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 Principa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the respondents, a fact even acknowledged by the appellant earlier through the arguments of his advocates. The learned Solicitor General is right in his submission that apart from the fact that the word custody is different from detention , it can only be physical. As pointed out by him even the High Court has observed that the appellant continues to be in judicial custody. Admittedly, physical custody has not been given to the respondents. Admission of the appellant to the hospital of his choice cannot be termed as a physical custody in favour of the respondents. Custody could not be taken on the basis of the interim order passed by the High Court which certainly shall not come in the way of calculating the period of 15 days. An investigating agency is expected to be given a reasonable freedom to do it s part. To say that the respondents ought to have 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 cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dras High Court, while dealing with a Writ Petition filed seeking a writ of Habeas Corpus in pursuance of an arrest made, followed by a remand to the judicial custody, and then to the authority concerned. Though arguments at length are made at the Bar, the principal issue is only on the remand in favour of the investigating agency, without seeking any specific prayer challenging the remand orders, though additional grounds were raised. 3. Heard Shri Kapil Sibal and Shri Mukul Rohatgi learned Senior Advocates appearing for the appellant and Shri Tushar Mehta, learned Solicitor General appearing for the respondents. We have also perused the documents and the written arguments filed. A BIRD S EYE VIEW : 4. We shall first give a narration of the basic facts sufficient enough to decide the lis. For a proper understanding, we adopt the appeals arising out of Special Leave Petition (Criminal) Nos. 8939-8940 of 2023 as the lead case. The appellant in the appeals arising out of Special Leave Petition (Criminal) Nos. 8652-8653 of 2023 is none other than the wife of the appellant in the appeals arising out of Special Leave Petition (Criminal) Nos. 8939-8940 of 2023, being the wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igating Officer, but the accused denied to acknowledge and signed the same. Also relatives of the accused are said to have been not available in the place of arrest and they have been informed through SMS and Email since they didn t pick the phone call. Proof has also been produced. I informed the accused about the grounds of arrest and his right of legal assistance. The accused complained that he was man handled by the ED officials but no complaint of any bodily injury. The prosecution has established prima facie case against the accused for the offences u/s. 3 of Prevention of Money Laundering Act, punishable u/s 4 of the said Act. Hence, the accused is remanded to Judicial custody till 28.06.2023. 9. Thereafter, the appellant filed an application for bail which was dismissed on 16.06.2023 by a speaking order considering all the contentions. This has attained finality. The respondents made a further application seeking custody for further investigation. 10. All the above activities took place on a single day, except the dismissal of the application for bail. The Habeas Corpus petition filed by the appellant s wife was taken up for hearing on 15.06.2023 on an urgent menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the conditions imposed in the order dated 16.06.2023 by which 8 days custody was granted as afore-stated in favour of the respondents. 13. Taking note of the pendency of the Habeas Corpus petition, while keeping the Special Leave Petitions pending, the following order was passed on 21.06.2023, 1. We have heard Mr. Tushar Mehta, learned Solicitor General of India on behalf of the petitioner and S/Shri Neeraj Kishan Kaul, Devadatt Kamat and Vikram Chaudhry, learned Senior Counsel, who are on caveat, on behalf of the Respondents. 2. The High Court is yet to render its final opinion on the following issues: - (i) Re. maintainability of the Habeas Corpus Petition; (ii) The exclusion of the period of treatment undergone by the detenu from the period of custodial interrogation. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence with Justice D. Bharata Chakravarty: (i) Whether Enforcement Directorate has the power to seek custody of a person arrested? The answer given by this Court is Yes in alignment with the views/opinion expressed by the Hon ble Justice Mr. D. Bharatha Chakravarthy. (ii) Whether the Habeas Corpus Petition itself is maintainable after a judicial order of remand is passed by a Court of competent jurisdiction? The Petition would be maintainable in exceptional circumstances, but this case does not attract any exceptional circumstance and consequently since an order of remand had been passed by a Court of competent jurisdiction, the relief sought in the petition cannot be granted. I would align with the view expressed by the 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 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtue 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- -VIS SECTION 19 OF THE PREVENTION OF MONEY LAUNDERING ACT, 2002: Section 41A 41A. Notice of appearance before police officer. (1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a 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 offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 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 