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TMI Blog2023 (8) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Mukesh Kumar Maroria, AOR Ms. Misha Rohatgi, AOR Mr. Balaji Srinivasan, AOR Mr. Shiva Krishnamurti, Adv. Mr. Devamshu Behl, Adv. Mr. Rohan Dewan, Adv. Mrs. Lakshmi Rao, Adv. JUDGMENT 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"). 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, le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. (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: - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 total non-application of mind, there may be a case for entertai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice 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 commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 973 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 moneylaundering, 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 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 internatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourge 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 peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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. Section 19 "19. Power to arrest.--(1) If the Director, Deputy Director, Assistant Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est. 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 accountabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be exercised on objective facts of commission of an offence 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering is made out requiring filing of such complaint, the said authority shall submit a closure report before the Special Court; or..." 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 custody. It only means "as the occasion arises", which is from the point of investigation. Thus, when an investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecide 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 37th 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised, 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. 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... habeas corpus proceedings." 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld 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 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 judgmentdebtors.' " 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 part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 agreedupon 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 144 CPC speaks not only of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused 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. 64. We would only reiterate that the proviso creates a fine balance between individual liberty and adequate investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the detention of the accused in custody up to a maximum period as indicated in the proviso to subsection (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commission considered the reservation expressed earlier in Report No. 37 that such an 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 poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. ... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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, reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. 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 coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 investigatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tionale 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents ought to have 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 noncompliance, 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 appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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