Section 19 of the 2002 Act, are
equally stringent and of higher standard. Those safeguards
ensure that the authorised officers do not act arbitrarily, but
make them accountable for their judgment about the
necessity to arrest any person as being involved in the
commission of offence of money-laundering even before filing
of the complaint before the Special Court under Section 44(1)
(b) of the 2002 Act in that regard. If the action of the
authorised officer is found to be vexatious, he can be
proceeded with and inflicted with punishment specified under
Section 62 of the 2002 Act. The safeguards to be adhered to by
the jurisdictional police officer before effecting arrest as
stipulated in the 1973 Code, are certainly not comparable.
Suffice it to observe that this power has been given to the
high-ranking officials with further conditions to ensure that
there is objectivity and their own accountability in resorting
to arrest of a person even before a formal complaint is filed
under Section 44(1)(b) of the 2002 Act. Investing of power in
the high-ranking officials in this regard has stood the test of
reasonableness in Premium Granites & Anr. v. State of T.N. &
Ors., (1994) 2 SCC 691, wherein the Court restated the position
that requirement of giving reasons for exercise of power by itself
23
excludes chances of arbitrariness. Further, in Sukhwinder Pal
Bipan Kumar & Ors. v. State of Punjab & Ors., (1982) 1 SCC 31,
the Court restated the position that where the discretion to apply
the provisions of a particular statute is left with the Government
or one of the highest officers, it will be presumed that the
discretion vested in such highest authority will not be abused.
Additionally, the Central Government has framed Rules under
Section 73 in 2005, regarding the forms and the manner of
forwarding a copy of order of arrest of a person along with the
material to the Adjudicating Authority and the period of its
retention. In yet another decision in Ahmed Noormohmed Bhatti
v. State of Gujarat & Ors., (2005) 3 SCC 647, this Court opined
that the provision cannot be held to be unreasonable or arbitrary
and, therefore, unconstitutional merely because the authority
vested with the power may abuse his authority. (Also see
Manzoor Ali Khan v. Union of India & Ors., (2015) 2 SCC 33).”
(emphasis supplied)
41.The conclusion thus arrived is that the Legislature in its wisdom has
consciously created the necessary safeguards for an arrestee, keeping in mind
his liberty, and the need for an external approval and supervision. This
provision is in compliance with Article 21 and 22(2) of the Constitution of
India, 1950.
Section 62
"Law can never be enforced unless fear supports them."
- Sophocles
“62. Punishment for vexatious search.—Any authority or
officer exercising powers under this Act or any rules made
thereunder, who without reasons recorded in writing,—
(a) searches or causes to be searched any building or place; or
24
(b) detains or searches or arrests any person,
shall for every such offence be liable on conviction for
imprisonment for a term which may extend to two years or fine
which may extend to fifty thousand rupees or both.”
42.This provision is a reiteration of the mandatory compliance of Section 19 of
the PMLA, 2002. It is in the nature of a warning to an officer concerned to
strictly comply with the mandate of Section 19 of the PMLA, 2002 in letter
and spirit failing which he would be visited with the consequences. It is his
bounden duty to record the reasons for his belief in coming to conclusion that
a person has been guilty and therefore, to be arrested. Such a safeguard is
meant to facilitate an element of fairness and accountability.
43. Section 65
“65. Code of Criminal Procedure, 1973 to apply.—The
provisions of the Code of Criminal Procedure, 1973 (2 of 1974)
shall apply, insofar as they are not inconsistent with the
provisions of this Act, to arrest, search and seizure, attachment,
confiscation, investigation, prosecution and all other proceedings
under this Act.”
Section 65 provides for the application of the CrPC, 1973 with respect to
arrest, search and seizure, etc. The provisions of the CrPC, 1973 being
primarily procedural in nature, along with substantive elements, are to be
applied, so long as they are not inconsistent with the provisions of the
PMLA, 2002. Therefore, the PMLA, 2002 shall have precedence and when
there is no inconsistency, a procedural assistance can be resorted to, as
25
available under the CrPC, 1973. In other words, the provisions of the CrPC,
1973 are expected to be supplementary to the provisions of the PMLA, 2002.
44.To understand this provision, it would be appropriate to take note of Sections
4 and 5 of the CrPC, 1973:
Section 4
“4. Trial of offences under the Indian Penal Code and other
laws.—(1) All offences under the Indian Penal Code (45 of 1860)
shall be investigated, inquired into, tried, and otherwise dealt with
according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated,
inquired into, tried, and otherwise dealt with according to the
same provisions, but subject to any enactment for the time being
in force regulating the manner or place of investigating, inquiring
into, trying or otherwise dealing with such offences.”
Section 5
“5. Saving.—Nothing contained in this Code shall, in the
absence of a specific provision to the contrary, affect any special
or local law for the time being in force, or any special jurisdiction
or power conferred, or any special form of procedure prescribed,
by any other law for the time being in force.”
45.Sub-section (2) to section 4 of the CrPC, 1973 amplifies the fact that any
inquiry or investigation, along with their process, over an offence should
necessarily be only under that statute and not under the CrPC, 1973. The
aforesaid position has been reiterated under Section 5 of the CrPC, 1973
26
whereby a distinct clarification has been given that the CrPC, 1973 will not
stand in the way of the operation of special law. Thus, a conjoint reading of
Section 65 of the PMLA, 2002 along with Sections 4 and 5 of the CrPC,
1973 leaves no room for doubt on the precedence of the former over the latter
when it comes to investigation.
ROLE OF THE DESIGNATED AUTHORITY UNDER THE
PREVENTION OF MONEY LAUNDERING ACT, 2002:
46.The PMLA, 2002 is a distinct and special statute having its own objective
behind it. The scheme of the PMLA, 2002 provides for both prevention and
action against money laundering. The object is to prevent the laundering and
to recover when it happens, while extending punishment to the offender. In
that process, materials collected can be used and exchanged for either of the
purposes. In other words, for an inquiry and investigation there can be same
materials, while there is no bar for reliance on additional ones. They can
travel in the same channel, but their destinations are different. One material
can be used for both purposes, along with numerous others. So long as they
travel together, there is not much of a difference between an inquiry and
investigation. When they take separate routes, an inquiry ends before the
Adjudicating Authority, while the other leads to a Special Court in the form
of a complaint. This distinction has to be kept in mind to avoid any possible
conflict or confusion. Vijay Madanlal Choudhary (supra):
27
“27. The task of the Director or an authority authorised by the
Central Government under the 2002 Act for the collection of
evidence is the intrinsic process of adjudication proceedings. In
that, the evidence so collected by the authorities is placed before
the Adjudicating Authority for determination of the issue as to
whether the provisional attachment order issued under Section 5
deserves to be confirmed and to direct confiscation of the
property in question. The expression “investigation”,
therefore, must be regarded as interchangeable with the
function of “inquiry” to be undertaken by the authorities for
submitting such evidence before the Adjudicating Authority.
28. In other words, merely because the expression used is
“investigation” — which is similar to the one noted in Section
2(h) of the 1973 Code, it does not limit itself to matter of
investigation concerning the offence under the Act and Section 3
in particular. It is a different matter that the material
collected during the inquiry by the authorities is utilised to
bolster the allegation in the complaint to be filed against the
person from whom the property has been recovered, being
the proceeds of crime. Further, the expression
“investigation” used in the 2002 Act is interchangeable with
the function of “inquiry” to be undertaken by the
Authorities under the Act, including collection of evidence
for being presented to the Adjudicating Authority for its
consideration for confirmation of provisional attachment
order. We need to keep in mind that the expanse of the
provisions of the 2002 Act is of prevention of money-
laundering, attachment of proceeds of crime, adjudication
and confiscation thereof, including vesting of it in the
Central Government and also setting up of agency and
mechanism for coordinating measures for combating money-
laundering.”
(emphasis supplied)
47.The power of arrest under Section 19 of the PMLA, 2002 is meant for
investigation alone. A clear position which is taken note of in Vijay
Madanlal Choudhary (supra):
28
“89. This argument clearly overlooks the overall scheme of
the 2002 Act. As noticed earlier, it is a comprehensive
legislation, not limited to provide for prosecution of person
involved in the offence of money-laundering, but mainly
intended to prevent money-laundering activity and confiscate
the proceeds of crime involved in money-laundering. It also
provides for prosecuting the person involved in such activity
constituting offence of money-laundering. In other words, this
legislation is an amalgam of different facets including setting
up of agencies and mechanisms for coordinating measures for
combating money-laundering. Chapter III is a provision to
effectuate these purposes and objectives by attachment,
adjudication and confiscation. The adjudication is done by
the Adjudicating Authority to confirm the order of
provisional attachment in respect of proceeds of crime
involved in money-laundering. For accomplishing that
objective, the authorities appointed under Chapter VIII have
been authorised to make inquiry into all matters by way of
survey, searches and seizures of records and property. These
provisions in no way invest power in the Authorities referred
to in Chapter VIII of the 2002 Act to maintain law and order
or for that matter, purely investigating into a criminal
offence. The inquiry preceding filing of the complaint by the
authorities under the 2002 Act, may have the semblance of an
investigation conducted by them. However, it is essentially an
inquiry to collect evidence to facilitate the Adjudicating
Authority to decide on the confirmation of provisional
attachment order, including to pass order of confiscation, as a
result of which, the proceeds of crime would vest in the
Central Government in terms of Section 9 of the 2002 Act. In
other words, the role of the Authorities appointed under
Chapter VIII of the 2002 Act is such that they are tasked with
dual role of conducting inquiry and collect evidence to
facilitate adjudication proceedings before the Adjudicating
Authority in exercise of powers conferred upon them under
Chapters III and V of the 2002 Act and also to use the same
materials to bolster the allegation against the person
concerned by way of a formal complaint to be filed for
offence of money-laundering under the 2002 Act before the
Special Court, if the fact situation so warrant. It is not as if
after every inquiry prosecution is launched against all
29
persons found to be involved in the commission of offence of
money-laundering. It is also not unusual to provide for arrest
of a person during such inquiry before filing of a complaint
for indulging in alleged criminal activity. The respondent has
rightly adverted to somewhat similar provisions in other
legislations, such as Section 35 of FERA and Section 102 of
Customs Act including the decisions of this Court upholding
such power of arrest at the inquiry stage bestowed in the
Authorities in the respective legislations. In Romesh Chandra
Mehta v. State of West Bengal, (1969) 2 SCR 461: AIR 1970 SC
940 , the Constitution Bench of this Court enunciated that
Section 104 of the Customs Act confers power to arrest upon
the Custom Officer if he has reason to believe that any person
in India or within the Indian Customs waters has been guilty
of an offence punishable under Section 135 of that Act. Again,
in the case of Union of India v. Padam Narain Aggarwal &
Ors., (2008) 13 SCC 305 , while dealing with the provisions of
the Customs Act, it noted that the term “arrest” has neither
been defined in the 1973 Code nor in the Indian Penal Code,
1860 nor in any other enactment dealing with offences. This
word has been derived from the French word “ arrater ”
meaning “to stop or stay”. It signifies a restraint of a person.
It is, thus, obliging the person to be obedient to law. Further,
arrest may be defined as “the execution of the command of a
court of law or of a duly authorised officer”. Even, this
decision recognises the power of the authorised officer to
cause arrest during the inquiry to be conducted under the
concerned legislations. While adverting to the safeguards
provided under that legislation before effecting such arrest,
the Court noted as follows:
“Safeguards against abuse of power
36. From the above discussion, it is amply clear that power
to arrest a person by a Customs Officer is statutory in
character and cannot be interfered with. Such power of
arrest can be exercised only in those cases where the
Customs Officer has “reason to believe” that a person has
been guilty of an offence punishable under Sections 132,
133, 135, 135-A or 136 of the Act. Thus, the power must be
exercised on objective facts of commission of an offence
30
enumerated and the Customs Officer has reason to believe
that a person sought to be arrested has been guilty of
commission of such offence. The power to arrest thus is
circumscribed by objective considerations and cannot be
exercised on whims, caprice or fancy of the officer.
37. The section Ed.: Section 104 of the Customs Act, 1962
also obliges the Customs Officer to inform the person
arrested of the grounds of arrest as soon as may be. The law
requires such person to be produced before a Magistrate
without unnecessary delay.
