Holding

The Court held that after an arrest under Section 19 of the PMLA and production before the magistrate, detention becomes judicial and is not subject to a writ of habeas corpus, Section 41A CrPC is inapplicable, and the 15‑day police custody limit under Section 167(2) CrPC applies to the whole investigation period.

Summary

The appellant, a cabinet minister, was arrested under Section 19 of the Prevention of Money Laundering Act, 2002 (PMLA) on 14 June 2023 and produced before a magistrate, after which a judicial remand was ordered. His wife filed a writ of habeas corpus challenging the arrest, while the respondents sought police custody and later filed several Special Leave Petitions. The Supreme Court held that once an arrestee is forwarded to the jurisdictional magistrate under Section 19(3) of the PMLA, the detention becomes judicial and cannot be questioned by a writ of habeas corpus; the procedural safeguards of Section 41A CrPC do not apply to PMLA arrests; and the 15‑day police custody limit under Section 167(2) CrPC applies to the entire investigation period, not just the first 15 days. Consequently, the writ petition was dismissed and the appeals were rejected, with the respondents permitted to retain custody of the appellant until 12 August 2023.

Issues considered

When does a writ of habeas corpus lie after an arrest under Section 19 of the PMLA and production before a magistrate?
Does Section 41A of the Code of Criminal Procedure apply to arrests made under the PMLA?
What is the correct interpretation of Section 167(2) of the CrPC regarding the 15‑day police custody limit in the context of investigations under the PMLA?

Legislation cited

Code of Criminal Procedure, 1973s. 167(2), s. 4, s. 41A, s. 5
Prevention of Money Laundering Act, 2002s. 19, s. 62, s. 65

Subjects

habeas corpusPMLASection 19Section 167(2)police custodyjudicial custodySection 41A CrPCdefault bailactus curiae neminem gravabitstatutory interpretationcriminal procedure

Judgment

[2023] 12 S.C.R. 853 : 2023 INSC 677

CASE DETAILS

V. SENTHIL BALAJI
v.
THE STATE REPRESENTED BY DEPUTY DIRECTOR AND ORS.
(Criminal Appeal Nos. 2284-2285 of 2023)
AUGUST 07, 2023
[A.S. BOPANNA AND M. M. SUNDRESH, JJ.]

HEADNOTES

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 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.
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 ﬁled – Meanwhile, respondent ﬁled 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 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 an arrestee is forwarded to the jurisdictional
Magistrate under Section 19(3) of the PMLA, 2002 no writ of Habeus Corpus
853
854 SUPREME COURT REPORTS [2023] 12 S.C.R.

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
ﬁling 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 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 – 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. [Para 35]
Prevention of Money Laundering Act, 2002 – To eﬀect an arrest
under the Act:
Held: 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
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 855
DEPUTY DIRECTOR AND ORS.

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 – 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 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 – Any non-compliance of the mandate of Section 19 of the
PMLA, 2002 would enure to the beneﬁt 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 diﬀerent – One material can
be used for both purposes, along with numerous others – So long as they
856 SUPREME COURT REPORTS [2023] 12 S.C.R.

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. [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 diﬀerent from custody – Custody will be either to the
court or an investigating agency – Detention is normally made only by
an investigating agency prior to the production before the 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 eﬀect 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]
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 857
DEPUTY DIRECTOR AND ORS.

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 ﬁrst 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 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. [Para 91]

LIST OF CITATIONS AND OTHER REFERENCES

CBI v. Anupam J. Kulkarni (1992) 3 SCC 141: [1992] 3 SCR 158 –
reference to larger Bench.
Indore Development Authority v. Manoharlal (2020) 8 SCC 129:
[2020] 3 SCR 1 – followed.
858 SUPREME COURT REPORTS [2023] 12 S.C.R.

State of Maharashtra v. Tasneem Rizwan Siddiquee (2018) 9 SCC
745: [2018] 11 SCR 374; Vijay Madanlal Choudhary v. Union of India 2022
(10) SCALE; State of Rajasthan v. Basant Agrotech (India) Ltd. (2013) 15
SCC 1: [2013] 17 SCR 395; Sundeep Kumar Bafna v. State of Maharashtra
(2014) 16 SCC 623: [2014] 4 SCR 486; Bharat Damodar Kale v. State of
A.P. (2003) 8 SCC 559; Satender Kumar Antil v. CBI (2022) 10 SCC 51;
Satyajit Ballubhai Desai v. State of Gujarat (2014) 14 SCC 434: [2013] 3
SCR 884; Directorate of Enforcement v. Deepak Mahajan (1994) 3 SCC
440: [1994] 1 SCR 445; Ashok Munilal Jain v. Directorate of Enforcement
(2018) 16 SCC 158; Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67:
[2017] 8 SCR 785; Commissioner of Central Excise, Bangalore v. Srikumar
Agencies & Ors. (2009) 1 SCC 469: [2008] 16 SCR 720 – relied on.
CBI v. Vikas Mishra (2023) 6 SCC 49; Arnesh Kumar v. State of Bihar
(2014) 8 SCC 273: [2014] 8 SCR 128; Chaganti Satyanarayana v. State
of Andhra Pradesh (1986) 3 SCC 141: [1986] 2 SCR 1128; Budh Singh v.
State of Punjab (2009) 9 SCC 266 – referred to.
Glaze v. Hart 225 M.O. App. 1205 – referred to.

OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
2284-2285 of 2023
From the Judgment and Order dated 04.07.2023 and 14.07.2023 of the
High Court of Judicature at Madras in HCP No. 1021 of 2023.
With
Criminal Appeal Nos. 2288-2289, 2286, 2287 and 2290 of 2023.
Appearances:
Tushar Mehta, Solicitor General, Kapil Sibal, Mukul Rohtagi, Devadatt
Kamat, Sr. Advs., Arjun Garg, Meenesh Dubey, Aakash Nandolia, Rajesh
Imandar, Revanta Solanki, Ms. Sagun Srivastava, Ms. Misha Rohatgi, Nakul
Mohta, Bharat Monga, Ms. Riya Dhingra, K.M. Arun, N. Bharani Kumar,
Ms. Roopali Samuel, Ms. Anusha, Ms. Sumedha, Aakash Kumar, Muthu
Thangathurai, Ms. Akshita Chaubey, Mukesh Kumar Maroria, Mrs. Madhav
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 859
DEPUTY DIRECTOR AND ORS.

Sinhal, Kanu Agarwal, Zoheb Hussain, Arkaj Kumar, Vivek Gurnani,
Kavish G, Ms. Manisha Dubey, Balaji Srinivasan, Shiva Krishnamurti, Mrs.
Lakshmi Rao, Advs. for the appearing parties.

JUDGMENT / ORDER OF THE SUPREME COURT

JUDGMENT
M. M. SUNDRESH, J.
1. Leave granted.
2. After the Scheduled Oﬀence went through an elongated judicial
journey, it is the turn of the Enforcement Case Information Report under
the Prevention of Money Laundering Act, 2002 (hereinafter referred to as
“the PMLA, 2002”). What is under challenge before us are the orders passed
by the majority of the Judges when a reference was made on a diﬀerence
of opinion by the Division Bench of the Madras High Court, while dealing
with a Writ Petition ﬁled seeking a writ of Habeas Corpus in pursuance of
an arrest made, followed by a remand to the judicial custody, and then to the
authority concerned. Though arguments at length are made at the Bar, the
principal issue is only on the remand in favour of the investigating agency,
without seeking any speciﬁc prayer challenging the remand orders, though
additional grounds were raised.
3. Heard Shri Kapil Sibal and Shri Mukul Rohatgi learned 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 lis. 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
860 SUPREME COURT REPORTS [2023] 12 S.C.R.

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.1021
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 28.06.2023.
“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
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 861
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

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 16.06.2023 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
862 SUPREME COURT REPORTS [2023] 12 S.C.R.

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
custody.
(8) The Deputy Director of Enforcement Directorate is directed to
produce the accused on 23.06.2023 by 3.00 p.m. through video
conference and the petition is ordered accordingly.”
12. After ﬁling an application on 17.06.2023, seeking a direction that
the ﬁrst 15 days custody period should not come in the way of actual period
of custody, before the learned Principal Sessions Judge, the respondents
approached this Court in Special Leave Petition (Criminal) No. 7437 of 2023.
Incidentally, another Special Leave Petition (Criminal) No. 7460 of 2023 was
ﬁled assailing the conditions imposed in the order dated 16.06.2023 by which
8 days custody was granted as afore-stated in favour of the respondents.
13. Taking note of the pendency of the Habeas Corpus petition, while
keeping the Special Leave Petitions pending, the following order was passed
on 21.06.2023,
“1. We have heard Mr. Tushar Mehta, learned Solicitor General of India
on behalf of the petitioner and S/Shri Neeraj Kishan Kaul, Devadatt
Kamat and Vikram Chaudhry, learned Senior Counsel, who are on
caveat, on behalf of the Respondents.
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 863
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

2. The High Court is yet to render its ﬁnal opinion on the following
issues: -
(i) Re. 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;
2. Enforcement Directorate is not entrusted with the powers to
seek police custody under the Prevention of Money Laundering
Act, 2002;
864 SUPREME COURT REPORTS [2023] 12 S.C.R.

3. 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?
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 865
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

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
866 SUPREME COURT REPORTS [2023] 12 S.C.R.

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
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 867
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

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.
868 SUPREME COURT REPORTS [2023] 12 S.C.R.

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 non-compliance of a provision may entitle
a party to invoke the extraordinary jurisdiction. 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 sub-section (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
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 869
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

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
870 SUPREME COURT REPORTS [2023] 12 S.C.R.

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
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 871
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

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…”
××× ××× ×××
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-
872 SUPREME COURT REPORTS [2023] 12 S.C.R.

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.
××× ××× ×××
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
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 873
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

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
874 SUPREME COURT REPORTS [2023] 12 S.C.R.

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 introduction. It was meant not to be applied to certain categories of
oﬀences, including economic oﬀences, but only to minor oﬀences under
the Indian Penal Code, 1860.
RELEVANT PROVISIONS OF THE PREVENTION OF 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.
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 875
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

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 sub-
section (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.
876 SUPREME COURT REPORTS [2023] 12 S.C.R.

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 oﬃ cer 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 speciﬁ ed 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
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 877
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

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.
878 SUPREME COURT REPORTS [2023] 12 S.C.R.

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 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.”
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.”
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 879
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

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.
880 SUPREME COURT REPORTS [2023] 12 S.C.R.

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
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 881
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

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
882 SUPREME COURT REPORTS [2023] 12 S.C.R.

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
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 883
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

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. ….”
××× ××× ×××
“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)
884 SUPREME COURT REPORTS [2023] 12 S.C.R.

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
1974),—
××× ××× ×××
(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,
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 885
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

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;
886 SUPREME COURT REPORTS [2023] 12 S.C.R.

