V. Senthil Balaji Vs State Represented By Deputy Director And Ors (Supreme Court Judgment)
In the case of V. Senthil Balaji vs. State Represented By Deputy Director and Others, the Supreme Court of India provided a detailed interpretation and analysis of various legal provisions related to the arrest, custody, and investigation of individuals under the Prevention of Money Laundering Act, 2002 (PMLA) and the Code of Criminal Procedure, 1973 (CrPC). The judgment discusses the arguments presented by both the appellant and the respondents and provides a nuanced understanding of the interplay between different legal provisions. This article aims to provide a comprehensive analysis of the key arguments, submissions, and conclusions presented in the Supreme Court’s judgment.
Background and Context: The case revolved around the arrest and custody of V. Senthil Balaji under the provisions of the Prevention of Money Laundering Act, 2002. The appellant challenged the legality of his arrest and subsequent custody. The appellant’s arguments were primarily centered around the interpretation of Section 167(2) of the CrPC, 1973, which deals with the custody of a person during an investigation.
Submissions of the Appellant: The appellant’s arguments were presented by learned Senior Advocates Shri Kapil Sibal and Shri Mukul Rohatgi. Their submissions can be summarized as follows:
i. The appellant argued that there is no power vested under the PMLA, 2002 to seek custody in favor of an authorized officer. Such an authorized officer is not a police officer, and therefore, Section 167(2) of the CrPC, 1973 is not applicable to them.
ii. Custody under Section 167(2) of the CrPC, 1973 can only be in favor of a police officer and not any other agency. The term “custody” should be given a restrictive meaning.
iii. The appellant contended that there is no distinction between “investigation” and “inquiry” under the PMLA, 2002, and therefore, after the completion of 24 hours from the arrest, there cannot be further custody in favor of an officer.
iv. The appellant argued that non-compliance with Section 41A of the CrPC, 1973 would vitiate the orders of remand. The appellant also alleged that the learned Principal Sessions Judge passed a cryptic order ignoring the clear non-compliance of Section 19 of the PMLA, 2002.
Submissions of the Respondents: The respondents, represented by the learned Solicitor General Shri Tushar Mehta, made the following submissions:
i. The respondents argued that the writ petition challenging the arrest as illegal was not maintainable since the appellant had been produced before the learned Principal Sessions Judge as required by Section 19 of the PMLA, 2002.
ii. The respondents emphasized that the PMLA, 2002 is a special Act with its own distinct characteristics and provisions. Section 65 of the PMLA, 2002 clearly speaks of the overriding effect over the CrPC, 1973.
iii. The respondents contended that the interpretation of Section 167(2) of the CrPC, 1973 given in the case of Deepak Mahajan v. Directorate of Enforcement should be followed, and the arguments based on Anupam J. Kulkarni v. CBI were misconceived.
iv. The respondents also argued that the appellant was attempting to evade custody and that his actions lacked bona fides. They further emphasized that the appellant’s challenge to the rejection of bail had already been rejected.
Interpretation of Section 167(2) of the CrPC, 1973: One of the central issues in the case was the interpretation of Section 167(2) of the CrPC, 1973, which deals with the custody of a person during investigation. The appellant’s argument was that police custody could only be granted within the first 15 days of remand, while the respondents argued that custody could be granted over the entire period of investigation.
The Supreme Court’s interpretation of this issue was in favor of the respondents. The Court held that there is no stipulation in Section 167(2) of the CrPC, 1973 that restricts police custody only to the first 15 days of remand. The Court emphasized that the words “time to time,” “such custody,” and “in the whole” mentioned in the section have not been properly interpreted. The Court also discussed the principle of actus curiae neminem gravabit, which means that the act of the court shall prejudice no one, and applied it to the interpretation of custody periods.
The Court held that the provision for police custody in Section 167(2) of the CrPC, 1973 should span over the entire period of investigation (60 or 90 days), rather than being limited to the first 15 days. The Court found that this interpretation was in line with the fine balancing act that Section 167(2) seeks to achieve between an individual’s liberty and the requirements of proper investigation.
Maintainability of the Writ Petition: The Court concluded that the writ petition challenging the arrest was not maintainable because the appellant had already been produced before the learned Principal Sessions Judge in compliance with Section 19 of the PMLA, 2002. The Court further emphasized that any challenge to an order of remand should be made before a higher forum as provided by the CrPC, 1973.
Conclusion: In conclusion, the Supreme Court dismissed the appeals arising out of Special Leave Petition (Criminal) Nos. 8939-8940 of 2023 and the appeals arising out of Special Leave Petition (Criminal) Nos. 8652-8653 of 2023, upholding the views expressed in the impugned judgments. The Court also held that the appellant’s writ petition was not maintainable and that the custody of the appellant should be permitted until a certain date.
The judgment in V. Senthil Balaji vs. State Represented By Deputy Director and Others provides significant insights into the interpretation of crucial legal provisions related to arrest, custody, and investigation under the PMLA, 2002 and the CrPC, 1973. It clarifies the interplay between these provisions and offers a balanced perspective on the scope and limits of police custody during investigation. The judgment’s analysis contributes to the understanding of procedural safeguards and the delicate balance between an individual’s rights and the necessity of proper investigation in the context of economic offenses.
FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER
1. Leave granted.
2. After the Scheduled Offence went through an elongated judicial journey, it is the turn of the Enforcement Case Information Report under the Prevention of Money Laundering Act, 2002 (hereinafter referred to as “the PMLA, 2002”). What is under challenge before us are the orders passed by the majority of the Judges when a reference was made on a difference of opinion by the Division Bench of the Madras High Court, while dealing with a Writ Petition filed seeking a writ of Habeas Corpus in pursuance of an arrest made, followed by a remand to the judicial custody, and then to the authority concerned. Though arguments at length are made at the Bar, the principal issue is only on the remand in favour of the investigating agency, without seeking any specific prayer challenging the remand orders, though additional grounds were raised.