38. The law thus, on the one hand, allows a Customs
Officer to exercise power to arrest a person who has
committed certain offences, and on the other hand, takes
due care to ensure individual freedom and liberty by laying
down norms and providing safeguards so that the power of
arrest is not abused or misused by the authorities. ….”
xxx xxx xxx
“169. Notably, this dichotomy does not exist in the 2002 Act for
more than one reason. For, there is no role for the regular Police
Officer. The investigation is to be done only by the authorities
under the 2002 Act and upon culmination of the investigation,
to file complaint before the Special Court. Moreover, by
virtue of Clause (ii) of Explanation in Section 44(1) of the
2002 Act, it is open to the authorities under this Act to bring
any further evidence, oral or documentary, against any
accused person involved in respect of offence of money-
laundering, for which, a complaint has already been filed by
him or against person not named in the complaint and by
legal fiction, such further complaint is deemed to be part of
the complaint originally filed. Strikingly, in Tofan Singh v.
State of Tamil Nadu, (2021) 4 SCC 1, the Court also noted
that, while dealing with the provisions of the NDPS Act, the
designated officer has no express power to file a closure
report unlike the power bestowed on the police officer, if he
had investigated the same crime under the NDPS Act. Once
again, this lack of authority to file closure report is not there
in the 2002 Act. For, by the virtue of proviso in Section 44(1)
31
(b), after conclusion of investigation, if no offence of money-
laundering is made out requiring filing of a complaint, the
Authority under the Act expected to file such complaint, is
permitted to file a closure report before the Special Court in
that regard. In that decision, while analysing the provisions of
the Section 67 of the NDPS Act, the Court noted that the
statement recorded under Section 67 of that Act was to be
held as inadmissible in all situations. That renders Section 53A
of the same Act otiose. Section 53A of the NDPS Act is about
relevancy of statement made under certain circumstances.
Realising the conflicting position emerging in the two provisions,
the issue came to be answered.”
(emphasis supplied)
48.Otherwise, an arrest will be termed as a punishment, which power can never
be under Section 19 of the PMLA, 2002. This position being as clear as day
light, the proviso to Section 44(1)(b) of the PMLA, 2002 throws further
insight into it.
Section 44
“44. Offences triable by Special Courts.—(1) Notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (2
of 1974),—
xxx xxx xxx
(b) a Special Court may, upon a complaint made by an authority
authorised in this behalf under this Act take cognizance of
offence under Section 3, without the accused being
committed to it for trial:
Provided that after conclusion of investigation, if no
offence of money-laundering is made out requiring filing of
such complaint, the said authority shall submit a closure
report before the Special Court; or…”
32
49.Therefore, the power under Section 19(1) of the PMLA, 2002 can only be
exercised during investigation and it is well open to the authority to file a
closure report before the Special Court after conclusion, if it finds that there
are no sufficient materials to proceed further.
SECTION 167 OF CODE OF CRIMINAL PROCEDURE, 1973:
“Justice, though due to the accused, is due to the accuser too”
- Justice Benzamin N. Cardozo of U.S. Supreme Court
Section 167
“167. Procedure when investigation cannot be completed in
twenty-four hours.—(1) Whenever any person is arrested and
detained in custody, and it appears that the investigation cannot
be completed within the period of twenty-four hours fixed by
Section 57, and there are grounds for believing that the
accusation or information is well-founded, the officer in charge of
the police station or the police officer making the investigation, if
he is not below the rank of sub-inspector, shall forthwith transmit
to the nearest Judicial Magistrate a copy of the entries in the diary
hereinafter prescribed relating to the case, and shall at the same
time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded
under this section may, whether he has or has not jurisdiction to
try the case, from time to time, authorise the detention of the
accused in such custody as such Magistrate thinks fit, for a term
not exceeding fifteen days in the whole; and if he has no
jurisdiction to try the case or commit it for trial, and considers
further detention unnecessary, he may order the accused to be
forwarded to a Magistrate having such jurisdiction:
Provided that—
33
(a) the Magistrate may authorise the detention of the accused
person, otherwise than in the custody of the police, beyond
the period of fifteen days, if he is satisfied that adequate
grounds exist for doing so, but no Magistrate shall authorise
the detention of the accused person in custody under this
paragraph for a total period exceeding,—
(i) ninety days, where the investigation relates to an
offence punishable with death, imprisonment for life
or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any
other offence, and, on the expiry of the said period of
ninety days, or sixty days, as the case may be, the
accused person shall be released on bail if he is
prepared to and does furnish bail, and every person
released on bail under this sub-section shall be
deemed to be so released under the provisions of
Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention of the accused in
custody of the police under this section unless the accused is
produced before him in person for the first time and
subsequently every time till the accused remains in the
custody of the police, but the Magistrate may extend further
detention in judicial custody on production of the accused
either in person or through the medium of electronic video
linkage;
(c) no Magistrate of the second class, not specially
empowered in this behalf by the High Court, shall authorise
detention in the custody of the police.
Explanation I.—For the avoidance of doubts, it is hereby
declared that, notwithstanding the expiry of the period specified
in paragraph (a), the accused shall be detained in custody so long
as he does not furnish bail.
Explanation II.—If any question arises whether an accused
person was produced before the Magistrate as required under
clause (b), the production of the accused person may be proved
by his signature on the order authorising detention or by the order
certified by the Magistrate as to production of the accused person
through the medium of electronic video linkage, as the case
may be.
34
Provided further that in case of a woman under eighteen years of
age, the detention shall be authorised to be in the custody of a
remand home or recognised social institution.
xxx xxx xxx
(3) A Magistrate authorising under this section detention in the
custody of the police shall record his reasons for so doing.”
50.Before we consider this most important provision, let us have a comparison
between the Code of Criminal Procedure, 1898 (hereinafter referred to as
“CrPC, 1898”) and the CrPC, 1973.
COMPARISON CHART ON SECTION 167 OF CRPC.
SECTION 167 OF THE CODE
OF CRIMINAL PROCEDURE
1898
SECTION 167 OF THE CODE
OF CRIMINAL PROCEDURE
1973
167. Procedure When
Investigation Cannot be
Completed in Twenty-Four Hours:
(1) Whenever it appears that any
investigation under this Chapter
cannot be completed within the
period of twenty-four hours fixed by
section 61, and there are grounds for
believing that the accusation or
information is well-founded, the
officer-in-charge of the police-
station shall forthwith transmit to the
nearest, Magistrate a copy of the
entries in the diary hereinafter
prescribed relating to the case, and
shall at the same time forward the
accused (if any) to such Magistrate.
167. Procedure When
Investigation Cannot be
Completed in Twenty-Four Hours:
(1) Whenever any person is arrested
and detained in custody, and it
appears that the investigation cannot
be completed within the period of
twenty-four hours fixed by Section
57, and there are grounds for
believing that the accusation or
information is well-founded, the
officer in charge of the police station
or the police officer making the
investigation, if he is not below the
rank of sub-inspector, shall forthwith
transmit to the nearest Judicial
Magistrate a copy of the entries in
the diary hereinafter prescribed
relating to the case, and shall at the
same time forward the accused to
such Magistrate.
35
(2) The Magistrate to whom an
accused person is forwarded under
this section may, whether he has or
has not jurisdiction to try the case,
from time to time authorise the
detention of the accused in such
custody as such Magistrate thinks
fit, for a term not exceeding fifteen
days in the whole. If he has not
jurisdiction to try the case or commit
it for trial, and considers further
detention unnecessary, he may order
the accused to be forwarded to a
Magistrate having such jurisdiction.
(2) The Magistrate to whom an
accused person is forwarded under
this section may, whether he has or
has not jurisdiction to try the case,
from time to time, authorise the
detention of the accused in such
custody as such Magistrate thinks
fit, for a term not exceeding fifteen
days in the whole; and if he has no
jurisdiction to try the case or commit
it for trial, and considers further
detention unnecessary, he may order
the accused to be forwarded to a
Magistrate having such jurisdiction:
Provided that—
(a) the Magistrate may authorise the
detention of the accused person,
otherwise than in the custody of the
police, beyond the period of fifteen
days, if he is satisfied that adequate
grounds exist for doing so, but no
Magistrate shall authorise the
detention of the accused person in
custody under this paragraph for a
total period exceeding,—
(i) ninety days, where the
investigation relates to an
offence punishable with death,
imprisonment for life or
imprisonment for a term of not
less than ten years;
(ii) sixty days, where the
investigation relates to any other
offence, and, on the expiry of the
said period of ninety days, or
sixty days, as the case may be,
the accused person shall be
released on bail if he is prepared
to and does furnish bail, and
36
every person released on bail
under this sub-section shall be
deemed to be so released under
the provisions of Chapter
XXXIII for the purposes of that
Chapter;
(b) no Magistrate shall authorise
detention of the accused in
custody of the police under this
section unless the accused is
produced before him in person
for the first time and
subsequently every time till the
accused remains in the custody
of the police, but the Magistrate
may extend further detention in
judicial custody on production of
the accused either in person or
through the medium of
electronic video linkage;]
(c) no Magistrate of the second
class, not specially empowered
in this behalf by the High Court,
shall authorise detention in the
custody of the police.
Explanation I.—For the avoidance
of doubts, it is hereby declared that,
notwithstanding the expiry of the
period specified in paragraph (a),
the accused shall be detained in
custody so long as he does not
furnish bail.
Explanation II.—If any question
arises whether an accused person
was produced before the Magistrate
as required under clause (b), the
production of the accused person
may be proved by his signature on
the order authorising detention or by
the order certified by the Magistrate
37
as to production of the accused
person through the medium of
electronic video linkage, as the case
may be.
Provided further that in case of a
woman under eighteen years of age,
the detention shall be authorised to
be in the custody of a remand home
or recognised social institution.
(3) A Magistrate authorising under
this section detention in the custody
of the police shall record his reasons
for so doing.
(3) A Magistrate authorising under
this section detention in the custody
of the police shall record his reasons
for so doing.
(4) If such order is given by a
Magistrate other than the District
Magistrate or Subdivisional-
Magistrate, he shall forward a copy
of his order, with his reasons for
making it, to the Magistrate to
whom he is immediately
subordinate.
(4) Any Magistrate other than the
Chief Judicial Magistrate making
such order shall forward a copy of
his order, with his reasons for
making it to the Chief Judicial
Magistrate.
As we could see, there is no difference between the provision as it existed
earlier and now, except by way of an addition of a proviso, which we shall
deal with later.
51.Seeds of liberty are sown in this provision while facilitating further
investigation, upon being satisfied that the same cannot be completed within
24 hours. It is not a mere procedural provision but one having an inherent
element of substantivity. While facilitating a fair play, it is introduced as a
limb of Article 21 and 22(2) of the Constitution of India, 1950.
38
52.Under sub-section (1) of Section 167 of the CrPC, 1973, a competent officer
shall forward the accused to the Magistrate when it appears that the
investigation cannot be completed within 24 hours. Two factors are important
as envisaged under sub-section (1). They are, it must be a case where
investigation cannot be completed within 24 hours of arrest of an accused
and that he has to be forwarded to the Magistrate, meaning thereby he comes
into the judicial custody from that of the investigating agency. The object and
rationale behind this provision is rather clear. By restricting the custody to 24
hours, the liberty of the accused is meant to be considered and taken note of
by an independent authority in the form a Magistrate. It is also an act of
confirmation by the Magistrate on the arrest, followed by grant of custody of
an accused person.
53.Sub-section (2) of Section 167 of the CrPC, 1973 deals with the power of the
Magistrate. Such a Magistrate may or may not have the jurisdiction to try a
case. There is no question of jurisdiction in any form that would stand in the
way of the Magistrate from exercising the said power. By a mere designation
he assumes such power. This is for the reason that liberty is paramount and
any delay would amount to its curtailment. It may also delay further
investigation. The words “time to time” would clearly indicate that a power
to grant custody is not restricted to the first 15 days of remand, but the whole
period of investigation. It is not referable to judicial custody as against police
39
custody. It only means “as the occasion arises”, which is from the point of
investigation. Thus, when an investigation reveals new materials to be
confronted with the accused, a need for custody might arise, subject to the
satisfaction of the Magistrate. In State of Rajasthan v. Basant Agrotech
(India) Ltd., (2013) 15 SCC 1 this Court has dealt with the words “time to
time”:
50. In The Law Lexicon, The Encyclopedic Law
Dictionary (2nd Edn., 1997, p. 764) the words have been
conferred the following meaning:
“ From time to time .— … ‘as occasion may arise’….