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Central Government, if has material in his possession giving rise to reason to believe that any person has been guilty of an offence punishable under the 2002 Act, he may arrest such person. Besides the power being invested in high-ranking officials, Section 19 provides for inbuilt safeguards to be adhered to by the authorised officers, such as of recording reasons for the belief regarding the involvement of person in the offence of money-laundering. That has to be recorded in writing and while effecting arrest of the person, the grounds for such arrest are informed to that person. Further, the authorised officer has to forward a copy of the order, along with the material in his possession, in a sealed cover to the Adjudicating Authority, who in turn is obliged to preserve the same for the prescribed period as per the Rules. This safeguard is to ensure fairness, objectivity and accountability of the authorised officer in forming opinion as recorded in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e equally stringent and of higher standard. Those safeguards ensure that the authorised officers do not act arbitrarily, but make them accountable for their judgment about the necessity to arrest any person as being involved in the commission of offence of money-laundering even before filing of the complaint before the Special Court under Section 44(1) (b) of the 2002 Act in that regard. If the action of the authorised officer is found to be vexatious, he can be proceeded with and inflicted with punishment specified under Section 62 of the 2002 Act. The safeguards to be adhered to by the jurisdictional police officer before effecting arrest as stipulated in the 1973 Code, are certainly not comparable. Suffice it to observe that this power has been given to the high-ranking officials with further conditions to ensure that there is objectivity and their own accountability in resorting to arrest of a person even before a formal complaint is filed under Section 44(1)(b) of the 2002 Act. Investing of power in the high-ranking officials in this regard has stood the test of reasonableness in Premium Granites Anr. v. State of T.N. Ors., (1994) 2 SCC 691, wherein the Court restated the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. 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 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigating into a criminal offence. The inquiry preceding filing of the complaint by the authorities under the 2002 Act, may have the semblance of an investigation conducted by them. However, it is essentially an inquiry to collect evidence to facilitate the Adjudicating Authority to decide on the confirmation of provisional attachment order, including to pass order of confiscation, as a result of which, the proceeds of crime would vest in the Central Government in terms of Section 9 of the 2002 Act. In other words, the role of the Authorities appointed under Chapter VIII of the 2002 Act is such that they are tasked with dual role of conducting inquiry and collect evidence to facilitate adjudication proceedings before the Adjudicating Authority in exercise of powers conferred upon them under Chapters III and V of the 2002 Act and also to use the same materials to bolster the allegation against the person concerned by way of a formal complaint to be filed for offence of money-laundering under the 2002 Act before the Special Court, if the fact situation so warrant. It is not as if after every inquiry prosecution is launched against all persons found to be involved in the commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est thus is circumscribed by objective considerations and cannot be exercised on whims, caprice or fancy of the officer. 37. The section Ed.: Section 104 of the Customs Act, 1962 also obliges the Customs Officer to inform the person arrested of the grounds of arrest as soon as may be. The law requires such person to be produced before a Magistrate without unnecessary delay. 38. The law thus, on the one hand, allows a Customs Officer to exercise power to arrest a person who has committed certain offences, and on the other hand, takes due care to ensure individual freedom and liberty by laying down norms and providing safeguards so that the power of arrest is not abused or misused by the authorities. . xxx xxx xxx 169. Notably, this dichotomy does not exist in the 2002 Act for more than one reason. For, there is no role for the regular Police Officer. The investigation is to be done only by the authorities under the 2002 Act and upon culmination of the investigation, to file complaint before the Special Court. Moreover, by virtue of Clause (ii) of Explanation in Section 44(1) of the 2002 Act, it is open to the authorities under this Act to bring any further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he PMLA, 2002 can only be exercised during investigation and it is well open to the authority to file a closure report before the Special Court after conclusion, if it finds that there are no sufficient materials to proceed further. SECTION 167 OF CODE OF CRIMINAL PROCEDURE, 1973: Justice, though due to the accused, is due to the accuser too - Justice Benzamin N. Cardozo of U.S. Supreme Court Section 167 167. Procedure when investigation cannot be completed in twenty-four hours. (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature 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 section 61, and there are grounds for believing that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;] (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. Explanation I. For the avoidance of doubts, it is hereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed and that he has to be forwarded to the Magistrate, meaning thereby he comes into the judicial custody from that of the investigating agency. The object and rationale behind this provision is rather clear. By restricting the custody to 24 hours, the liberty of the accused is meant to be considered and taken note of by an independent authority in the form a Magistrate. It is also an act of confirmation by the Magistrate on the arrest, followed by grant of custody of an accused person. 