TaxTMI 
TaxTMI 
2023 (8) TMI 410
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....av Sinhal, Adv. Mr. Vivek Gurnani, Adv. Ms. Manisha Dubey, Adv. Mr. Mukesh Kumar Maroria, AOR Ms. Misha Rohatgi, AOR Mr. Balaji Srinivasan, AOR Mr. Shiva Krishnamurti, Adv. Mr. Devamshu Behl, Adv. Mr. Rohan Dewan, Adv. Mrs. Lakshmi Rao, Adv. JUDGMENT M. M. SUNDRESH, J. 1. Leave granted. 2. After the Scheduled Offence went through an elongated judicial journey, it is the turn of the Enforcement Case Information Report under the Prevention of Money Laundering Act, 2002 (hereinafter referred to as "the PMLA, 2002"). What is under challenge before us are the orders passed by the majority of the Judges when a reference was made on a difference of opinion by the Division Bench of the Madras High Court, while dealing with a Writ Petition filed seeking a writ of Habeas Corpus in pursuance of an arrest made, followed by a remand to the judicial custody, and then to the authority concerned. Though arguments at length are made at the Bar, the principal issue is only on the remand in favour of the investigating agency, without seeking any specific prayer challenging the remand orders, though additional grounds were raised. 3. Heard Shri Kapil Sibal and Shri Mukul Rohatgi learned....
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....023. "At the request of the Special Public Prosecutor, Enforcement Directorate, Chennai filed along with ECIR, Remand Report and other documents I came down to Tamil Nadu, Government Multi Super Speciality Hospital, Omanthur, Chennai by 3.30 p.m. Dr. J. CECILY MARY MAJELLA, Associate Professor, Cardiology certified that the accused Senthil Balaji is conscious and oriented. Then I met Thiru. V. Senthil Balaji, the accused in the ICU ward of the said hospital and enquired in the presence of Dr. J. CECILY MARY MAJELLA. Heard the Special Public Prosecutor and the Senior Advocate Mr. N. R. Elango, who appeared for the accused. Grounds of Arrest was said to have been conveyed by the Investigating Officer, but the accused denied to acknowledge and signed the same. Also relatives of the accused are said to have been not available in the place of arrest and they have been informed through SMS and Email since they didn't pick the phone call. Proof has also been produced. I informed the accused about the grounds of arrest and his right of legal assistance. The accused complained that he was man handled by the ED officials but no complaint of any bodily injury. The prosecution has est....
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.... (7) The Deputy Director of Enforcement Directorate is directed to provide necessary security for the accused while he is in his custody. (8) The Deputy Director of Enforcement Directorate is directed to produce the accused on 23.06.2023 by 3.00 p.m. through video conference and the petition is ordered accordingly." 12. After filing an application on 17.06.2023, seeking a direction that the first 15 days custody period should not come in the way of actual period of custody, before the learned Principal Sessions Judge, the respondents approached this Court in Special Leave Petition (Criminal) No. 7437 of 2023. Incidentally, another Special Leave Petition (Criminal) No. 7460 of 2023 was filed assailing the conditions imposed in the order dated 16.06.2023 by which 8 days custody was granted as afore-stated in favour of the respondents. 13. Taking note of the pendency of the Habeas Corpus petition, while keeping the Special Leave Petitions pending, the following order was passed on 21.06.2023, "1. We have heard Mr. Tushar Mehta, learned Solicitor General of India on behalf of the petitioner and S/Shri Neeraj Kishan Kaul, Devadatt Kamat and Vikram Chaudhr....
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.... of 15 days under Section 167(2) of the Code of Criminal Procedure; (iii) The detenu/accused shall continue the treatment at Cauvery Hospital until discharge or for a period of 10 days from today whichever is earlier and thereafter, if further treatment is necessary, it can be only at the Prison/Prison Hospital as the case may be; (iv) As and when he is medically fit, the respondents will be able to move the appropriate Court for custody and the same shall be considered on its own merits in accordance with law except not to be denied on the ground of expiry of 15 days from the date of remand; (v) However, there shall be no order as to costs." 18. On a reference made, the third learned Judge, Justice C.V. Kartikeyan extended his concurrence with Justice D. Bharata Chakravarty: "(i) Whether Enforcement Directorate has the power to seek custody of a person arrested? The answer given by this Court is 'Yes' in alignment with the views/opinion expressed by the Hon'ble Justice Mr. D. Bharatha Chakravarthy. (ii) Whether the Habeas Corpus Petition itself is maintainable after a judicial order of remand is passed by a Court of competen....