The words ‘from time to time’ mean that an adjournment
may be made as and when the occasion requires and they
will not mean adjournment from one fixed day to another
fixed day. …
‘The words “from time to time” are words which are
constantly introduced where it is intended to protect a person
who is empowered to act from the risk of having completely
discharged his duty when he has once acted, and therefore not
being able to act again in the same direction.’ The meaning of
the words ‘from time to time’ is that after once acting the
donee of the power may act again; and either independently of,
or by adding to, or taking from, or reversing altogether, his
previous act.”
51. In Black's Law Dictionary (5th Edn., p. 601), it has been
defined as follows:
“ From time to time .—Occasionally, at intervals, now and
then.”
52. In Stroud's Judicial Dictionary (5th Edn., Vol. 2, p. 1071),
it has been stated as follows:
“ From time to time .— … ‘as occasion may arise’ (as per
William, J., Bryan v. Arthur [(1839) 11 Ad & E 108 : 113 ER
354] Ad & E at p. 117).”
40
(emphasis supplied)
While authorizing the detention of an accused, the Magistrate has got a very
wide discretion. Such an act is a judicial function and, therefore, a reasoned
order indicating application of mind is certainly warranted. He may or may
not authorize the detention while exercising his judicial discretion.
Investigation is a process which might require an accused’s custody from
time to time as authorised by the competent Court. Generally, no other Court
is expected to act as a supervisory authority in that process. An act of
authorisation pre-supposes the need for custody. Such a need for a police
custody has to be by an order of a Magistrate rendering his authorisation.
54.The words “such custody as such Magistrate thinks fit” would reiterate the
extent of discretion available to him. It is for the Magistrate concerned to
decide the question of custody, either be it judicial or to an investigating
agency or to any other entity in a given case.
55.Interpreting the words “such custody”, the Law Commission in its 37
th
Report, while dealing with the pari materia provisions under the CrPC, 1898,
has observed that the Magistrate is having wide powers as there is no express
restriction under Section 167(2). It can be given to any investigating agency
and, therefore, not meant to have a narrow interpretation by restricting it to
the police alone.
“481.A suggestion of the Ministry of Defence may be noted
regarding custody under section 167. Under sections 167(2) and
344, a Magistrate is empowered to remand an accused to any
custody, that is to say, he can remand him to other than police
41
custody. It is considered, that accused persons who are subject to
military, naval or air force law may be permitted to be remanded
to military, naval or air force custody. In fact, such custody has
been ordered in some cases. In order that there may be no doubt
left in the matter, the following additions should (it has been
suggested) be made in the aforesaid sections after the word
"custody" :--
"including military, naval or air force custody where the accused
belongs to any of these services."
We have considered the suggestion.
In section 167(2), the words used are "in such custody as the
Magistrate thinks fit". These words are very wide ( sic ).
In fact, it has been held even under section 344, that the
Magistrate can remand the accused to whatever custody he
thinks fit. We are therefore of the view, that no change is
necessary.”
(emphasis supplied)
We give our fullest imprimatur to the views expressed by the Law
Commission as Section 167 of the CrPC, 1973 is meant for not only
protecting the liberty of a person but also to conclude the investigation in a
fair manner. A balancing act is expected to be undertaken by the Magistrate.
56.Sub-section (2) of Section 167 of the CrPC, 1973 further makes a reference
to the words “a term not exceeding 15 days in the whole”. The term has
been introduced on purpose keeping in view the proviso which gives an outer
limit for the conclusion of the investigation. Similarly, the words “not
exceeding 15 days in the whole” should be understood in the very same
manner. The word “whole” means “total, not divided, lacking no part, entire,
full, and complete”. In Glaze v. Hart 225 M.O. App. 1205, the Kansas City
Court of Appeals has dealt with the word “whole”:
42
“…It would be doing violence to the plain, ordinary
meaning of the word total to hold that claimant, in
the circumstances revealed in said findings, was, at
the time of injury, totally dependent upon the
employee for support. The word total is defined
as whole; undivided; entire; complete in
degree; utter; absolute….”
(emphasis supplied)
As a sequitur, 15 days of maximum custody has to be seen contextually from
the point of view of the period of investigation as provided under the proviso.
57.Section 167(2) of the CrPC, 1973 authorises the detention of the accused in
custody by an order of the Magistrate. It does consciously treat a detention
different from custody. Custody will be either to the court or an investigating
agency. Detention is normally made only by an investigating agency prior to
the production before the learned Magistrate. A custody from being judicial
may turn into police through an order passed by the learned Magistrate.
Detention may at best be a facet of custody. However, they are not
synonymous with each other. When detention is authorised, it would become
custody. Custody does not mean a formal one. Rather, it can only be
construed when an arrestee is given in physical custody. We make it clear
that our interpretation of physical custody is meant to be applied to Section
167(2) of the CrPC, 1973 alone.
43
58. In Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC
623, while dealing with the interpretation of word “custody” this Court
has relied upon several dictionaries:
“Meaning of custody
9. Unfortunately, the terms “custody”, “detention” or “arrest”
have not been defined in CrPC, and we must resort to few
dictionaries to appreciate their contours in ordinary and legal
parlance:
9.1.Oxford Dictionary (online) defines “custody” as
imprisonment, detention, confinement, incarceration, internment,
captivity; remand, duress, and durance.
9.2.Cambridge Dictionary (online) explains “custody” as the
state of being kept in prison, especially while waiting to go
to court for trial.
(emphasis supplied)
9.3.Longman Dictionary (online) defines “custody” as “when
someone is kept in prison until they go to court, because the
police think they have committed a crime”.
9.4.Chambers Dictionary (online) clarifies that custody is
“the condition of being held by the police; arrest or
imprisonment; to take someone into custody to arrest them”.
9.5.Chambers' Thesaurus supplies several synonyms, such as
detention, confinement, imprisonment, captivity, arrest, formal
incarceration.
9.6.Collins Cobuild English Dictionary for Advance
Learners states in terms that someone who is in custody or has
been taken into custody or has been arrested and is being kept in
prison until they get tried in a court or if someone is being held in
44
a particular type of custody, they are being kept in a place that is
similar to a prison.
9.7.Shorter Oxford English Dictionary postulates the presence of
confinement, imprisonment, durance and this feature is totally
absent in the factual matrix before us.
9.8.Corpus Juris Secundum under the topic of “Escape & Related
Offenses; Rescue” adumbrates that
“custody, within the meaning of statutes defining the crime,
consists of the detention or restraint of a person against his or her
will, or of the exercise of control over another to confine the
other person within certain physical limits or a restriction of
ability or freedom of movement.”
9.9. This is how “custody” is dealt with in Black's Law
Dictionary, (5th Edn. 2009):
“Custody.—The care and control of a thing or person. The
keeping, guarding, care, watch, inspection, preservation or
security of a thing, carrying with it the idea of the thing being
within the immediate personal care and control of the person to
whose custody it is subjected. Immediate charge and control, and
not the final, absolute control of ownership, implying
responsibility for the protection and preservation of the thing in
custody. Also the detainer of a man's person by virtue of lawful
process or authority.
The term is very elastic and may mean actual imprisonment or
physical detention or mere power, legal or physical, of
imprisoning or of taking manual possession. Term ‘custody’
within statute requiring that petitioner be ‘in custody’ to be
entitled to federal habeas corpus relief does not necessarily mean
actual physical detention in jail or prison but rather is
synonymous with restraint of liberty. US ex rel Wirtz v. Sheehan,
319 F Supp 146 at p. 147 (DC Wis 1970). Accordingly, persons
on probation or released on own recognizance have been held to
be ‘in custody’ for purposes of habeas corpus proceedings.”
45
To be noted, this Court was concerned with the bail application and therefore
there was no occasion to draw a distinction between a judicial custody and a
police custody.
59.We further note that sub-section (2) of Section 167 of the CrPC, 1973
consciously omits to mention the word “police custody”. What is important
is the grant of custody which is to be decided by the Magistrate. The fact that
the proviso makes a mention about police custody would only mean the outer
limit an investigating agency can have.
60.We are conscious of the fact that a different interpretation has been given as
to how the total 15 days which could be sought for by an investigating
agency, should be construed and reckoned. We have already made an
elaborate discussion on this aspect. Even assuming that such custody can
only be sought for by an agency within the first 15 days, there has to be a
physical custody to count the days. In a case where custody is shifted from
judicial to an investigating agency by an order of Court, the starting point
will be from the actual custody. We would only reiterate that the moment a
person is produced before the Court, it assumes custody, divesting the agency
of its own. When an order is passed granting police custody, any interdiction
by any extraneous circumstance or a Court order would not kick-start the
period of custody. The situation may be different in a case where a further
custody is not possible due to external factors. Further, an order of Court can
46
never be a factor to prevent an investigation when the said order merges with
the final one, upholding such custody. In such a case, the doctrine of actus
curiae neminem gravabit would certainly apply, as Court’s action can never
prejudice anyone, more so, an investigating agency performing its statutory
mandate. In Bharat Damodar Kale v. State of A.P. (2003) 8 SCC 559:
“10. On facts of this case and based on the arguments advanced
before us, we consider it appropriate to decide the question
whether the provisions of Chapter XXXVI of the Code apply to
the delay in instituting the prosecution or to the delay in taking
cognizance. As noted above, according to the learned counsel for
the appellants, the limitation prescribed under the above Chapter
applies to taking of cognizance by the court concerned, therefore
even if a complaint is filed within the period of limitation
mentioned in the said Chapter of the Code, if the cognizance is
not taken within the period of limitation the same gets barred by
limitation. This argument seems to be inspired by the chapter
heading of Chapter XXXVI of the Code which reads thus:
“Limitation for taking cognizance of certain offences”. It is
primarily based on the above language of the heading of the
Chapter, the argument is addressed on behalf of the appellants
that the limitation prescribed by the said Chapter applies to taking
of cognizance and not filing of complaint or initiation of the
prosecution. We cannot accept such argument because a
cumulative reading of various provisions of the said Chapter
clearly indicates that the limitation prescribed therein is only for
the filing of the complaint or initiation of the prosecution and not
for taking cognizance. It of course prohibits the court from taking
cognizance of an offence where the complaint is filed before the
court after the expiry of the period mentioned in the said Chapter.
This is clear from Section 469 of the Code found in the said
Chapter which specifically says that the period of limitation in
relation to an offence shall commence either from the date of the
offence or from the date when the offence is detected. Section
470 indicates that while computing the period of limitation, time
taken during which the case was being diligently prosecuted in
another court or in appeal or in revision against the offender
47
should be excluded. The said section also provides in the
Explanation that in computing the time required for obtaining the
consent or sanction of the Government or any other authority
should be excluded. Similarly, the period during which the court
was closed will also have to be excluded. All these provisions
indicate that the court taking cognizance can take cognizance of
an offence the complaint of which is filed before it within the
period of limitation prescribed and if need be after excluding such
time which is legally excludable. This in our opinion clearly
indicates that the limitation prescribed is not for taking
cognizance within the period of limitation, but for taking
cognizance of an offence in regard to which a complaint is filed
or prosecution is initiated beyond the period of limitation
prescribed under the Code. Apart from the statutory indication
of this view of ours, we find support for this view from the
fact that taking of cognizance is an act of the court over which
the prosecuting agency or the complainant has no control.
Therefore, a complaint filed within the period of limitation
under the Code cannot be made infructuous by an act of
court. The legal phrase “ actus curiae neminem gravabit ”
which means an act of the court shall prejudice no man, or by
a delay on the part of the court neither party should suffer,
also supports the view that the legislature could not have
intended to put a period of limitation on the act of the court
of taking cognizance of an offence so as to defeat the case of
the complainant. This view of ours is also in conformity with
the earlier decision of this Court in the case of Rashmi
Kumar [(1997) 2 SCC 397 : 1997 SCC (Cri) 415] .”
(emphasis supplied)
61. In Indore Development Authority v. Manoharlal (2020) 8 SCC 129, the
Constitution Bench has exhaustively laid down the principle governing actus
curiae neminem gravabit and restitution:
“320. The maxim actus curiae neminem gravabit is founded
upon the principle due to court proceedings or acts of court, no
party should suffer. If any interim orders are made during the
pendency of the litigation, they are subject to the final decision in
48
the matter. In case the matter is dismissed as without merit, the
interim order is automatically dissolved. In case the matter has
been filed without any merit, the maxim is attracted commodum
ex injuria sua nemo habere debet, that is, convenience cannot
accrue to a party from his own wrong. No person ought to have
the advantage of his own wrong. In case litigation has been filed
frivolously or without any basis, iniquitously in order to delay
and by that it is delayed, there is no equity in favour of such a
person. Such cases are required to be decided on merits.