53. Sub-section (2) of Section 167 of the CrPC, 1973 deals with the power of the Magistrate. Such a Magistrate may or may not have the jurisdiction to try a case. There is no question of jurisdiction in any form that would stand in the way of the Magistrate from exercising the said power. By a mere designation he assumes such power. This is for the reason that liberty is paramount and any delay would amount to its curtailment. It may also delay further investigation. The words time to time would clearly indicate that a power to grant custody is not restricted to the first 15 days of remand, but the whole period of investigation. It is not referable to judicial custody as against police custody. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ody as such Magistrate thinks fit would reiterate the extent of discretion available to him. It is for the Magistrate concerned to decide the question of custody, either be it judicial or to an investigating agency or to any other entity in a given case. 55. Interpreting the words such custody , the Law Commission in its 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by the learned Magistrate. Detention may at best be a facet of custody. However, they are not synonymous with each other. When detention is authorised, it would become custody. Custody does not mean a formal one. Rather, it can only be construed when an arrestee is given in physical custody. We make it clear that our interpretation of physical custody is meant to be applied to Section 167(2) of the CrPC, 1973 alone. 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 Dictiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... straint of liberty. US ex rel Wirtz v. Sheehan, 319 F Supp 146 at p. 147 (DC Wis 1970). Accordingly, persons on probation or released on own recognizance have been held to be in custody for purposes of habeas corpus proceedings. 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 fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the period mentioned in the said Chapter. This is clear from Section 469 of the Code found in the said Chapter which specifically says that the period of limitation in relation to an offence shall commence either from the date of the offence or from the date when the offence is detected. Section 470 indicates that while computing the period of limitation, time taken during which the case was being diligently prosecuted in another court or in appeal or in revision against the offender 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 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from his own wrongful act. xxx xxx xxx 324. In Mahadeo Savlaram Shelke v. Pune Municipal Corpn., (1995) 3 SCC 33, it has been observed that the Court can under its inherent jurisdiction ex debito justitiae has a duty to mitigate the damage suffered by the defendants by the act of the court. Such action is necessary to put a check on abuse of process of the court. In Amarjeet Singh v. Devi Ratan, (2010) 1 SCC 417 : (2010) 1 SCC (L S) 1108, and Ram Krishna Verma v. State of U.P., (1992) 2 SCC 620, it was observed that no person can suffer from the act of court and unfair advantage of the interim order must be neutralised. In Amarjeet Singh v. Devi Ratan, (2010) 1 SCC 417 : (2010) 1 SCC (L S) 1108, this Court observed : (SCC pp. 422-23, paras 17-18) 17. No litigant can derive any benefit from mere pendency of the case in a court of law, as the interim order always merges in the final order to be passed in the case, and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of its own wrongs by getting an interim order and thereafter blame the court. The fact that the writ is foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s attracted. When on account of an act of the party, persuading the court to pass an order, which at the end is held as not sustainable, has resulted in one party gaining advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered, but for the order of the court and the act of such party, then the successful party finally held entitled to a relief, assessable in terms of money at the end of the litigation, is entitled to be compensated in the same manner in which the parties would have been if the interim order of the court would not have been passed. The successful party can demand : (a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost. 11. In the facts of this case, in spite of the judgment Karnataka Rare Earth v. Department of Mines Geology, WPs No. 4030-4031 of 1997, order dated 1-12-1998 (KAR) of the High Court, if the appellants would not have persuaded this Court to pass the interim orders, they would not have been entitled to operate the mining leases and to raise and remove and dispose of the minerals e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 159, para 5) 5. Procedure has been described to be a handmaid and not a mistress of law, intended to subserve and facilitate the cause of justice