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....icial legislation, non-compliance of Section 41A of the CrPC, 1973 would vitiate the orders of remand. The learned Principal Sessions Judge passed a cryptic order ignoring the clear non-compliance of Section 19 of the PMLA, 2002. 22. The outer limit of 15 days of custody to the police from the date of arrest has worked itself out. Therefore, no Court can extend it under any circumstance. The majority judgments did not apply the decision in CBI v. Anupam J. Kulkarni (1992) 3 SCC 141 as followed thereafter by this Court, in the correct perspective. Reliance upon CBI v. Vikas Mishra, (2023) 6 SCC 49 is misplaced, with the decisions of the larger Bench and the Co-ordinate Bench acting as binding precedents. A writ of Habeas Corpus is certainly maintainable in the present case in view of procedural non-compliance. 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 Constituti....
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.... Directorate of Enforcement, (2018) 16 SCC 158. 27. The reliance placed by the appellant on Anupam J. Kulkarni (supra), as followed thereafter by this Court is misconceived. In the said case, the facts are different as it was a case of counting the days after the arrestee was given custody in favour of the investigating agency, whereas no such custody has ever been made to the respondents. The principle governing actus curiae neminem gravabit was not the subject matter of those decisions. All legal actions taken by the appellant lack bona fides, they are solely to evade custody. The appellant has not even challenged the rejection of the bail wherein similar contentions have been taken note of and rejected. 28. To sum up, it is submitted that, both on facts and law, the appellant does not have a case as there is a complete abuse of the process of law. Incidentally, it is prayed that the Special Leave Petitions filed by the respondents will have to be allowed giving sufficient number of days for further investigation. WRIT OF HABEAS CORPUS: 29. A writ of Habeas Corpus shall only be issued when the detention is illegal. As a matter of rule, an order of remand by a judicial....
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.... integra. In the present case, admittedly, when the writ petition for issuance of a writ of habeas corpus was filed by the respondent on 18- 3-2018/19-3-2018 and decided by the High Court on 21-3- 2018 [ Tasneem Rizwan Siddiquee v . State of Maharashtra , 2018 SCC OnLine Bom 2712] her husband Rizwan Alam Siddiquee was in police custody pursuant to an order passed by the Magistrate granting his police custody in connection with FIR No. I-31 vide order dated 17-3-2018 and which police remand was to enure till 23-3-2018. Further, without challenging the stated order of the Magistrate, a writ petition was filed limited to the relief of habeas corpus. In that view of the matter, it was not a case of continued illegal detention but the incumbent was in judicial custody by virtue of an order passed by the jurisdictional Magistrate, which was in force, granting police remand during investigation of a criminal case. Resultantly, no writ of habeas corpus could be issued." (emphasis supplied) SECTION 41A OF THE CODE OF CRIMINAL PROCEDURE, 1973 VIS-À-VIS SECTION 19 OF THE PREVENTION OF MONEY LAUNDERING ACT, 2002: Section 41A "41A. Notice of appearance....
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....rent and distinct methodology is available under the PMLA, 2002. Following Section 41A of the CrPC, 1973 for an arrest under the PMLA, 2002 would only defeat and destroy the very inquiry/investigation under the PMLA, 2002. Till summons are issued to a person, he is not expected to be in the know-how. Any prior intimation, other than what is mandated under the PMLA, 1973 might seriously impair the ongoing investigation. 34. The Explanation to Section 45 of the PMLA, 2002 once again reiterates the role required to be performed by an Authorized Officer, duly fulfilling the conditions adumbrated under Section 19 of the PMLA, 2002. The Explanation goes on to state by way of a clarification that all offences under the Act shall be cognizable and non-bailable offences, notwithstanding anything contained to the contrary in the CrPC, 1973. Vijay Madanlal Choudhary v. Union of India, 2022 (10) SCALE: "THE 2002 ACT 19. The Act was enacted to address the urgent need to have a comprehensive legislation inter alia for preventing moneylaundering, attachment of proceeds of crime, adjudication and confiscation thereof including vesting of it in the Central Government, setting u....