In Mrutunjay Pani v. Narmada Bala Sasmal, AIR 1961 SC 1353,
this Court observed that : (AIR p. 1355, para 5)
“5. … The same principle is comprised in the Latin
maxim commodum ex injuria sua nemo habere debet, that
is, convenience cannot accrue to a party from his own
wrong. To put it in other words, no one can be allowed to
benefit from his own wrongful act.”
xxx xxx xxx
324. In Mahadeo Savlaram Shelke v. Pune Municipal Corpn.,
(1995) 3 SCC 33, it has been observed that the Court can under
its inherent jurisdiction ex debito justitiae has a duty to mitigate
the damage suffered by the defendants by the act of the court.
Such action is necessary to put a check on abuse of process of the
court. In Amarjeet Singh v. Devi Ratan, (2010) 1 SCC 417 :
(2010) 1 SCC (L&S) 1108, and Ram Krishna Verma v. State of
U.P., (1992) 2 SCC 620, it was observed that no person can suffer
from the act of court and unfair advantage of the interim order
must be neutralised. In Amarjeet Singh v. Devi Ratan, (2010) 1
SCC 417 : (2010) 1 SCC (L&S) 1108, this Court observed : (SCC
pp. 422-23, paras 17-18)
“17. No litigant can derive any benefit from mere pendency
of the case in a court of law, as the interim order always
merges in the final order to be passed in the case, and if the
writ petition is ultimately dismissed, the interim order stands
nullified automatically. A party cannot be allowed to take any
benefit of its own wrongs by getting an interim order and
thereafter blame the court. The fact that the writ is found,
ultimately, devoid of any merit, shows that a frivolous writ
49
petition had been filed. The maxim actus curiae neminem
gravabit, which means that the act of the court shall prejudice
no one, becomes applicable in such a case. In such a fact
situation, the court is under an obligation to undo the wrong
done to a party by the act of the court. Thus, any undeserved
or unfair advantage gained by a party invoking the
jurisdiction of the court must be neutralised, as the institution
of litigation cannot be permitted to confer any advantage on a
suitor from delayed action by the act of the court. (Vide Shiv
Shankar v. U.P. SRTC, 1995 Supp (2) SCC 726 : 1995 SCC
(L&S) 1018, GTC Industries Ltd. v. Union of India, (1998) 3
SCC 376 and Jaipur Municipal Corpn. v. C.L. Mishra, (2005)
8 SCC 423).
18. In Ram Krishna Verma v. State of U.P., (1992) 2 SCC
620], this Court examined a similar issue while placing
reliance upon its earlier judgment in Grindlays Bank
Ltd. v. CIT, (1980) 2 SCC 191 : 1980 SCC (Tax) 230 and held
that no person can suffer from the act of the court and in case
an interim order has been passed, and the petitioner takes
advantage thereof, and ultimately the petition is found to be
without any merit and is dismissed, the interest of justice
requires that any undeserved or unfair advantage gained by a
party invoking the jurisdiction of the court must be
neutralised.”
325. In Karnataka Rare Earth v. Deptt. of Mines & Geology,
(2004) 2 SCC 783, this Court observed that maxim actus curiae
neminem gravabit requires that the party should be placed in the
same position but for the court's order which is ultimately found
to be not sustainable which has resulted in one party gaining
advantage which otherwise would not have earned and the other
party has suffered but for the orders of the court. The successful
party can demand the delivery of benefit earned by the other
party, or make restitution for what it has lost. This Court observed
: (SCC pp. 790-91, paras 10-11)
“10. In … the doctrine of actus curiae neminem gravabit and
held that the doctrine was not confined in its application only
to such acts of the court which were erroneous; the doctrine is
applicable to all such acts as to which it can be held that the
50
court would not have so acted had it been correctly apprised
of the facts and the law. It is the principle of restitution that is
attracted. When on account of an act of the party, persuading
the court to pass an order, which at the end is held as not
sustainable, has resulted in one party gaining advantage
which it would not have otherwise earned, or the other party
has suffered an impoverishment which it would not have
suffered, but for the order of the court and the act of such
party, then the successful party finally held entitled to a
relief, assessable in terms of money at the end of the
litigation, is entitled to be compensated in the same manner
in which the parties would have been if the interim order of
the court would not have been passed. The successful party
can demand : (a) the delivery of benefit earned by the
opposite party under the interim order of the court, or (b) to
make restitution for what it has lost.
11. In the facts of this case, in spite of the judgment
Karnataka Rare Earth v. Department of Mines & Geology,
WPs No. 4030-4031 of 1997, order dated 1-12-1998 (KAR)
of the High Court, if the appellants would not have persuaded
this Court to pass the interim orders, they would not have
been entitled to operate the mining leases and to raise and
remove and dispose of the minerals extracted. But for the
interim orders passed by this Court, there is no difference
between the appellants and any person raising, without any
lawful authority, any mineral from any land, attracting
applicability of sub-section (5) of Section 21. As the
appellants have lost from the Court, they cannot be allowed to
retain the benefit earned by them under the interim orders of
the Court. The High Court has rightly held the appellants
liable to be placed in the same position in which they would
have been if this Court would not have protected them by
issuing interim orders. All that the State Government is
demanding from the appellants is the price of the minor
minerals. Rent, royalty or tax has already been recovered by
the State Government and, therefore, there is no demand
under that head. No penal proceedings, much less any
criminal proceedings, have been initiated against the
appellants. It is absolutely incorrect to contend that the
appellants are being asked to pay any penalty or are being
51
subjected to any penal action. It is not the case of the
appellants that they are being asked to pay the price more
than what they have realised from the exports or that the price
appointed by the respondent State is in any manner arbitrary
or unreasonable.”
(emphasis supplied)
326. In A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 : 1988
SCC (Cri) 372, this Court observed that it is a settled principle
that an act of the court shall prejudice no man. This maxim actus
curiae neminem gravabit is founded upon justice and good sense
and affords a safe and certain guide for the administration of the
law. No man can be denied his rights. In India, a delay occurs due
to procedural wrangles. In A.R. Antulay v. R.S. Nayak, (1988) 2
SCC 602 : 1988 SCC (Cri) 372, this Court observed : (SCC p.
687, para 102)
“102. This being the apex court, no litigant has any
opportunity of approaching any higher forum to question its
decisions. Lord Buckmaster in Montreal Street Railway
Co. v. Normandin, 1917 AC 170 (PC) (sic) stated:
‘All rules of court are nothing but provisions intended to
secure the proper administration of justice. It is, therefore,
essential that they should be made to serve and be
subordinate to that purpose.’
This Court in State of Gujarat v. Ramprakash P. Puri, (1969) 3
SCC 156 : 1970 SCC (Cri) 29, reiterated the position by saying :
(SCC p. 159, para 5)
‘5. … Procedure has been described to be a handmaid and not
a mistress of law, intended to subserve and facilitate the cause
of justice and not to govern or obstruct it. Like all rules of
procedure, this rule demands a construction which would
promote this cause.’
Once judicial satisfaction is reached that the direction was not
open to be made and it is accepted as a mistake of the court, it is
not only appropriate but also the duty of the court to rectify the
mistake by exercising inherent powers. Judicial opinion heavily
52
leans in favour of this view that a mistake of the court can be
corrected by the court itself without any fetters. This is on
principle, as indicated in Alexander Rodger v. Comptoir
D'Escompte De Paris, (1969-71) LR 3 PC 465 : 17 ER 120. I am
of the view that in the present situation, the court's inherent
powers can be exercised to remedy the mistake. Mahajan, J.
speaking for a four-Judge Bench in Keshardeo Chamria v. Radha
Kissen Chamria, (1952) 2 SCC 329 : 1953 SCR 136 : AIR 1953
SC 23, SCR p. 153 stated : (AIR p. 28, para 21)
‘21. … The Judge had jurisdiction to correct his own error
without entering into a discussion of the grounds taken by the
decree-holder or the objections raised by the judgment-
debtors.’ ”
xxx xxx xxx
In re : Principle of restitution
335. The principle of restitution is founded on the ideal of doing
complete justice at the end of litigation, and parties have to be
placed in the same position but for the litigation and interim
order, if any, passed in the matter. In South Eastern Coalfields
Ltd. v. State of M.P., (2003) 8 SCC 648, it was held that no party
could take advantage of litigation. It has to disgorge the
advantage gained due to delay in case lis is lost. The interim
order passed by the court merges into a final decision. The
validity of an interim order, passed in favour of a party, stands
reversed in the event of a final order going against the party
successful at the interim stage. Section 144 of the Code of Civil
Procedure is not the fountain source of restitution. It is rather a
statutory recognition of the rule of justice, equity and fair play.
The court has inherent jurisdiction to order restitution so as to do
complete justice. This is also on the principle that a wrong order
should not be perpetuated by keeping it alive and respecting it. In
exercise of such power, the courts have applied the principle of
restitution to myriad situations not falling within the terms of
Section 144 CPC. What attracts applicability of restitution is not
the act of the court being wrongful or mistake or an error
committed by the court; the test is whether, on account of an act
of the party persuading the court to pass an order held at the end
as not sustainable, resulting in one party gaining an advantage
which it would not have otherwise earned, or the other party
53
having suffered an impoverishment, restitution has to be made.
Litigation cannot be permitted to be a productive industry.
Litigation cannot be reduced to gaming where there is an element
of chance in every case. If the concept of restitution is excluded
from application to interim orders, then the litigant would stand
to gain by swallowing the benefits yielding out of the interim
order. This Court observed in South Eastern Coalfields
Ltd. v. State of M.P., (2003) 8 SCC 648 thus : (SCC pp. 662-64,
paras 26-28)
“26. In our opinion, the principle of restitution takes care of
this submission. The word “restitution” in its etymological
sense means restoring to a party on the modification,
variation or reversal of a decree or order, what has been lost
to him in execution of decree or order of the court or in direct
consequence of a decree or order (see Zafar Khan v. Board of
Revenue, U.P., 1984 Supp SCC 505). In law, the term
“restitution” is used in three senses : (i) return or restoration
of some specific thing to its rightful owner or status; (ii)
compensation for benefits derived from a wrong done to
another; and (iii) compensation or reparation for the loss
caused to another. (See Black's Law Dictionary, 7th Edn., p.
1315). The Law of Contracts by John D. Calamari & Joseph
M. Perillo has been quoted by Black to say that “restitution”
is an ambiguous term, sometimes referring to the disgorging
of something which has been taken and at times referring to
compensation for the injury done:
‘Often, the result under either meaning of the term
would be the same. … Unjust impoverishment, as well as
unjust enrichment, is a ground for restitution. If the
defendant is guilty of a non-tortious misrepresentation,
the measure of recovery is not rigid but, as in other cases
of restitution, such factors as relative fault, the agreed-
upon risks, and the fairness of alternative risk allocations
not agreed upon and not attributable to the fault of either
party need to be weighed.’
The principle of restitution has been statutorily recognised in
Section 144 of the Code of Civil Procedure, 1908. Section
54
144 CPC speaks not only of a decree being varied, reversed,
set aside or modified but also includes an order on a par with
a decree. The scope of the provision is wide enough so as to
include therein almost all the kinds of variation, reversal,
setting aside or modification of a decree or order. The interim
order passed by the court merges into a final decision. The
validity of an interim order, passed in favour of a party, stands
reversed in the event of a final decision going against the
party successful at the interim stage. …
27. … This is also on the principle that a wrong order should
not be perpetuated by keeping it alive and respecting it (A.
Arunagiri Nadar v. S.P. Rathinasami, 1970 SCC OnLine Mad
63). In the exercise of such inherent power, the courts have
applied the principles of restitution to myriad situations not
strictly falling within the terms of Section 144.