and not to govern or obstruct it. Like all rules of procedure, this rule demands a construction which would promote this cause. Once judicial satisfaction is reached that the direction was not open to be made and it is accepted as a mistake of the court, it is not only appropriate but also the duty of the court to rectify the mistake by exercising inherent powers. Judicial opinion heavily 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odification, variation or reversal of a decree or order, what has been lost to him in execution of decree or order of the court or in direct consequence of a decree or order (see Zafar Khan v. Board of Revenue, U.P., 1984 Supp SCC 505). In law, the term restitution is used in three senses : (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; and (iii) compensation or reparation for the loss caused to another. (See Black's Law Dictionary, 7th Edn., p. 1315). The Law of Contracts by John D. Calamari Joseph M. Perillo has been quoted by Black to say that restitution is an ambiguous term, sometimes referring to the disgorging of something which has been taken and at times referring to compensation for the injury done: Often, the result under either meaning of the term would be the same. Unjust impoverishment, as well as unjust enrichment, is a ground for restitution. If the defendant is guilty of a non-tortious misrepresentation, the measure of recovery is not rigid but, as in other cases of restitution, such factors as relative fault, the agreedupon risks, and the fair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigating officer, spanning over the entire period of investigation. 63. It is too well settled that a proviso has to be understood from the language used in the main provision and not vice versa. Proviso to Section 167(2) of the CrPC, 1973 speaks of authorisation of detention of an accused person otherwise than in police custody beyond the period of 15 days, subject to his satisfaction. It further goes on to state that in any case the total period of custody, either police or judicial, shall not exceed 60 or 90 days, as the case may be. To understand this proviso one has to go back to the main provision particularly the words from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit , for a term not exceeding 15 days in the whole . The interpretation given by us to the main provision would give ample clarity to the proviso. Therefore, the period of 15 days being the maximum period that can be granted in favour of the police would span from time to time with the total period of 60 or 90 days as the case may be. Any other interpretation would seriously impair the power of investigation. We may also hasten to add that the proviso mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution. When the law provides that the Magistrate could authorise the detention of the accused in custody up to a maximum period as indicated in the proviso to 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 ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed under Section 167. It was pointed out that this could lead to serious abuse wherein the arrested person can in this manner be kept in custody indefinitely while the investigation can go on in a leisurely manner . Hence the Commission recommended fixing of a maximum time-limit of 60 days for remand. The Commission considered the reservation expressed earlier in Report No. 37 that such an 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the maximum period of imprisonment was 10 years, though the minimum period was less than 10 years. Secondly, whether the application for bail filed by the accused could be construed as an application for default bail, even though the expiry of the statutory period under Section 167(2) had not been specifically pleaded as a ground for bail. The majority opinion held that the 90-day limit is only available in respect of offences where a minimum ten years imprisonment period is stipulated, and that the oral arguments for default bail made by the counsel for the accused before the High Court would suffice in lieu of a written application. This was based on the reasoning that the court should not be too technical in matters of personal liberty. Madan B. Lokur, J. in his majority opinion, pertinently observed as follows: (SCC pp. 95-96 99, paras 29, 32 41) 29. Notwithstanding this, the basic legislative intent of completing investigations within twenty-four hours and also within an otherwise time-bound period remains unchanged, even though that period has been extended over the years. This is an indication that in addition to giving adequate time to complete investigations, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te machinery. This is applicable not only in the case of substantive penal statutes but also in the case of procedures providing for the curtailment of the liberty of the accused. 17.10. With respect to the CrPC particularly, the Statement of Objects and Reasons (supra) is an important aid of construction. Section 167(2) has to be interpreted keeping in mind the threefold objectives expressed by the legislature, namely, ensuring a fair trial, expeditious investigation and trial, and setting down a rationalised procedure that protects the interests of indigent sections of society. These objects are nothing but subsets of the overarching fundamental right guaranteed under Article 21. 