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....mmitment of the country to the international community. It is crystal clear from the Preamble that the Act has been enacted to prevent money-laundering and to provide for confiscation of property derived from or involved in moneylaundering and for matters connected therewith or incidental thereto. It is neither a pure regulatory legislation nor a pure penal legislation. It is amalgam of several facets essential to address the scourge of money-laundering as such. In one sense, it is a sui generis legislation. xxx xxx xxx ARREST 88. Section 19 of the 2002 Act postulates the manner in which arrest of person involved in money-laundering can be effected. Subsection (1) of Section 19 envisages that the Director, Deputy Director, Assistant Director, or any other officer authorised in this behalf by the Central Government, if has material in his possession giving rise to reason to believe that any person has been guilty of an offence punishable under the 2002 Act, he may arrest such person. Besides the power being invested in high-ranking officials, Section 19 provides for inbuilt safeguards to be adhered to by the authorised officers, such as of recording reason....
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.... that there is a distinct increase in crime because of enormous increase in population, unemployment and lack of adequate resources. May be so. But how does this phenomenon militate against the proposed changes in law. In fact, the attention of the police must be more on serious offences and economic offences and not so much on minor offences. The undesirable practice of arresting persons for minor offences and keeping them in jail for long periods (either because they cannot move for bail or because they cannot furnish bail to the satisfaction of the court - all because of their poverty) must come to an end. In fact, this aspect has already engaged the attention of the Supreme Court, which has given several directions for release/discharge of accused in case of minor offences and offences punishable up to seven years excepting therefrom the economic offences..." (emphasis supplied) 37. From the above, we could appreciate one of the main reasons for such introduction. It was meant not to be applied to certain categories of offences, including economic offences, but only to minor offences under the Indian Penal Code, 1860. RELEVANT PROVISIONS OF THE PREVENTION OF MONE....
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....opy of the order as mandated under sub-section (1) together with the materials in his custody, forming the basis of his belief, to the Adjudicating Authority, in a sealed envelope. Needless to state, compliance of sub-section (2) is also a solemn function of the arresting authority which brooks no exception. 40. Thereafter, the arrestee has to be taken to the Special Court, or the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, having the jurisdiction within 24 hours of such arrest. While complying with this mandate the time spent on the journey to the Court shall stand excluded. Vijay Madanlal Choudhary (supra): "89... The safeguards provided in the 2002 Act and the preconditions to be fulfilled by the authorised officer before effecting arrest, as contained in Section 19 of the 2002 Act, are equally stringent and of higher standard. Those safeguards ensure that the authorised officers do not act arbitrarily, but make them accountable for their judgment about the necessity to arrest any person as being involved in the commission of offence of money-laundering even before filing of the complaint before the Special Court under Section 44(1) (b) of....
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....ch.-Any authority or officer exercising powers under this Act or any rules made thereunder, who without reasons recorded in writing,- (a) searches or causes to be searched any building or place; or (b) detains or searches or arrests any person, shall for every such offence be liable on conviction for imprisonment for a term which may extend to two years or fine which may extend to fifty thousand rupees or both." 42. This provision is a reiteration of the mandatory compliance of Section 19 of the PMLA, 2002. It is in the nature of a warning to an officer concerned to strictly comply with the mandate of Section 19 of the PMLA, 2002 in letter and spirit failing which he would be visited with the consequences. It is his bounden duty to record the reasons for his belief in coming to conclusion that a person has been guilty and therefore, to be arrested. Such a safeguard is meant to facilitate an element of fairness and accountability. 43. Section 65 "65. Code of Criminal Procedure, 1973 to apply.-The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, insofar as they are not inconsistent with the provisions of this Act, to arrest,....