(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.”
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.
SECTION 167 OF THE CODE OF SECTION 167 OF THE CODE OF
CRIMINAL PROCEDURE 1898 CRIMINAL PROCEDURE 1973
167. Procedure When Investigation 167. Procedure When Investigation
Cannot be Completed in Twenty-Four Cannot be Completed in Twenty-Four
Hours: Hours:
(1) Whenever it appears that any investigation (1) Whenever any person is arrested and
under this Chapter cannot be completed detained in custody, and it appears that the
within the period of twenty-four hours ﬁxed investigation cannot be completed within
by section 61, and there are grounds for the period of twenty-four hours fixed
believing that the accusation or information by Section 57, and there are grounds for
is well-founded, the oﬃcer-in-charge of the believing that the accusation or information
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 887
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

police-station shall forthwith transmit to the is well-founded, the oﬃcer in charge of the
nearest, Magistrate a copy of the entries in police station or the police oﬃcer making
the diary hereinafter prescribed relating to the the investigation, if he is not below the
case, and shall at the same time forward the rank of sub-inspector, shall forthwith
accused (if any) to such Magistrate. 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 (2) The Magistrate to whom an accused
person is forwarded under this section may, person is forwarded under this section may,
whether he has or has not jurisdiction to try whether he has or has not jurisdiction to try
the case, from time to time authorise the the case, from time to time, authorise the
detention of the accused in such custody detention of the accused in such custody
as such Magistrate thinks ﬁt, for a term not as such Magistrate thinks ﬁt, for a term
exceeding ﬁfteen days in the whole. If he not exceeding ﬁfteen days in the whole;
has not jurisdiction to try the case or commit and if he has no jurisdiction to try the case
it for trial, and considers further detention or commit it for trial, and considers further
unnecessary, he may order the accused to detention unnecessary, he may order the
be forwarded to a Magistrate having such accused to be forwarded to a Magistrate
jurisdiction. 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
888 SUPREME COURT REPORTS [2023] 12 S.C.R.

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.
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 889
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

(3) A Magistrate authorising under this (3) A Magistrate authorising under this
section detention in the custody of the police section detention in the custody of the
shall record his reasons for so doing. police shall record his reasons for so doing.
(4) If such order is given by a Magistrate other (4) Any Magistrate other than the Chief
than the District Magistrate or Subdivisional- Judicial Magistrate making such order
Magistrate, he shall forward a copy of his shall forward a copy of his order, with his
order, with his reasons for making it, to reasons for making it to the Chief Judicial
the Magistrate to whom he is immediately Magistrate.
subordinate.

As we could see, there is no diﬀerence between the provision as it
existed earlier and now, except by way of an addition of a proviso, which
we shall deal with later.
51. Seeds of liberty are sown in this provision while facilitating further
investigation, upon being satisﬁed that the same cannot be completed within
24 hours. It is not a mere procedural provision but one having an inherent
element of substantivity. While facilitating a fair play, it is introduced as a
limb of Article 21 and 22(2) of the Constitution of India, 1950.
52. Under sub-section (1) of Section 167 of the CrPC, 1973, a
competent oﬃcer shall forward the accused to the Magistrate when it appears
that the investigation cannot be completed within 24 hours. Two factors are
important as envisaged under sub-section (1). They are, it must be a case
where investigation cannot be completed within 24 hours of arrest of an
accused and that he has to be forwarded to the Magistrate, meaning thereby
he comes into the judicial custody from that of the investigating agency.
The object and rationale behind this provision is rather clear. By restricting
the custody to 24 hours, the liberty of the accused is meant to be considered
and taken note of by an independent authority in the form a Magistrate. It
is also an act of conﬁrmation by the Magistrate on the arrest, followed by
grant of custody of an accused person.
53. Sub-section (2) of Section 167 of the CrPC, 1973 deals with
the power of the Magistrate. Such a Magistrate may or may not have the
jurisdiction to try a case. There is no question of jurisdiction in any form that
would stand in the way of the Magistrate from exercising the said power.
By a mere designation he assumes such power. This is for the reason that
890 SUPREME COURT REPORTS [2023] 12 S.C.R.

liberty is paramount and any delay would amount to its curtailment. It may
also delay further investigation. The words “time to time” would clearly
indicate that a power to grant custody is not restricted to the ﬁrst 15 days of
remand, but the 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 the point of investigation. Thus, when an investigation reveals
new materials to be confronted with the accused, a need for custody might
arise, subject to the satisfaction of the Magistrate. In State of Rajasthan v.
Basant Agrotech (India) Ltd., (2013) 15 SCC 1 this Court has dealt with
the words “time to time”:
50. In The Law Lexicon, The Encyclopedic Law Dictionary (2nd
Edn., 1997, p. 764) the words have been conferred the following
meaning:
“From time to time.— … ‘as occasion may arise’….
The words ‘from time to time’ mean that an adjournment
may be made as and when the occasion requires and they
will not mean adjournment from one ﬁxed day to another
ﬁxed day. …
‘The words “from time to time” are words which are constantly
introduced where it is intended to protect a person who is
empowered to act from the risk of having completely discharged
his duty when he has once acted, and therefore not being able to
act again in the same direction.’ The meaning of the words ‘from
time to time’ is that after once acting the donee of the power may
act again; and either independently of, or by adding to, or taking
from, or reversing altogether, his previous act.”
51. In Black’s Law Dictionary (5th Edn., p. 601), it has been deﬁned
as follows:
“From time to time.—Occasionally, at intervals, now and
then.”
52. In Stroud’s Judicial Dictionary (5th Edn., Vol. 2, p. 1071), it has
been stated as follows:
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 891
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

“From time to time.— … ‘as occasion may arise’ (as per
William, J., Bryan v. Arthur [(1839) 11 Ad & E 108 : 113 ER
354] Ad & E at p. 117).”
(emphasis supplied)
While authorizing the detention of an accused, the Magistrate has got
a very wide discretion. Such an act is a judicial function and, therefore,
a reasoned order indicating application of mind is certainly warranted.
He may or may not authorize the detention while exercising his judicial
discretion. Investigation is a process which might require an accused’s
custody from time to time as authorised by the competent Court. Generally,
no other Court is expected to act as a supervisory authority in that process.
An act of authorisation pre-supposes the need for custody. Such a need
for a police custody has to be by an order of a Magistrate rendering his
authorisation.
54. The words “such custody as such Magistrate thinks ﬁt” would
reiterate the extent of discretion available to him. It is for the Magistrate
concerned to decide the question of custody, either be it judicial or to an
investigating agency or to any other entity in a given case.
55. Interpreting the words “such custody”, the Law Commission in
its 37th Report, while dealing with the pari materia provisions under the
CrPC, 1898, has observed that the Magistrate is having wide powers as
there is no express restriction under Section 167(2). It can be given to any
investigating agency and, therefore, not meant to have a narrow interpretation
by restricting it to the police alone.
“481. A suggestion of the Ministry of Defence may be noted regarding
custody under section 167. Under sections 167(2) and 344, a Magistrate
is empowered to remand an accused to any custody, that is to say, he
can remand him to other than police custody. It is considered, that
accused persons who are subject to military, naval or air force law may
be permitted to be remanded to military, naval or air force custody. In
fact, such custody has been ordered in some cases. In order that there
may be no doubt left in the matter, the following additions should (it
has been suggested) be made in the aforesaid sections after the word
“custody” :—
892 SUPREME COURT REPORTS [2023] 12 S.C.R.

“including military, naval or air force custody where the accused
belongs to any of these services.”
We have considered the suggestion.
In section 167(2), the words used are “in such custody as the
Magistrate thinks ût”. These words are very wide (sic).
In fact, it has been held even under section 344, that the Magistrate
can remand the accused to whatever custody he thinks ût. We are
therefore of the view, that no change is necessary.”
(emphasis supplied)
We give our fullest imprimatur to the views expressed by the Law
Commission as Section 167 of the CrPC, 1973 is meant for not only
protecting the liberty of a person but also to conclude the investigation in a
fair manner. A balancing act is expected to be undertaken by the Magistrate.
56. 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”. In Glaze v. Hart 225 M.O. App. 1205,
the Kansas City Court of Appeals has dealt with the word “whole”:
“…It would be doing violence to the plain, ordinary meaning of the
word total to hold that claimant, in the circumstances revealed in said
ﬁndings, was, at the time of injury, totally dependent upon the employee
for support. The word total is deﬁned as whole; undivided; entire;
complete in degree; utter; absolute….”
(emphasis supplied)
As a sequitur, 15 days of maximum custody has to be seen contextually
from the point of view of the period of investigation as provided under the
proviso.
57. Section 167(2) of the CrPC, 1973 authorises the detention of the
accused in custody by an order of the Magistrate. It does consciously treat
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 893
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

a detention diﬀerent from custody. Custody will be either to the court or an
investigating agency. Detention is normally made only by an investigating
agency prior to the production before the learned Magistrate. A custody
from being judicial may turn into police through an order passed by the
learned Magistrate. Detention may at best be a facet of custody. However,
they are not synonymous with each other. When detention is authorised, it
would become custody. Custody does not mean a formal one. Rather, it can
only be construed when an arrestee is given in physical custody. We make
it clear that our interpretation of physical custody is meant to be applied to
Section 167(2) of the CrPC, 1973 alone.
58. In Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16
SCC 623, while dealing with the interpretation of word “custody” this Court
has relied upon several dictionaries:
“Meaning of custody
9. Unfortunately, the terms “custody”, “detention” or “arrest” have
not been deﬁned in CrPC, and we must resort to few dictionaries to
appreciate their contours in ordinary and legal parlance:
9.1. Oxford Dictionary (online) deﬁnes “custody” as imprisonment,
detention, conﬁnement, incarceration, internment, captivity; remand,
duress, and durance.
9.2. Cambridge Dictionary (online) explains “custody” as the state of
being kept in prison, especially while waiting to go to court for trial.
(emphasis supplied)
9.3. Longman Dictionary (online) deﬁnes “custody” as “when someone
is kept in prison until they go to court, because the police think they
have committed a crime”.
9.4. Chambers Dictionary (online) clariﬁes that custody is
“the condition of being held by the police; arrest or imprisonment; to
take someone into custody to arrest them”.
9.5. Chambers’ Thesaurus supplies several synonyms, such as
detention, confinement, imprisonment, captivity, arrest, formal
incarceration.
894 SUPREME COURT REPORTS [2023] 12 S.C.R.

