AUTHOR: MONIKA GURJAR, DHARMASHASTRA NATIONAL LAW UNIVERSITY, JABALPUR

ABSTRACT / HEADNOTE

In the present case, a case was registered against the appellant and a search was conducted by enforcement directorate under section 19 of PMLA 2002. The accused was taken to hospital due to medical reasons; his wife filed the writ of habeas corpus under 226, and it was directed to shift him to hospital meanwhile the respondent filed application for judicial custody in the court of principal session judge and an order of remand for 8 days was granted to the respondent with certain condition imposed on investigating authority.

The respondent again files application 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 as the condition imposed in the previous order hindered the investigation. The matter came before the division bench of high court to decide the maintainability of writ petition and plea for exclusion of period of treatment from period of custodial interrogation, in which the judges of the division bench differed in their opinion. As a result, the matter came to the Supreme court, who dismissed the writ petition of appellant and allowed the exclusion of period of treatment from period of custodial interrogation. 

Keywords: remand, judicial custody, investigation,commodum ex injuria sua nemo habere debet, actus curiae neminem gravabi,

CASE DETAILS

Judgement Cause Title	V. SENTHIL BALAJI versus THE STATE REPRESENTED BY DEPUTY DIRECTOR AND ORS.
Case Number	Criminal Appeal Nos. 2284-2285 of 2023SLP (Criminal) Nos. 8939-8940 of 2023
Judgement Date	07 August, 2023
Court	Supreme Court
Quorum	A.S. BOPANNA, M. M. SUNDRESH
Author	M.M. Sundresh
Citation	V. Senthil Balaji v. State, 2023 SCC OnLine SC 934
Legal Provisions Involved	Constitution of India- Art. 21, Art. 226. Code of Criminal Procedure,1973 -S.4, S.5, S.41A, S.167. Prevention of Money Laundering Act, 2002- S. 19, S.65, S. Legal Maxims- commodum ex injuria sua nemo habere debet, actus curiae neminem gravabi

INTRODUCTION AND BACKGROUND OF JUDGEMENT

The word ‘custody’ has been derived from the Latin word “custodia” which means “keeping a watch or guard.” It means to apprehend someone for a reason which could either be to prevent the person from committing a crime or for the safety of a person. In Indian Legal system, there are two types of custody; judicial and police. In judicial custody, the accused is kept in jail and is under the control of judicial magistrate. In police custody the accused person is kept in prison or cell of police station under the supervision of officer for the purpose of investigation. The maximum time period of custody is fifteen days as provided under section 167(2) of Crpc. The custody in this section is interpreted by courts differently in different cases. In the present case the court is dealing with such interpretation and the calculation of the maximum period of such custody

FACTS OF THE CASE

 A case was registered by enforcement directorate against the accused and as the accused was non cooperative, he was arrested by under section 19 of PMLA 2002. The accused was taken to hospital due to medical reasons; his wife filed the writ of habeas corpus under 226, meanwhile the respondent filed application for fifteen days judicial custody which was granted by the court of principal session judge.

The respondent then applies for bail but was dismissed.  and an order of remand for 8 days was granted to the respondent with certain condition imposed on investigating authority. The writ petition was considered by the court and directions were given to shift the accused to the hospital. Thereafter, respondent applies for custody in the principal session judge’s court and eight days custody was granted with some conditions to the respondent investigating agency.

The respondent again files application 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 as the condition imposed in the previous order hindered the investigation. Since, the matter of maintainability of writ was pending before the Highcourt, the session court adjourned the application. During the pendency of writ petition, additional ground challenging the order granting judicial and police remand of principal session judge was taken by the petitioner.

On 22.06.2023, the respondent then files application before high court of Madras seeking the exclusion of period of treatment of accused from period of custodial investigation.

On 04.07.2023, Highcourt decided the following issues:

1. Whether the writ petition was maintainable or not?
2. Whether the period of treatment of the accused shall be excluded from the period of custodial interrogation?