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....HE DESIGNATED AUTHORITY UNDER THE PREVENTION OF MONEY LAUNDERING ACT, 2002 : 46. The PMLA, 2002 is a distinct and special statute having its own objective behind it. The scheme of the PMLA, 2002 provides for both prevention and action against money laundering. The object is to prevent the laundering and to recover when it happens, while extending punishment to the offender. In that process, materials collected can be used and exchanged for either of the purposes. In other words, for an inquiry and investigation there can be same materials, while there is no bar for reliance on additional ones. They can travel in the same channel, but their destinations are different. One material can be used for both purposes, along with numerous others. So long as they travel together, there is not much of a difference between an inquiry and investigation. When they take separate routes, an inquiry ends before the Adjudicating Authority, while the other leads to a Special Court in the form of a complaint. This distinction has to be kept in mind to avoid any possible conflict or confusion. Vijay Madanlal Choudhary (supra): "27. The task of the Director or an authority authorised by the ....
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....ch activity constituting offence of money-laundering. In other words, this legislation is an amalgam of different facets including setting up of agencies and mechanisms for coordinating measures for combating money-laundering. Chapter III is a provision to effectuate these purposes and objectives by attachment, adjudication and confiscation. The adjudication is done by the Adjudicating Authority to confirm the order of provisional attachment in respect of proceeds of crime involved in money-laundering. For accomplishing that objective, the authorities appointed under Chapter VIII have been authorised to make inquiry into all matters by way of survey, searches and seizures of records and property. These provisions in no way invest power in the Authorities referred to in Chapter VIII of the 2002 Act to maintain law and order or for that matter, purely investigating into a criminal offence. The inquiry preceding filing of the complaint by the authorities under the 2002 Act, may have the semblance of an investigation conducted by them. However, it is essentially an inquiry to collect evidence to facilitate the Adjudicating Authority to decide on the confirmation of provisional attachme....
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....rest during the inquiry to be conducted under the concerned legislations. While adverting to the safeguards provided under that legislation before effecting such arrest, the Court noted as follows: "Safeguards against abuse of power 36. From the above discussion, it is amply clear that power to arrest a person by a Customs Officer is statutory in character and cannot be interfered with. Such power of arrest can be exercised only in those cases where the Customs Officer has "reason to believe" that a person has been guilty of an offence punishable under Sections 132, 133, 135, 135-A or 136 of the Act. Thus, the power must be exercised on objective facts of commission of an offence enumerated and the Customs Officer has reason to believe that a person sought to be arrested has been guilty of commission of such offence. The power to arrest thus is circumscribed by objective considerations and cannot be exercised on whims, caprice or fancy of the officer. 37. The section Ed.: Section 104 of the Customs Act, 1962 also obliges the Customs Officer to inform the person arrested of the grounds of arrest as soon as may be. The law requires such person to be produce....
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....rrest will be termed as a punishment, which power can never be under Section 19 of the PMLA, 2002. This position being as clear as day light, the proviso to Section 44(1)(b) of the PMLA, 2002 throws further insight into it. Section 44 "44. Offences triable by Special Courts.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- xxx xxx xxx (b) a Special Court may, upon a complaint made by an authority authorised in this behalf under this Act take cognizance of offence under Section 3, without the accused being committed to it for trial: Provided that after conclusion of investigation, if no offence of money-laundering is made out requiring filing of such complaint, the said authority shall submit a closure report before the Special Court; or..." 49.Therefore, the power under Section 19(1) of the PMLA, 2002 can only be exercised during investigation and it is well open to the authority to file a closure report before the Special Court after conclusion, if it finds that there are no sufficient materials to proceed further. SECTION 167 OF CODE OF CRIMINAL PROCEDURE, 1973: "Justice, thoug....
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.... this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. Explanation I.-For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation II.-If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be. Provided further that in case of a woman under eighteen years of age, the d....
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....warded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does f....
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....ty are sown in this provision while facilitating further investigation, upon being satisfied that the same cannot be completed within 24 hours. It is not a mere procedural provision but one having an inherent element of substantivity. While facilitating a fair play, it is introduced as a limb of Article 21 and 22(2) of the Constitution of India, 1950. 52. Under sub-section (1) of Section 167 of the CrPC, 1973, a competent officer shall forward the accused to the Magistrate when it appears that the investigation cannot be completed within 24 hours. Two factors are important as envisaged under sub-section (1). They are, it must be a case where investigation cannot be completed within 24 hours of arrest of an accused and that he has to be forwarded to the Magistrate, meaning thereby he comes into the judicial custody from that of the investigating agency. The object and rationale behind this provision is rather clear. By restricting the custody to 24 hours, the liberty of the accused is meant to be considered and taken note of by an independent authority in the form a Magistrate. It is also an act of confirmation by the Magistrate on the arrest, followed by grant of custody of an a....
