V. SENTHIL BALAJI versus THE STATE REPRESENTED BY DEPUTY DIRECTOR AND ORS.
[2023] 12 S.C.R. 853, Supreme Court of India, 2023
Outcome: Dismissed (Dismissed)
Segment: Issues
[2023] 12 S.C.R. 853 : 2023 INSC 677
853
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 ﬁ rst 15 days of remand or spanning over the entire period 
of investigation - 60 or 90 days, as the case may be, as a whole.
Constitution of India – Writ of Habeus Corpus – Prevention of 
Money Laundering Act, 2002 – Respondent-Authority invoked s.19 
of the PMLA, 2002 and appellant was arrested on 14.06.2023 – Writ 
of Habeus corpus ﬁ led – Meanwhile, respondent ﬁ led an application 
before the Principal Sessions Judge seeking judicial custody for 15 days 
– Order of remand passed:
Held: A writ of Habeas Corpus shall only be issued when the detention 
is illegal – As a matter of rule, an order of remand by a judicial oﬃ  cer, 
culminating into a judicial function cannot be challenged by way of a writ 
of Habeas Corpus, while it is open to the person aggrieved to seek other 
statutory remedies – When an
arrestee is forwarded to the jurisdictional 
Magistrate under Section 19(3) of the PMLA, 2002 no writ of Habeus Corpus
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 
ﬁ ling the Writ Petition – Added to that, an order of remand was passed on 
14.06.2023 itself – The two remand orders passed by the Court, depicted a 
clear application of mind – Despite additional grounds having been raised, 
they being an afterthought, there is no hesitation in holding that the only 
remedy open to the appellant is to approach the appropriate Court under 
the Statute – Also, as the arrest and custody were already upheld by way of 
rejection of the bail application – Therefore, even on that ground it is held 
that a writ of Habeas Corpus is not maintainable. [Paras 29, 81 and 88]
Code of Criminal Procedure, 1973 – Prevention of Money 
Laundering Act, 2002 – Application of s.41A CrPC to an
arrest made 
under the PMLA 2002:
Held: An Authorized Oﬃ  cer under the PMLA, 2002 is not duty bound 
to follow the rigor of Section 41A of the CrPC, 1973 as against the binding 
conditions under Section 19 of the PMLA, 2002 – As there is already an 
exhaustive procedure contemplated under the PMLA, 2002 containing 
suﬃ  cient safeguards in favour of the person arrested, Section 41A of the 
CrPC, 1973 has no application at all. [Para 35]
Prevention of Money Laundering Act, 2002 – To eﬀ ect an arrest 
under the Act:
Held: To eﬀ ect an arrest, an oﬃ  cer authorised has to assess and 
evaluate the materials in his possession – Through such materials, he is 
expected to form a reason to believe that a person has been guilty of an 
oﬀ ence punishable under the PMLA, 2002 – Thereafter, he is at liberty to 
arrest, while performing his mandatory duty of recording the reasons – The
855
said exercise has to be followed by way of an information being served on 
the arrestee of the grounds of arrest – Any non-compliance of the mandate 
of Section 19(1) of the PMLA, 2002 would vitiate the very arrest itself – 
Under sub-section (2), the Authorised Oﬃ  cer shall immediately, after the 
arrest, forward a copy of the order as mandated under sub-section (1) together 
with the materials in his custody, forming the basis of his belief, to the 
Adjudicating Authority, in a sealed envelope – Thereafter, the arrestee has to 
be taken to the Special Court, or the Judicial Magistrate or the Metropolitan 
Magistrate, as the case may be, having the jurisdiction within 24 hours of 
such arrest. [Paras 39 and 40]
Prevention of Money Laundering Act, 2002 – Non-compliance of 
s.19 of the Act:
Held: S.62 of the PMLA, 2002 is a reiteration of the mandatory 
compliance of Section 19 of the PMLA, 2002 – It is in the nature of a warning 
to an oﬃ  cer concerned to strictly comply with the mandate of Section 19 
of the PMLA, 2002 in letter and spirit failing which he would be visited 
with the consequences – It is his bounden duty to record the reasons for his 
belief in coming to conclusion that a person has been guilty and therefore, 
to be arrested – Any non-compliance of the mandate of Section 19 of the 
PMLA, 2002 would enure to the beneﬁ t of the person arrested – For such 
non-compliance, the Competent Court shall have the power to initiate action 
under Section 62 of the
PMLA, 2002. [Paras 42 and 88]
Code of Criminal Procedure, 1973 – Prevention of Money 
Laundering Act, 2002 –The PMLA, 2002 shall have precedence:
Held: A conjoint reading of Section 65 of the PMLA, 2002 along 
with Sections 4 and 5 of the CrPC, 1973 leaves no room for doubt on the 
precedence of the former over the latter when it comes to investigation. 