17.11. Hence, it is from the perspective of upholding the fundamental right to life and personal liberty under Article 21 that we shall clarify and reconcile the various judicial interpretations of Section 167(2) for the purpose of resolving the dilemma that has arisen in the present case. (emphasis in original and supplied) 41. As a consequence of the right flowing from the said provision, courts will have to give due effect to it, and thus any detention beyond this period would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002. A remand being made by the Magistrate upon a person being produced before him, being an independent entity, it is well open to him to invoke the said provision in a given case. To put it otherwise, the Magistrate concerned is the appropriate authority who has to be satisfied about the compliance of safeguards as mandated under Section 19 of the PMLA, 2002. On the role required to be played by the Magistrate, qua a remand, we do not wish to go any further as it has been dealt with by this Court in Satyajit Ballubhai Desai v. State of Gujarat, (2014) 14 SCC 434: 9. Having considered and deliberated over the issue involved herein in the light of the legal position and existing facts of the case, we find substance in the plea raised on behalf of the appellants that the grant of order for police remand should be an exception and not a rule and for that the investigating agency is required to make out a strong case and must satisfy the learned Magistrate that without the police custody it would be impossible for the police authorities to undertake further investigation and only in that event police custody would be justified as the authorities specially at the magisterial lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirement of production under Section 167 of the 1973 Code, but being an express statutory requirement under the 2002 Act in terms of Section 19(3), it has to be complied by the authorised officer. 71. Deepak Mahajan (supra): 106. In our considered opinion, the view taken in O.P. Gupta and M.K.S. Abu Bucker and also of the Kerala High Court and Gujarat High Court is the logical and correct view and we approve the same for the reasons we have given in the preceding part of this judgment. We, indeed, see no imponderability in construing Section 35(2) of FERA and Section 104(2) of Customs Act that the said provisions replace Section 167(1) and serve as a substitute thereof substantially satisfying all the required basic conditions contained therein and that consequent upon such replacement of sub-section (1) of Section 167, the arrested person under those special Acts would be an accused person to be detained by the Magistrate under sub-section (2) of Section 167. In passing, it may be stated that there is no expression police officer deployed in Section 167(1) nor does it appear in any part of Section 167(2). The authority for detaining a person as contemplated under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation of an offence under Chapter XII of the Code including the power to forward a report under Section 173 of the Code. See also State of Punjab v . Barkat Ram and Badku Joti Savant v . State of Mysore . xxx xxx xxx 113. Though an authorised officer of Enforcement or Customs is not undertaking an investigation as contemplated under Chapter XII of the Code, yet those officers are enjoying some analogous powers such as arrest, seizures, interrogation etc. Besides, a statutory duty is enjoined on them to inform the arrestee of the grounds for such arrest as contemplated under Article 22(1) of the Constitution and Section 50 of the Code. Therefore, they have necessarily to make records of their statutory functions showing the name of the informant, as well as the name of the person who violated any other provision of the Code and who has been guilty of an offence punishable under the Act, nature of information received by them, time of the arrest, seizure of the contraband if any and the statements recorded during the course of the detection of the offence/offences. xxx xxx xxx 116. It should not be lost sight of the fact that a police officer making an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. xxx xxx xxx 131. The submission that as there is no investigation within the terms of the Code in the field of FERA or Customs Act, Section 4(2) of the Code can have no part to play, has to be rejected for the reasons given by us while disposing of the contention What investigation means and is in the preceding part of this judgment. 132. For the aforementioned reasons, we hold that the operation of Section 4(2) of the Code is straightaway attracted to the area of investigation, inquiry and trial of the offences under the special laws including the FERA and Customs Act and consequently Section 167 of the Code can be 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nforcement v. Deepak Mahajan, (1994) 3 SCC 440 : 1994 SCC (Cri) 785, wherein it was held as under: (SCC p. 480, para 136) 136. In the result, we hold that sub-sections (1) and (2) of Section 167 are squarely applicable with regard to the production and detention of a person arrested under the provisions of Section 35 of FERA and Section 104 of the Customs Act and that the Magistrate has jurisdiction under Section 167(2) to authorise detention of a person arrested by any authorised officer of the Enforcement under FERA and taken to the Magistrate in compliance of Section 35(2) of FERA. 5. We, thus, do not agree with the opinion of the High Court that the provisions of Section 167(2) CrPC would not be applicable to the proceedings under the PMLA Act. In the present case, as no complaint was filed even after the expiry of 60 days from the date when the appellant was taken into custody, he was entitled to statutory bail in view of the provisions contained in Section 167(2) CrPC. (emphasis supplied) PRINCIPLES GOVERNING THE INTERPRETATION OF STATUTES: 73. Having discussed the scope and ambit of Section 167 of the CrPC, 1973, we believe that it being a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpretation are to be used only when the language of the legislation is ambiguous and admits of two or more meanings. When the language is clear or the ambiguity can be resolved under the more common rules of statutory interpretation, the court would be reluctant to look at external aids of statutory interpretation. 