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.... p. 117)." (emphasis supplied) While authorizing the detention of an accused, the Magistrate has got a very wide discretion. Such an act is a judicial function and, therefore, a reasoned order indicating application of mind is certainly warranted. He may or may not authorize the detention while exercising his judicial discretion. Investigation is a process which might require an accused's custody from time to time as authorised by the competent Court. Generally, no other Court is expected to act as a supervisory authority in that process. An act of authorisation pre-supposes the need for custody. Such a need for a police custody has to be by an order of a Magistrate rendering his authorisation. 54. The words "such custody as such Magistrate thinks fit" would reiterate the extent of discretion available to him. It is for the Magistrate concerned to decide the question of custody, either be it judicial or to an investigating agency or to any other entity in a given case. 55. Interpreting the words "such custody", the Law Commission in its 37th Report, while dealing with the pari materia provisions under the CrPC, 1898, has observed that the Magistrate is having wide....
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....e of injury, totally dependent upon the employee for support. The word total is defined as whole; undivided; entire; complete in degree; utter; absolute...." (emphasis supplied) As a sequitur, 15 days of maximum custody has to be seen contextually from the point of view of the period of investigation as provided under the proviso. 57. Section 167(2) of the CrPC, 1973 authorises the detention of the accused in custody by an order of the Magistrate. It does consciously treat a detention different from custody. Custody will be either to the court or an investigating agency. Detention is normally made only by an investigating agency prior to the production before the learned Magistrate. A custody from being judicial may turn into police through an order passed by the learned Magistrate. Detention may at best be a facet of custody. However, they are not synonymous with each other. When detention is authorised, it would become custody. Custody does not mean a formal one. Rather, it can only be construed when an arrestee is given in physical custody. We make it clear that our interpretation of physical custody is meant to be applied to Section 167(2) of the CrPC, 1973 alone....
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....servation or security of a thing, carrying with it the idea of the thing being within the immediate personal care and control of the person to whose custody it is subjected. Immediate charge and control, and not the final, absolute control of ownership, implying responsibility for the protection and preservation of the thing in custody. Also the detainer of a man's person by virtue of lawful process or authority. The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession. Term 'custody' within statute requiring that petitioner be 'in custody' to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty. US ex rel Wirtz v. Sheehan, 319 F Supp 146 at p. 147 (DC Wis 1970). Accordingly, persons on probation or released on own recognizance have been held to be 'in custody' for purposes of habeas corpus proceedings." 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 ....
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....ms to be inspired by the chapter heading of Chapter XXXVI of the Code which reads thus: "Limitation for taking cognizance of certain offences". It is primarily based on the above language of the heading of the Chapter, the argument is addressed on behalf of the appellants that the limitation prescribed by the said Chapter applies to taking of cognizance and not filing of complaint or initiation of the prosecution. We cannot accept such argument because a cumulative reading of various provisions of the said Chapter clearly indicates that the limitation prescribed therein is only for the filing of the complaint or initiation of the prosecution and not for taking cognizance. It of course prohibits the court from taking cognizance of an offence where the complaint is filed before the court after the expiry of the period mentioned in the said Chapter. This is clear from Section 469 of the Code found in the said Chapter which specifically says that the period of limitation in relation to an offence shall commence either from the date of the offence or from the date when the offence is detected. Section 470 indicates that while computing the period of limitation, time taken during which t....