[Para 45]
Prevention of Money Laundering Act, 2002 – Inquiry and 
investigation: 
Held: For an inquiry and investigation there can be same materials, 
while there is no bar for reliance on additional ones – They can travel in 
the same channel, but their destinations are diﬀ erent – One material can 
be used for both purposes, along with numerous others – So long as they 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS.
856
SUPREME COURT REPORTS 
[2023] 12 S.C.R.
travel together, there is not much of a diﬀ erence between an inquiry and 
investigation – When they take separate routes, an inquiry ends before the 
Adjudicating Authority, while the other leads to a Special Court in the form 
of a complaint. [Para 46]
Code of Criminal Procedure, 1973 – Detention and custody:
Held: Section 167(2) of the CrPC, 1973 authorises the detention of 
the accused in custody by an order of the Magistrate – It does consciously 
treat a detention diﬀ erent from custody – Custody will be either to the 
court or an investigating agency – Detention is normally made only by 
an investigating agency prior to the production before the Magistrate – A 
custody from being judicial may turn into police through an order passed 
by the Magistrate – Detention may at best be a facet of custody – However, 
they are not synonymous with each other – When detention is authorised, 
it would become custody. [Para 57]
Code of Criminal Procedure, 1973 – Prevention of Money 
Laundering Act, 2002 – Interplay between s.19 of PMLA, 2002 and 
s.167 of the CrPC:
Held: A Magistrate has a distinct role to play when a remand is made 
of an accused person to an authority under the PMLA, 2002 – It is his 
bounden duty to see to it that s.19 of the PMLA, 2002 is duly complied with 
and any failure would entitle the arrestee to get released – The Magistrate 
shall also peruse the order passed by the authority u/s. 19(1) of the PMLA, 
2002 –
S.167 of the CrPC, 1973 is also meant to give eﬀ ect to s.19 of the 
PMLA, 2002 and therefore it is for the Magistrate to satisfy himself of its 
due compliance – The interplay between Section 19(1) of the PMLA, 2002 
and Section 167 of the CrPC, 1973, would facilitate the application of the 
latter after the conclusion of the former – One cannot say that Section 167(2) 
of the CrPC, 1973 is applicable to an authority when it comes to arrest but 
not to custody. [Paras 68 and 69]
Code of Criminal Procedure, 1973 – s.167 – Curtailment of 15 days 
of police custody by any extraneous circumstances:
Held: Curtailment of 15 days of police custody by any extraneous 
circumstances, act of God, an order of Court not being the handy work of 
investigating agency would not act as a restriction. [Para 88]
857
Code of Criminal Procedure, 1973 – Sub-section (2) of s.167 – 
Words “such custody”:
Held: The words “such custody” occurring in Section 167(2) of the 
CrPC, 1973 would include not only a police custody but also that of other 
investigating agencies – The word “custody” under Section 167(2) of the 
CrPC, 1973 shall mean actual custody. [Para 88]
Code of Criminal Procedure, 1973 – Sub-section (2) of s.167 – 
Reference to the words “a term not exceeding 15 days in the whole”:
Held: Sub-section (2) of Section 167 of the CrPC, 1973 further makes 
a reference to the words “a term not exceeding 15 days in the whole”– The 
term has been introduced on purpose keeping in view the proviso which 
gives an outer limit for the conclusion of the investigation – Similarly, the 
words “not exceeding 15 days in the whole” should be understood in the 
very same manner – The word “whole” means “total, not divided, lacking 
no part, entire, full, and complete” – The maximum period of 15 days of 
police custody is meant to be applied to the entire period of investigation – 
60 or 90 days, as a whole. [Paras 56 and 88]
Code of Criminal Procedure, 1973 – Does s.167(2) CrPC restrict 
a police custody only to the ﬁ rst 15 days of remand – Matter referred 
to Larger Bench:
Held: The Registry is directed to place the matter before Hon’ble the 
Chief Justice of India for appropriate orders to decide the larger issue of the 
actual import of Section 167(2) of the CrPC, 1973 as to whether the 15 days
period of custody in favour of the police should be only within the ﬁ rst 15 
days of remand or spanning over the entire period of investigation – 60 or 
90 days, as the case may be, as a whole. [Para 91]
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.