9.6. Collins Cobuild English Dictionary for Advance Learners states in
terms that someone who is in custody or has been taken into custody
or has been arrested and is being kept in prison until they get tried in
a court or if someone is being held in a particular type of custody, they
are being kept in a place that is similar to a prison.
9.7. Shorter Oxford English Dictionary postulates the presence of
conﬁnement, imprisonment, durance and this feature is totally absent
in the factual matrix before us.
9.8. Corpus Juris Secundum under the topic of “Escape & Related
Oﬀenses; Rescue” adumbrates that
“custody, within the meaning of statutes deﬁning the crime,
consists of the detention or restraint of a person against his or her will,
or of the exercise of control over another to conﬁne the other person
within certain physical limits or a restriction of ability or freedom of
movement.”
9.9. This is how “custody” is dealt with in Black’s Law Dictionary,
(5th Edn. 2009):
“Custody.—The care and control of a thing or person. The
keeping, guarding, care, watch, inspection, preservation or security of a
thing, carrying with it the idea of the thing being within the immediate
personal care and control of the person to whose custody it is subjected.
Immediate charge and control, and not the ﬁnal, absolute control of
ownership, implying responsibility for the protection and preservation
of the thing in custody. Also the detainer of a man’s person by virtue
of lawful process or authority.
The term is very elastic and may mean actual imprisonment or
physical detention or mere power, legal or physical, of imprisoning or
of taking manual possession. Term ‘custody’ within statute requiring
that petitioner be ‘in custody’ to be entitled to federal habeas corpus
relief does not necessarily mean actual physical detention in jail or
prison but rather is synonymous with restraint of liberty. US ex rel Wirtz
v. Sheehan, 319 F Supp 146 at p. 147 (DC Wis 1970). Accordingly,
persons on probation or released on own recognizance have been held
to be ‘in custody’ for purposes of habeas corpus proceedings.”
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 895
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

To be noted, this Court was concerned with the bail application and
therefore there was no occasion to draw a distinction between a judicial
custody and a police custody.
59. We further note that sub-section (2) of Section 167 of the CrPC,
1973 consciously omits to mention the word “police custody”. What is
important is the grant of custody which is to be decided by the Magistrate.
The fact that the proviso makes a mention about police custody would only
mean the outer limit an investigating agency can have.
60. We are conscious of the fact that a diﬀerent interpretation has
been given as to how the total 15 days which could be sought for by an
investigating agency, should be construed and reckoned. We have already
made an elaborate discussion on this aspect. Even assuming that such
custody can only be sought for by an agency within the ﬁrst 15 days, there
has to be a physical custody to count the days. In a case where custody is
shifted from judicial to an investigating agency by an order of Court, the
starting point will be from the actual custody. We would only reiterate that
the moment a person is produced before the 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 the period of custody. The situation may be diﬀerent
in a case where a further custody is not possible due to external factors.
Further, an order of Court can never be a factor to prevent an investigation
when the said order merges with the ﬁnal one, upholding such custody. In
such a case, the 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. In Bharat Damodar Kale v. State
of A.P. (2003) 8 SCC 559:
“10. On facts of this case and based on the arguments advanced
before us, we consider it appropriate to decide the question whether
the provisions of Chapter XXXVI of the Code apply to the delay in
instituting the prosecution or to the delay in taking cognizance. As
noted above, according to the learned counsel for the appellants, the
limitation prescribed under the above Chapter applies to taking of
cognizance by the court concerned, therefore even if a complaint is
ﬁled within the period of limitation mentioned in the said Chapter of
896 SUPREME COURT REPORTS [2023] 12 S.C.R.

the Code, if the cognizance is not taken within the period of limitation
the same gets barred by limitation. This argument seems to be inspired
by the chapter heading of Chapter XXXVI of the Code which reads
thus: “Limitation for taking cognizance of certain oﬀences”. It is
primarily based on the above language of the heading of the Chapter,
the argument is addressed on behalf of the appellants that the limitation
prescribed by the said Chapter applies to taking of cognizance and not
ﬁling of complaint or initiation of the prosecution. We cannot accept
such argument because a cumulative reading of various provisions of
the said Chapter clearly indicates that the limitation prescribed therein
is only for the ﬁling of the complaint or initiation of the prosecution
and not for taking cognizance. It of course prohibits the court from
taking cognizance of an oﬀence where the complaint is ﬁled before
the court after the expiry of the period mentioned in the said Chapter.
This is clear from Section 469 of the Code found in the said Chapter
which speciﬁcally says that the period of limitation in relation to an
oﬀence shall commence either from the date of the oﬀence or from
the date when the oﬀence is detected. Section 470 indicates that while
computing the period of limitation, time taken during which the case
was being diligently prosecuted in another court or in appeal or in
revision against the oﬀender should be excluded. The said section
also provides in the Explanation that in computing the time required
for obtaining the consent or sanction of the Government or any other
authority should be excluded. Similarly, the period during which the
court was closed will also have to be excluded. All these provisions
indicate that the court taking cognizance can take cognizance of an
oﬀence the complaint of which is ﬁled before it within the period of
limitation prescribed and if need be after excluding such time which
is legally excludable. This in our opinion clearly indicates that the
limitation prescribed is not for taking cognizance within the period of
limitation, but for taking cognizance of an oﬀence in regard to which
a complaint is ﬁled or prosecution is initiated beyond the period of
limitation prescribed under the Code. Apart from the statutory
indication of this view of ours, we ﬁnd support for this view
from the fact that taking of cognizance is an act of the court over
which the prosecuting agency or the complainant has no control.
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 897
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

Therefore, a complaint ﬁled within the period of limitation under
the Code cannot be made infructuous by an act of court. The legal
phrase “actus curiae neminem gravabit” which means an act of
the court shall prejudice no man, or by a delay on the part of the
court neither party should suﬀer, also supports the view that the
legislature could not have intended to put a period of limitation
on the act of the court of taking cognizance of an oﬀence so as to
defeat the case of the complainant. This view of ours is also in
conformity with the earlier decision of this Court in the case of
Rashmi Kumar [(1997) 2 SCC 397 : 1997 SCC (Cri) 415] .”
(emphasis supplied)
61. In Indore Development Authority v. Manoharlal (2020) 8
SCC 129, the Constitution Bench has exhaustively laid down the principle
governing actus curiae neminem gravabit and restitution:
“320. The maxim actus curiae neminem gravabit is founded upon the
principle due to court proceedings or acts of court, no party should
suﬀer. If any interim orders are made during the pendency of the
litigation, they are subject to the ﬁnal decision in the matter. In case the
matter is dismissed as without merit, the interim order is automatically
dissolved. In case the matter has been ﬁled without any merit, the
maxim is attracted commodum ex injuria sua nemo habere debet, that
is, convenience cannot accrue to a party from his own wrong. No person
ought to have the advantage of his own wrong. In case litigation has
been ﬁled frivolously or without any basis, iniquitously in order to
delay and by that it is delayed, there is no equity in favour of such a
person. Such cases are required to be decided on merits. In Mrutunjay
Pani v. Narmada Bala Sasmal, AIR 1961 SC 1353, this Court observed
that : (AIR p. 1355, para 5)
“5. … The same principle is comprised in the Latin maxim
commodum ex injuria sua nemo habere debet, that is,
convenience cannot accrue to a party from his own wrong. To
put it in other words, no one can be allowed to beneﬁt from his
own wrongful act.”
××× ××× ×××
898 SUPREME COURT REPORTS [2023] 12 S.C.R.

324. In Mahadeo Savlaram Shelke v. Pune Municipal Corpn., (1995)
3 SCC 33, it has been observed that the Court can under its inherent
jurisdiction ex debito justitiae has a duty to mitigate the damage
suﬀered by the defendants by the act of the court. Such action is
necessary to put a check on abuse of process of the court. In Amarjeet
Singh v. Devi Ratan, (2010) 1 SCC 417 : (2010) 1 SCC (L&S) 1108,
and Ram Krishna Verma v. State of U.P., (1992) 2 SCC 620, it was
observed that no person can suﬀer from the act of court and unfair
advantage of the interim order must be neutralised. In Amarjeet Singh
v. Devi Ratan, (2010) 1 SCC 417 : (2010) 1 SCC (L&S) 1108, this
Court observed : (SCC pp. 422-23, paras 17-18)
“17. No litigant can derive any beneﬁt from mere pendency of
the case in a court of law, as the interim order always merges in
the ﬁnal order to be passed in the case, and if the writ petition
is ultimately dismissed, the interim order stands nullified
automatically. A party cannot be allowed to take any beneﬁt of
its own wrongs by getting an interim order and thereafter blame
the court. The fact that the writ is found, ultimately, devoid of
any merit, shows that a frivolous writ petition had been ﬁled. The
maxim actus curiae neminem gravabit, which means that the act
of the court shall prejudice no one, becomes applicable in such a
case. In such a fact situation, the court is under an obligation to
undo the wrong done to a party by the act of the court. Thus, any
undeserved or unfair advantage gained by a party invoking the
jurisdiction of the court must be neutralised, as the institution of
litigation cannot be permitted to confer any advantage on a suitor
from delayed action by the act of the court. (Vide Shiv Shankar
v. U.P. SRTC, 1995 Supp (2) SCC 726 : 1995 SCC (L&S) 1018,
GTC Industries Ltd. v. Union of India, (1998) 3 SCC 376 and
Jaipur Municipal Corpn. v. C.L. Mishra, (2005) 8 SCC 423).
18. In Ram Krishna Verma v. State of U.P., (1992) 2 SCC 620],
this Court examined a similar issue while placing reliance upon
its earlier judgment in Grindlays Bank Ltd. v. CIT, (1980) 2 SCC
191 : 1980 SCC (Tax) 230 and held that no person can suﬀer
from the act of the court and in case an interim order has been
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 899
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

passed, and the petitioner takes advantage thereof, and ultimately
the petition is found to be without any merit and is dismissed,
the interest of justice requires that any undeserved or unfair
advantage gained by a party invoking the jurisdiction of the court
must be neutralised.”
325. In Karnataka Rare Earth v. Deptt. of Mines & Geology, (2004)
2 SCC 783, this Court observed that maxim actus curiae neminem
gravabit requires that the party should be placed in the same position
but for the court’s order which is ultimately found to be not sustainable
which has resulted in one party gaining advantage which otherwise
would not have earned and the other party has suﬀered but for the
orders of the court. The successful party can demand the delivery of
beneﬁt earned by the other party, or make restitution for what it has
lost. This Court observed : (SCC pp. 790-91, paras 10-11)
“10. In … the doctrine of actus curiae neminem gravabit and held
that the doctrine was not conﬁned in its application only to such
acts of the court which were erroneous; the doctrine is applicable
to all such acts as to which it can be held that the court would
not have so acted had it been correctly apprised of the facts and
the law. It is the principle of restitution that is attracted. When on
account of an act of the party, persuading the court to pass an
order, which at the end is held as not sustainable, has resulted in
one party gaining advantage which it would not have otherwise
earned, or the other party has suﬀered an impoverishment which
it would not have suﬀered, but for the order of the court and the
act of such party, then the successful party ﬁnally held entitled to
a relief, assessable in terms of money at the end of the litigation,
is entitled to be compensated in the same manner in which the
parties would have been if the interim order of the court would
not have been passed. The successful party can demand : (a) the
delivery of beneﬁt earned by the opposite party under the interim
order of the court, or (b) to make restitution for what it has lost.
11. In the facts of this case, in spite of the judgment Karnataka
Rare Earth v. Department of Mines & Geology, WPs No.
4030-4031 of 1997, order dated 1-12-1998 (KAR) of the High
900 SUPREME COURT REPORTS [2023] 12 S.C.R.