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.... dissolved. In case the matter has been filed without any merit, the maxim is attracted commodum ex injuria sua nemo habere debet, that is, convenience cannot accrue to a party from his own wrong. No person ought to have the advantage of his own wrong. In case litigation has been filed frivolously or without any basis, iniquitously in order to delay and by that it is delayed, there is no equity in favour of such a person. Such cases are required to be decided on merits. In Mrutunjay Pani v. Narmada Bala Sasmal, AIR 1961 SC 1353, this Court observed that : (AIR p. 1355, para 5) "5. ... The same principle is comprised in the Latin maxim commodum ex injuria sua nemo habere debet, that is, convenience cannot accrue to a party from his own wrong. To put it in other words, no one can be allowed to benefit from his own wrongful act." xxx xxx xxx 324. In Mahadeo Savlaram Shelke v. Pune Municipal Corpn., (1995) 3 SCC 33, it has been observed that the Court can under its inherent jurisdiction ex debito justitiae has a duty to mitigate the damage suffered by the defendants by the act of the court. Such action is necessary to put a check on abuse of process ....
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.... the party should be placed in the same position but for the court's order which is ultimately found to be not sustainable which has resulted in one party gaining advantage which otherwise would not have earned and the other party has suffered but for the orders of the court. The successful party can demand the delivery of benefit earned by the other party, or make restitution for what it has lost. This Court observed : (SCC pp. 790-91, paras 10-11) "10. In ... the doctrine of actus curiae neminem gravabit and held that the doctrine was not confined in its application only to such acts of the court which were erroneous; the doctrine is applicable to all such acts as to which it can be held that the court would not have so acted had it been correctly apprised of the facts and the law. It is the principle of restitution that is attracted. When on account of an act of the party, persuading the court to pass an order, which at the end is held as not sustainable, has resulted in one party gaining advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered, but for the order of the court and the act o....
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.... good sense and affords a safe and certain guide for the administration of the law. No man can be denied his rights. In India, a delay occurs due to procedural wrangles. In A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 : 1988 SCC (Cri) 372, this Court observed : (SCC p. 687, para 102) "102. This being the apex court, no litigant has any opportunity of approaching any higher forum to question its decisions. Lord Buckmaster in Montreal Street Railway Co. v. Normandin, 1917 AC 170 (PC) (sic) stated: 'All rules of court are nothing but provisions intended to secure the proper administration of justice. It is, therefore, essential that they should be made to serve and be subordinate to that purpose.' This Court in State of Gujarat v. Ramprakash P. Puri, (1969) 3 SCC 156 : 1970 SCC (Cri) 29, reiterated the position by saying : (SCC p. 159, para 5) '5. ... Procedure has been described to be a handmaid and not a mistress of law, intended to subserve and facilitate the cause of justice and not to govern or obstruct it. Like all rules of procedure, this rule demands a construction which would promote this cause.' Once judicial satisfaction is reach....
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....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 to be a productive industry. Litigation cannot be reduced to gaming where there is an element of chance in every case. If the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order. This Court observed in South Eastern Coalfields Ltd. v. State of M.P., (2003) 8 SCC 648 thus : (SCC pp. 662-64, paras 26-28) "26. In our opinion, the principle of restitution takes care of this submission. The word "restitution" in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution of decree or order of the court or in direct consequence of a decree or order (see Zafar Khan v. Board of Revenue, U.P., 1984 Supp SCC 505). In law, the term "restitution" is used in three senses : (i) return or ....
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...... the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation." (emphasis supplied) 62. Under proviso (a) of Section 167(2) of the CrPC, 1973, a Magistrate may authorize the detention beyond a period of 15 days, other than in the custody of the police. This period of 15 days has to be reckoned, qua either a police custody or a custody in favour of the investigating officer, spanning over the entire period of investigation. 63. It is too well settled that a proviso has to be understood from the language used in the main provision and not vice versa. Proviso to Section 167(2) of the CrPC, 1973 speaks of authorisation of detention of an a....
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....e the release of the accused. The right enshrined is an absolute and indefeasible one, inuring to the benefit of suspect. 40. Such a right cannot be taken away even during any unforeseen circumstances, such as the recent pandemic, as held by this Court in M. Ravindran v. Directorate of Revenue Intelligence, (2021) 2 SCC 485 : (2021) 1 SCC (Cri) 876 : (SCC pp. 502-06, para 17) "II. Section 167(2) and the Fundamental Right to Life and Personal Liberty 17. Before we proceed to expand upon the parameters of the right to default bail under Section 167(2) as interpreted by various decisions of this Court, we find it pertinent to note the observations made by this Court in Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 : 2001 SCC (Cri) 760 on the fundamental right to personal liberty of the person and the effect of deprivation of the same as follows : (SCC p. 472, para 13) '13. ... Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution. When the law provides....