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS.
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
859
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 Oﬀ ence 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 diﬀ erence 
of opinion by the Division Bench of the Madras High Court, while dealing 
with a Writ Petition ﬁ led 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 speciﬁ c 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 ﬁ led. 
A BIRD’S EYE VIEW:
4. We shall ﬁ rst give a narration of the basic facts suﬃ  cient 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 ﬁ led separate appeals arising out of Special Leave 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS.
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 Oﬀ ence. 
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 Oﬃ  cer 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 ﬁ led a Habeas Corpus petition being HCP No.1021 
of 2023 on the very same day. In the meanwhile, the respondents ﬁ led 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 ﬁ led 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 certiﬁ ed 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
861
to have been conveyed by the Investigating Oﬃ  cer, 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 oﬃ  cials 
but no complaint of any bodily injury. The prosecution has established 
prima facie case against the accused for the oﬀ ences 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 ﬁ led an application for bail which was 
dismissed on 16.06.2023 by a speaking order considering all the contentions. 
This has attained ﬁ nality. 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 ﬁ led 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 ﬁ led 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 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 ﬁ tness 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 suﬃ  cient 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 ﬁ ling an application on 17.06.2023, seeking a direction that 
the ﬁ rst 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 
ﬁ led 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.
863
2. The High Court is yet to render its ﬁ nal 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 ﬁ xed, 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 clariﬁ ed 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 speciﬁ c prayer as such 
was sought for. 
15. On 22.06.2023, the respondents ﬁ led 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 
diﬀ ered 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;
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
864
SUPREME COURT REPORTS 
[2023] 12 S.C.R.
3. Miscellaneous petition ﬁ led by Respondent 1 seeking exclusion 
of the period is dismissed;”
17. Justice D. Bharata Chakravarty, recorded his views in diﬀ ering 
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 
ﬁ t 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 ﬁ t, 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?
865
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 ﬁ rst 15 days from the date of initial 
remand.” 
19. However, the learned Judge sent the ﬁ le 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 
ﬁ led 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 ﬁ le being sent back by the third learned Judge, 
the respondents ﬁ led Special Leave Petition (Criminal) No. 8750 of 2023. 
Two more Special Leave Petitions have been ﬁ led 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 oﬃ  cer. Such an authorized oﬃ  cer is not a police 
oﬃ  cer 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 oﬃ  cer and not any other 
agency. There is no investigation under the PMLA, 2002 since it is to be 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 oﬃ  cer. Being a 
beneﬁ cial 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 beneﬁ t 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 ﬁ led invoking Article 226 of the Constitution 
of India, 1950 is not maintainable. There was a legal arrest following which
867
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 ﬁ led 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 eﬀ ect 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 oﬀ ence 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 diﬀ erent 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 ﬁ des, 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 ﬁ led by the 
respondents will have to be allowed giving suﬃ  cient number of days for 
further investigation.