69. Gajendragadkar, J., speaking for this Court in Kanai Lal Sur v. Paramnidhi Sadhukhan , AIR 1957 SC 907 held : (AIR p. 910, para 6) 6 . the first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. 70. These sound principles of statutory construction continue to hold the field. When the natural meaning of the words is clear and unambiguous, no external aids should be used. (emphasis supplied) 74. A decision of a Court cannot be read like a statute, out of context and in ignorance of the requisite provisions. Commissioner of Central Excise, Bangalore v. Srikumar Agencies Ors., (2009) 1 SCC 469: 5. 15 . Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT [AIR 1962 SC 680] , AIR p. 688, para 19) 19. Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. *** Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it. [Ed. : As observed in Union of India v. Amrit Lal Manchanda , (2004) 3 SCC 75 at pp. 83-84, paras 15-18.] (emphasis supplied) 75. Satya Pal Singh v. State of Madhya Pradesh, (2015) 15 SCC 613: 12 . It is well established that the proviso of a statute must be given an interpretation limited to the subject-matter of the enacting provision. Reliance is placed on the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which there is no trace in the section. (e) The proviso is subordinate to the main section. (f) A proviso does not enlarge an enactment except for compelling reasons. (g) Sometimes an unnecessary proviso is inserted by way of abundant caution. (h) A construction placed upon a proviso which brings it into general harmony with the terms of section should prevail. (i) When a proviso is repugnant to the enacting part, the proviso will not prevail over the absolute terms of a later Act directed to be read as supplemental to the earlier one. (j) A proviso may sometimes contain a substantive provision. (emphasis supplied) DOES SECTION 167(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973 RESTRICT A POLICE CUSTODY ONLY TO THE FIRST 15 DAYS OF REMAND? 76. We have given our interpretation on the scope and ambit of Section 167(2) of the CrPC, 1973. With due respect, we are unable to concur with the views expressed in Anupam J. Kulkarni (supra) to the effect that a police custody shall only be within the first 15 days of remand. Nowhere under Section 167(2) of the CrPC, 1973 such a stipulation is found either directly or indirectly. The words su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being placed under police custody under orders of remand for effective investigation of cases has at the same time taken care to see that the interests of the accused are not jeopardised by his being placed under police custody beyond a total period of 15 days, under any circumstances, irrespective of the gravity of the offence or the serious nature of the case. The aforesaid passage has been taken note of in Anupam J.Kulkarni (supra) to mean that an investigation with custody is permissible only within the first 15 days of remand. 79. Even assuming that the rationale behind Anupam J. Kulkarni (supra) is correct, the legal maxim actus curiae neminem gravabit would certainly apply. This aspect has not been taken note of in the said judgment, followed by the others. The larger Bench of this Court in Budh Singh v. State of Punjab (2009) 9 SCC 266, mainly gave its imprimatur to the findings rendered in Anupam J. Kulkarni (supra). Allowing the said interpretation which in our respectful view is contrary to the very mandate of Section 167(2) of the CrPC, 1973 would cause serious prejudice to the investigation. While agreeing with the views expressed by this Court in Vikas Mishr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is not maintainable, we would like to go further in view of the extensive arguments made by the learned Senior Advocates appearing for the appellant. As rightly contended by the learned Solicitor General the scheme and object of the PMLA, 2002 being a sui generis legislation is distinct. Though we do not wish to elaborate any further, we find adequate compliance of Section 19 of the PMLA, 2002 which contemplates a rigorous procedure before making an arrest. The learned Principal Sessions Judge did take note of the said fact by passing a reasoned order. The appellant was accordingly produced before the Court and while he was in its custody, a judicial remand was made. As it is a reasoned and speaking order, the appellant ought to have questioned it before the appropriate forum. We are only concerned with the remand in favour of the respondents. Therefore, even on that ground we do hold that a writ of Habeas Corpus is not maintainable as the arrest and custody have already been upheld by way of rejection of the bail application. 83. The arguments of the learned Senior Advocates on the interpretation of Section 167(2) of the CrPC, 1973 cannot be accepted as the law has been quit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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