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....pecifically providing for continued remand after the expiry of 15 days, in a manner that 'while meeting the needs of a full and proper investigation in cases of serious crime, will still safeguard the liberty of the person of the individual'. Further, that the legislature should prescribe a maximum time period beyond which no accused could be detained without filing of the police report before the Magistrate. It was pointed out that in England, even a person accused of grave offences such as treason could not be indefinitely detained in prison till commencement of the trial. 17.4. The suggestion made in Report No. 14 was reiterated by the Law Commission in Report No. 41 on The Code of Criminal Procedure, 1898 (Vol. I, 1969, pp. 76-77). The Law Commission re-emphasised the need to guard against the misuse of Section 344 of the 1898 Code by filing "preliminary reports" for remanding the accused beyond the statutory period prescribed under Section 167. It was pointed out that this could lead to serious abuse wherein 'the arrested person can in this manner be kept in custody indefinitely while the investigation can go on in a leisurely manner'. Hence the Commission recommended....
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....not lose faith and develop cynicism towards the criminal justice system. 17.7. Therefore, as mentioned supra, Section 167(2) is integrally linked to the constitutional commitment under Article 21 promising protection of life and personal liberty against unlawful and arbitrary detention, and must be interpreted in a manner which serves this purpose. In this regard we find it useful to refer to the decision of the three- Judge Bench of this Court in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67: (2018) 1 SCC (Cri) 401, which laid down certain seminal principles as to the interpretation of Section 167(2)CrPC though the questions of law involved were somewhat different from the present case. The questions before the three-Judge Bench in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67: (2018) 1 SCC (Cri) 401, were whether, firstly, the 90-day remand extension under Section 167(2)(a)(i) would be applicable in respect of offences where the maximum period of imprisonment was 10 years, though the minimum period was less than 10 years. Secondly, whether the application for bail filed by the accused could be construed as an application for default bail, even though the ....
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....urts cannot adopt a rigid or formalistic approach whilst considering any issue that touches upon the rights contained in Article 21. 17.8. We may also refer with benefit to the recent judgment of this Court in S. Kasi v. State, (2021) 12 SCC 1, wherein it was observed that the indefeasible right to default bail under Section 167(2) is an integral part of the right to personal liberty under Article 21, and the said right to bail cannot be suspended even during a pandemic situation as is prevailing currently. It was emphasised that the right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a charge-sheet. 17.9. Additionally, it is well-settled that in case of any ambiguity in the construction of a penal statute, the courts must favour the interpretation which leans towards protecting the rights of the accused, given the ubiquitous power disparity between the individual accused and the State machinery. This is applicable not only in the case of substantive penal statutes but also in the case of procedures providing for the curtailment of the liberty of the accused. 17.10. With respect t....
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....e 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 is for the Magistrate to satisfy himself of its due compliance. Upon such satisfaction, he can consider the request for custody in favour of an authority, as Section 62 of the PMLA, 2002, does not speak about the authority which is to take action for noncompliance of the mandate of Section 19 of the PMLA, 2002. A remand being made by the Magistrate upon a person being produced before him, being an independent entity, it is well open to him to invoke the said provision in a given case. To put it otherwis....
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....visions 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 benefit conferred under the proviso to Section 167(2) of the CrPC, 1973 will not be available. Vijay Madanlal Choudhary (supra): "88. ...This production is also to comply with the requirement of Section 167 of the 1973 Code. There is nothing in Section 19, which is contrary to the requirement of production under Section 167 of the 1973 Code, but being an express statutory requirement under the 2002 Act in terms of Section 19(3), it has to be complied by the authorise....
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....to writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173." The steps involved in the course of investigation, as pointed out in Rishbud case have been reiterated in State of M.P. v. Mubarak Ali. 109. No doubt, it is true that there are a series of decisions holding the view that an Officer of Enforcement or a Customs Officer is not a police officer though such officers are vested with the powers of arrest and other analogous powers. Vide Ramesh Chandra v . State of W.B . and Illias v . Collector of Customs, Madras . In the above decisions, this Court has held that the above officers under the special Acts are not vested with the powers of a police officer qua investigation of an offence under Chapter XII of the Code including the power to forward a report under Section 173 of the Code. See also State of Punjab v . Barkat Ram a....