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 oﬃ  cer, 
culminating into a judicial function cannot be challenged by way of a writ 
of Habeas Corpus, while it is open to the person aggrieved to seek other 
statutory remedies. When 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 
speciﬁ cally 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 diﬀ erence 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. Suﬃ  ce 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 oﬀ ence under investigation, this issue has been considered in
869
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 ﬁ led 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 ﬁ led 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 oﬃ  cer.—(1) The police 
oﬃ  cer 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 oﬀ ence, to appear 
before him or at such other place as may be speciﬁ ed 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 oﬀ ence referred to in 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
870
SUPREME COURT REPORTS 
[2023] 12 S.C.R.
the notice unless, for reasons to be recorded, the police oﬃ  cer 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 oﬃ  cer may, 
subject to such orders as may have been passed by a competent Court 
in this behalf, arrest him for the oﬀ ence 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 oﬀ ender. 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 
Oﬃ  cer to ensure due compliance of Section 41A of the CrPC, 1973 
especially when a clear, diﬀ erent 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 Oﬃ  cer, duly 
fulﬁ lling the conditions adumbrated under Section 19 of the PMLA, 2002. 
The Explanation goes on to state by way of a clariﬁ cation that all oﬀ ences
871
under the Act shall be cognizable and non-bailable oﬀ ences, 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 conﬁ scation 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 ﬁ nancial 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 ﬁ nancial systems of the countries. The issues 
were debated threadbare in the United Nation Convention Against 
Illicit Traﬃ  c 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 
conﬁ scation of property derived from, or involved in, money-
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 conﬁ scation 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 eﬀ ected. 
Subsection (1) of Section
19 envisages that the Director, Deputy 
Director, Assistant Director, or any other oﬃ  cer 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 oﬀ ence punishable under the 2002 Act, he may 
arrest such person. Besides the power being invested in high-
ranking oﬃ  cials, Section 19 provides for inbuilt safeguards to be
873
adhered to by the authorised oﬃ  cers, such as of recording reasons 
for the belief regarding the involvement of person in the oﬀ ence 
of money-laundering. That has to be recorded in writing and 
while eﬀ ecting arrest of the person, the grounds for such arrest 
are informed to that person. Further, the authorised oﬃ  cer 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 oﬃ  cer in forming opinion as 
recorded in writing regarding the necessity to arrest the person 
being involved in oﬀ ence of money-laundering. Not only that, it is 
also the obligation of the authorised oﬃ  cer 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 oﬃ  cer. Section 19, as amended from time to time, 
reads thus…”
(emphasis supplied)
35. In light of the aforesaid discussion, an Authorized Oﬃ  cer
under 
the PMLA, 2002 is not duty bound to follow the rigor of Section 41A of 
the CrPC, 1973 as against the binding conditions under Section 19 of the 
PMLA, 2002. The above discussion would lead to the conclusion that 
inasmuch as there is already an exhaustive procedure contemplated under 
the PMLA, 2002 containing suﬃ  cient safeguards in favour of the person 
arrested, Section 41A of the CrPC, 1973 has no application at all.
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 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 satisﬁ ed that a person is guilty of an 
oﬀ ence; 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 oﬀ ences 
and economic oﬀ ences and not so much on minor oﬀ ences. The 
undesirable practice of arresting persons for minor oﬀ ences 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 oﬀ ences and oﬀ ences punishable up to 
seven years excepting therefrom the economic oﬀ ences…”
(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 
oﬀ ences, including economic oﬀ ences, but only to minor oﬀ ences 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.
875
Section 19
“19. Power to arrest.—(1) If the Director, Deputy Director, Assistant 
Director, or any other oﬃ  cer 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 oﬀ ence 
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 
oﬃ  cer 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 eﬀ ect an arrest, an oﬃ  cer authorised has to assess and evaluate 
the materials in his possession. Through such materials, he is expected to 
form a reason to believe
that a person has been guilty of an oﬀ ence punishable 
under the PMLA, 2002. Thereafter, he is at liberty to arrest, while performing 
his mandatory duty of recording the reasons. The said exercise has to be 
followed by way of an information being served on the arrestee of the 
grounds of arrest. Any non-compliance of the mandate of Section 19(1) of 
the PMLA, 2002 would vitiate the very arrest itself. Under sub-section (2), 
the Authorised Oﬃ  cer shall immediately, after the arrest, forward a copy of 
the order as mandated under sub-section (1) together with the materials in 
his custody, forming the basis of his belief, to the Adjudicating Authority, in 
a sealed envelope. Needless to state, compliance of sub-section (2) is also 
a solemn function of the arresting authority which brooks no exception.