Court, if the appellants would not have persuaded this Court to
pass the interim orders, they would not have been entitled to
operate the mining leases and to raise and remove and dispose
of the minerals extracted. But for the interim orders passed by
this Court, there is no diﬀerence between the appellants and
any person raising, without any lawful authority, any mineral
from any land, attracting applicability of sub-section (5) of
Section 21. As the appellants have lost from the Court, they
cannot be allowed to retain the beneﬁt earned by them under
the interim orders of the Court. The High Court has rightly held
the appellants liable to be placed in the same position in which
they would have been if this Court would not have protected
them by issuing interim orders. All that the State Government is
demanding from the appellants is the price of the minor minerals.
Rent, royalty or tax has already been recovered by the State
Government and, therefore, there is no demand under that head.
No penal proceedings, much less any criminal proceedings, have
been initiated against the appellants. It is absolutely incorrect to
contend that the appellants are being asked to pay any penalty
or are being subjected to any penal action. It is not the case of
the appellants that they are being asked to pay the price more
than what they have realised from the exports or that the price
appointed by the respondent State is in any manner arbitrary or
unreasonable.”
(emphasis supplied)
326. In A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 : 1988 SCC
(Cri) 372, this Court observed that it is a settled principle that an act
of the court shall prejudice no man. This maxim actus curiae neminem
gravabit is founded upon justice and good sense and aﬀords a safe and
certain guide for the administration of the law. No man can be denied
his rights. In India, a delay occurs due to procedural wrangles. In A.R.
Antulay v. R.S. Nayak, (1988) 2 SCC 602 : 1988 SCC (Cri) 372, this
Court observed : (SCC p. 687, para 102)
“102. This being the apex court, no litigant has any opportunity
of approaching any higher forum to question its decisions. Lord
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 901
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

Buckmaster in Montreal Street Railway Co. v. Normandin, 1917
AC 170 (PC) (sic) stated:
‘All rules of court are nothing but provisions intended to
secure the proper administration of justice. It is, therefore,
essential that they should be made to serve and be
subordinate to that purpose.’
This Court in State of Gujarat v. Ramprakash P. Puri, (1969) 3 SCC
156 : 1970 SCC (Cri) 29, reiterated the position by saying : (SCC p.
159, para 5)
‘5. … Procedure has been described to be a handmaid and
not a mistress of law, intended to subserve and facilitate the
cause of justice and not to govern or obstruct it. Like all rules
of procedure, this rule demands a construction which would
promote this cause.’
Once judicial satisfaction is reached that the direction was not open
to be made and it is accepted as a mistake of the court, it is not only
appropriate but also the duty of the court to rectify the mistake by
exercising inherent powers. Judicial opinion heavily leans in favour
of this view that a mistake of the court can be corrected by the court
itself without any fetters. This is on principle, as indicated in Alexander
Rodger v. Comptoir D’Escompte De Paris, (1969-71) LR 3 PC 465 :
17 ER 120. I am of the view that in the present situation, the court’s
inherent powers can be exercised to remedy the mistake. Mahajan,
J. speaking for a four-Judge Bench in Keshardeo Chamria v. Radha
Kissen Chamria, (1952) 2 SCC 329 : 1953 SCR 136 : AIR 1953 SC
23, SCR p. 153 stated : (AIR p. 28, para 21)
‘21. … The Judge had jurisdiction to correct his own error without
entering into a discussion of the grounds taken by the decree-
holder or the objections raised by the judgment-debtors.’ “
××× ××× ×××
In re : Principle of restitution
335. The principle of restitution is founded on the ideal of doing
complete justice at the end of litigation, and parties have to be
902 SUPREME COURT REPORTS [2023] 12 S.C.R.

placed in the same position but for the litigation and interim order,
if any, passed in the matter. In South Eastern Coalﬁelds Ltd. v.
State of M.P., (2003) 8 SCC 648, it was held that no party could
take advantage of litigation. It has to disgorge the advantage
gained due to delay in case lis is lost. The interim order passed by
the court merges into a ﬁnal decision. The validity of an interim
order, passed in favour of a party, stands reversed in the event of a
ﬁnal order going against the party successful at the interim stage.
Section 144 of the Code of Civil Procedure is not the fountain
source of restitution. It is rather a statutory recognition of the rule
of justice, equity and fair play. The court has inherent jurisdiction
to order restitution so as to do complete justice. This is also on the
principle that a wrong order should not be perpetuated by keeping
it alive and respecting it. In exercise of such power, the courts have
applied the principle of restitution to myriad situations not falling
within the terms of Section 144 CPC. What attracts applicability of
restitution is not the act of the court being wrongful or mistake or
an error committed by the court; the test is whether, on account of
an act of the party persuading the court to pass an order held at the
end as not sustainable, resulting in one party gaining an advantage
which it would not have otherwise earned, or the other party having
suﬀered an impoverishment, restitution has to be made. Litigation
cannot be permitted to be a productive industry. Litigation cannot
be reduced to gaming where there is an element of chance in every
case. If the concept of restitution is excluded from application to
interim orders, then the litigant would stand to gain by swallowing
the beneﬁts yielding out of the interim order. This Court observed
in South Eastern Coalﬁ elds Ltd. v. State of M.P., (2003) 8 SCC 648
thus : (SCC pp. 662-64, paras 26-28)
“26. In our opinion, the principle of restitution takes care of
this submission. The word “restitution” in its etymological
sense means restoring to a party on the modiﬁcation, variation
or reversal of a decree or order, what has been lost to him in
execution of decree or order of the court or in direct consequence
of a decree or order (see Zafar Khan v. Board of Revenue, U.P.,
1984 Supp SCC 505). In law, the term “restitution” is used in
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 903
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

three senses : (i) return or restoration of some speciﬁc thing
to its rightful owner or status; (ii) compensation for beneﬁts
derived from a wrong done to another; and (iii) compensation
or reparation for the loss caused to another. (See Black’s Law
Dictionary, 7th Edn., p. 1315). The Law of Contracts by John D.
Calamari & Joseph M. Perillo has been quoted by Black to say
that “restitution” is an ambiguous term, sometimes referring to
the disgorging of something which has been taken and at times
referring to compensation for the injury done:
‘Often, the result under either meaning of the term would
be the same. … Unjust impoverishment, as well as unjust
enrichment, is a ground for restitution. If the defendant is
guilty of a non-tortious misrepresentation, the measure of
recovery is not rigid but, as in other cases of restitution,
such factors as relative fault, the agreed-upon risks, and
the fairness of alternative risk allocations not agreed upon
and not attributable to the fault of either party need to be
weighed.’
The principle of restitution has been statutorily recognised in
Section 144 of the Code of Civil Procedure, 1908. Section 144
CPC speaks not only of a decree being varied, reversed, set aside
or modiﬁed but also includes an order on a par with a decree.
The scope of the provision is wide enough so as to include
therein almost all the kinds of variation, reversal, setting aside
or modiﬁcation of a decree or order. The interim order passed by
the court merges into a ﬁnal decision. The validity of an interim
order, passed in favour of a party, stands reversed in the event of
a ﬁnal decision going against the party successful at the interim
stage. …
27. … This is also on the principle that a wrong order should not
be perpetuated by keeping it alive and respecting it (A. Arunagiri
Nadar v. S.P. Rathinasami, 1970 SCC OnLine Mad 63). In the
exercise of such inherent power, the courts have applied the
principles of restitution to myriad situations not strictly falling
within the terms of Section 144.
904 SUPREME COURT REPORTS [2023] 12 S.C.R.

28. That no one shall suﬀer by an act of the court is not a rule
conﬁned to an erroneous act of the court; the “act of the court”
embraces within its sweep all such acts as to which the court
may form an opinion in any legal proceedings that the court
would not have so acted had it been correctly apprised of the
facts and the law. … the concept of restitution is excluded from
application to interim orders, then the litigant would stand to
gain by swallowing the beneﬁts yielding out of the interim order
even though the battle has been lost at the end. This cannot
be countenanced. We are, therefore, of the opinion that the
successful party ﬁnally held entitled to a relief assessable in terms
of money at the end of the litigation, is entitled to be compensated
by award of interest at a suitable reasonable rate for the period
for which the interim order of the court withholding the release
of money had remained in operation.”
(emphasis supplied)
62. Under proviso (a) of Section 167(2) of the CrPC, 1973, a Magistrate
may authorize the detention beyond a period of 15 days, other than in the
custody of the police. This period of 15 days has to be reckoned, qua either
a police custody or a custody in favour of the investigating oﬃcer, spanning
over the entire period of investigation.
63. It is too well settled that a proviso has to be understood from the
language used in the main provision and not vice versa. Proviso to Section
167(2) of the CrPC, 1973 speaks of authorisation of detention of an accused
person otherwise than in police custody beyond the period of 15 days,
subject to his satisfaction. It further goes on to state that in any case the
total period of custody, either police or judicial, shall not exceed 60 or 90
days, as the case may be. To understand this proviso one has to go back to
the main provision particularly the words “from time to time, authorize
the detention of the accused in such custody as such Magistrate thinks
ﬁt”, “for a term not exceeding 15 days in the whole”. The interpretation
given by us to the main provision would give ample clarity to the proviso.
Therefore, 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. Any other interpretation would
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 905
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

seriously impair the power of investigation. We may also hasten to add that
the proviso merely reiterates the maximum period of 15 days, qua a custody
in favour of the police while there is absolutely no mention of the ﬁrst 15
days alone for the police custody.
64. We would only reiterate that the proviso creates a ﬁne balance
between individual liberty and adequate investigation. The time limit ﬁxed
would help an accused person to come out of incarceration and thereafter lead
to the faster conclusion of the trial, it also facilitates a proper investigation
by way of police custody.
65. It is to protect the interest of an accused person by restricting the
period of investigation, a failure of which would entitle an arrestee to be
released. This again is yet another facet of Article 21 of the Constitution of
India, 1950. In Satender Kumar Antil (supra):
“39. Section 167(2) was introduced in the year 1978, giving
emphasis to the maximum period of time to complete the
investigation. This provision has got a laudable object behind it,
which is to ensure an expeditious investigation and a fair trial, and
to set down a rationalised procedure that protects the interests of
the indigent sections of society. This is also another limb of Article
21. Presumption of innocence is also inbuilt in this provision. An
investigating agency has to expedite the process of investigation
as a suspect is languishing under incarceration. Thus, a duty is
enjoined upon the agency to complete the investigation within
the time prescribed and a failure would enable the release of the
accused. The right enshrined is an absolute and indefeasible one,
inuring to the beneﬁt of suspect.
40. Such a right cannot be taken away even during any unforeseen
circumstances, such as the recent pandemic, as held by this Court in
M. Ravindran v. Directorate of Revenue Intelligence, (2021) 2 SCC
485 : (2021) 1 SCC (Cri) 876 : (SCC pp. 502-06, para 17)
“II. Section 167(2) and the Fundamental Right to Life and Personal
Liberty
17. Before we proceed to expand upon the parameters of the right to
default bail under Section 167(2) as interpreted by various decisions
906 SUPREME COURT REPORTS [2023] 12 S.C.R.