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....wered or authorised officer or a person not being a police officer under the direction of a Magistrate to make an investigation vested with the power of investigation. xxx xxx xxx 120. From the above discussion it cannot be said that either the Officer of Enforcement or the Customs Officer is not empowered with the power of investigation though not with the power of filing a final report as in the case of a police officer. xxx xxx xxx 128. To sum up, Section 4 is comprehensive and that Section 5 is not in derogation of Section 4(2) and it only relates to the extent of application of the Code in the matter of territorial and other jurisdiction but does not nullify the effect of Section 4(2). In short, the provisions of this Code would be applicable to the extent in the absence of any contrary provision in the Special Act or any special provision excluding the jurisdiction or applicability of the Code. In fact, the second limb of Section 4(2) itself limits the application of the provisions of the Code reading, "... but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or oth....
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....ppearing 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 all other proceedings under this Act." 4. We may also refer to the judgment of this Court in Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 : 1994 SCC (Cri) 785, wherein it was held as under: (SCC p. 480,....
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....bitrary, 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 grammatical meaning." 68. External aids of interpretation are to be used only when the language of the legislation is ambiguous and....
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....aid : (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....
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....nious construction." (emphasis supplied) 13. Further, a three-Judge Bench of this Court by majority of 2:1 in S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591 has elaborately examined the scope of the proviso to the substantive provision of the section and rules of its interpretation. The relevant paragraphs are reproduced hereunder: (SCC pp. 607-08, paras 30, 32-33 & 36-37) "30. Sarathi in Interpretation of Statutes at pp. 294-95 has collected the following principles in regard to a proviso: (a) When one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso. (b) A proviso must be construed with reference to the preceding parts of the clause to which it is appended. (c) Where the proviso is directly repugnant to a section, the proviso shall stand and be held a repeal of the section as the proviso speaks the latter intention of the makers. (d) Where the section is doubtful, a proviso may be used as a guide to its interpretation; but when it is clear, a proviso cannot imply the existence of words of....
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....ion (2) of Section 167 of the CrPC, 1973: "16. As sub-section (2) of Section 167 as well as proviso (1) of sub-section (2) of Section 309 relate to the powers of remand of a magistrate, though under different situations, the two provisions call for a harmonious reading insofar as the periods of remand are concerned. It would, therefore, follow that the words "15 days in the whole" occurring in sub-section (2) of Section 167 would be tantamount to a period of "15 days at a time" but subject to the condition that if the accused is to be remanded to police custody the remand should be for such period as is commensurate with the requirements of a case with provision for further extensions for restricted periods, if need be, but in no case should the total period of remand to police custody exceed 15 days. Where an accused is placed in police custody for the maximum period of 15 days allowed under law either pursuant to a single order of remand or to more than one order, when the remand is restricted on each occasion to a lesser number of days, further detention of the accused, if warranted, has to be necessarily to judicial custody and not otherwise. The legislature having pro....
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....ail has attained finality. 81. We shall first consider the maintainability of the writ petition filed. A writ of Habeas Corpus was moved questioning the arrest made. When it was taken up for hearing on a mentioning, the next day by the Court, the appellant was duly produced before the learned Principal Sessions Judge in compliance with Section 19 of the PMLA, 2002. The custody thus becomes judicial as he was duly forwarded by the respondents. Therefore, even on the date of hearing before the High Court there was no cause for filing the Writ Petition being HCP No. 1021 of 2023. Added to that, an order of remand was passed on 14.06.2023 itself. The two remand orders passed by the Court, as recorded in the preceding paragraphs, depict a clear application of mind. Despite additional grounds having been raised, they being an afterthought, we have no hesitation in holding that the only remedy open to the appellant is to approach the appropriate Court under the Statute. This was obviously not 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 th....
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....anlal Choudhary (supra) to press home his view that an authorised officer under the PMLA, 2002 is not a police officer as declared in Vijay Madanlal Choudhary (supra). As stated, an officer is expected to perform as per the statute. In the process of investigation, he has been given certain powers. One shall not confuse such powers conferred 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....