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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 ..... 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, there are 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 done. It is also noted 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. Despite a conclusion that the writ petition is not maintainable, it is important 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 it is not wished to elaborate any further, it is found that there are adequate compliance of Section 19 of the PMLA, 2002 which contemplates a rigorous procedure before making an arrest. The learned Principal S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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 examined the appellant in the hospital, and that too with the permission of the doctors, can never be termed as an adequate compliance. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beas 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 respondents, though filed separate ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the appellant was directed to be shifted to a private hospital of his choice to undergo a bypass surger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beas 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. 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. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition 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 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 (Cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Orders were passed on merit, both for judicial custody and thereafter in favour of the respondents. The writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 [Arn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 introd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est 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 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 Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 subsection (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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 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 conferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... geable 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 moneylaundering, attachment of proceeds of crime, adjudication and confiscation thereof, including vesting of it in the Central Government and also s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 moneylaundering, 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) (b), after conclusion of investigation, if no offence of moneylaundering is made out requiring filing of a complaint, the Authority under the Act e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tries 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 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd there are grounds for believing that the accusation or information is well-founded, the officer-in-charge of the policestation 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. (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 dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfronted 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 int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. 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 : It would be doing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral 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 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 secur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a case where a further custody is not possible due to external factors. Further, an order of Court can 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 XX ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade 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 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 attr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 having suffered an impoverishment, restitution has to be made. Litigation cannot be permitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erim 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 chargesheet 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture 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 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 ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 57-58) 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed under the Code or under the special procedure, if any, prescribed under the special Acts. Therefore, the word 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 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 grammati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 generi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain powers. One shall not confuse such powers conferred 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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