of this Court, we ﬁnd it pertinent to note the observations made
by this Court in Uday Mohanlal Acharya v. State of Maharashtra,
(2001) 5 SCC 453 : 2001 SCC (Cri) 760 on the fundamental right
to personal liberty of the person and the eﬀect of deprivation of the
same as follows : (SCC p. 472, para 13)
‘13. … Personal liberty is one of the cherished objects of the
Indian Constitution and deprivation of the same can only be
in accordance with law and in conformity with the provisions
thereof, as stipulated under Article 21 of the Constitution. When
the law provides that the Magistrate could authorise the detention
of the accused in custody up to a maximum period as indicated
in the proviso to sub-section (2) of Section 167, any further
detention beyond the period without ﬁling of a challan by the
investigating agency would be a subterfuge and would not be in
accordance with law and in conformity with the provisions of
the Criminal Procedure Code, and as such, could be violative of
Article 21 of the Constitution.’
17.1. Article 21 of the Constitution of India provides that ‘no
person shall be deprived of his life or personal liberty except
according to procedure established by law’. It has been settled by
a Constitution Bench of this Court in Maneka Gandhi v. Union of
India, (1978) 1 SCC 248, that such a procedure cannot be arbitrary,
unfair or unreasonable. The history of the enactment of Section
167(2) CrPC and the safeguard of “default bail” contained in the
proviso thereto is intrinsically linked to Article 21 and is nothing
but a legislative exposition of the constitutional safeguard that no
person shall be detained except in accordance with the rule of law.
17.2. Under Section 167 of the Code of Criminal Procedure,
1898 (“the 1898 Code”) which was in force prior to the enactment
of the CrPC, the maximum period for which an accused could
be remanded to custody, either police or judicial, was 15 days.
However, since it was often unworkable to conclude complicated
investigations within 15 days, a practice arose wherein investigating
oﬃcers would ﬁle “preliminary charge-sheets” after the expiry of
the remand period. The State would then request the Magistrate to
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 907
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

postpone commencement of the trial and authorise further remand
of the accused under Section 344 of the 1898 Code till the time the
investigation was completed and the ﬁnal charge-sheet was ﬁled.
The Law Commission of India in Report No. 14 on Reforms of the
Judicial Administration (Vol. II, 1948, pp. 758-760) pointed out
that in many cases the accused were languishing for several months
in custody without any ﬁnal report being ﬁled before the courts. It
was also pointed out that there was conﬂict in judicial opinion as
to whether the Magistrate was bound to release the accused if the
police report was not ﬁled within 15 days.
17.3. Hence the Law Commission in Report No. 14 recommended
the need for an appropriate provision speciﬁcally providing for
continued remand after the expiry of 15 days, in a manner that
‘while meeting the needs of a full and proper investigation in
cases of serious crime, will still safeguard the liberty of the person
of the individual’. Further, that the legislature should prescribe a
maximum time period beyond which no accused could be detained
without ﬁling of the police report before the Magistrate. It was
pointed out that in England, even a person accused of grave oﬀences
such as treason could not be indeﬁnitely detained in prison till
commencement of the trial.
17.4. The suggestion made in Report No. 14 was reiterated by
the Law Commission in Report No. 41 on The Code of Criminal
Procedure, 1898 (Vol. I, 1969, pp. 76-77). The Law Commission
re-emphasised the need to guard against the misuse of Section 344
of the 1898 Code by ﬁling “preliminary reports” for remanding the
accused beyond the statutory period prescribed under Section 167.
It was pointed out that this could lead to serious abuse wherein ‘the
arrested person can in this manner be kept in custody indeﬁnitely
while the investigation can go on in a leisurely manner’. Hence
the Commission recommended ﬁxing of a maximum time-limit of
60 days for remand. The Commission considered the reservation
expressed earlier in Report No. 37 that such an extension may result
in the 60-day period becoming a matter of routine. However, faith
was expressed that proper supervision by the superior courts would
help circumvent the same.
908 SUPREME COURT REPORTS [2023] 12 S.C.R.

17.5. The suggestions made in Report No. 41 were taken note
of and incorporated by the Central Government while drafting the
Code of Criminal Procedure Bill in 1970. Ultimately, the 1898
Code was replaced by the present CrPC. The Statement of Objects
and Reasons of the CrPC provides that the Government took the
following important considerations into account while evaluating
the recommendations of the Law Commission:
‘3. The recommendations of the Commission were examined
carefully by the Government, keeping in view, among others, the
following basic considerations:
(i) an accused person should get a fair trial in accordance with
the accepted principles of natural justice;
(ii) every eﬀort should be made to avoid delay in investigation
and trial which is harmful not only to the individuals involved
but also to society; and
(iii) the procedure should not be complicated and should, to
the utmost extent possible, ensure fair deal to the poorer sections
of the community.’
17.6. It was in this backdrop that Section 167(2) was enacted
within the present day CrPC, providing for time-limits on the
period of remand of the accused, proportionate to the seriousness
of the oﬀence committed, failing which the accused acquires the
indefeasible right to bail. As is evident from the recommendations of
the Law Commission mentioned supra, the intent of the legislature
was to balance the need for suﬃcient time-limits to complete the
investigation with the need to protect the civil liberties of the
accused. Section 167(2) provides for a clear mandate that the
investigative agency must collect the required evidence within the
prescribed time period, failing which the accused can no longer be
detained. This ensures that the investigating oﬃcers are compelled
to act swiftly and eﬃciently without misusing the prospect of further
remand. This also ensures that the court takes cognizance of the
case without any undue delay from the date of giving information of
the oﬀence, so that society at large does not lose faith and develop
cynicism towards the criminal justice system.
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 909
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

17.7. Therefore, as mentioned supra, Section 167(2) is integrally
linked to the constitutional commitment under Article 21 promising
protection of life and personal liberty against unlawful and arbitrary
detention, and must be interpreted in a manner which serves this
purpose. In this regard we ﬁnd it useful to refer to the decision of
the three-Judge Bench of this Court in Rakesh Kumar Paul v. State
of Assam, (2017) 15 SCC 67: (2018) 1 SCC (Cri) 401, which laid
down certain seminal principles as to the interpretation of Section
167(2)CrPC though the questions of law involved were somewhat
diﬀerent from the present case. The questions before the three-
Judge Bench in Rakesh Kumar Paul v. State of Assam, (2017) 15
SCC 67: (2018) 1 SCC (Cri) 401, were whether, ﬁrstly, the 90-day
remand extension under Section 167(2)(a)(i) would be applicable
in respect of oﬀences where the maximum period of imprisonment
was 10 years, though the minimum period was less than 10 years.
Secondly, whether the application for bail ﬁled by the accused
could be construed as an application for default bail, even though
the expiry of the statutory period under Section 167(2) had not been
speciﬁcally pleaded as a ground for bail. The majority opinion held
that the 90-day limit is only available in respect of oﬀences where a
minimum ten years imprisonment period is stipulated, and that the
oral arguments for default bail made by the counsel for the accused
before the High Court would suﬃce in lieu of a written application.
This was based on the reasoning that the court should not be too
technical in matters of personal liberty. Madan B. Lokur, J. in his
majority opinion, pertinently observed as follows: (SCC pp. 95-96
& 99, paras 29, 32 & 41)
‘29. Notwithstanding this, the basic legislative intent of
completing investigations within twenty-four hours and also
within an otherwise time-bound period remains unchanged, even
though that period has been extended over the years. This is an
indication that in addition to giving adequate time to complete
investigations, the legislature has also and always put a premium
on personal liberty and has always felt that it would be unfair
to an accused to remain in custody for a prolonged or indeﬁnite
period. It is for this reason and also to hold the investigating
910 SUPREME COURT REPORTS [2023] 12 S.C.R.

agency accountable that time-limits have been laid down by the
legislature.…
***
32. … Such views and opinions over a prolonged period
have prompted the legislature for more than a century to ensure
expeditious conclusion of investigations so that an accused
person is not unnecessarily deprived of his or her personal
liberty by remaining in prolonged custody for an oﬀence that
he or she might not even have committed. In our opinion, the
entire debate before us must also be looked at from the point
of view of expeditious conclusion of investigations and from
the angle of personal liberty and not from a purely dictionary
or textual perspective as canvassed by the learned counsel
for the State.
***
41. We take this view keeping in mind that in matters of
personal liberty and Article 21 of the Constitution, it is not
always advisable to be formalistic or technical. The history
of the personal liberty jurisprudence of this Court and other
constitutional courts includes petitions for a writ of habeas corpus
and for other writs being entertained even on the basis of a letter
addressed to the Chief Justice or the Court.’
Therefore, the courts cannot adopt a rigid or formalistic approach
whilst considering any issue that touches upon the rights
contained in Article 21.
17.8. We may also refer with beneﬁt to the recent judgment of
this Court in S. Kasi v. State, (2021) 12 SCC 1, wherein it was
observed that the indefeasible right to default bail under Section
167(2) is an integral part of the right to personal liberty under
Article 21, and the said right to bail cannot be suspended even
during a pandemic situation as is prevailing currently. It was
emphasised that the right of the accused to be set at liberty takes
precedence over the right of the State to carry on the investigation
and submit a charge-sheet.
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 911
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

17.9. Additionally, it is well-settled that in case of any ambiguity
in the construction of a penal statute, the courts must favour
the interpretation which leans towards protecting the rights of
the accused, given the ubiquitous power disparity between the
individual accused and the State machinery. This is applicable not
only in the case of substantive penal statutes but also in the case
of procedures providing for the curtailment of the liberty of the
accused.
17.10. With respect to the CrPC particularly, the Statement of
Objects and Reasons (supra) is an important aid of construction.
Section 167(2) has to be interpreted keeping in mind the threefold
objectives expressed by the legislature, namely, ensuring a fair
trial, expeditious investigation and trial, and setting down a
rationalised procedure that protects the interests of indigent sections
of society. These objects are nothing but subsets of the overarching
fundamental right guaranteed under Article 21.
17.11. Hence, it is from the perspective of upholding the
fundamental right to life and personal liberty under Article 21 that
we shall clarify and reconcile the various judicial interpretations of
Section 167(2) for the purpose of resolving the dilemma that has
arisen in the present case.”
(emphasis in original and supplied)
41. As a consequence of the right ﬂowing from the said provision,
courts will have to give due eﬀect to it, and thus any detention
beyond this period would certainly be illegal, being an aﬀront to
the liberty of the person concerned. Therefore, it is not only the
duty of the investigating agency but also the courts to see to it that
an accused gets the beneﬁt of Section 167(2).”
(emphasis supplied)
66. Sub-section (3) of Section 167 of the CrPC, 1973 warrants a
Magistrate to record reasons by speaking, reasoned order while granting
authorisation. As stated, this being a judicial order, touching upon the rights
of an accused, adequate reasons are expected to be recorded. Needless to
912 SUPREME COURT REPORTS [2023] 12 S.C.R.

state that any such order passed is amenable to challenge before the higher
judicial forum, though not by way of a Habeas Corpus petition.
INTERPLAY BETWEEN SECTION 19 OF THE PREVENTION
OF MONEY LAUNDERING ACT, 2002 AND SECTION 167 OF THE
CODE OF CRIMINAL PROCEDURE, 1973:
67. We have already touched upon the mandatory function that a
Magistrate is to undertake while dealing with a case of remand. He is
expected to do a balancing act. As a matter of rule, the investigation is to be
completed within 24 hours and therefore it is for the investigating agency
concerned to satisfy the Magistrate with adequate material on the need for
its custody, be it police or otherwise. This important factor is to be kept in
mind by him while passing the judicial order. We reiterate that Section 19
of the PMLA, 2002, supplemented by Section 167 of the CrPC,1973 does
provide adequate safeguards to an arrested person. If Section 167 of the
CrPC, 1973 is not applicable, then there is no role for the Magistrate either
to remand or otherwise.
68. Such a Magistrate has a distinct role to play when a remand is
made of an accused person to an authority under the PMLA, 2002. It is
his bounden duty to see to it that Section 19 of the PMLA, 2002 is duly
complied with and any failure would entitle the arrestee to get released. The
Magistrate shall also peruse the order passed by the authority under Section
19(1) of the PMLA, 2002. Section 167 of the CrPC, 1973 is also meant
to give eﬀect to Section 19 of the PMLA, 2002 and therefore it is for the
Magistrate to satisfy himself of its due compliance. Upon such satisfaction,
he can consider the request for custody in favour of an authority, as Section
62 of the PMLA, 2002, does not speak about the authority which is to take
action for non-compliance of the mandate of Section 19 of the PMLA, 2002.
A remand being made by the Magistrate upon a person being produced before
him, being an independent entity, it is well open to him to invoke the said
provision in a given case. To put it otherwise, the Magistrate concerned is
the appropriate authority who has to be satisﬁed about the compliance of
safeguards as mandated under Section 19 of the PMLA, 2002. On the role
required to be played by the Magistrate, qua a remand, we do not wish to
go any further as it has been dealt with by this Court in Satyajit Ballubhai
Desai v. State of Gujarat, (2014) 14 SCC 434:
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 913
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