28. That no one shall suffer by an act of the court is not a rule
confined to an erroneous act of the court; the “act of the
court” embraces within its sweep all such acts as to which the
court may form an opinion in any legal proceedings that the
court would not have so acted had it been correctly apprised
of the facts and the law. … the concept of restitution is
excluded from application to interim orders, then the litigant
would stand to gain by swallowing the benefits yielding out of
the interim order even though the battle has been lost at the
end. This cannot be countenanced. We are, therefore, of the
opinion that the successful party finally held entitled to a
relief assessable in terms of money at the end of the litigation,
is entitled to be compensated by award of interest at a suitable
reasonable rate for the period for which the interim order of
the court withholding the release of money had remained in
operation.”
(emphasis supplied)
62.Under proviso (a) of Section 167(2) of the CrPC, 1973, a Magistrate may
authorize the detention beyond a period of 15 days, other than in the custody
55
of the police. This period of 15 days has to be reckoned, qua either a police
custody or a custody in favour of the investigating officer, spanning over the
entire period of investigation.
63.It is too well settled that a proviso has to be understood from the language
used in the main provision and not vice versa. Proviso to Section 167(2) of
the CrPC, 1973 speaks of authorisation of detention of an accused person
otherwise than in police custody beyond the period of 15 days, subject to his
satisfaction. It further goes on to state that in any case the total period of
custody, either police or judicial, shall not exceed 60 or 90 days, as the case
may be. To understand this proviso one has to go back to the main provision
particularly the words “from time to time, authorize the detention of the
accused in such custody as such Magistrate thinks fit”, “for a term not
exceeding 15 days in the whole”. The interpretation given by us to the main
provision would give ample clarity to the proviso. Therefore, the period of 15
days being the maximum period that can be granted in favour of the police
would span from time to time with the total period of 60 or 90 days as the
case may be. Any other interpretation would seriously impair the power of
investigation. We may also hasten to add that the proviso merely reiterates
the maximum period of 15 days, qua a custody in favour of the police while
there is absolutely no mention of the first 15 days alone for the police
custody.
56
64.We would only reiterate that the proviso creates a fine balance between
individual liberty and adequate investigation. The time limit fixed would help
an accused person to come out of incarceration and thereafter lead to the
faster conclusion of the trial, it also facilitates a proper investigation by way
of police custody.
65.It is to protect the interest of an accused person by restricting the period of
investigation, a failure of which would entitle an arrestee to be released.
This again is yet another facet of Article 21 of the Constitution of India,
1950. In Satender Kumar Antil (supra):
“39. Section 167(2) was introduced in the year 1978, giving
emphasis to the maximum period of time to complete the
investigation. This provision has got a laudable object behind
it, which is to ensure an expeditious investigation and a fair
trial, and to set down a rationalised procedure that protects
the interests of the indigent sections of society. This is also
another limb of Article 21. Presumption of innocence is also
inbuilt in this provision. An investigating agency has to
expedite the process of investigation as a suspect is
languishing under incarceration. Thus, a duty is enjoined
upon the agency to complete the investigation within the time
prescribed and a failure would enable the release of the
accused. The right enshrined is an absolute and indefeasible
one, inuring to the benefit of suspect.
40. Such a right cannot be taken away even during any
unforeseen circumstances, such as the recent pandemic, as held
by this Court in M. Ravindran v. Directorate of Revenue
Intelligence, (2021) 2 SCC 485 : (2021) 1 SCC (Cri) 876 : (SCC
pp. 502-06, para 17)
“II. Section 167(2) and the Fundamental Right to Life and
Personal Liberty
57
17. Before we proceed to expand upon the parameters of
the right to default bail under Section 167(2) as interpreted by
various decisions of this Court, we find it pertinent to note the
observations made by this Court in Uday Mohanlal Acharya v.
State of Maharashtra, (2001) 5 SCC 453 : 2001 SCC (Cri) 760
on the fundamental right to personal liberty of the person and
the effect of deprivation of the same as follows : (SCC p. 472,
para 13)
‘13. … Personal liberty is one of the cherished objects of
the Indian Constitution and deprivation of the same can
only be in accordance with law and in conformity with the
provisions thereof, as stipulated under Article 21 of the
Constitution. When the law provides that the Magistrate
could authorise the detention of the accused in custody up
to a maximum period as indicated in the proviso to sub-
section (2) of Section 167, any further detention beyond
the period without filing of a challan by the investigating
agency would be a subterfuge and would not be in
accordance with law and in conformity with the
provisions of the Criminal Procedure Code, and as such,
could be violative of Article 21 of the Constitution.’
17.1. Article 21 of the Constitution of India provides that
‘no person shall be deprived of his life or personal liberty
except according to procedure established by law’. It has been
settled by a Constitution Bench of this Court in Maneka
Gandhi v. Union of India, (1978) 1 SCC 248, that such a
procedure cannot be arbitrary, unfair or unreasonable. The
history of the enactment of Section 167(2) CrPC and the
safeguard of “default bail” contained in the proviso thereto is
intrinsically linked to Article 21 and is nothing but a
legislative exposition of the constitutional safeguard that no
person shall be detained except in accordance with the rule of
law.
17.2. Under Section 167 of the Code of Criminal
Procedure, 1898 (“the 1898 Code”) which was in force prior to
the enactment of the CrPC, the maximum period for which an
accused could be remanded to custody, either police or
judicial, was 15 days. However, since it was often unworkable
to conclude complicated investigations within 15 days, a
58
practice arose wherein investigating officers would file
“preliminary charge-sheets” after the expiry of the remand
period. The State would then request the Magistrate to
postpone commencement of the trial and authorise further
remand of the accused under Section 344 of the 1898 Code till
the time the investigation was completed and the final charge-
sheet was filed. The Law Commission of India in Report No.
14 on Reforms of the Judicial Administration (Vol. II, 1948,
pp. 758-760) pointed out that in many cases the accused were
languishing for several months in custody without any final
report being filed before the courts. It was also pointed out that
there was conflict in judicial opinion as to whether the
Magistrate was bound to release the accused if the police
report was not filed within 15 days.
17.3. Hence the Law Commission in Report No. 14
recommended the need for an appropriate provision
specifically providing for continued remand after the expiry of
15 days, in a manner that ‘while meeting the needs of a full
and proper investigation in cases of serious crime, will still
safeguard the liberty of the person of the individual’. Further,
that the legislature should prescribe a maximum time period
beyond which no accused could be detained without filing of
the police report before the Magistrate. It was pointed out that
in England, even a person accused of grave offences such as
treason could not be indefinitely detained in prison till
commencement of the trial.
17.4. The suggestion made in Report No. 14 was reiterated
by the Law Commission in Report No. 41 on The Code of
Criminal Procedure, 1898 (Vol. I, 1969, pp. 76-77). The Law
Commission re-emphasised the need to guard against the
misuse of Section 344 of the 1898 Code by filing “preliminary
reports” for remanding the accused beyond the statutory
period prescribed under Section 167. It was pointed out that
this could lead to serious abuse wherein ‘the arrested person
can in this manner be kept in custody indefinitely while the
investigation can go on in a leisurely manner’. Hence the
Commission recommended fixing of a maximum time-limit of
60 days for remand. The Commission considered the
reservation expressed earlier in Report No. 37 that such an
59
extension may result in the 60-day period becoming a matter
of routine. However, faith was expressed that proper
supervision by the superior courts would help circumvent the
same.
17.5. The suggestions made in Report No. 41 were taken
note of and incorporated by the Central Government while
drafting the Code of Criminal Procedure Bill in 1970.
Ultimately, the 1898 Code was replaced by the present CrPC.
The Statement of Objects and Reasons of the CrPC provides
that the Government took the following important
considerations into account while evaluating the
recommendations of the Law Commission:
‘3. The recommendations of the Commission were
examined carefully by the Government, keeping in view,
among others, the following basic considerations:
(i) an accused person should get a fair trial in accordance
with the accepted principles of natural justice;
(ii) every effort should be made to avoid delay in
investigation and trial which is harmful not only to the
individuals involved but also to society; and
(iii) the procedure should not be complicated and should,
to the utmost extent possible, ensure fair deal to the poorer
sections of the community.’
17.6. It was in this backdrop that Section 167(2) was
enacted within the present day CrPC, providing for time-limits
on the period of remand of the accused, proportionate to the
seriousness of the offence committed, failing which the
accused acquires the indefeasible right to bail. As is evident
from the recommendations of the Law Commission mentioned
supra, the intent of the legislature was to balance the need for
sufficient time-limits to complete the investigation with the
need to protect the civil liberties of the accused. Section
167(2) provides for a clear mandate that the investigative
agency must collect the required evidence within the
prescribed time period, failing which the accused can no
longer be detained. This ensures that the investigating officers
are compelled to act swiftly and efficiently without misusing
the prospect of further remand. This also ensures that the court
60
takes cognizance of the case without any undue delay from the
date of giving information of the offence, so that society at
large does not lose faith and develop cynicism towards the
criminal justice system.
17.7. Therefore, as mentioned supra, Section 167(2) is
integrally linked to the constitutional commitment under
Article 21 promising protection of life and personal liberty
against unlawful and arbitrary detention, and must be
interpreted in a manner which serves this purpose. In this
regard we find it useful to refer to the decision of the three-
Judge Bench of this Court in Rakesh Kumar Paul v. State of
Assam, (2017) 15 SCC 67: (2018) 1 SCC (Cri) 401, which laid
down certain seminal principles as to the interpretation of
Section 167(2)CrPC though the questions of law involved
were somewhat different from the present case. The questions
before the three-Judge Bench in Rakesh Kumar Paul v. State
of Assam, (2017) 15 SCC 67: (2018) 1 SCC (Cri) 401, were
whether, firstly, the 90-day remand extension under Section
167(2)(a)(i) would be applicable in respect of offences where
the maximum period of imprisonment was 10 years, though
the minimum period was less than 10 years. Secondly, whether
the application for bail filed by the accused could be construed
as an application for default bail, even though the expiry of the
statutory period under Section 167(2) had not been specifically
pleaded as a ground for bail. The majority opinion held that
the 90-day limit is only available in respect of offences where
a minimum ten years imprisonment period is stipulated, and
that the oral arguments for default bail made by the counsel for
the accused before the High Court would suffice in lieu of a
written application. This was based on the reasoning that the
court should not be too technical in matters of personal liberty.
Madan B. Lokur, J. in his majority opinion, pertinently
observed as follows: (SCC pp. 95-96 & 99, paras 29, 32 & 41)
‘29. Notwithstanding this, the basic legislative intent of
completing investigations within twenty-four hours and also
within an otherwise time-bound period remains unchanged,
even though that period has been extended over the years.
This is an indication that in addition to giving adequate time
to complete investigations, the legislature has also and
always put a premium on personal liberty and has always
61
felt that it would be unfair to an accused to remain in
custody for a prolonged or indefinite period. It is for this
reason and also to hold the investigating agency
accountable that time-limits have been laid down by the
legislature.…
***
32. … Such views and opinions over a prolonged period
have prompted the legislature for more than a century to
ensure expeditious conclusion of investigations so that an
accused person is not unnecessarily deprived of his or her
personal liberty by remaining in prolonged custody for an
offence that he or she might not even have committed. In our
opinion, the entire debate before us must also be looked at
from the point of view of expeditious conclusion of
investigations and from the angle of personal liberty and not
from a purely dictionary or textual perspective as canvassed
by the learned counsel for the State.
***
41. We take this view keeping in mind that in matters of
personal liberty and Article 21 of the Constitution, it is not
always advisable to be formalistic or technical. The history
of the personal liberty jurisprudence of this Court and other
constitutional courts includes petitions for a writ of habeas
corpus and for other writs being entertained even on the
basis of a letter addressed to the Chief Justice or the Court.’
Therefore, the courts cannot adopt a rigid or formalistic
approach whilst considering any issue that touches upon the
rights contained in Article 21.
17.8. We may also refer with benefit to the recent judgment
of this Court in S. Kasi v. State, (2021) 12 SCC 1, wherein it
was observed that the indefeasible right to default bail under
Section 167(2) is an integral part of the right to personal
liberty under Article 21, and the said right to bail cannot be
suspended even during a pandemic situation as is prevailing
currently. It was emphasised that the right of the accused to be
set at liberty takes precedence over the right of the State to
carry on the investigation and submit a charge-sheet.
62
17.9. Additionally, it is well-settled that in case of any
ambiguity in the construction of a penal statute, the courts
must favour the interpretation which leans towards protecting
the rights of the accused, given the ubiquitous power disparity
between the individual accused and the State machinery. This
is applicable not only in the case of substantive penal statutes
but also in the case of procedures providing for the curtailment
of the liberty of the accused.