3. Heard Shri Kapil Sibal and Shri Mukul Rohatgi learned Senior Advocates appearing for the appellant and Shri Tushar Mehta, 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 For a proper understanding, we adopt the appeals arising out of Special Leave Petition (Criminal) Nos. 8939-8940 of 2023 as the lead case. The appellant in the appeals arising out of Special Leave Petition (Criminal) Nos. 8652-8653 of 2023 is none other than the wife of the appellant in the appeals arising out of Special Leave Petition (Criminal) Nos. 8939-8940 of 2023, being the writ Petitioner before the High Court. Incidentally, the respondents, though filed separate appeals arising out of Special Leave Petition (Criminal) Nos. 7437 of 2023, 7460 of 2023, and 8750 of 2023, are appositely referred as respondents.
5. The appellant is a Cabinet Minister of the State of Tamil Nadu. After a see‑saw legal battle, his status remains that of an accused pursuant to the orders passed by this Court in the Scheduled Offence.
6. A case was registered in Enforcement Case Information Report No. 21 of 2021 by the Respondent No.1 against the appellant and others. It was followed by summons dated 04.08.2021 and 07.10.2021 requiring the attendance of the appellant. Further summons were issued on 07.03.2022 and 24.07.2022. A search was conducted by the Authorised Officer invoking Section 17 of the PMLA, 2002 at his premises on 13.06.2023.
7. Finding that the appellant was not extending adequate cooperation, the Authority had invoked Section 19 of the PMLA, 2002 by way of an arrest on 14.06.2023. An arrest memo was also prepared. Though grounds of arrest were furnished, the appellant declined to acknowledge them. The information pertaining to the arrest was also intimated to his brother, sister-in-law and wife.
8. The appellant was taken to the Tamil Nadu Government Multi Super Speciality Hospital, Chennai as he complained of chest pain. His wife rushed to the High Court and filed a Habeas Corpus petition being HCP No.102 1 of 2023 on the very same day. In the meanwhile, the respondents filed an application before the learned Principal Sessions Judge seeking judicial custody for 15 days. An order of remand was passed sending him to judicial custody till 28.06.202 3.
“At the request of the Special Public Prosecutor, Enforcement Directorate, Chennai filed along with ECIR, Remand Report and other documents I came down to Tamil Nadu, Government Multi Super Speciality Hospital, Omanthur, Chennai by 3.30 p.m. Dr. J. CECILY MARY MAJELLA, Associate Professor, Cardiology certified that the accused Senthil Balaji is conscious and oriented. Then I met Thiru. V. Senthil Balaji, the accused in the ICU ward of the said hospital and enquired in the presence of Dr. J. CECILY MARY MAJELLA. Heard the Special Public Prosecutor and the Senior Advocate Mr. N. R. Elango, who appeared for the accused. Grounds of Arrest was said to have been conveyed by the Investigating Officer, but the accused denied to acknowledge and signed the same. Also relatives of the accused are said to have been not available in the place of arrest and they have been informed through SMS and Email since they didn’t pick the phone call. Proof has also been produced. I informed the accused about the grounds of arrest and his right of legal assistance. The accused complained that he was man handled by the ED officials but no complaint of any bodily injury. The prosecution has established prima facie case against the accused for the offences u/s. 3 of Prevention of Money Laundering Act, punishable u/s 4 of the said Act. Hence, the accused is remanded to Judicial custody till 28.06.2023.”
9. Thereafter, the appellant filed an application for bail which was dismissed on 06.2023 by a speaking order considering all the contentions. This has attained finality. The respondents made a further application seeking custody for further investigation.
10. All the above activities took place on a single day, except the dismissal of the application for bail. The Habeas Corpus petition filed by the appellant’s wife was taken up for hearing on 15.06.2023 on an urgent mentioning, whereby the appellant was directed to be shifted to a private hospital of his choice to undergo a bypass surgery. A surgery was accordingly done.
11. On the application filed by the respondents, the learned Principal Sessions Judge granted custody to them for a period of 8 days, while dismissing the bail application as noted earlier.
“24. In the result, the petition is allowed and Shri Karthik Dasari, Deputy Director, Directorate of Enforcement, Chennai is permitted to have the custody of the accused Sh. V. Senthil Balaji for 8 days from 16.06.2023 with the following conditions:
(1) The Deputy Director of Enforcement Directorate shall not remove the accused from the Kaveri Hospital, who has been admitted for treatment.
(2) The Deputy Director of Enforcement Directorate shall interrogate the accused at the hospital by taking into consideration of his ailments and the treatment given to him in the hospital after obtaining necessary opinion from the team of Doctors, who are giving treatment to him about his fitness for interrogation.
(3) The Deputy Director of Enforcement Directorate interrogate the accused without any hindrance to the health conditions of the accused and also the treatment provided to him.
(4) The Deputy Director of Enforcement Directorate is directed to provide sufficient food and shelter to the accused and they should not use third degree method and should not cause any cruelty to the accused.
(5) No threat of coercion will be made on the Respondent/accused.
(6) The family members of the accused are to be permitted to see the accused during the custody, subject to the medical advice.
(7) The Deputy Director of Enforcement Directorate is directed to provide necessary security for the accused while he is in his
(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 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) maintainability of the Habeas Corpus Petition;
(ii) The exclusion of the period of treatment undergone by the detenu from the period of custodial interrogation.