“9. Having considered and deliberated over the issue involved herein
in the light of the legal position and existing facts of the case, we ﬁnd
substance in the plea raised on behalf of the appellants that the grant
of order for police remand should be an exception and not a rule and
for that the investigating agency is required to make out a strong case
and must satisfy the learned Magistrate that without the police custody
it would be impossible for the police authorities to undertake further
investigation and only in that event police custody would be justiﬁed as
the authorities specially at the magisterial level would do well to remind
themselves that detention in police custody is generally disfavoured
by law. The provisions of law lay down that such detention/police
remand can be allowed only in special circumstances granted
by a Magistrate for reasons judicially scrutinised and for such
limited purposes only as the necessities of the case may require.
The scheme of Section 167 of the Criminal Procedure Code, 1973 is
unambiguous in this regard and is intended to protect the accused
from the methods which may be adopted by some overzealous and
unscrupulous police oﬃcers which at times may be at the instance
of an interested party also. But it is also equally true that the
police custody although is not the be-all and end-all of the whole
investigation, yet it is one of its primary requisites particularly in
the investigation of serious and heinous crimes. The legislature also
noticed this and, has therefore, permitted limited police custody.”
(emphasis supplied)
69. The interplay between Section 19(1) of the PMLA, 2002 and
Section 167 of the CrPC, 1973, as discussed, 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.
70. An external aid would be required only when there is a lacuna,
especially when the provisions are pari materia. We are conscious of the
fact that in certain statutes like Foreign Exchange Regulation Act, 1973
and the Customs Act, 1962, etc. there is an express provision which confers
the powers of police oﬃcers upon the authorised oﬃcers for the purpose
of arrest and then custody to the police. That does not mean that there is no
914 SUPREME COURT REPORTS [2023] 12 S.C.R.

power under the PMLA, 2002 read with the CrPC, 1973 to the Authorised
Oﬃcer to seek custody. There is a fallacy in the said argument. One cannot
apply Section 167(2) of the CrPC, 1973 in piecemeal. There cannot be an
application of the provision only for an arrest but not for custody. Such
an argument is also dangerous from the point of view of an arrestee as the
beneﬁt conferred under the proviso to Section 167(2) of the CrPC, 1973
will not be available. Vijay Madanlal Choudhary (supra):
“88. …This production is also to comply with the requirement of
Section 167 of the 1973 Code. There is nothing in Section 19, which
is contrary to the requirement of production under Section 167 of the
1973 Code, but being an express statutory requirement under the 2002
Act in terms of Section 19(3), it has to be complied by the authorised
oﬃcer. …”
71. Deepak Mahajan (supra):
“106. In our considered opinion, the view taken in O.P. Gupta and
M.K.S. Abu Bucker and also of the Kerala High Court and Gujarat
High Court is the logical and correct view and we approve the same
for the reasons we have given in the preceding part of this judgment.
We, indeed, see no imponderability in construing Section 35(2) of
FERA and Section 104(2) of Customs Act that the said provisions
replace Section 167(1) and serve as a substitute thereof substantially
satisfying all the required basic conditions contained therein and that
consequent upon such replacement of sub-section (1) of Section 167,
the arrested person under those special Acts would be an accused
person to be detained by the Magistrate under sub-section (2) of
Section 167. In passing, it may be stated that there is no expression
‘police oﬃcer’ deployed in Section 167(1) nor does it appear in
any part of Section 167(2). The authority for detaining a person
as contemplated under Section 167(2) is in aid of investigation to
be carried on by any prosecuting agency who is invested with the
power of investigation.
××× ××× ×××
108. The word ‘investigation’ is deﬁned under Section 2(h) of the
present Code [which is an exact reproduction of Section 4(1)(b) of
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 915
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

the old Code] which is an inclusive deﬁnition as including all the
proceedings under the Code for the collection of evidence conducted
by a police oﬃcer or any person (other than a Magistrate) who is
authorised by a Magistrate in this behalf. The said word ‘investigation’
runs through the entire fabric of the Code. There is a long course of
decisions of this Court as well as of the various High Courts explaining
in detail, what the word ‘investigation’ means and is? It is not necessary
for the purpose of this case to recapitulate all those decisions except
the one in H.N. Rishbud v. State of Delhi. In that decision, it has been
held that: (SCR pp. 1157-58)
“Under the Code investigation consists generally of the following
steps: (1) Proceeding to the spot, (2) Ascertainment of the
facts and circumstances of the case, (3) Discovery and arrest
of the suspected oﬀender, (4) Collection of evidence relating
to the commission of the oﬀence which may consist of (a) the
examination of various persons (including the accused) and the
reduction of their statements into writing, if the oﬃcer thinks ﬁt,
(b) the search of places of seizure of things considered necessary
for the investigation and to be produced at the trial, and (5)
Formation of the opinion as to whether on the material collected
there is a case to place the accused before a Magistrate for trial
and if so taking the necessary steps for the same by the ﬁling of
a charge-sheet under Section 173.”
The steps involved in the course of investigation, as pointed out in
Rishbud case have been reiterated in State of M.P. v. Mubarak Ali.
109. No doubt, it is true that there are a series of decisions holding
the view that an Oﬃcer of Enforcement or a Customs Oﬃcer is
not a police oﬃcer though such oﬃcers are vested with the powers
of arrest and other analogous powers. Vide Ramesh Chandra v.
State of W.B. and Illias v. Collector of Customs, Madras. In the
above decisions, this Court has held that the above oﬃcers under
the special Acts are not vested with the powers of a police oﬃcer
qua investigation of an oﬀence under Chapter XII of the Code
including the power to forward a report under Section 173 of the
916 SUPREME COURT REPORTS [2023] 12 S.C.R.

Code. See also State of Punjab v. Barkat Ram and Badku Joti
Savant v. State of Mysore.
××× ××× ×××
113. Though an authorised oﬃcer of Enforcement or Customs is not
undertaking an investigation as contemplated under Chapter XII of
the Code, yet those oﬃcers are enjoying some analogous powers
such as arrest, seizures, interrogation etc. Besides, a statutory duty is
enjoined on them to inform the arrestee of the grounds for such arrest
as contemplated under Article 22(1) of the Constitution and Section
50 of the Code. Therefore, they have necessarily to make records of
their statutory functions showing the name of the informant, as well
as the name of the person who violated any other provision of the
Code and who has been guilty of an oﬀence punishable under the Act,
nature of information received by them, time of the arrest, seizure of
the contraband if any and the statements recorded during the course
of the detection of the oﬀence/oﬀences.
××× ××× ×××
116. It should not be lost sight of the fact that a police oﬃcer making
an investigation of an oﬀence representing the State ﬁles a report
under Section 173 of the Code and becomes the complainant whereas
the prosecuting agency under the special Acts ﬁles a complaint as a
complainant i.e. under Section 61(ii) in the case of FERA and under
Section 137 of the Customs Act. To say diﬀerently, the police oﬃcer
after consummation of the investigation ﬁles a report under Section
173 of the Code upon which the Magistrate may take cognizance of
any oﬀence disclosed in the report under Section 190(1)(b) of the
Code whereas the empowered or authorised oﬃcer of the special Acts
has to ﬁle only a complaint of facts constituting any oﬀence under the
provisions of the Act on the receipt of which the Magistrate may take
cognizance of the said oﬀence under Section 190(1)(a) of the Code.
After taking cognizance of the oﬀence either upon a police report or
upon receiving a complaint of facts, the Magistrate has to proceed
with the case as per the procedure prescribed under the Code or
under the special procedure, if any, prescribed under the special Acts.
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 917
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

Therefore, the word ‘investigation’ cannot be limited only to police
investigation but on the other hand, the said word is with wider
connotation and ﬂexible so as to include the investigation carried
on by any agency whether he be a police oﬃcer or empowered or
authorised oﬃcer or a person not being a police oﬃcer under the
direction of a Magistrate to make an investigation vested with the
power of investigation.
××× ××× ×××
120. From the above discussion it cannot be said that either the Oﬃcer
of Enforcement or the Customs Oﬃcer is not empowered with the
power of investigation though not with the power of ﬁling a ﬁnal report
as in the case of a police oﬃcer.
××× ××× ×××
128. To sum up, Section 4 is comprehensive and that Section 5 is
not in derogation of Section 4(2) and it only relates to the extent
of application of the Code in the matter of territorial and other
jurisdiction but does not nullify the eﬀect of Section 4(2). In short,
the provisions of this Code would be applicable to the extent in
the absence of any contrary provision in the Special Act or any
special provision excluding the jurisdiction or applicability of
the Code. In fact, the second limb of Section 4(2) itself limits the
application of the provisions of the Code reading, “… but subject
to any enactment for the time being in force regulating the manner
or place of investigating, inquiring into, trying or otherwise dealing
with such oﬀences.”
××× ××× ×××
131. The submission that as there is no investigation within the terms
of the Code in the ﬁeld of FERA or Customs Act, Section 4(2) of the
Code can have no part to play, has to be rejected for the reasons given
by us while disposing of the contention “What investigation means
and is” in the preceding part of this judgment.
132. For the aforementioned reasons, we hold that the operation
of Section 4(2) of the Code is straightaway attracted to the area
918 SUPREME COURT REPORTS [2023] 12 S.C.R.