17.10. With respect to the CrPC particularly, the Statement
of Objects and Reasons (supra) is an important aid of
construction. Section 167(2) has to be interpreted keeping in
mind the threefold objectives expressed by the legislature,
namely, ensuring a fair trial, expeditious investigation and
trial, and setting down a rationalised procedure that protects
the interests of indigent sections of society. These objects are
nothing but subsets of the overarching fundamental right
guaranteed under Article 21.
17.11. Hence, it is from the perspective of upholding the
fundamental right to life and personal liberty under Article 21
that we shall clarify and reconcile the various judicial
interpretations of Section 167(2) for the purpose of resolving
the dilemma that has arisen in the present case.”
(emphasis in original and supplied)
41. As a consequence of the right flowing from the said
provision, courts will have to give due effect to it, and thus
any detention beyond this period would certainly be illegal,
being an affront to the liberty of the person concerned.
Therefore, it is not only the duty of the investigating agency
but also the courts to see to it that an accused gets the benefit
of Section 167(2).”
(emphasis supplied)
66.Sub-section (3) of Section 167 of the CrPC, 1973 warrants a Magistrate to
record reasons by speaking, reasoned order while granting authorisation. As
63
stated, this being a judicial order, touching upon the rights of an accused,
adequate reasons are expected to be recorded. Needless to state that any such
order passed is amenable to challenge before the higher judicial forum,
though not by way of a Habeas Corpus petition.
INTERPLAY BETWEEN SECTION 19 OF THE PREVENTION OF
MONEY LAUNDERING ACT, 2002 AND SECTION 167 OF THE
CODE OF CRIMINAL PROCEDURE, 1973:
67.We have already touched upon the mandatory function that a Magistrate is to
undertake while dealing with a case of remand. He is expected to do a
balancing act. As a matter of rule, the investigation is to be completed within
24 hours and therefore it is for the investigating agency concerned to satisfy
the Magistrate with adequate material on the need for its custody, be it police
or otherwise. This important factor is to be kept in mind by him while
passing the judicial order. We reiterate that Section 19 of the PMLA, 2002,
supplemented by Section 167 of the CrPC,1973 does provide adequate
safeguards to an arrested person. If Section 167 of the CrPC, 1973 is not
applicable, then there is no role for the Magistrate either to remand or
otherwise.
68.Such a Magistrate has a distinct role to play when a remand is made of an
accused person to an authority under the PMLA, 2002. It is his bounden
duty to see to it that Section 19 of the PMLA, 2002 is duly complied with
64
and any failure would entitle the arrestee to get released. The Magistrate shall
also peruse the order passed by the authority under Section 19(1) of the
PMLA, 2002. Section 167 of the CrPC, 1973 is also meant to give effect to
Section 19 of the PMLA, 2002 and therefore it is for the Magistrate to satisfy
himself of its due compliance. Upon such satisfaction, he can consider the
request for custody in favour of an authority, as Section 62 of the PMLA,
2002, does not speak about the authority which is to take action for non-
compliance of the mandate of Section 19 of the PMLA, 2002. A remand
being made by the Magistrate upon a person being produced before him,
being an independent entity, it is well open to him to invoke the said
provision in a given case. To put it otherwise, the Magistrate concerned is the
appropriate authority who has to be satisfied about the compliance of
safeguards as mandated under Section 19 of the PMLA, 2002. On the role
required to be played by the Magistrate, qua a remand, we do not wish to go
any further as it has been dealt with by this Court in Satyajit Ballubhai
Desai v. State of Gujarat, (2014) 14 SCC 434:
“9. Having considered and deliberated over the issue involved
herein in the light of the legal position and existing facts of the
case, we find substance in the plea raised on behalf of the
appellants that the grant of order for police remand should be an
exception and not a rule and for that the investigating agency is
required to make out a strong case and must satisfy the learned
Magistrate that without the police custody it would be impossible
for the police authorities to undertake further investigation and
only in that event police custody would be justified as the
65
authorities specially at the magisterial level would do well to
remind themselves that detention in police custody is generally
disfavoured by law. The provisions of law lay down that such
detention/police remand can be allowed only in special
circumstances granted by a Magistrate for reasons judicially
scrutinised and for such limited purposes only as the
necessities of the case may require. The scheme of Section 167
of the Criminal Procedure Code, 1973 is unambiguous in this
regard and is intended to protect the accused from the
methods which may be adopted by some overzealous and
unscrupulous police officers which at times may be at the
instance of an interested party also. But it is also equally true
that the police custody although is not the be-all and end-all
of the whole investigation, yet it is one of its primary
requisites particularly in the investigation of serious and
heinous crimes. The legislature also noticed this and, has
therefore, permitted limited police custody.”
(emphasis supplied)
69.The interplay between Section 19(1) of the PMLA, 2002 and Section 167 of
the CrPC, 1973, as discussed, would facilitate the application of the latter
after the conclusion of the former. One cannot say that Section 167(2) of the
CrPC, 1973 is applicable to an authority when it comes to arrest but not to
custody.
70.An external aid would be required only when there is a lacuna, especially
when the provisions are pari materia. We are conscious of the fact that in
certain statutes like Foreign Exchange Regulation Act, 1973 and the Customs
Act, 1962, etc. there is an express provision which confers the powers of
police officers upon the authorised officers for the purpose of arrest and then
custody to the police. That does not mean that there is no power under the
66
PMLA, 2002 read with the CrPC, 1973 to the Authorised Officer to seek
custody. There is a fallacy in the said argument. One cannot apply Section
167(2) of the CrPC, 1973 in piecemeal. There cannot be an application of the
provision only for an arrest but not for custody. Such an argument is also
dangerous from the point of view of an arrestee as the benefit conferred
under the proviso to Section 167(2) of the CrPC, 1973 will not be available.
Vijay Madanlal Choudhary (supra):
“88. …This production is also to comply with the requirement of
Section 167 of the 1973 Code. There is nothing in Section 19,
which is contrary to the requirement of production under Section
167 of the 1973 Code, but being an express statutory requirement
under the 2002 Act in terms of Section 19(3), it has to be
complied by the authorised officer. …”
71.Deepak Mahajan (supra):
“106. In our considered opinion, the view taken in O.P.
Gupta and M.K.S. Abu Bucker and also of the Kerala High Court
and Gujarat High Court is the logical and correct view and we
approve the same for the reasons we have given in the preceding
part of this judgment. We, indeed, see no imponderability in
construing Section 35(2) of FERA and Section 104(2) of Customs
Act that the said provisions replace Section 167(1) and serve as a
substitute thereof substantially satisfying all the required basic
conditions contained therein and that consequent upon such
replacement of sub-section (1) of Section 167, the arrested person
under those special Acts would be an accused person to be
detained by the Magistrate under sub-section (2) of Section 167.
In passing, it may be stated that there is no expression ‘police
officer’ deployed in Section 167(1) nor does it appear in any
part of Section 167(2). The authority for detaining a person as
contemplated under Section 167(2) is in aid of investigation to
be carried on by any prosecuting agency who is invested with
the power of investigation.
67
xxx xxx xxx
108. The word ‘investigation’ is defined under Section 2(h) of the
present Code [which is an exact reproduction of Section 4(1)(b)
of the old Code] which is an inclusive definition as including all
the proceedings under the Code for the collection of evidence
conducted by a police officer or any person (other than a
Magistrate) who is authorised by a Magistrate in this behalf. The
said word ‘investigation’ runs through the entire fabric of the
Code. There is a long course of decisions of this Court as well as
of the various High Courts explaining in detail, what the word
‘investigation’ means and is? It is not necessary for the purpose of
this case to recapitulate all those decisions except the one in H.N.
Rishbud v. State of Delhi. In that decision, it has been held that:
(SCR pp. 1157-58)
“Under the Code investigation consists generally of the
following steps: (1) Proceeding to the spot, (2)
Ascertainment of the facts and circumstances of the case,
(3) Discovery and arrest of the suspected offender, (4)
Collection of evidence relating to the commission of the
offence which may consist of (a) the examination of
various persons (including the accused) and the reduction
of their statements into writing, if the officer thinks fit, (b)
the search of places of seizure of things considered
necessary for the investigation and to be produced at the
trial, and (5) Formation of the opinion as to whether on the
material collected there is a case to place the accused
before a Magistrate for trial and if so taking the necessary
steps for the same by the filing of a charge-sheet under
Section 173.”
The steps involved in the course of investigation, as pointed out
in Rishbud case have been reiterated in State of M.P. v. Mubarak
Ali.
109. No doubt, it is true that there are a series of decisions
holding the view that an Officer of Enforcement or a Customs
Officer is not a police officer though such officers are vested
with the powers of arrest and other analogous powers.
Vide Ramesh Chandra v. State of W.B. and Illias v. Collector of
Customs, Madras . In the above decisions, this Court has held
that the above officers under the special Acts are not vested
68
with the powers of a police officer qua investigation of an
offence under Chapter XII of the Code including the power to
forward a report under Section 173 of the Code. See
also State of Punjab v. Barkat Ram and Badku Joti
Savant v. State of Mysore .
xxx xxx xxx
113. Though an authorised officer of Enforcement or Customs is
not undertaking an investigation as contemplated under Chapter
XII of the Code, yet those officers are enjoying some analogous
powers such as arrest, seizures, interrogation etc. Besides, a
statutory duty is enjoined on them to inform the arrestee of the
grounds for such arrest as contemplated under Article 22(1) of the
Constitution and Section 50 of the Code. Therefore, they have
necessarily to make records of their statutory functions showing
the name of the informant, as well as the name of the person who
violated any other provision of the Code and who has been guilty
of an offence punishable under the Act, nature of information
received by them, time of the arrest, seizure of the contraband if
any and the statements recorded during the course of the
detection of the offence/offences.
xxx xxx xxx
116. It should not be lost sight of the fact that a police officer
making an investigation of an offence representing the State files
a report under Section 173 of the Code and becomes the
complainant whereas the prosecuting agency under the special
Acts files a complaint as a complainant i.e. under Section 61(ii)
in the case of FERA and under Section 137 of the Customs Act.
To say differently, the police officer after consummation of the
investigation files a report under Section 173 of the Code upon
which the Magistrate may take cognizance of any offence
disclosed in the report under Section 190(1)(b) of the Code
whereas the empowered or authorised officer of the special Acts
has to file only a complaint of facts constituting any offence
under the provisions of the Act on the receipt of which the
Magistrate may take cognizance of the said offence under Section
190(1)(a) of the Code. After taking cognizance of the offence
either upon a police report or upon receiving a complaint of facts,
the Magistrate has to proceed with the case as per the procedure
prescribed under the Code or under the special procedure, if any,
prescribed under the special Acts. Therefore, the word
69
‘investigation’ cannot be limited only to police investigation
but on the other hand, the said word is with wider
connotation and flexible so as to include the investigation
carried on by any agency whether he be a police officer or
empowered or authorised officer or a person not being a
police officer under the direction of a Magistrate to make an
investigation vested with the power of investigation.
xxx xxx xxx
120. From the above discussion it cannot be said that either the
Officer of Enforcement or the Customs Officer is not empowered
with the power of investigation though not with the power of
filing a final report as in the case of a police officer.
xxx xxx xxx
128. To sum up, Section 4 is comprehensive and that Section 5
is not in derogation of Section 4(2) and it only relates to the
extent of application of the Code in the matter of territorial
and other jurisdiction but does not nullify the effect of Section
4(2). In short, the provisions of this Code would be applicable
to the extent in the absence of any contrary provision in the
Special Act or any special provision excluding the jurisdiction
or applicability of the Code. In fact, the second limb of
Section 4(2) itself limits the application of the provisions of
the Code reading, “… but subject to any enactment for the
time being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing with
such offences.”
xxx xxx xxx
131. The submission that as there is no investigation within the
terms of the Code in the field of FERA or Customs Act, Section
4(2) of the Code can have no part to play, has to be rejected for
the reasons given by us while disposing of the contention “What
investigation means and is” in the preceding part of this
judgment.
132. For the aforementioned reasons, we hold that the
operation of Section 4(2) of the Code is straightaway
attracted to the area of investigation, inquiry and trial of the
offences under the special laws including the FERA and
Customs Act and consequently Section 167 of the Code can be
70
made applicable during the investigation or inquiry of an
offence under the special Acts also inasmuch as there is no
specific provision contrary to that excluding the operation of
Section 167.
xxx xxx xxx
134. There are a series of decisions of various High Courts, of
course with some exception, taking the view that a Magistrate
before whom a person arrested by the competent authority
under the FERA or Customs Act is produced, can authorise
detention in exercise of his powers under Section 167.