3. Since both these issues are likely to be examined by the High Court on the date fixed, i.e., 22-06-2023 or soon thereafter, we deem it appropriate to post these Special Leave Petitions for further hearing on 04-07-2023.
4. It is clarified that the pendency of these Special Leave Petitions shall not be taken as a ground to adjourn the matter, pending adjudication before the High Court.
5. The observations made by the High Court in the interim order dated 15-06-2023 or any oral observation made by this Court during the course of hearing shall have no bearing on the merits of the case.”
14. In the meanwhile, in the pending Habeas Corpus petition additional grounds were raised questioning the orders of the learned Principal Sessions Judge granting both judicial and police remand, no specific prayer as such was sought for.
15. On 22.06.2023, the respondents filed an application before the High Court of Madras to exclude the period of hospitalisation for the purpose of counting custody period as no actual custody was taken.
16. By the order dated 04.07.2023, the Judges of the Division Bench differed with each other. Justice Nisha Banu allowed the Habeas Corpus petition, though either of the remand orders were not challenged:
“(11) In the result, the Habeas Corpus Petition is allowed in the following terms:-
1. The Writ of Habeas Corpus Petition is maintainable;Enforcement Directorate is not entrusted with the powers to seek police custody under the Prevention of Money Laundering Act, 2002;
2. Miscellaneous petition filed by Respondent 1 seeking exclusion of the period is dismissed;”
17. Justice D. Bharata Chakravarty, recorded his views in differing with the one expressed by the other learned Judge:
“(i) The Habeas Corpus Petition in H.C.P.No. 1021 of 2023 shall stand dismissed;
(ii) The period from 14.06.2023 till such time the detenu/accused is fit for custody of the respondent shall be deducted from the initial period of 15 days under Section 167(2) of the Code of Criminal Procedure;
(iii) The detenu/accused shall continue the treatment at Cauvery Hospital until discharge or for a period of 10 days from today whichever is earlier and thereafter, if further treatment is necessary, it can be only at the Prison/Prison Hospital as the case may be;
(iv) As and when he is medically fit, the respondents will be able to move the appropriate Court for custody and the same shall be considered on its own merits in accordance with law except not to be denied on the ground of expiry of 15 days from the date of remand;
(v) However, there shall be no order as to costs.”
18. On a reference made, the third learned Judge, Justice C.V. Kartikeyan extended his concurrence with Justice D. Bharata Chakravarty:
“(i) Whether Enforcement Directorate has the power to seek custody of a person arrested?
The answer given by this Court is ‘Yes’ in alignment with the views/opinion expressed by the Hon’ble Justice Mr. D. Bharatha Chakravarthy.
(ii) Whether the Habeas Corpus Petition itself is maintainable after a judicial order of remand is passed by a Court of competent jurisdiction?
The Petition would be maintainable in exceptional circumstances, but this case does not attract any exceptional circumstance and consequently since an order of remand had been passed by a Court of competent jurisdiction, the relief sought in the petition cannot be granted. I would align with the view expressed by the Hon’ble Justice Mr. D. Bharatha Chakravarthy, with respect to this issue.
(iii) The consequential issue is as to whether Enforcement Directorate would be entitled to seek exclusion of time for the period of hospitalization beyond the first 15 days from the date of initial remand.”
19. However, the learned Judge sent the file back to the Division Bench to adjudicate upon the date of custody to be reckoned followed by the actual days that might be required. Aggrieved, the appellant and his wife filed Special Leave Petition (Criminal) Nos. 8939-8940 of 2023 and Special Leave Petition (Criminal) Nos. 8652-8653 of 2023 respectively. With the limited grievance over the file being sent back by the third learned Judge, the respondents filed Special Leave Petition (Criminal) No. 8750 of 2023. Two more Special Leave Petitions have been filed by respondents being Special Leave Petition (Criminal) Nos. 7437 of 2023 and 7460 of 2023, challenging the interim order of the High Court and the conditions imposed by the learned Principal Sessions Judge while granting remand and for the exclusion of 15 days.
SUBMISSIONS OF THE APPELLANT:
20. We have had the pleasure of hearing Shri Kapil Sibal and Shri Mukul Rohatgi, learned Senior Advocates appearing on behalf of the appellant, at length. We would like to summarise their submissions in a nutshell together.
21. There is no power vested under the PMLA, 2002 to seek custody in favour of an authorized officer. Such an authorized officer is not a police officer and therefore, Section 167(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the CrPC, 1973”), with particular reference to a remand in his favour, is not available. Custody under Section 167(2) of the CrPC, 1973 can only be in favour of a police officer and not any other agency. There is no investigation under the PMLA, 2002 since it is to be taken as synonymous with inquiry. After the completion of 24 hours from the arrest, there cannot be further custody in favour of an officer. Being a beneficial legislation, non-compliance of Section 41A of the CrPC, 1973 would vitiate the orders of remand. The learned Principal Sessions Judge passed a cryptic order ignoring the clear non-compliance of Section 19 of the PMLA, 2002.
22. The outer limit of 15 days of custody to the police from the date of arrest has worked itself out. Therefore, no Court can extend it under any circumstance. The majority judgments did not apply the decision in CBI v. Anupam J. Kulkarni (1992) 3 SCC 141 as followed thereafter by this Court, in the correct perspective. Reliance upon CBI v. Vikas Mishra, (2023) 6 SCC 49 is misplaced, with the decisions of the larger Bench and the Co-ordinate Bench acting as binding precedents. A writ of Habeas Corpus is certainly maintainable in the present case in view of procedural non-compliance.