In which the division bench differed in their opinion, Justice Nisha Banu allowed the writ petition, and dismissed the plea of respondent for exclusion of treatment period and held that respondent investigating agency do not have power to seek police custody under PMLA,2002. In contrast to this Justice D. Bharata Chakravarty dismissed the writ petition and allowed the exclusion of treatment period from period of custody. As a result, reference was made to the third judge who ruled in favour of the respondent aggrieved by which the appellant files special appeal petition before the Supreme Court.

LEGAL ISSUES RAISED

1. Whether the term custody under section 167(2) is restricted to custody by the police officer only?
2. Whether the writ of habeas corpus is maintainable after a judicial order of remand is passed by a Court of competent jurisdiction?
3. Whether the period of treatment of the accused after arrest shall be excluded from period of custody under the enforcement directorate?
4. Whether section 41 A is applicable on cases of arrest under PMLA, 2002?

PETITIONER/ APPELLANT’S ARGUMENTS

The counsels for Petitioner / Appellant submitted that –

1. The appellant argues that the officials of enforcement directorate do not have the power to seek custody under PMLA,2002.
2. The officers of enforcement directorate are not police officer, and only police officer can get the custody under section 167(2) of CRPC, 1973.
3. The order of principal session judge that granted the custody to enforcement directorate is wrong as further custody in favour of officer of enforcement directorate cannot be granted after completion of 24 hours from the arrest.
4. The respondent agency had not followed the procedure of section 41 A of CRPC.
5. The principal session judge by giving the order had failed to considered the fact of non- compliance of Section 19 of PMLA, 2002.
6. The appellant by relying on decision of CBI v. Anupam J. Kulkarni argued that court cannot extend the limit of 15 days for police custody as prescribed in the section 167(2), and the provisions of both Crpc and PMLA must be interpreted strictly in light of Article 21 and 22 of constitution.

RESPONDENT’S ARGUMENTS

The counsels for Petitioner / Appellant submitted that –

1.The writ petition is not maintainable as the arrest was lawful, and the accused was already produced in the court of principal session judge before the hearing of the writ petition by the Highcourt.

2. The condition attached with the remand order hindered the investigation by the agency, as provided under PMLA. Therefore, period of treatment shall be excluded from investigation period.

3. PMLA is special act, and had overriding effect over Crpc as mentioned under section 65 of PMLA, Therefore, compliance of section 19 of PMLA is sufficient.

4.The reliance of the appellant on caseAnupam J. Kulkarni is wrong as the fact of that case is different from the present case.

RELATED LEGAL PROVISIONS

Constitution of India, 1950

“Article 226- Power of High Courts to issue certain writs

1)Notwithstanding anything in article 32 every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrantor and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

 2)The power conferred by clause-

 (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the scat of such Government or authority or the residence of such person is not within those territories.

3)Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without-

(a)furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b)giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.

4)The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32”[1].

Prevention of Money Laundering Act,2002

Section 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.”[2]

Section 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.”[3]

Code of Criminal Procedure, 1973

Section 4

“4. Trial of offences under the Indian Penal Code and other laws. — (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” [4]

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.”[5]

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.”[6]

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.

 (3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.”

LEGAL MAXIMS RELATED TO THE CASE

1. commodum ex injuria sua nemo habere debet– The maxim means that convenience cannot accrue to a party from his own wrong[7].
2. actus curiae neminem gravabi– The maxim means that no party should be allowed to suffer for the fault of the court.[8]

JUDGEMENT

The honorable court held that the writ of habeas corpus is not maintainable as it is issued in cases of illegal detention or arrest. In the present case, the arrest was legal as all procedure are followed by the authority and the accused was presented before the magistrate within 24 hours, who granted the custody which makes arrest legal. The order of the magistrate can only be challenged by following the provision of the statue and not by writ petiton. Therefore, the writ petition on behalf of person who is in remand pursuant to the order of the magistrate cannot be maintained as decided in Saurabh Kumar v. Jailor, Koneila Jail[9], and Manubhai Ratilal Patel v. State of Gujarat.[10]

The PMLA is a special legislation that has overriding effect on Crpc as per section 4 of Crpc. Section 19 of PMLA clearly provides the procedure to be followed for arrest which makes section 41A irrelevant and inapplicable in light of section 65 of PMLA. Further th application of the 41A would only defeat the process of investigation under PMLA. Thus, section 41A of the Crpc is not applicable in cases of PMLA.