Otherwise the mandatory direction under the provision of
Section 35(2) of FERA or Section 104(2) of the Customs Act,
to take every person arrested before the Magistrate without
unnecessary delay when the arrestee was not released on bail
under sub-section (3) of those special Acts, will become
purposeless and meaningless and to say that the courts even
in the event of refusal of bail have no choice but to set the
person arrested at liberty by folding their hands as a helpless
spectator in the face of what is termed as “legislative casus
omissus” or legal flaw or lacuna, it will become utterly
illogical and absurd.”
(emphasis supplied)
72.Ashok Munilal Jain (supra):
“3. We have gone through the orders passed by the trial court as
well as by the High Court. We may state at the outset that insofar
as the High Court is concerned, it has not given any reasons in
support of its aforesaid view except endorsing the view of the
trial court to the effect that the provisions of Section 167(2) CrPC
are not applicable to the cases under the PMLA Act. This position
in law stated by the trial court does not appear to be correct and
even the learned Attorney General appearing for the respondent
could not dispute the same. We may record that as per the
provisions of Section 4(2) CrPC, the procedure contained
therein applies in respect of special statutes as well unless the
applicability of the provisions is expressly barred. Moreover,
Sections 44 to 46 of the PMLA Act specifically incorporate the
provisions of CrPC to the trials under the PMLA Act. Thus,
not only that there is no provision in the PMLA Act excluding
71
the applicability of CrPC, on the contrary, provisions of
CrPC are incorporated by specific inclusion. Even Section 65
of the PMLA Act itself settles the controversy beyond any
doubt in this behalf which reads as under:
“65. Code of Criminal Procedure, 1973 to apply.—The
provisions of the Code of Criminal Procedure, 1973 (2 of
1974) shall apply, insofar as they are not inconsistent with the
provisions of this Act, to arrest, search and seizure,
attachment, confiscation, investigation, prosecution and all
other proceedings under this Act.”
4. We may also refer to the judgment of this Court in Directorate
of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 : 1994
SCC (Cri) 785, wherein it was held as under: (SCC p. 480, para
136)
“136. In the result, we hold that sub-sections (1) and (2) of
Section 167 are squarely applicable with regard to the
production and detention of a person arrested under the
provisions of Section 35 of FERA and Section 104 of the
Customs Act and that the Magistrate has jurisdiction under
Section 167(2) to authorise detention of a person arrested by
any authorised officer of the Enforcement under FERA and
taken to the Magistrate in compliance of Section 35(2) of
FERA.”
5. We, thus, do not agree with the opinion of the High Court
that the provisions of Section 167(2) CrPC would not be
applicable to the proceedings under the PMLA Act. In the
present case, as no complaint was filed even after the expiry
of 60 days from the date when the appellant was taken into
custody, he was entitled to statutory bail in view of the
provisions contained in Section 167(2) CrPC.”
(emphasis supplied)
PRINCIPLES GOVERNING THE INTERPRETATION OF
STATUTES:
72
73.Having discussed the scope and ambit of Section 167 of the CrPC, 1973, we
believe that it being a penal statute, a literal, natural and simple interpretation
is to be given. When there is no need for a purposive interpretation and the
statute clearly expresses its intendment, an act of judicial surgery is best
avoided. Nowhere in the provision, it is stated that there cannot be any
custody in favour of an investigating agency beyond the first 15 days of the
remand, as against the express provision discussed in detail. Similarly, while
understanding the intendment of Section 167 of the CrPC, 1973, the
provision has to be read along with the proviso. This Court in Rakesh
Kumar Paul v. State of Assam, (2017) 15 SCC 67:
“67. While interpreting any statutory provision, it has always
been accepted as a golden rule of interpretation that the
words used by the legislature should be given their natural
meaning. Normally, the courts should be hesitant to add
words or subtract words from the statutory provision. An
effort should always be made to read the legislative provision
in such a way that there is no wastage of words and any
construction which makes some words of the statute
redundant should be avoided. No doubt, if the natural
meaning of the words leads to an interpretation which is
contrary to the objects of the Act or makes the provision
unworkable or highly unreasonable and arbitrary, then the
courts either add words or subtract words or read down the
statute, but this should only be done when there is an
ambiguity in the language used. In my view, there is no
ambiguity in the wording of Section 167(2) of the Code and,
therefore, the wise course would be to follow the principle laid
down by Patanjali Shastry, C.J. in Aswini Kumar Ghose v.
Arabinda Bose , (1952) 2 SCC 237 : AIR 1952 SC 369, where
he very eloquently held as follows: (AIR p. 377, para 26)
73
“26. … It is not a sound principle of construction to brush aside
words in a statute as being inapposite surplusage, if they can
have appropriate application in circumstances conceivably
within the contemplation of the statute.”
In Jugalkishore Saraf v. Raw Cotton Co. Ltd. , AIR 1955 SC
376, S.R. Das, J., speaking for this Court, held as follows:
(AIR p. 381, para 6)
“ 6 . … The cardinal rule of construction of statutes is to read
the statutes literally, that is, by giving to the words used by
the legislature their ordinary, natural and grammatical
meaning.”
68. External aids of interpretation are to be used only when the
language of the legislation is ambiguous and admits of two or
more meanings. When the language is clear or the ambiguity can
be resolved under the more common rules of statutory
interpretation, the court would be reluctant to look at external
aids of statutory interpretation.
69. Gajendragadkar, J., speaking for this Court in Kanai Lal
Sur v. Paramnidhi Sadhukhan , AIR 1957 SC 907 held : (AIR
p. 910, para 6)
“ 6 . … the first and primary rule of construction is that the
intention of the legislature must be found in the words used
by the legislature itself.”
70. These sound principles of statutory construction continue to
hold the field. When the natural meaning of the words is clear
and unambiguous, no external aids should be used.”
(emphasis supplied)
74.A decision of a Court cannot be read like a statute, out of context and in
ignorance of the requisite provisions. Commissioner of Central Excise,
Bangalore v. Srikumar Agencies & Ors., (2009) 1 SCC 469:
“5. “15 . … Courts should not place reliance on decisions
without discussing as to how the factual situation fits in with
74
the fact situation of the decision on which reliance is placed.
Observations of courts are neither to be read as Euclid's
theorems nor as provisions of the statute and that too taken
out of their context. These observations must be read in the
context in which they appear to have been stated. Judgments
of courts are not to be construed as statutes. To interpret
words, phrases and provisions of a statute, it may become
necessary for Judges to embark into lengthy discussions but
the discussion is meant to explain and not to define. Judges
interpret statutes, they do not interpret judgments. They
interpret words of statutes; their words are not to be
interpreted as statutes. In London Graving Dock Co. Ltd. v.
Horton [1951 AC 737 : (1951) 2 All ER 1 (HL)] (AC at p. 761)
Lord Macdermott observed : (All ER p. 14 C-D)
‘… The matter cannot, of course, be settled merely by
treating the ipsissima verba of Willes, J., as though they
were part of an Act of Parliament and applying the rules
of interpretation appropriate thereto. This is not to detract
from the great weight to be given to the language actually
used by that most distinguished Judge ….’
16 . In Home Office v. Dorset Yacht Co. Ltd. [1970 AC 1004 :
(1970) 2 WLR 1140 : (1970) 2 All ER 294 (HL)] Lord Reid
said : (All ER p. 297 g-h ) ‘… Lord Atkin's speech … is not to
be treated as if it were a statutory definition. It will require
qualification in new circumstances.’ Megarry, J. in Shebherd
Homes Ltd. v. Sandham (No. 2) [(1971) 1 WLR 1062 : (1971) 2
All ER 1267] observed : (All ER p. 1274 d-e ) ‘… One must
not, of course, construe even a reserved judgment of Russell,
L.J. as if it were an Act of Parliament ….’ And, in British
Railways Board v. Herrington [1972 AC 877 : (1972) 2 WLR
537 : (1972) 1 All ER 749 (HL)] Lord Morris said : (All ER p.
761 c )
‘There is always peril in treating the words of a speech or
judgment as though they are words in a legislative
enactment, and it is to be remembered that judicial
utterances made in the setting of the facts of a particular
case.’
17 . Circumstantial flexibility, one additional or different fact
may make a world of difference between conclusions in two
75
cases. Disposal of cases by blindly placing reliance on a
decision is not proper.
18 . The following words of Hidayatullah, J. in the matter of
applying precedents have become locus classicus: ( Abdul
Kayoom v. CIT [AIR 1962 SC 680] , AIR p. 688, para 19)
‘ 19 . … Each case depends on its own facts and a close
similarity between one case and another is not enough
because even a single significant detail may alter the entire
aspect. In deciding such cases, one should avoid the
temptation to decide cases (as said by Cardozo) by matching
the colour of one case against the colour of another. To
decide therefore, on which side of the line a case falls, the
broad resemblance to another case is not at all decisive.’
***
‘Precedent should be followed only so far as it marks the
path of justice, but you must cut the dead wood and trim off
the side branches else you will find yourself lost in thickets
and branches. My plea is to keep the path to justice clear of
obstructions which could impede it.’ ” [Ed. : As observed in
Union of India v. Amrit Lal Manchanda , (2004) 3 SCC 75 at
pp. 83-84, paras 15-18.]”
(emphasis supplied)
75. Satya Pal Singh v. State of Madhya Pradesh, (2015) 15 SCC 613:
“12. It is well established that the proviso of a statute must be
given an interpretation limited to the subject-matter of the
enacting provision. Reliance is placed on the decision of this
Court rendered by a four-Judge Bench in Dwarka
Prasad v. Dwarka Das Saraf , (1976) 1 SCC 128 , the relevant
para 18 of which reads thus: (SCC p. 137)
“ 18 . … A proviso must be limited to the subject-matter of the
enacting clause. It is a settled rule of construction that a
proviso must prima facie be read and considered in relation
to the principal matter to which it is a proviso. It is not a
separate or independent enactment. ‘Words are dependent
on the principal enacting words to which they are tacked as
a proviso. They cannot be read as divorced from their
context’ ( Thompson v. Dibdin , 1912 AC 533 (HL)). If the
rule of construction is that prima facie a proviso should be
76
limited in its operation to the subject-matter of the
enacting clause, the stand we have taken is sound. To
expand the enacting clause, inflated by the proviso, sins
against the fundamental rule of construction that a
proviso must be considered in relation to the principal
matter to which it stands as a proviso. A proviso ordinarily
is but a proviso, although the golden rule is to read the
whole section, inclusive of the proviso, in such manner that
they mutually throw light on each other and result in a
harmonious construction.”
(emphasis supplied)
13. Further, a three-Judge Bench of this Court by majority of 2:1
in S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591
has elaborately examined the scope of the proviso to the
substantive provision of the section and rules of its interpretation.
The relevant paragraphs are reproduced hereunder: (SCC pp.
607-08, paras 30, 32-33 & 36-37)
“30. Sarathi in Interpretation of Statutes at pp. 294-95 has
collected the following principles in regard to a proviso:
(a) When one finds a proviso to a section the natural
presumption is that, but for the proviso, the enacting part of the
section would have included the subject-matter of the proviso.
(b) A proviso must be construed with reference to the
preceding parts of the clause to which it is appended.
(c) Where the proviso is directly repugnant to a section, the
proviso shall stand and be held a repeal of the section as the
proviso speaks the latter intention of the makers.
(d) Where the section is doubtful, a proviso may be used as a
guide to its interpretation; but when it is clear, a proviso cannot
imply the existence of words of which there is no trace in the
section.
(e) The proviso is subordinate to the main section.
(f) A proviso does not enlarge an enactment except for
compelling reasons.
(g) Sometimes an unnecessary proviso is inserted by way of
abundant caution.
(h) A construction placed upon a proviso which brings it into
general harmony with the terms of section should prevail.
77
(i) When a proviso is repugnant to the enacting part, the
proviso will not prevail over the absolute terms of a later Act
directed to be read as supplemental to the earlier one.
(j) A proviso may sometimes contain a substantive provision.”