Provisions of both the CrPC, 1973 and the PMLA, 2002 ought to be construed and interpreted strictly. There is a total non-application of mind on the part of the learned Principal Sessions Judge in passing the orders of remand.
23. The High Court has committed an error in not appreciating the legislative scheme and the timeline in the light of Article 22 of the Constitution of India, 1950. Articles 21, 22 of the Constitution of India, 1950 and Section 167 of the CrPC, 1973 ought to be read harmoniously. It is not for the Courts to legislate to provide extension of the period of 15 days. The decision rendered in Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 actually enures to the benefit of the appellant which the majority judgments failed to appreciate. Since the arrest was based upon the materials, over which a satisfaction was arrived at creating reasons to believe, the statute does not facilitate any more custodial interrogation. The appellant can very well be questioned and interrogated in prison.
SUBMISSIONS OF THE RESPONDENTS:
24. Shri Tushar Mehta, learned Solicitor General, while repelling the contentions raised, made further submissions.
25. The writ petition, as filed invoking Article 226 of the Constitution of India, 1950 is not maintainable. There was a legal arrest following which the arrested person was forwarded to the learned Principal Sessions Judge. Orders were passed on merit, both for judicial custody and thereafter in favour of the respondents. The writ petition was filed only challenging the arrest as illegal. When it was taken up on 15.06.2023 the accused was produced already. Thus, even on that day the prayer was not in subsistence. The respondents did not get the actual custody. The conditions attached are challenged before this Court. Even the appellant has stated in his arguments that he was not to be questioned during his so-called ailment in the hospital but was ready thereafter. The word “custody” cannot be given a restrictive meaning. The PMLA, 2002 is a special Act having its own distinct characteristics. It is a sui generis legislation. It provides for an elaborate mechanism for a thorough investigation through search, seizure and arrest. Section 65 of the PMLA, 2002 clearly speaks of the overriding effect over the CrPC, 1973. There is due compliance of Section 19 of the PMLA, 2002. The appellant has been hoodwinking the investigating agency, as rightly taken note of by the third learned Judge of the High Court.
26. The application of Sections 167(1) and (2) of the CrPC, 1973 to an investigation in connection with an offence under the PMLA, 2002, is no longer res integra in view of the decisions rendered in Deepak Mahajan (supra), followed by Ashok Munilal Jain v. Directorate of Enforcement, (2018) 16 SCC 158.
27. The reliance placed by the appellant on Anupam J. Kulkarni (supra), as followed thereafter by this Court is misconceived. In the said case, the facts are different as it was a case of counting the days after the arrestee was given custody in favour of the investigating agency, whereas no such custody has ever been made to the respondents. The principle governing actus curiae neminem gravabit was not the subject matter of those decisions. All legal actions taken by the appellant lack bona fides, they are solely to evade custody. The appellant has not even challenged the rejection of the bail wherein similar contentions have been taken note of and rejected.
28. To sum up, it is submitted that, both on facts and law, the appellant does not have a case as there is a complete abuse of the process of law. Incidentally, it is prayed that the Special Leave Petitions filed by the respondents will have to be allowed giving sufficient number of days for further investigation.
WRIT OF HABEAS CORPUS:
29. A writ of Habeas Corpus shall only be issued when the detention is illegal. As a matter of rule, an order of remand by a judicial officer, culminating into a judicial function cannot be challenged by way of a writ of Habeas Corpus, while it is open to the person aggrieved to seek other statutory remedies. When there is a non-compliance of the mandatory provisions along with a total non-application of mind, there may be a case for entertaining a writ of Habeas Corpus and that too by way of a challenge.
30. In a case where the mandate of Section 167 of the CrPC, 1973 and Section 19 of the PMLA, 2002 are totally ignored by a cryptic order, a writ of Habeas Corpus may be entertained, provided a challenge is specifically made. However, an order passed by a Magistrate giving reasons for a remand can only be tested in the manner provided under the statute and not by invoking Article 226 of the Constitution of India, 1950. There is a difference between a detention becoming illegal for not following the statutory mandate and wrong or inadequate reasons provided in a judicial order. While in the former case a writ of Habeas Corpus may be entertained, in the latter the only remedy available is to seek a relief statutorily given. In other words, a challenge to an order of remand on merit has to be made in tune with the statute, while noncompliance of a provision may entitle a party to invoke the extraordinary In an arrest under Section 19 of the PMLA, 2002 a writ would lie only when a person is not produced before the Court as mandated under subsection (3), since it becomes a judicial custody thereafter and the concerned Court would be in a better position to consider due compliance.
31. Suffice it is to state that when reasons are found, a remedy over an order of remand lies elsewhere. Similarly, no such writ would be maintainable when there is no express challenge to a remand order passed in exercise of a judicial function by a Magistrate. State of Maharashtra v. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745:
“10. The question as to whether a writ of habeas corpus could be maintained in respect of a person who is in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with the offence under investigation, this issue has been considered in Saurabh Kumar v. Jailor, Koneila Jail, (2014) 13 SCC 436 : (2014) 5 SCC (Cri) 702 and Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314 : (2013) 1 SCC (Cri) 475 . It is no more res integra. In the present case, admittedly, when the writ petition for issuance of a writ of habeas corpus was filed by the respondent on 18- 3-2018/19-3-2018 and decided by the High Court on 21-3- 2018 [ Tasneem Rizwan Siddiquee v. State of Maharashtra , 2018 SCC OnLine Bom 2712] her husband Rizwan Alam Siddiquee was in police custody pursuant to an order passed by the Magistrate granting his police custody in connection with FIR No. I-31 vide order dated 17-3-2018 and which police remand was to enure till 23-3-2018. Further, without challenging the stated order of the Magistrate, a writ petition was filed limited to the relief of habeas corpus. In that view of the matter, it was not a case of continued illegal detention but the incumbent was in judicial custody by virtue of an order passed by the jurisdictional Magistrate, which was in force, granting police remand during investigation of a criminal case. Resultantly, no writ of habeas corpus could be issued.”
