Brief Facts
- An enforcement case was registered against the appellant and others and subsequently, the authority arrested the accused by invoking Section 19 of the PMLA, 2002. Thereafter, the appellant was taken to the Hospital as he complained of chest pain. A Habeas Corpus petition was filed by wife of the Appellant on the very same day.
- On the application of the Respondent, the Appellant was first sent to the judicial custody of 15 days. However, the Respondent ED later filed an application for seeking custody of the Appellant for conducting further investigation (police custody). On hearing the habeas corpus petition, the High Court ordered for shifting the Appellant in a private hospital for his treatment.
- On the other hand the Special Court allowed the application of the Respondent (ED) seeking the remand and 8 days conditional remand was given to ED after imposing several stringent conditions on remand.
- The ED moved an application seeking exclusion of hospitalization period from the remand period. At the same time stringent conditions imposed in the remand order were also challenged.
- The case travelled to the Supreme Court, however, considering the pendency of the petitions before the High Court, the Supreme Court directed the parties to argue the case before the High Court and the SLPs were kept pending to wait for the final outcome of the proceedings before the High Court.
- The Divisional Bench of the High Court took the split view and the case was referred to the Third Judge. Based on the decision of the Third Judge, it was held that the Habeas Corpus Petition was not found to be maintainable. Furthermore, it was also held that Enforcement Directorate has the power to seek custody of a person arrested.
- Aggrieved by the same, the appellant and his wife filed two Special Leave Petitions (Criminal) before the Supreme Court. With the limited grievance over the file being sent back by the third learned Judge, another petition was filed. The respondents also filed a Special Leave Petition (Criminal). Two more Special Leave Petitions have been filed by respondents, challenging the interim order of the High Court and the conditions imposed by the ld. Principal Sessions Judge while granting remand and for the exclusion of 15 days.
Issues
- Whether a plea of Habeas Corpus would be maintainable, when an arrestee is forwarded to the jurisdictional Magistrate under Section 19(3) of the PMLA, 2002?
- Whether 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?
- Whether the power to grant custody under section 167(2) is restricted to the first 15 days of remand?
- What is the meaning of phrase ‘such custody’ under section 167(2) of CrPC?
Held
- The appeals filed by the Appellants/Accused were dismissed. Respondent ED was permitted to have custody of the appellant till 12.08.2023.
- The Court concluded that Anupam J. Kulkarni, [(1992) 3 SCC 141] requires reconsideration by a reference to a larger Bench 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.
Summary of Conclusion
- 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.
- 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.
- 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.
- Section 41A of the CrPC, 1973 has got no application to an arrest made under the PMLA 2002.
- 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.
- 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.
- 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.
- Section 167 of the CrPC, 1973 is a bridge between liberty and investigation performing a fine balancing act.
- The decision of this Court in Anupam J. Kulkarni ((1992) 3 SCC 141), as followed subsequently requires reconsideration by a reference to a larger Bench.