of investigation, inquiry and trial of the oﬀences under the special
laws including the FERA and Customs Act and consequently
Section 167 of the Code can be made applicable during the
investigation or inquiry of an oﬀence under the special Acts
also inasmuch as there is no speciﬁc provision contrary to that
excluding the operation of Section 167.
××× ××× ×××
134. There are a series of decisions of various High Courts, of
course with some exception, taking the view that a Magistrate
before whom a person arrested by the competent authority under
the FERA or Customs Act is produced, can authorise detention in
exercise of his powers under Section 167. Otherwise the mandatory
direction under the provision of Section 35(2) of FERA or Section
104(2) of the Customs Act, to take every person arrested before
the Magistrate without unnecessary delay when the arrestee
was not released on bail under sub-section (3) of those special
Acts, will become purposeless and meaningless and to say that
the courts even in the event of refusal of bail have no choice but
to set the person arrested at liberty by folding their hands as a
helpless spectator in the face of what is termed as “legislative casus
omissus” or legal ﬂaw or lacuna, it will become utterly illogical
and absurd.”
(emphasis supplied)
72. Ashok Munilal Jain (supra):
“3. We have gone through the orders passed by the trial court as well
as by the High Court. We may state at the outset that insofar as the
High Court is concerned, it has not given any reasons in support of
its aforesaid view except endorsing the view of the trial court to the
eﬀect that the provisions of Section 167(2) CrPC are not applicable
to the cases under the PMLA Act. This position in law stated by the
trial court does not appear to be correct and even the learned Attorney
General appearing for the respondent could not dispute the same. We
may record that as per the provisions of Section 4(2) CrPC, the
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 919
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

procedure contained therein applies in respect of special statutes
as well unless the applicability of the provisions is expressly
barred. Moreover, Sections 44 to 46 of the PMLA Act speciﬁcally
incorporate the provisions of CrPC to the trials under the PMLA
Act. Thus, not only that there is no provision in the PMLA Act
excluding the applicability of CrPC, on the contrary, provisions
of CrPC are incorporated by speciﬁc inclusion. Even Section 65
of the PMLA Act itself settles the controversy beyond any doubt
in this behalf which reads as under:
“65. Code of Criminal Procedure, 1973 to apply.—The provisions
of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply,
insofar as they are not inconsistent with the provisions of this Act,
to arrest, search and seizure, attachment, conﬁscation, investigation,
prosecution and all other proceedings under this Act.”
4. We may also refer to the judgment of this Court in Directorate of
Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 : 1994 SCC (Cri)
785, wherein it was held as under: (SCC p. 480, para 136)
“136. In the result, we hold that sub-sections (1) and (2) of Section
167 are squarely applicable with regard to the production and
detention of a person arrested under the provisions of Section 35 of
FERA and Section 104 of the Customs Act and that the Magistrate
has jurisdiction under Section 167(2) to authorise detention of a
person arrested by any authorised oﬃcer of the Enforcement under
FERA and taken to the Magistrate in compliance of Section 35(2)
of FERA.”
5. We, thus, do not agree with the opinion of the High Court that
the provisions of Section 167(2) CrPC would not be applicable
to the proceedings under the PMLA Act. In the present case, as
no complaint was ﬁled even after the expiry of 60 days from the
date when the appellant was taken into custody, he was entitled
to statutory bail in view of the provisions contained in Section
167(2) CrPC.”
(emphasis supplied)
920 SUPREME COURT REPORTS [2023] 12 S.C.R.

PRINCIPLES GOVERNING THE INTERPRETATION OF
STATUTES:
73. Having discussed the scope and ambit of Section 167 of the
CrPC, 1973, we believe that it being a penal statute, a literal, natural and
simple interpretation is to be given. When there is no need for a purposive
interpretation and the 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
the ﬁrst 15 days of the remand, as against the express provision discussed
in detail. Similarly, while understanding the intendment of Section 167 of
the CrPC, 1973, the provision has to be read along with the proviso. This
Court in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67:
“67.While interpreting any statutory provision, it has always
been accepted as a golden rule of interpretation that the words
used by the legislature should be given their natural meaning.
Normally, the courts should be hesitant to add words or subtract
words from the statutory provision. An eﬀort should always be
made to read the legislative provision in such a way that there
is no wastage of words and any construction which makes some
words of the statute redundant should be avoided. No doubt,
if the natural meaning of the words leads to an interpretation
which is contrary to the objects of the Act or makes the provision
unworkable or highly unreasonable and arbitrary, then the
courts either add words or subtract words or read down the
statute, but this should only be done when there is an ambiguity
in the language used. In my view, there is no ambiguity in the
wording of Section 167(2) of the Code and, therefore, the wise
course would be to follow the principle laid down by Patanjali
Shastry, C.J. in Aswini Kumar Ghose v. Arabinda Bose, (1952)
2 SCC 237 : AIR 1952 SC 369, where he very eloquently held as
follows: (AIR p. 377, para 26)
“26. … It is not a sound principle of construction to brush aside
words in a statute as being inapposite surplusage, if they can have
appropriate application in circumstances conceivably within the
contemplation of the statute.”
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 921
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

In Jugalkishore Saraf v. Raw Cotton Co. Ltd., AIR 1955 SC 376,
S.R. Das, J., speaking for this Court, held as follows: (AIR p. 381,
para 6)
“6. … The cardinal rule of construction of statutes is to read
the statutes literally, that is, by giving to the words used
by the legislature their ordinary, natural and grammatical
meaning.”
68. External aids of interpretation are to be used only when the
language of the legislation is ambiguous and admits of two or more
meanings. When the language is clear or the ambiguity can be resolved
under the more common rules of statutory interpretation, the court
would be reluctant to look at external aids of statutory interpretation.
69. Gajendragadkar, J., speaking for this Court in Kanai Lal Sur
v. Paramnidhi Sadhukhan, AIR 1957 SC 907 held : (AIR p. 910,
para 6)
“6. … the ﬁrst and primary rule of construction is that the
intention of the legislature must be found in the words used
by the legislature itself.”
70. These sound principles of statutory construction continue to
hold the ﬁeld. When the natural meaning of the words is clear and
unambiguous, no external aids should be used.”
(emphasis supplied)
74. A decision of a Court cannot be read like a statute, out of context
and in ignorance of the requisite provisions. Commissioner of Central
Excise, Bangalore v. Srikumar Agencies & Ors., (2009) 1 SCC 469:
“5. “15. …Courts should not place reliance on decisions without
discussing as to how the factual situation ﬁts in with the fact
situation of the decision on which reliance is placed. Observations
of courts are neither to be read as Euclid’s theorems nor as
provisions of the statute and that too taken out of their context.
These observations must be read in the context in which they
appear to have been stated. Judgments of courts are not to be
922 SUPREME COURT REPORTS [2023] 12 S.C.R.

construed as statutes. To interpret words, phrases and provisions
of a statute, it may become necessary for Judges to embark into
lengthy discussions but the discussion is meant to explain and
not to deﬁne. Judges interpret statutes, they do not interpret
judgments. They interpret words of statutes; their words are not
to be interpreted as statutes. In London Graving Dock Co. Ltd. v.
Horton [1951 AC 737 : (1951) 2 All ER 1 (HL)] (AC at p. 761) Lord
Macdermott observed : (All ER p. 14 C-D)
‘… The matter cannot, of course, be settled merely by treating
the ipsissima verba of Willes, J., as though they were part of
an Act of Parliament and applying the rules of interpretation
appropriate thereto. This is not to detract from the great
weight to be given to the language actually used by that most
distinguished Judge ….’
16. In Home Oﬃce v. Dorset Yacht Co. Ltd. [1970 AC 1004 : (1970)
2 WLR 1140 : (1970) 2 All ER 294 (HL)] Lord Reid said : (All ER
p. 297g-h) ‘… Lord Atkin’s speech … is not to be treated as if it
were a statutory deﬁnition. It will require qualiﬁcation in new
circumstances.’ Megarry, J. in Shebherd Homes Ltd. v. Sandham
(No. 2) [(1971) 1 WLR 1062 : (1971) 2 All ER 1267] observed :
(All ER p. 1274d-e) ‘… One must not, of course, construe even a
reserved judgment of Russell, L.J. as if it were an Act of Parliament
….’ And, in British Railways Board v. Herrington [1972 AC 877 :
(1972) 2 WLR 537 : (1972) 1 All ER 749 (HL)] Lord Morris said
: (All ER p. 761c)
‘There is always peril in treating the words of a speech or
judgment as though they are words in a legislative enactment,
and it is to be remembered that judicial utterances made in
the setting of the facts of a particular case.’
17. Circumstantial ﬂexibility, one additional or diﬀerent fact may
make a world of diﬀerence between conclusions in two cases.
Disposal of cases by blindly placing reliance on a decision is not
proper.
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 923
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

18. The following words of Hidayatullah, J. in the matter of
applying precedents have become locus classicus: (Abdul Kayoom
v. CIT [AIR 1962 SC 680] , AIR p. 688, para 19)
‘19. … Each case depends on its own facts and a close
similarity between one case and another is not enough because
even a single signiﬁcant detail may alter the entire aspect. In
deciding such cases, one should avoid the temptation to decide
cases (as said by Cardozo) by matching the colour of one case
against the colour of another. To decide therefore, on which
side of the line a case falls, the broad resemblance to another
case is not at all decisive.’
***
‘Precedent should be followed only so far as it marks the
path of justice, but you must cut the dead wood and trim oﬀ
the side branches else you will ﬁnd yourself lost in thickets
and branches. My plea is to keep the path to justice clear of
obstructions which could impede it.’ “ [Ed. : As observed in
Union of India v. Amrit Lal Manchanda, (2004) 3 SCC 75 at
pp. 83-84, paras 15-18.]”
(emphasis supplied)
75. Satya Pal Singh v. State of Madhya Pradesh, (2015) 15 SCC 613:
“12. It is well established that the proviso of a statute must be given
an interpretation limited to the subject-matter of the enacting
provision. Reliance is placed on the decision of this Court rendered
by a four-Judge Bench in Dwarka Prasad v. Dwarka Das Saraf,
(1976) 1 SCC 128 , the relevant para 18 of which reads thus: (SCC
p. 137)
“18. … A proviso must be limited to the subject-matter of the
enacting clause. It is a settled rule of construction that a proviso
must prima facie be read and considered in relation to the
principal matter to which it is a proviso. It is not a separate or
independent enactment. ‘Words are dependent on the principal
enacting words to which they are tacked as a proviso. They
924 SUPREME COURT REPORTS [2023] 12 S.C.R.

cannot be read as divorced from their context’ (Thompson v.
Dibdin, 1912 AC 533 (HL)). If the rule of construction is that
prima facie a proviso should be limited in its operation to
the subject-matter of the enacting clause, the stand we have
taken is sound. To expand the enacting clause, inﬂated by the
proviso, sins against the fundamental rule of construction
that a proviso must be considered in relation to the principal
matter to which it stands as a proviso. A proviso ordinarily is
but a proviso, although the golden rule is to read the whole
section, inclusive of the proviso, in such manner that they
mutually throw light on each other and result in a harmonious
construction.”
(emphasis supplied)
13. Further, a three-Judge Bench of this Court by majority of 2:1
in S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591 has
elaborately examined the scope of the proviso to the substantive
provision of the section and rules of its interpretation. The relevant
paragraphs are reproduced hereunder: (SCC pp. 607-08, paras 30,
32-33 & 36-37)
“30. Sarathi in Interpretation of Statutes at pp. 294-95 has
collected the following principles in regard to a proviso:
(a) When one ﬁnds a proviso to a section the natural presumption
is that, but for the proviso, the enacting part of the section would have
included the subject-matter of the proviso.
(b) A proviso must be construed with reference to the preceding
parts of the clause to which it is appended.
(c) Where the proviso is directly repugnant to a section, the
proviso shall stand and be held a repeal of the section as the proviso
speaks the latter intention of the makers.
(d) Where the section is doubtful, a proviso may be used as a
guide to its interpretation; but when it is clear, a proviso cannot imply
the existence of words of which there is no trace in the section.
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 925
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