(emphasis supplied)
SECTION 41A OF THE CODE OF CRIMINAL PROCEDURE, 1973 VIS-À-VIS SECTION 19 OF THE PREVENTION OF MONEY LAUNDERING ACT, 2002:
Section 41A
“41A. Notice of appearance before police officer.—(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.”
32. Due interpretation of this provision of utmost importance has been given by this Court on more than one occasion [Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 and Satender Kumar Antil v. CBI, (2022) 10 SCC 51]. The Interpretation of this provision, meant to preserve and safeguard the liberty of a person, is taken note of in the afore-stated judgments. This provision cannot be termed as a supplement to Section 19 of the PMLA, 2002. The PMLA, 2002 being a sui generis legislation, has its own mechanism in dealing with arrest in the light of its objectives. The concern of the PMLA, 2002 is to prevent money laundering, make adequate recovery and punish the offender. That is the reason why a comprehensive procedure for summons, searches, and seizures etc., has been clearly stipulated under Chapter V of the PMLA, 2002. An arrest shall only be made after due compliance of the relevant provisions including Section 19 of the PMLA, 2002 Therefore, there is absolutely no need to follow and adopt Section 41A of the CrPC, 1973 especially in the teeth of Section 65 of the PMLA, 2002.
33. In the absence of any mandate, one cannot force the Authorized Officer to ensure due compliance of Section 41A of the CrPC, 1973 especially when a clear, different and distinct methodology is available under the PMLA, 2002. Following Section 41A of the CrPC, 1973 for an arrest under the PMLA, 2002 would only defeat and destroy the very inquiry/investigation under the PMLA, 2002. Till summons are issued to a person, he is not expected to be in the know-how. Any prior intimation, other than what is mandated under the PMLA, 1973 might seriously impair the ongoing investigation.
34. The Explanation to Section 45 of the PMLA, 2002 once again reiterates the role required to be performed by an Authorized Officer, duly fulfilling the conditions adumbrated under Section 19 of the PMLA, 2002. The Explanation goes on to state by way of a clarification that all offences under the Act shall be cognizable and non-bailable offences, notwithstanding anything contained to the contrary in the CrPC, 1973. Vijay Madanlal Choudhary v. Union of India, 2022 (10) SCALE:
“THE 2002 ACT
19. The Act was enacted to address the urgent need to have a comprehensive legislation inter alia for preventing money-laundering, attachment of proceeds of crime, adjudication and confiscation thereof including vesting of it in the Central Government, setting up of agencies and mechanisms for coordinating measures for combating money-laundering and also to prosecute the persons indulging in the process or activity connected with the proceeds of crime. This need was felt world over owing to the serious threat to the financial systems of the countries, including to their integrity and sovereignty because of money-laundering. The international community deliberated over the dispensation to be provided to address the serious threat posed by the process and activities connected with the proceeds of crime and integrating it with formal financial systems of the countries. The issues were debated threadbare in the United Nation Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Basle Statement of Principles enunciated in 1989, the FATF established at the summit of seven major industrial nations held in Paris from 14th to 16th July, 1989, the Political Declaration and Noble Programme of Action adopted by United Nations General Assembly vide its Resolution No. S-17/2 of 23.2.1990, the United Nations in the Special Session on countering World Drug Problem Together concluded on the 8th to the 10th June, 1998, urging the State parties to enact a comprehensive legislation. This is evident from the introduction and Statement of Objects and Reasons accompanying the Bill which became the 2002 Act…”
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PREAMBLE OF THE 2002 ACT
23. The Preamble of the 2002 Act reads thus:
“An Act to prevent money-laundering and to provide for confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto.
WHEREAS the Political Declaration and Global Programme of Action, annexed to the resolution S-17/2 was adopted by the General Assembly of the United Nations at its seventeenth special session on the twenty-third day of February, 1990;
AND WHEREAS the Political Declaration adopted by the Special Session of the United Nations General Assembly held on 8th to 10th June, 1998 calls upon the Member States to adopt national money-laundering legislation and programme;
AND WHEREAS it is considered necessary to implement the aforesaid resolution and the Declaration.”
Even the Preamble of the Act reinforces the background in which the Act has been enacted by the Parliament being commitment of the country to the international community. It is crystal clear from the Preamble that the Act has been enacted to prevent money-laundering and to provide for confiscation of property derived from or involved in money-laundering and for matters connected therewith or incidental thereto. It is neither a pure regulatory legislation nor a pure penal legislation. It is amalgam of several facets essential to address the scourge of money-laundering as such. In one sense, it is a sui generis legislation.