(emphasis supplied)
DOES SECTION 167(2) OF THE CODE OF CRIMINAL
PROCEDURE, 1973 RESTRICT A POLICE CUSTODY ONLY TO
THE FIRST 15 DAYS OF REMAND?
76.We have given our interpretation on the scope and ambit of Section 167(2) of
the CrPC, 1973. With due respect, we are unable to concur with the views
expressed in Anupam J. Kulkarni (supra) to the effect that a police custody
shall only be within the first 15 days of remand. Nowhere under Section
167(2) of the CrPC, 1973 such a stipulation is found either directly or
indirectly. The words such as “time to time”, “such custody”, and “in the
whole” mentioned under Section 167(2) of the CrPC, 1973 have not been
properly taken note of and interpreted. What is required is a simple and
natural interpretation when there is no semblance of ambiguity.
77.The intendment behind the proviso has also not been construed. Section
167(2) of the CrPC, 1973, as stated, does a fine balancing act between the
liberty of an individual and a proper investigation. Perhaps, this Court was
keeping in mind the earlier CrPC, 1898 which restricts the period of
investigation to 15 days alone. Once the period is given as 60 days or 90 days
as the case may be, to an investigating agency, in tune with the proviso,
78
Section 167(2) of the CrPC, 1973 by even normal interpretation facilitates a
police custody spanning over the said period, but “whole” being for 15 days.
It appears to us that a clear provision has not been construed correctly, while
adding certain words.
78.The decision in Chaganti Satyanarayana v. State of Andhra Pradesh,
(1986) 3 SCC 141 has also been misconstrued. Though the facts are a bit
different in the said decision, this Court has rightly understood sub-section
(2) of Section 167 of the CrPC, 1973:
“16. As sub-section (2) of Section 167 as well as proviso (1) of
sub-section (2) of Section 309 relate to the powers of remand of a
magistrate, though under different situations, the two provisions
call for a harmonious reading insofar as the periods of remand are
concerned. It would, therefore, follow that the words “15 days in
the whole” occurring in sub-section (2) of Section 167 would be
tantamount to a period of “15 days at a time” but subject to the
condition that if the accused is to be remanded to police custody
the remand should be for such period as is commensurate with
the requirements of a case with provision for further extensions
for restricted periods, if need be, but in no case should the total
period of remand to police custody exceed 15 days. Where an
accused is placed in police custody for the maximum period of 15
days allowed under law either pursuant to a single order of
remand or to more than one order, when the remand is restricted
on each occasion to a lesser number of days, further detention of
the accused, if warranted, has to be necessarily to judicial custody
and not otherwise. The legislature having provided for an accused
being placed under police custody under orders of remand for
effective investigation of cases has at the same time taken care to
see that the interests of the accused are not jeopardised by his
being placed under police custody beyond a total period of 15
days, under any circumstances, irrespective of the gravity of the
offence or the serious nature of the case.”
79
The aforesaid passage has been taken note of in Anupam J.Kulkarni
(supra) to mean that an investigation with custody is permissible only within
the first 15 days of remand.
79.Even assuming that the rationale behind Anupam J. Kulkarni (supra) is
correct, the legal maxim actus curiae neminem gravabit would certainly
apply. This aspect has not been taken note of in the said judgment, followed
by the others. The larger Bench of this Court in Budh Singh v. State of
Punjab (2009) 9 SCC 266, mainly gave its imprimatur to the findings
rendered in Anupam J. Kulkarni (supra). Allowing the said interpretation
which in our respectful view is contrary to the very mandate of Section
167(2) of the CrPC, 1973 would cause serious prejudice to the investigation.
While agreeing with the views expressed by this Court in Vikas Mishra
(supra) which actually dealt with the issue of counting the days, we are
inclined to refer the larger issue of the actual import of Section 167(2) of the
CrPC, 1973 as to whether the 15 days period of custody in favour of the
police should be only within the first 15 days of remand or spanning over the
entire period of investigation - 60 or 90 days, as the case may be, as a whole.
This issue needs to be put to rest as a legal proposition on an authoritative
pronouncement by a larger Bench, though it does not alter our consideration
herein in the facts and circumstances arising in this case. Notwithstanding
the same, we proceed further to discuss and conclude to decide these
80
petitions since a conclusion can be reached in the facts of this case guided by
the law as it exists and noticed herein.
DISCUSSION
80.We have already narrated the foundational facts without going in detail. This
case has got a chequered history with the pendulum swinging in favour of
one side to another. On the earlier two occasions, the appellant has succeeded
before the High Court to be reversed only by this Court. We would record
only one fact, namely that the order rejecting the bail has attained finality.
81. We shall first consider the maintainability of the writ petition filed. A writ of
Habeas Corpus was moved questioning the arrest made. When it was taken
up for hearing on a mentioning, the next day by the Court, the appellant was
duly produced before the learned Principal Sessions Judge in compliance
with Section 19 of the PMLA, 2002. The custody thus becomes judicial as he
was duly forwarded by the respondents. Therefore, even on the date of
hearing before the High Court there was no cause for filing the Writ Petition
being HCP No. 1021 of 2023. Added to that, an order of remand was passed
on 14.06.2023 itself. The two remand orders passed by the Court, as recorded
in the preceding paragraphs, depict a clear application of mind. Despite
additional grounds having been raised, they being an afterthought, we have
no hesitation in holding that the only remedy open to the appellant is to
approach the appropriate Court under the Statute. This was obviously not
81
done. We may also note that the appellant was very conscious about his
rights and that is the reason why, by way of an application he even opposed
the remand.
82. Despite our conclusion that the writ petition is not maintainable, we would
like to go further in view of the extensive arguments made by the learned
Senior Advocates appearing for the appellant. As rightly contended by the
learned Solicitor General the scheme and object of the PMLA, 2002 being a
sui generis legislation is distinct. Though we do not wish to elaborate any
further, we find adequate compliance of Section 19 of the PMLA, 2002
which contemplates a rigorous procedure before making an arrest. The
learned Principal Sessions Judge did take note of the said fact by passing a
reasoned order. The appellant was accordingly produced before the Court and
while he was in its custody, a judicial remand was made. As it is a reasoned
and speaking order, the appellant ought to have questioned it before the
appropriate forum. We are only concerned with the remand in favour of the
respondents. Therefore, even on that ground we do hold that a writ of Habeas
Corpus is not maintainable as the arrest and custody have already been
upheld by way of rejection of the bail application.
83.The arguments of the learned Senior Advocates on the interpretation of
Section 167(2) of the CrPC, 1973 cannot be accepted as the law has been
quite settled by this Court in Deepak Mahajan (supra). One cannot say that
82
while all other safeguards as extended under Section 167(2) of the CrPC,
1973 would be available to a person accused but nonetheless, the provision
regarding remand cannot be applied. Section 167(2) of the CrPC, 1973
merely complements and supplements Section 19 of the PMLA, 2002. We do
not find any inherent contradiction between these two statutes. Obviously, an
arrest under Section 19 of the PMLA, 2002 can only be made after the
compliance of much more stringent conditions than the one available under
Section 41 of the CrPC, 1973.
84. The interplay between an investigation and inquiry conferring the same
meaning is only for the usage of common materials arising therefrom. Such
materials are to be utilized for both the purposes. This is the basis upon
which they are read together, giving the same meaning at a particular stage.
In Vijay Madanlal Choudhary (supra) it was in the context of a challenge
to the enactment, particularly in the light of Section 25 of the Evidence Act,
1872.
85. Shri Kapil Sibal, learned Senior Advocate, in his inimitable style once again
placed reliance upon Vijay Madanlal Choudhary (supra) to press home his
view that an authorised officer under the PMLA, 2002 is not a police officer
as declared in Vijay Madanlal Choudhary (supra). As stated, an officer is
expected to perform as per the statute. In the process of investigation, he has
been given certain powers. One shall not confuse such powers conferred
83
under the statute with the police power, however, when it comes to
application of Section 167(2) of the CrPC, 1973 such an authority has to be
brought under the expression “such custody” especially when the words
“police custody” are consciously omitted. Therefore, the ratio laid down in
Vijay Madanlal Choudhary (supra) has to be understood contextually, in
its own perspective.
86. Much arguments have been made on the basis of Anupam J. Kulkarni
(supra). As rightly submitted by the learned Solicitor General, the facts are
different and therefore distinguishable. In the case on hand, there is no
custody in favour of the respondents, a fact even acknowledged by the
appellant earlier through the arguments of his advocates. The learned
Solicitor General is right in his submission that apart from the fact that the
word “custody” is different from “detention”, it can only be physical. As
pointed out by him even the High Court has observed that the appellant
continues to be in judicial custody. Admittedly, physical custody has not been
given to the respondents. Admission of the appellant to the hospital of his
choice cannot be termed as a physical custody in favour of the respondents.
Custody could not be taken on the basis of the interim order passed by the
High Court which certainly shall not come in the way of calculating the
period of 15 days. An investigating agency is expected to be given a
reasonable freedom to do it’s part. To say that the respondents ought to have
84
examined the appellant in the hospital, and that too with the permission of
the doctors, can never be termed as an adequate compliance.
87. Any order of the Court is not meant to affect a person adversely despite its
ultimate conclusion in his favour. The doctrine actus curiae neminem
gravabit would certainly apply in calculating the period of 15 days.
88.SUMMATION OF LAW :
i.When an arrestee is forwarded to the jurisdictional Magistrate under
Section 19(3) of the PMLA, 2002 no writ of Habeus Corpus would lie.
Any plea of illegal arrest is to be made before such Magistrate since
custody becomes judicial.
ii.Any non-compliance of the mandate of Section 19 of the PMLA, 2002
would enure to the benefit of the person arrested. For such non-
compliance, the Competent Court shall have the power to initiate
action under Section 62 of the PMLA, 2002.
iii.An order of remand has to be challenged only before a higher forum as
provided under the CrPC, 1973 when it depicts a due application of
mind both on merit and compliance of Section 167(2) of the CrPC,
1973 read with Section 19 of the PMLA 2002.
iv.Section 41A of the CrPC, 1973 has got no application to an arrest made
under the PMLA 2002.
v.The maximum period of 15 days of police custody is meant to be
applied to the entire period of investigation – 60 or 90 days, as a
whole.
85
vi.The words “such custody” occurring in Section 167(2) of the CrPC,
1973 would include not only a police custody but also that of other
investigating agencies.
vii.The word “custody” under Section 167(2) of the CrPC, 1973 shall
mean actual custody.
viii.Curtailment of 15 days of police custody by any extraneous
circumstances, act of God, an order of Court not being the handi work
of investigating agency would not act as a restriction.
ix.Section 167 of the CrPC, 1973 is a bridge between liberty and
investigation performing a fine balancing act.
x.The decision of this Court in Anupam J. Kulkarni (supra), as
followed subsequently requires reconsideration by a reference to a
larger Bench.
CONCLUSION:
89. In view of the abovesaid discussion, we have no hesitation in holding
that the appeals arising out of Special Leave Petition (Criminal) Nos. 8939-
8940 of 2023 and the appeals arising out of Special Leave Petition (Criminal)
Nos. 8652-8653 of 2023, are liable to be dismissed, upholding the views
expressed in the impugned judgments. Accordingly, they are dismissed.
90.The only other question to be considered is with respect to the custody of the
appellant. The learned Solicitor General submitted that the period of 15 days
expires by 12.08.2023. Even the learned Principal Sessions Judge has
86
granted 8 days of custody, though could not be given effect to. Conscious of
the time constraint, we are inclined to permit the respondents to have custody
of the appellant till 12.08.2023. Accordingly, the appeals arising out of
Special Leave Petition (Criminal) Nos. 7437 of 2023, 7460 of 2023, and
8750 of 2023 filed by the respondents are disposed of. Application for
intervention is dismissed. Application for direction stands disposed of giving
liberty to the applicant to have recourse to the remedy known to law.
Pending applications, if any, also stand disposed of.
91. As already noted hereinabove, the Registry is directed to place the
matter before Hon’ble the Chief Justice of India for appropriate orders to
decide the larger issue of the actual import of Section 167(2) of the CrPC,
1973 as to whether the 15 days period of custody in favour of the police
should be only within the first 15 days of remand or spanning over the entire
period of investigation – 60 or 90 days, as the case may be, as a whole.
.……………………….J.
(A.S. BOPANNA)
.……………………….J.
(M. M. SUNDRESH)
New Delhi,
August 07, 2023
87
Login with google
Legal Notes
Add a Note....