The apex court held that the meaning of the term “such custody” under section 167 (2) of Crpc, 1973 is wide, it is not only restricted to police custody but also that of other investigating agencies, and held that enforcement directorate can take the custody of the accused as per section 167 (2).

The courts says that the period of treatment of accused shall stand excluded, as the investigating was prevented from interrogation. And the exclusion of period of treatment will lead to violation of the doctrine commodum ex injuria sua nemo habere debet, which means no party ought to have advantage of his own wrong, therefore the accused cannot get the advantage of his medical condition to avoid custodial investigation. The court further relied on the maxim actus curiae neminem gravabi which means the act of the court shall prejudice no one, as the remand order with the conditions attached of the principal session judge has hindered the investigation by the respondent authority. Therefore, it is exclusion of treatment period from custodial period is correct.

The court held that the period of   custody other than judicial custody give under section 167(2) of Crpc which is subjected to limitation period of 15 days does not refers to the first fifteen days of custody, but the whole period of investigation. It further discussed the calculation of 15 day of police custody under section 167(2), and held that the period of 15 days will start from day of actual (physical) custody and the period of 15 days being the maximum period that can be granted in favour of the police would span from time to time with the total period of 60 or 90 days as the case may be.

RATIO DECIDENDI

1. The term custody under 167(2) refers to the actual physical custody.
2. The court decided that the prescribed period of 15 days of police custody under section 167(2) might consist of a combination of shorter periods of custody requested during the course of the investigation, which could span 60 or 90 days.

3.CONCLUSION & COMMENTS

This judgement is an important judgement that had questioned the precedent CBI v. Anupam J. Kulkarni, which held that police custody is not permissible beyond first 15 days of remand, which was often used by the accused to hinder investigation. The present judgement with its interpretation cured the defect of the previous precedent, thus balancing the rights of the accused as well as efficiency of investigation by the authorities

REFERENCES

Important Cases Referred

State of Maharashtra v. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745

 Saurabh Kumar v. Jailor, Koneila Jail, (2014) 13 SCC 436

Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314

Vijay Madanlal Choudhary v. Union of India, 2022 (10) SCALE

State of Rajasthan v. Basant Agrotech (India) Ltd., (2013) 15 SCC 1

Indore Development Authority v. Manoharlal (2020) 8 SCC 129,

n A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602

A. Arunagiri Nadar v. S.P. Rathinasami, 1970

Important Statutes Referred

Code of Criminal Procedure, 1973

Prevention of Money Laundering Act, 2002

---

[1] Constitution of India, 1950, Article 226

[2] Prevention of Money Laundering Act, 2002 Section 19

[3] Prevention of Money Laundering Act,2002 Section 65

[4] Code of Criminal Procedure, 1973 Section 4

[5] Code of Criminal Procedure, 1973 Section 5

[6] Code of Criminal Procedure, 1973 Section 41 A

[7] -https://indiankanoon.org/doc/112730824/

[8]https://r.search.yahoo.com/_ylt=AwrKBXDlTOBlZjcqQTy7HAx.;_ylu=Y29sbwNzZzMEcG9zAzEEdnRpZAMEc2VjA3Ny/RV=2/RE=1709227366/RO=10/RU=https%3a%2f%2fwww.legalserviceindia.com%2flegal%2farticle-9820-the-maxim-actus-curiae-neminem-gravabit-an-act-of-the-court-shall-prejudice-no-man-.html/RK=2/RS=K5RboIZg8inaNSMbE6RQRxD3gYY-

[9] Saurabh Kumar v. Jailor, Koneila Jail[9], (2014) 13 SCC 436: (2014) 5 SCC (Cri) 702

[10] Manubhai Ratilal Patel v. State of Gujarat,[10] (2013) 1 SCC 314: (2013) 1 SCC (Cri) 475.