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ARREST
88. Section 19 of the 2002 Act postulates the manner in which arrest of person involved in money-laundering can be effected. Subsection (1) of Section 19 envisages that the Director, Deputy Director, Assistant Director, or any other officer authorised in this behalf by the Central Government, if has material in his possession giving rise to reason to believe that any person has been guilty of an offence punishable under the 2002 Act, he may arrest such person. Besides the power being invested in high-ranking officials, Section 19 provides for inbuilt safeguards to be adhered to by the authorised officers, such as of recording reasons for the belief regarding the involvement of person in the offence of money-laundering. That has to be recorded in writing and while effecting arrest of the person, the grounds for such arrest are informed to that person. Further, the authorised officer has to forward a copy of the order, along with the material in his possession, in a sealed cover to the Adjudicating Authority, who in turn is obliged to preserve the same for the prescribed period as per the Rules. This safeguard is to ensure fairness, objectivity and accountability of the authorised officer in forming opinion as recorded in writing regarding the necessity to arrest the person being involved in offence of money-laundering. Not only that, it is also the obligation of the authorised officer to produce the person so arrested before the Special Court or Judicial Magistrate or a Metropolitan Magistrate, as the case may be, within twenty-four hours. This production is also to comply with the requirement of Section 167 of the 1973 Code. There is nothing in Section 19, which is contrary to the requirement of production under Section 167 of the 1973 Code, but being an express statutory requirement under the 2002 Act in terms of Section 19(3), it has to be complied by the authorised officer. Section 19, as amended from time to time, reads thus…”
(emphasis supplied)
35. In light of the aforesaid discussion, an Authorized Officer under the PMLA, 2002 is not duty bound to follow the rigor of Section 41A of the CrPC, 1973 as against the binding conditions under Section 19 of the PMLA, 2002. The above discussion would lead to the conclusion that inasmuch as there is already an exhaustive procedure contemplated under the PMLA, 2002 containing sufficient safeguards in favour of the person arrested, Section 41A of the CrPC, 1973 has no application at all.
36. The need for the introduction of Section 41A has also been taken note of by the Law Commission in Chapter Five of its 177th Report:
“But then it is said that since the conviction rate is very low, the very fact of arrest is a sort of punishment that can be meted out to the guilty. This argument is again misleading and unacceptable. Guilt or innocence has to be determined by the courts and not by the police. Police merely prosecutes on being satisfied that a person is guilty of an offence; it doesn’t punish. It is also suggested that there is a distinct increase in crime because of 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 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, as soon as may be, inform him of the grounds for such arrest.
(2) The Director, Deputy Director, Assistant Director or any other officer shall, immediately after arrest of such person under subsection (1), forward a copy of the order, along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the matter, as may be prescribed and such Adjudicating authority shall keep such order and material for such period, as may be prescribed.
(3) Every person arrested under sub-section (1) shall within twenty-four hours, be taken to a [Special Court or] Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction:
Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of arrest to the [Special Court or] Magistrate’s Court.”
39. To effect an arrest, an officer authorised has to assess and evaluate the materials in his possession. Through such materials, he is expected to form a reason to believe that a person has been guilty of an offence punishable under the PMLA, 2002. Thereafter, he is at liberty to arrest, while performing his mandatory duty of recording the reasons. The said exercise has to be followed by way of an information being served on the arrestee of the grounds of arrest. Any non-compliance of the mandate of Section 19(1) of the PMLA, 2002 would vitiate the very arrest itself. Under sub-section (2), the Authorised Officer shall immediately, after the arrest, forward a copy of the order as mandated under sub-section (1) together with the materials in his custody, forming the basis of his belief, to the Adjudicating Authority, in a sealed envelope. Needless to state, compliance of sub-section (2) is also a solemn function of the arresting authority which brooks no exception.
40. Thereafter, the arrestee has to be taken to the Special Court, or the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, having the jurisdiction within 24 hours of such arrest. While complying with this mandate the time spent on the journey to the Court shall stand excluded. Vijay Madanlal Choudhary (supra):
“89… The safeguards provided in the 2002 Act and the preconditions to be fulfilled by the authorised officer before effecting arrest, as contained in Section 19 of the 2002 Act, are equally stringent and of higher standard. Those safeguards ensure that the authorised officers do not act arbitrarily, but make them accountable for their judgment about the necessity to arrest any person as being involved in the commission of offence of money-laundering even before filing of the complaint before the Special Court under Section 44(1) (b) of the 2002 Act in that regard. If the action of the authorised officer is found to be vexatious, he can be proceeded with and inflicted with punishment specified under Section 62 of the 2002 Act. The safeguards to be adhered to by the jurisdictional police officer before effecting arrest as stipulated in the 1973 Code, are certainly not comparable. Suffice it to observe that this power has been given to the high-ranking officials with further conditions to ensure that there is objectivity and their own accountability in resorting to arrest of a person even before a formal complaint is filed under Section 44(1)(b) of the 2002 Act. Investing of power in the high-ranking officials in this regard has stood the test of reasonableness in Premium Granites & Anr. v. State of T.N. & Ors., (1994) 2 SCC 691, wherein the Court restated the position that requirement of giving reasons for exercise of power by itself excludes chances of arbitrariness. Further, in Sukhwinder Pal Bipan Kumar & Ors. v. State of Punjab & Ors., (1982) 1 SCC 31, the Court restated the position that where the discretion to apply the provisions of a particular statute is left with the Government or one of the highest officers, it will be presumed that the discretion vested in such highest authority will not be abused. Additionally, the Central Government has framed Rules under Section 73 in 2005, regarding the forms and the manner of forwarding a copy of order of arrest of a person along with the material to the Adjudicating Authority and the period of its retention. In yet another decision in Ahmed Noormohmed Bhatti v. State of Gujarat & Ors., (2005) 3 SCC 647, this Court opined that the provision cannot be held to be unreasonable or arbitrary and, therefore, unconstitutional merely because the authority vested with the power may abuse his authority. (Also see Manzoor Ali Khan v. Union of India & Ors., (2015) 2 SCC 33).”
(emphasis supplied)
41. The conclusion thus arrived is that the Legislature in its wisdom has consciously created the necessary safeguards for an arrestee, keeping in mind his liberty, and the need for an external approval and supervision. This provision is in compliance with Article 21 and 22(2) of the Constitution of India, 1950.
Section 62
“Law can never be enforced unless fear supports them.”