(e) The proviso is subordinate to the main section.
(f) A proviso does not enlarge an enactment except for compelling
reasons.
(g) Sometimes an unnecessary proviso is inserted by way of
abundant caution.
(h) A construction placed upon a proviso which brings it into
general harmony with the terms of section should prevail.
(i) When a proviso is repugnant to the enacting part, the proviso
will not prevail over the absolute terms of a later Act directed to be
read as supplemental to the earlier one.
(j) A proviso may sometimes contain a substantive provision.”
(emphasis supplied)
DOES SECTION 167(2) OF THE CODE OF CRIMINAL
PROCEDURE, 1973 RESTRICT A POLICE CUSTODY ONLY TO
THE FIRST 15 DAYS OF REMAND?
76. We have given our interpretation on the scope and ambit of
Section 167(2) of the CrPC, 1973. With due respect, we are unable to
concur with the views expressed in Anupam J. Kulkarni (supra) to the
eﬀect that a police custody shall only be within the ﬁrst 15 days of remand.
Nowhere under Section 167(2) of the CrPC, 1973 such a stipulation is
found either directly or indirectly. The words such as “time to time”,
“such custody”, and “in the whole” mentioned under Section 167(2)
of the CrPC, 1973 have not been properly taken note of and interpreted.
What is required is a simple and natural interpretation when there is no
semblance of ambiguity.
77. The intendment behind the proviso has also not been construed.
Section 167(2) of the CrPC, 1973, as stated, does a ﬁne balancing act between
the liberty of an individual and a proper investigation. Perhaps, this Court
was keeping in mind the earlier CrPC, 1898 which restricts the period of
investigation to 15 days alone. Once the period is given as 60 days or 90
days as the case may be, to an investigating agency, in tune with the proviso,
Section 167(2) of the CrPC, 1973 by even normal interpretation facilitates
926 SUPREME COURT REPORTS [2023] 12 S.C.R.

a police custody spanning over the said period, but “whole” being for 15
days. It appears to us that a clear provision has not been construed correctly,
while adding certain words.
78. The decision in Chaganti Satyanarayana v. State of Andhra
Pradesh, (1986) 3 SCC 141 has also been misconstrued. Though the facts
are a bit diﬀerent in the said decision, this Court has rightly understood
sub-section (2) of Section 167 of the CrPC, 1973:
“16. As sub-section (2) of Section 167 as well as proviso (1) of
sub-section (2) of Section 309 relate to the powers of remand of a
magistrate, though under diﬀerent situations, the two provisions call for
a harmonious reading insofar as the periods of remand are concerned.
It would, therefore, follow that the words “15 days in the whole”
occurring in sub-section (2) of Section 167 would be tantamount to
a period of “15 days at a time” but subject to the condition that if the
accused is to be remanded to police custody the remand should be for
such period as is commensurate with the requirements of a case with
provision for further extensions for restricted periods, if need be, but in
no case should the total period of remand to police custody exceed 15
days. Where an accused is placed in police custody for the maximum
period of 15 days allowed under law either pursuant to a single order
of remand or to more than one order, when the remand is restricted
on each occasion to a lesser number of days, further detention of the
accused, if warranted, has to be necessarily to judicial custody and not
otherwise. The legislature having provided for an accused being placed
under police custody under orders of remand for eﬀective investigation
of cases has at the same time taken care to see that the interests of the
accused are not jeopardised by his being placed under police custody
beyond a total period of 15 days, under any circumstances, irrespective
of the gravity of the oﬀence or the serious nature of the case.”
The aforesaid passage has been taken note of in Anupam J.Kulkarni
(supra) to mean that an investigation with custody is permissible only within
the ﬁrst 15 days of remand.
79. Even assuming that the rationale behind Anupam J. Kulkarni
(supra) is correct, the legal maxim actus curiae neminem gravabit would
certainly apply. This aspect has not been taken note of in the said judgment,
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 927
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

followed by the others. The larger Bench of this Court in Budh Singh v.
State of Punjab (2009) 9 SCC 266, mainly gave its imprimatur to the
ﬁndings rendered in Anupam J. Kulkarni (supra). Allowing the said
interpretation which in our respectful view is contrary to the very mandate
of Section 167(2) of the CrPC, 1973 would cause serious prejudice to the
investigation. While agreeing with the views expressed by this Court in
Vikas Mishra (supra) which actually dealt with the issue of counting the
days, we are inclined to refer 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 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. This issue needs to be put to rest as a legal proposition
on an authoritative pronouncement by a larger Bench, though it does not
alter our consideration herein in the facts and circumstances arising in this
case. Notwithstanding the same, we proceed further to discuss and conclude
to decide these petitions since a conclusion can be reached in the facts of
this case guided by the law as it exists and noticed herein.
DISCUSSION
80. We have already narrated the foundational facts without going in
detail. This case has got a chequered history with the pendulum swinging
in favour of one side to another. On the earlier two occasions, the appellant
has succeeded before the High Court to be reversed only by this Court. We
would record only one fact, namely that the order rejecting the bail has
attained ﬁnality.
81. We shall ﬁrst consider the maintainability of the writ petition ﬁled.
A writ of Habeas Corpus was moved questioning the arrest made. When it
was taken up for hearing on a mentioning, the next day by the Court, the
appellant was duly produced before the learned Principal Sessions Judge in
compliance with Section 19 of the PMLA, 2002. The custody thus becomes
judicial as he was duly forwarded by the respondents. Therefore, even on the
date of hearing before the High Court there was no cause for ﬁling the Writ
Petition being HCP No. 1021 of 2023. Added to that, an order of remand was
passed on 14.06.2023 itself. The two remand orders passed by the Court,
as recorded in the preceding paragraphs, depict a clear application of mind.
Despite additional grounds having been raised, they being an afterthought,
928 SUPREME COURT REPORTS [2023] 12 S.C.R.

we have no hesitation in holding that the only remedy open to the appellant
is to approach the appropriate Court under the Statute. This was obviously
not done. We may also note that the appellant was very conscious about his
rights and that is the reason why, by way of an application he even opposed
the remand.
82. Despite our conclusion that the writ petition is not maintainable,
we would like to go further in view of the extensive arguments made by the
learned Senior Advocates appearing for the appellant. As rightly contended
by the learned Solicitor General the scheme and object of the PMLA,
2002 being a sui generis legislation is distinct. Though we do not wish to
elaborate any further, we ﬁnd adequate compliance of Section 19 of the
PMLA, 2002 which contemplates a rigorous procedure before making an
arrest. The learned Principal Sessions Judge did take note of the said fact by
passing a reasoned order. The appellant was accordingly produced before
the Court and while he was in its custody, a judicial remand was made. As
it is a reasoned and speaking order, the appellant ought to have questioned
it before the appropriate forum. We are only concerned with the remand in
favour of the respondents. Therefore, even on that ground we do hold that
a writ of Habeas Corpus is not maintainable as the arrest and custody have
already been upheld by way of rejection of the bail application.
83. The arguments of the learned Senior Advocates on the interpretation
of Section 167(2) of the CrPC, 1973 cannot be accepted as the law has been
quite settled by this Court in Deepak Mahajan (supra). One cannot say that
while all other safeguards as extended under Section 167(2) of the CrPC,
1973 would be available to a person accused but nonetheless, the provision
regarding remand cannot be applied. Section 167(2) of the CrPC, 1973
merely complements and supplements Section 19 of the PMLA, 2002. We
do not ﬁnd any inherent contradiction between these two statutes. Obviously,
an arrest under Section 19 of the PMLA, 2002 can only be made after the
compliance of much more stringent conditions than the one available under
Section 41 of the CrPC, 1973.
84. The interplay between an investigation and inquiry conferring the
same meaning is only for the usage of common materials arising therefrom.
Such materials are to be utilized for both the purposes. This is the basis
upon which they are read together, giving the same meaning at a particular
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 929
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

stage. In Vijay Madanlal Choudhary (supra) it was in the context of a
challenge to the enactment, particularly in the light of Section 25 of the
Evidence Act, 1872.
85. Shri Kapil Sibal, learned Senior Advocate, in his inimitable style
once again placed reliance upon Vijay Madanlal Choudhary (supra) to
press home his view that an authorised oﬃcer under the PMLA, 2002 is
not a police oﬃcer as declared in Vijay Madanlal Choudhary (supra). As
stated, an oﬃcer is expected to perform as per the statute. In the process of
investigation, he has been given certain powers. One shall not confuse such
powers conferred under the statute with the police power, however, when it
comes to application of Section 167(2) of the CrPC, 1973 such an authority
has to be brought under the expression “such custody” especially when
the words “police custody” are consciously omitted. Therefore, the ratio
laid down in Vijay Madanlal Choudhary (supra) has to be understood
contextually, in its own perspective.
86. Much arguments have been made on the basis of Anupam J.
Kulkarni (supra). As rightly submitted by the learned Solicitor General,
the facts are diﬀerent and therefore distinguishable. In the case on hand,
there is no custody in favour of the respondents, a fact even acknowledged
by the appellant earlier through the arguments of his advocates. The learned
Solicitor General is right in his submission that apart from the fact that the
word “custody” is diﬀerent from “detention”, it can only be physical. As
pointed out by him even the High Court has observed that the appellant
continues to be in judicial custody. Admittedly, physical custody has not been
given to the respondents. Admission of the appellant to the hospital of his
choice cannot be termed as a physical custody in favour of the respondents.
Custody could not be taken on the basis of the interim order passed by
the High Court which certainly shall not come in the way of calculating
the period of 15 days. An investigating agency is expected to be given a
reasonable freedom to do it’s part. To say that the respondents ought to have
examined the appellant in the hospital, and that too with the permission of
the doctors, can never be termed as an adequate compliance.
87. Any order of the Court is not meant to aﬀect a person adversely
despite its ultimate conclusion in his favour. The doctrine actus curiae
neminem gravabit would certainly apply in calculating the period of 15 days.
930 SUPREME COURT REPORTS [2023] 12 S.C.R.

88. SUMMATION OF LAW:
i. 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.
ii. Any non-compliance of the mandate of Section 19 of the
PMLA, 2002 would enure to the beneﬁt 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.
iii. 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.
iv. Section 41A of the CrPC, 1973 has got no application to an
arrest made under the PMLA 2002.
v. 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.
vi. 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.
vii. The word “custody” under Section 167(2) of the CrPC, 1973
shall mean actual custody.
viii. Curtailment of 15 days of police custody by any extraneous
circumstances, act of God, an order of Court not being the handi
work of investigating agency would not act as a restriction.
ix. Section 167 of the CrPC, 1973 is a bridge between liberty and
investigation performing a ﬁne balancing act.
x. The decision of this Court in Anupam J. Kulkarni (supra), as
followed subsequently requires reconsideration by a reference
to a larger Bench.
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 931
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]

CONCLUSION:
89. In view of the abovesaid discussion, we have no hesitation in
holding that 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, are liable to be dismissed,
upholding the views expressed in the impugned judgments. Accordingly,
they are dismissed.
90. The only other question to be considered is with respect to the
custody of the appellant. The learned Solicitor General submitted that the
period of 15 days expires by 12.08.2023. Even the learned Principal Sessions
Judge has granted 8 days of custody, though could not be given eﬀect to.
Conscious of the time constraint, we are inclined to permit the respondents
to have custody of the appellant till 12.08.2023. Accordingly, the appeals
arising out of Special Leave Petition (Criminal) Nos. 7437 of 2023, 7460 of
2023, and 8750 of 2023 ﬁled by the respondents are disposed of. Application
for intervention is dismissed. Application for direction stands disposed of
giving liberty to the applicant to have recourse to the remedy known to law.
Pending applications, if any, also stand disposed of.
91. As already noted hereinabove, 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 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.

Headnotes prepared by: Appeals dismissed.
Ankit Gyan