2023 Supreme(SC) 686

SUPREME COURT OF INDIA
A.S. BOPANNA, M. M. SUNDRESH, JJ.
V. Senthil Balaji – Appellant
Versus
The State Represented By Deputy Director And Ors. – Respondents
Criminal Appeal Nos. 2284-2285 of 2023 (@ SLP (Criminal) Nos. 8939-8940 of 2023), Criminal Appeal Nos. 2288-2289 of 2023 (@SLP (Criminal) Nos. 652-8653 of 2023), Criminal Appeal No. 2286 of 2023 (@SLP (Criminal) No.7437 of 2023), Criminal Appeal No. 2287 of 2023 (@SLP (Criminal) No.7460 of 2023), Criminal Appeal No. 2290 of 2023 (@SLP (Criminal) No. 8750 of 2023)
Decided on : 07-08-2023

IMPORTANT POINTS
(1) Writ of Habeas Corpus – When there is a non-compliance of 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.
(2) Remand of accused – When investigation reveals new materials to be confronted with accused, need for custody might arise, subject to satisfaction of Magistrate – Investigation is a process which might require an accused’s custody from time to time as authorised by competent Court.
(3) 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 arrestee is given in physical custody.

Headnote:

(A) Constitution of India – Article 226 – Prevention of Money Laundering Act, 2002 – Section 19 – Criminal Procedure Code, 1973 – Section 167(2) – Writ of Habeas Corpus – A writ of Habeas Corpus shall only be issued when detention is illegal – As a matter of rule, 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 person aggrieved to seek other statutory remedies – When there is a non-compliance of 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 – In a case where mandate of Section 167 of Cr.P.C., 1973 and Section 19 of 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 statute and not by invoking Article 226 of Constitution of India, 1950 – There is a difference between a detention becoming illegal for not following statutory mandate and wrong or inadequate reasons provided in a judicial order – While in former case a writ of Habeas Corpus may be entertained, in the latter only remedy available is to seek a relief statutorily given – In an arrest under Section 19 of PMLA, 2002 a writ would lie only when a person is not produced before Court as mandated under sub-section (3), since it becomes a judicial custody thereafter and concerned Court would be in a better position to consider due compliance – 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. (Paras 29, 30, 31 and 88)

(B) Criminal Procedure Code, 1973 – Section 41A – Prevention of Money Laundering Act, 2002 – Section 19 – Arrest of mandate – To effect an arrest, an officer authorised has to assess and evaluate 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 PMLA, 2002 – Thereafter, he is at liberty to arrest, while performing his mandatory duty of recording reasons – Said exercise has to be followed by way of an information being served on arrestee of grounds of arrest – Any non-compliance of mandate of Section 19(1) of PMLA, 2002 would vitiate very arrest itself – In absence of any mandate, one cannot force Authorized Officer to ensure due compliance of Section 41A of Cr.P.C., 1973 especially when a clear, different and distinct methodology is available under PMLA, 2002 – Following Section 41A of Cr.P.C., 1973 for an arrest under PMLA, 2002 would only defeat and destroy very inquiry/investigation under PMLA, 2002 – Arrest shall only be made after due compliance of relevant provisions including Section 19 of PMLA, 2002 – There is absolutely no need to follow and adopt Section 41A of Cr.P.C., 1973 especially in teeth of Section 65 of PMLA, 2002 – Authorized Officer under PMLA, 2002 is not duty bound to follow rigour of Section 41A of Cr.P.C., 1973 as against binding conditions under Section 19 of PMLA, 2002. (Paras 32, 33, 35, 39 and 88)

(C) Prevention of Money Laundering Act, 2002 – Section 19 – Power of arrest – PMLA, 2002 is a distinct and special statute having its own objective behind it – Scheme of PMLA, 2002 provides for both prevention and action against money laundering – Object is to prevent laundering and to recover when it happens, while extending punishment to offender – In that process, materials collected can be used and exchanged for either of purposes – For an inquiry and investigation there can be same materials, while there is no bar for reliance on additional ones – They can travel in 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, inquiry ends before Adjudicating Authority, while other leads to a Special Court in the form of a complaint – Power under Section 19(1) of PMLA, 2002 can only be exercised during investigation and it is well open to authority to file a closure report before Special Court after conclusion, if it finds that there are no sufficient materials to proceed further. (Paras 46 and 49)

(D) Criminal Procedure Code, 1973 – Section 167, Proviso – Constitution of India – Article 21 – Remand of accused – Words “time to time” clearly indicate that a power to grant custody is not restricted to first 15 days of remand, but whole period of investigation – It is not referable to judicial custody as against police custody – It only means “as the occasion arises”, which is from point of investigation – When investigation reveals new materials to be confronted with accused, need for custody might arise, subject to satisfaction of Magistrate – Investigation is a process which might require an accused’s custody from time to time as authorised by competent Court – Generally, no other Court is expected to act as a supervisory authority in that process – An act of authorisation pre-supposes need for custody – Such a need for a police custody has to be by an order of a Magistrate rendering his authorisation – 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 arrestee is given in physical custody – Such interpretation of physical custody is meant to be applied to Section 167(2) of Cr.P.C., 1973 alone – Period of 15 days being maximum period that can be granted in favour of police would span from time to time with total period of 60 or 90 days as the case may be – Proviso creates a fine balance between individual liberty and adequate investigation – It is to protect interest of accused person by restricting period of investigation, failure of which would entitle arrestee to be released – This is another facet of Article 21. (Paras 53, 57, 63, 64 and 65)

(E) Custody – Meaning – 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 – The moment a person is produced before Court, it assumes custody, divesting the agency of its own – When an order is passed granting police custody, any interdiction by any extraneous circumstance or a Court order would not kick-start period of custody – Situation may be different in a case where a further custody is not possible due to external factors – An order of Court can never be a factor to prevent an investigation when said order merges with final one, upholding such custody – In such a case, doctrine of actus curiae neminem gravabit would certainly apply, as Court’s action can never prejudice anyone, more so, an investigating agency performing its statutory mandate. (Paras 58, 60 and 88)

(F) Interpretation of Statute – Rule of Literal Interpretation – Section 167 of Cr.P.C., being a penal statute, literal, natural and simple interpretation is to be given – When there is no need for a purposive interpretation and statute clearly expresses its intendment, an act of judicial surgery is best avoided – Nowhere in the provision, it is stated that there cannot be any custody in favour of an investigating agency beyond first 15 days of remand, as against express provision discussed in detail – Similarly, while understanding intendment of Section 167 of Cr.P.C., 1973, the provision has to be read along with proviso – A decision of Court cannot be read like a statute, out of context and in ignorance of requisite provisions. (Paras 73 and 74)

Facts of the case:

Appellant assails orders passed by majority of Judges when a reference was made on a difference of opinion by Division Bench of 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 judicial custody, and then to authority concerned. Principal issue is only on remand in favour of investigating agency, without seeking any specific prayer challenging remand orders, though additional grounds were raised.

Findings of Court:

Registry is directed to place the matter before Chief Justice of India for appropriate orders to decide larger issue of actual import of Section 167(2) of the Cr.P.C., 1973 as to whether 15 days period of custody in favour of police should be only within first 15 days of remand or spanning over the entire period of investigation – 60 or 90 days, as the case may be, as a whole.

Result : Appeals dismissed.