– Sophocles
“62. Punishment for vexatious search.—Any authority or officer exercising powers under this Act or any rules made thereunder, who without reasons recorded in writing,—
(a) searches or causes to be searched any building or place; or
(b) detains or searches or arrests any person,
shall for every such offence be liable on conviction for imprisonment for a term which may extend to two years or fine which may extend to fifty thousand rupees or both.”
42. This provision is a reiteration of the mandatory compliance of Section 19 of the PMLA, 2002. It is in the nature of a warning to an officer concerned to strictly comply with the mandate of Section 19 of the PMLA, 2002 in letter and spirit failing which he would be visited with the consequences. It is his bounden duty to record the reasons for his belief in coming to conclusion that a person has been guilty and therefore, to be arrested. Such a safeguard is meant to facilitate an element of fairness and accountability.
43. Section 65
“65. Code of Criminal Procedure, 1973 to apply.—The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, insofar as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act.”
Section 65 provides for the application of the CrPC, 1973 with respect to arrest, search and seizure, etc. The provisions of the CrPC, 1973 being primarily procedural in nature, along with substantive elements, are to be applied, so long as they are not inconsistent with the provisions of the PMLA, 2002. Therefore, the PMLA, 2002 shall have precedence and when there is no inconsistency, a procedural assistance can be resorted to, as available under the CrPC, 1973. In other words, the provisions of the CrPC, 1973 are expected to be supplementary to the provisions of the PMLA, 2002.
44. To understand this provision, it would be appropriate to take note of Sections 4 and 5 of the CrPC, 1973:
Section 4
“4. Trial of offences under the Indian Penal Code and other —(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.”
Section 5
“5. Saving.—Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.”
45. Sub-section (2) to section 4 of the CrPC, 1973 amplifies the fact that any inquiry or investigation, along with their process, over an offence should necessarily be only under that statute and not under the CrPC, 1973. The aforesaid position has been reiterated under Section 5 of the CrPC, 1973 whereby a distinct clarification has been given that the CrPC, 1973 will not stand in the way of the operation of special law. Thus, a conjoint reading of Section 65 of the PMLA, 2002 along with Sections 4 and 5 of the CrPC, 1973 leaves no room for doubt on the precedence of the former over the latter when it comes to investigation.
ROLE OF THE DESIGNATED AUTHORITY UNDER THE PREVENTION OF MONEY LAUNDERING ACT, 2002:
46. The PMLA, 2002 is a distinct and special statute having its own objective behind it. The scheme of the PMLA, 2002 provides for both prevention and action against money laundering. The object is to prevent the laundering and to recover when it happens, while extending punishment to the offender. In that process, materials collected can be used and exchanged for either of the purposes. In other words, for an inquiry and investigation there can be same materials, while there is no bar for reliance on additional ones. They can travel in the same channel, but their destinations are different. One material can be used for both purposes, along with numerous others. So long as they travel together, there is not much of a difference between an inquiry and investigation. When they take separate routes, an inquiry ends before the Adjudicating Authority, while the other leads to a Special Court in the form of a complaint. This distinction has to be kept in mind to avoid any possible conflict or confusion. Vijay Madanlal Choudhary (supra):
“27. The task of the Director or an authority authorised by the Central Government under the 2002 Act for the collection of evidence is the intrinsic process of adjudication proceedings. In that, the evidence so collected by the authorities is placed before the Adjudicating Authority for determination of the issue as to whether the provisional attachment order issued under Section 5 deserves to be confirmed and to direct confiscation of the property in question. The expression “investigation”, therefore, must be regarded as interchangeable with the function of “inquiry” to be undertaken by the authorities for submitting such evidence before the Adjudicating Authority.
28. In other words, merely because the expression used is “investigation” — which is similar to the one noted in Section 2(h) of the 1973 Code, it does not limit itself to matter of investigation concerning the offence under the Act and Section 3 in particular. It is a different matter that the material collected during the inquiry by the authorities is utilised to bolster the allegation in the complaint to be filed against the person from whom the property has been recovered, being the proceeds of crime. Further, the expression “investigation” used in the 2002 Act is interchangeable with the function of “inquiry” to be undertaken by the Authorities under the Act, including collection of evidence for being presented to the Adjudicating Authority for its consideration for confirmation of provisional attachment order. We need to keep in mind that the expanse of the provisions of the 2002 Act is of prevention of money-laundering, attachment of proceeds of crime, adjudication and confiscation thereof, including vesting of it in the Central Government and also setting up of agency and mechanism for coordinating measures for combating money-laundering.”
