V Senthil Balaji verdict: Supreme Court rules Section 41A CrPC does not apply to PMLA; refers issue of 15-day custody period to larger bench

No provision of the Criminal Procedure Code (CrPC) provides that police custody of an accused person should be limited to the first 15 days after an arrest, the Supreme Court said on Monday [V Senthil Balaji vs. State]..A bench of Justices AS Bopanna and MM Sundresh said that the 15-day custody period can be during anytime spanning over 60 or 90 days which is the time given to the investigating agency to conclude the probe.The Court disagreed with a contrary ruling in the 1992 judgment in CBI v. Anupam J Kulkarni and, therefore, referred the issue to a larger bench."With due respect, we are unable to concur with the views expressed in Anupam J. Kulkarni 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 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. The intendment behind the proviso has also not been construed. Section 167(2) of the CrPC as stated, does a fine balancing act between the liberty of an individual and a proper investigation," the Court said. The bench added that the 1992 the decision might have perhaps been passed keeping in mind the 1898 version of the CrPC, which had limited the period of investigation to 15 days alone. However, under the scheme of the current version of CrPC (enacted in 1973), once the period for investigation is given as 60 days or 90 days, to an investigating agency, in tune with the proviso, Section 167(2) of the CrPC by even normal interpretation facilitates a police custody spanning over the said period, subject to the period of detention not exceeding 15 days. "It appears to us that a clear provision has not been construed correctly," the Court said. It was, thus, clarified that the maximum period of 15 days of police custody is meant to be applied to the entire period of investigation – 60 or 90 days. Further, the word 'custody' used in Section 167(2) of the CrPC would include not only police custody but also custody of other investigating agencies as well. "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," the Court added.This is not the first instance of the top court expressing the need for reconsideration of its decision in Anupam Kulkarni.In April, a bench of Justices MR Shah and CT Ravikumar had opined that at present, the remand period can get over by the time a higher court sets aside an incorrect decision denying custody..The bench's observations came while disposing of a matter dealing with the money-laundering case against V Senthil Balaji.The Supreme Court dismissed the pleas moved for the release of Dravida Munnetra Kazhagam (DMK) minister who was arrested last June in a money-laundering case being probed by the Enforcement Directorate (ED).The judgment was passed on two pleas moved by Balaji and his wife. A connected plea moved by the ED was also heard along with the pleas for Balaji's release..The Madras High Court had earlier ruled against releasing the minister prompting Balaji and his wife, S Megala to move the apex court.Meanwhile, the ED had also moved the top court contending that the High Court had erred in even entertaining a habeas corpus petition filed by Balaji's wife after his remand. The ED's plea was heard along with the pleas filed by Balaji and his wife..Other conclusions in the judgment.Section 41A of CrPC has got no application to an arrest made under Prevention of Money Laundering Act (PMLA)The said provision provides that a notice be served to an accused before his arrest.The top court emphasised that the PMLA being a sui generis legislation, it has its own mechanism in dealing with arrest, in line with the objectives of tackling money laundering in the country."An arrest shall only be made after due compliance of the relevant provisions including Section 19 of the PMLA. Therefore, there is absolutely no need to follow and adopt Section 41A of the CrPC especially in the teeth of Section 65 of the PMLA, 2002. In the absence of any mandate, one cannot force the Authorized Officer to ensure due compliance of Section 41A of the CrPC especially when a clear, different and distinct methodology is available under the PMLA, 2002. Following Section 41A of the CrPC for an arrest under the PMLA would only defeat and destroy the very inquiry/investigation under the PMLA, 2002," the judgment said.Till summons is issued to an accused under investigation, they are not expected to be in the 'know-how' of the central agency's findings, the bench stated."Any prior intimation, other than what is mandated under the PMLA might seriously impair the ongoing investigation," the Court underlined..When an arrestee is forwarded to the jurisdictional Magistrate under Section 19(3) of the PMLA, 2002 no writ of Habeas Corpus would lie. Any plea of illegal arrest is to be made before such Magistrate since custody becomes judicial. The top court noted that Balaji had been duly produced before a Principal Sessions Judge in compliance with Section 19 of the PMLA). The custody had, thus, becomes judicial, and there was no cause for filing a habeas corpus writ.Such a writ can only be filed when detention is illegal and not against an order of remand, it was added."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 ... A challenge to an order of remand on merit has to be made in tune with the statute, while noncompliance of a provision may entitle a party to invoke the extraordinary 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 subsection (3), since it becomes a judicial custody thereafter and the concerned Court would be in a better position to consider due compliance."Further, in his case, the arrest and remand had already been upheld in judicial orders denying him bail.Any non-compliance with 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.A Magistrate has a distinct role to play when a remand is made of an accused person to an authority under PMLA, it was underscored. "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," the Court said..An order of remand has to be challenged only before a higher forum as provided under the CrPC when it depicts a due application of mind both on merit and compliance of Section 167(2) of the CrPC read with Section 19 of PMLA.The Principal Sessions Judge granting the remand and rejecting bail had done so by a reasoned and speaking order, the top court noted.Therefore, Balaji ought to have questioned it before the appropriate forum, the Court said..[Read Judgment]