| Headnote |
Issues for consideration: (i) When an arrestee is forwarded to the jurisdictional Magistrate under Section 19(3) of the Prevention of Money Laundering Act, 2002, whether writ of Habeus Corpus would lie; (ii) Whether s.41 CrPC has got any application to an arrest made under PMLA, 2002; (iii) The actual import of Section 167(2) of the CrPC, 1973 as to whether the 15 days period of custody in favour of the police should be only within the fi rst 15 days of remand or spanning over the entire period of investigation - 60 or 90 days, as the case may be, as a whole. Constitution of India – Writ of Habeus Corpus – Prevention of Money Laundering Act, 2002 – Respondent-Authority invoked s.19 of the PMLA, 2002 and appellant was arrested on 14.06.2023 – Writ of Habeus corpus fi led – Meanwhile, respondent fi led an application before the Principal Sessions Judge seeking judicial custody for 15 days – Order of remand passed: Held: 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 offi cer, 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 an arrestee is forwarded to the jurisdictional Magistrate under Section 19(3) of the PMLA, 2002 no writ of Habeus Corpus would lie – Any plea of illegal arrest is to be made before such Magistrate since custody becomes judicial – An order of remand has to be challenged only before a higher forum as provided under the CrPC, 1973 when it depicts a due application of mind both on merit and compliance of Section 167(2) of the CrPC, 1973 read with Section 19 of the PMLA 2002 – In the instant case, when writ of Habeus Corpus was taken up for hearing on a mentioning, the appellant was duly produced before the Principal Sessions Judge in compliance with Section 19 of the PMLA, 2002 – The custody thus becomes judicial as he was duly forwarded by the respondents – Therefore, even on the date of hearing before the High Court there was no cause for fi ling the Writ Petition – Added to that, an order of remand was passed on 14.06.2023 itself – The two remand orders passed by the Court, depicted a clear application of mind – Despite additional grounds having been raised, they being an afterthought, there is no hesitation in holding that the only remedy open to the appellant is to approach the appropriate Court under the Statute – Also, as the arrest and custody were already upheld by way of rejection of the bail application – Therefore, even on that ground it is held that a writ of Habeas Corpus is not maintainable. [Paras 29, 81 and 88] Code of Criminal Procedure, 1973 – Prevention of Money Laundering Act, 2002 – Application of s.41A CrPC to an arrest made under the PMLA 2002: Held: An Authorized Offi cer 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 – As there is already an exhaustive procedure contemplated under the PMLA, 2002 containing suffi cient safeguards in favour of the person arrested, Section 41A of the CrPC, 1973 has no application at all. [Para 35] Prevention of Money Laundering Act, 2002 – To eff ect an arrest under the Act: Held: To eff ect an arrest, an offi cer 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 off ence 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 Offi cer 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 – 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. [Paras 39 and 40] Prevention of Money Laundering Act, 2002 – Non-compliance of s.19 of the Act: Held: S.62 of the PMLA, 2002 is a reiteration of the mandatory compliance of Section 19 of the PMLA, 2002 – It is in the nature of a warning to an offi cer 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 – Any non-compliance of the mandate of Section 19 of the PMLA, 2002 would enure to the benefi t of the person arrested – For such non-compliance, the Competent Court shall have the power to initiate action under Section 62 of the PMLA, 2002. [Paras 42 and 88] Code of Criminal Procedure, 1973 – Prevention of Money Laundering Act, 2002 –The PMLA, 2002 shall have precedence: Held: 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. [Para 45] Prevention of Money Laundering Act, 2002 – Inquiry and investigation: Held: 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 diff erent – One material can be used for both purposes, along with numerous others – So long as they travel together, there is not much of a diff erence 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. [Para 46] Code of Criminal Procedure, 1973 – Detention and custody: Held: Section 167(2) of the CrPC, 1973 authorises the detention of the accused in custody by an order of the Magistrate – It does consciously treat a detention diff erent from custody – Custody will be either to the court or an investigating agency – Detention is normally made only by an investigating agency prior to the production before the Magistrate – A custody from being judicial may turn into police through an order passed by the Magistrate – Detention may at best be a facet of custody – However, they are not synonymous with each other – When detention is authorised, it would become custody. [Para 57] Code of Criminal Procedure, 1973 – Prevention of Money Laundering Act, 2002 – Interplay between s.19 of PMLA, 2002 and s.167 of the CrPC: Held: A Magistrate has a distinct role to play when a remand is made of an accused person to an authority under the PMLA, 2002 – It is his bounden duty to see to it that s.19 of the PMLA, 2002 is duly complied with and any failure would entitle the arrestee to get released – The Magistrate shall also peruse the order passed by the authority u/s. 19(1) of the PMLA, 2002 – S.167 of the CrPC, 1973 is also meant to give eff ect to s.19 of the PMLA, 2002 and therefore it is for the Magistrate to satisfy himself of its due compliance – The interplay between Section 19(1) of the PMLA, 2002 and Section 167 of the CrPC, 1973, would facilitate the application of the latter after the conclusion of the former – One cannot say that Section 167(2) of the CrPC, 1973 is applicable to an authority when it comes to arrest but not to custody. [Paras 68 and 69] Code of Criminal Procedure, 1973 – s.167 – Curtailment of 15 days of police custody by any extraneous circumstances: Held: Curtailment of 15 days of police custody by any extraneous circumstances, act of God, an order of Court not being the handy work of investigating agency would not act as a restriction. [Para 88] Code of Criminal Procedure, 1973 – Sub-section (2) of s.167 – Words “such custody”: Held: The words “such custody” occurring in Section 167(2) of the CrPC, 1973 would include not only a police custody but also that of other investigating agencies – The word “custody” under Section 167(2) of the CrPC, 1973 shall mean actual custody. [Para 88] Code of Criminal Procedure, 1973 – Sub-section (2) of s.167 – Reference to the words “a term not exceeding 15 days in the whole”: Held: Sub-section (2) of Section 167 of the CrPC, 1973 further makes a reference to the words “a term not exceeding 15 days in the whole”– The term has been introduced on purpose keeping in view the proviso which gives an outer limit for the conclusion of the investigation – Similarly, the words “not exceeding 15 days in the whole” should be understood in the very same manner – The word “whole” means “total, not divided, lacking no part, entire, full, and complete” – The maximum period of 15 days of police custody is meant to be applied to the entire period of investigation – 60 or 90 days, as a whole. [Paras 56 and 88] Code of Criminal Procedure, 1973 – Does s.167(2) CrPC restrict a police custody only to the fi rst 15 days of remand – Matter referred to Larger Bench: Held: The Registry is directed to place the matter before Hon’ble the Chief Justice of India for appropriate orders to decide the larger issue of the actual import of Section 167(2) of the CrPC, 1973 as to whether the 15 days period of custody in favour of the police should be only within the fi rst 15 days of remand or spanning over the entire period of investigation – 60 or 90 days, as the case may be, as a whole. [Para 91] |