(emphasis supplied)
47. The power of arrest under Section 19 of the PMLA, 2002 is meant for investigation alone. A clear position which is taken note of in Vijay Madanlal Choudhary (supra):
“89. This argument clearly overlooks the overall scheme of the 2002 Act. As noticed earlier, it is a comprehensive legislation, not limited to provide for prosecution of person involved in the offence of money-laundering, but mainly intended to prevent money-laundering activity and confiscate the proceeds of crime involved in money-laundering. It also provides for prosecuting the person involved in such activity constituting offence of money-laundering. In other words, this legislation is an amalgam of different facets including setting up of agencies and mechanisms for coordinating measures for combating money-laundering. Chapter III is a provision to effectuate these purposes and objectives by attachment, adjudication and confiscation. The adjudication is done by the Adjudicating Authority to confirm the order of provisional attachment in respect of proceeds of crime involved in money-laundering. For accomplishing that objective, the authorities appointed under Chapter VIII have been authorised to make inquiry into all matters by way of survey, searches and seizures of records and property. These provisions in no way invest power in the Authorities referred to in Chapter VIII of the 2002 Act to maintain law and order or for that matter, purely investigating into a criminal offence. The inquiry preceding filing of the complaint by the authorities under the 2002 Act, may have the semblance of an investigation conducted by them. However, it is essentially an inquiry to collect evidence to facilitate the Adjudicating Authority to decide on the confirmation of provisional attachment order, including to pass order of confiscation, as a result of which, the proceeds of crime would vest in the Central Government in terms of Section 9 of the 2002 Act. In other words, the role of the Authorities appointed under Chapter VIII of the 2002 Act is such that they are tasked with dual role of conducting inquiry and collect evidence to facilitate adjudication proceedings before the Adjudicating Authority in exercise of powers conferred upon them under Chapters III and V of the 2002 Act and also to use the same materials to bolster the allegation against the person concerned by way of a formal complaint to be filed for offence of money-laundering under the 2002 Act before the Special Court, if the fact situation so warrant. It is not as if after every inquiry prosecution is launched against all persons found to be involved in the commission of offence of money-laundering. It is also not unusual to provide for arrest of a person during such inquiry before filing of a complaint for indulging in alleged criminal activity. The respondent has rightly adverted to somewhat similar provisions in other legislations, such as Section 35 of FERA and Section 102 of Customs Act including the decisions of this Court upholding such power of arrest at the inquiry stage bestowed in the Authorities in the respective legislations. In Romesh Chandra Mehta v. State of West Bengal, (1969) 2 SCR 461: AIR 1970 SC 940 , the Constitution Bench of this Court enunciated that Section 104 of the Customs Act confers power to arrest upon the Custom Officer if he has reason to believe that any person in India or within the Indian Customs waters has been guilty of an offence punishable under Section 135 of that Act. Again, in the case of Union of India v. Padam Narain Aggarwal & Ors., (2008) 13 SCC 305 , while dealing with the provisions of the Customs Act, it noted that the term “arrest” has neither been defined in the 1973 Code nor in the Indian Penal Code, 1860 nor in any other enactment dealing with offences. This word has been derived from the French word “arrater ” meaning “to stop or stay”. It signifies a restraint of a person. It is, thus, obliging the person to be obedient to law. Further, arrest may be defined as “the execution of the command of a court of law or of a duly authorised officer”. Even, this decision recognises the power of the authorised officer to cause arrest during the inquiry to be conducted under the concerned legislations. While adverting to the safeguards provided under that legislation before effecting such arrest, the Court noted as follows:
“Safeguards against abuse of power
36. From the above discussion, it is amply clear that power to arrest a person by a Customs Officer is statutory in character and cannot be interfered with. Such power of arrest can be exercised only in those cases where the Customs Officer has “reason to believe” that a person has been guilty of an offence punishable under Sections 132, 133, 135, 135-A or 136 of the Act. Thus, the power must be exercised on objective facts of commission of an offence enumerated and the Customs Officer has reason to believe that a person sought to be arrested has been guilty of commission of such offence. The power to arrest thus is circumscribed by objective considerations and cannot be exercised on whims, caprice or fancy of the officer.
37. The section Ed.: Section 104 of the Customs Act, 1962 also obliges the Customs Officer to inform the person arrested of the grounds of arrest as soon as may be. The law requires such person to be produced before a Magistrate without unnecessary delay.
38. The law thus, on the one hand, allows a Customs Officer to exercise power to arrest a person who has committed certain offences, and on the other hand, takes due care to ensure individual freedom and liberty by laying down norms and providing safeguards so that the power of arrest is not abused or misused by the authorities. ….”
xxx xxx xxx
“169. Notably, this dichotomy does not exist in the 2002 Act for more than one reason. For, there is no role for the regular Police Officer. The investigation is to be done only by the authorities under the 2002 Act and upon culmination of the investigation, to file complaint before the Special Court. Moreover, by virtue of Clause (ii) of Explanation in Section 44(1) of the 2002 Act, it is open to the authorities under this Act to bring any further evidence, oral or documentary, against any accused person involved in respect of offence of money-laundering, for which, a complaint has already been filed by him or against person not named in the complaint and by legal fiction, such further complaint is deemed to be part of the complaint originally filed. Strikingly, in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, the Court also noted that, while dealing with the provisions of the NDPS Act, the designated officer has no express power to file a closure report unlike the power bestowed on the police officer, if he had investigated the same crime under the NDPS Act. Once again, this lack of authority to file closure report is not there in the 2002 Act. For, by the virtue of proviso in Section 44(1) (b), after conclusion of investigation, if no offence of money-laundering is made out requiring filing of a complaint, the Authority under the Act expected to file such complaint, is permitted to file a closure report before the Special Court in that regard. In that decision, while analysing the provisions of the Section 67 of the NDPS Act, the Court noted that the statement recorded under Section 67 of that Act was to be held as inadmissible in all situations. That renders Section 53A of the same Act otiose. Section 53A of the NDPS Act is about relevancy of statement made under certain circumstances. Realising the conflicting position emerging in the two provisions, the issue came to be answered.”
(emphasis supplied)
48. Otherwise, an arrest will be termed as a punishment, which power can never be under Section 19 of the PMLA, 2002. This position being as clear as day light, the proviso to Section 44(1)(b) of the PMLA, 2002 throws further insight into it.
Section 44
“44. Offences triable by Special Courts.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 19 74),—
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, though due to the accused, is due to the accuser too”
– Justice Benzamin N. Cardozo of U.S. Supreme Court
Section 167
“167. Procedure when investigation cannot be completed in twenty-four hours.—(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that—
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,—
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
Explanation I.—For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.
Explanation II.—If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.
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.