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 fulﬁ lled by the authorised oﬃ  cer before 
eﬀ ecting arrest, as contained in Section 19 of the 2002 Act, are 
equally stringent and of higher standard. Those safeguards 
ensure that the authorised oﬃ  cers 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 
oﬀ ence of money-laundering even before ﬁ ling 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 oﬃ  cer is 
found to be vexatious, he can be proceeded with and inﬂ icted 
with punishment speciﬁ ed under Section 62 of the 2002 Act. 
The safeguards to be adhered to by the jurisdictional police 
oﬃ  cer before eﬀ ecting arrest as stipulated in the 1973 Code, 
are certainly not comparable. Suﬃ  ce it to observe that this 
power has been given to the high-ranking oﬃ  cials 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 ﬁ led under Section 44(1)(b) of the 2002 Act.
Investing of power in the high-ranking oﬃ  cials 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 oﬃ  cers, 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
877
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 oﬃ  cer 
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 oﬀ ence be liable on conviction for imprisonment 
for a term which may extend to two years or ﬁ ne which may extend 
to ﬁ fty 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 
oﬃ  cer
concerned to strictly comply with the mandate of Section 19 of the 
PMLA, 2002 in letter and spirit failing which he would be visited with the 
consequences. It is his bounden duty to record the reasons for his belief 
in coming to conclusion that a person has been guilty and therefore, to be 
arrested. Such a safeguard is meant to facilitate an element of fairness and 
accountability. 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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, conﬁ scation, 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 oﬀ ences under the Indian Penal Code and other laws.—
(1) All oﬀ ences 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 oﬀ ences 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 oﬀ ences.”
Section 5
“5. Saving.—Nothing contained in this Code shall, in the absence of 
a speciﬁ c provision to the contrary, aﬀ ect 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.”
879
45. Sub-section (2) to section 4 of the CrPC, 1973 ampliﬁ es the fact 
that any inquiry or investigation, along with their process, over an oﬀ ence 
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 clariﬁ cation 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 oﬀ ender. 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 diﬀ erent. 
One material can be used for both purposes, along with numerous others. 
So long as they travel together, there is not much of a diﬀ erence between an 
inquiry
and investigation. When they take separate routes, an inquiry ends 
before the Adjudicating Authority, while the other leads to a Special Court 
in the form of a complaint. This distinction has to be kept in mind to avoid 
any possible conﬂ ict 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 conﬁ rmed 
and to direct conﬁ scation 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.
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 oﬀ ence under the Act and Section 3 in particular. It is 
a diﬀ erent matter that the material collected during the inquiry by 
the authorities is utilised to bolster the allegation in the complaint 
to be ﬁ led 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 conﬁ rmation 
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 conﬁ scation 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 
oﬀ ence of money-laundering, but mainly intended to prevent 
money-laundering activity and conﬁ scate the proceeds of crime 
involved in money-laundering. It also provides for prosecuting 
the person involved in such activity constituting oﬀ ence of money-
laundering. In other words, this legislation is an amalgam of 
diﬀ erent facets including setting up of agencies and mechanisms for 
coordinating measures for combating money-laundering. Chapter 
III is a provision to eﬀ ectuate these purposes and objectives by 
attachment, adjudication and conﬁ scation. The adjudication 
is done by the Adjudicating Authority to conﬁ rm the order of
881
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 oﬀ ence. The inquiry preceding ﬁ ling 
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 conﬁ rmation of provisional 
attachment order, including to pass order of conﬁ scation, 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 ﬁ led for oﬀ ence 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 oﬀ ence of money-laundering. It is also not 
unusual to provide for arrest of a person during such inquiry 
before ﬁ ling 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 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
882
SUPREME COURT REPORTS 
[2023] 12 S.C.R.
Oﬃ  cer if he has reason to believe that any person in India or 
within the Indian Customs waters has been guilty of an oﬀ ence 
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 deﬁ ned in the 1973 Code 
nor in the Indian Penal Code, 1860 nor in any other enactment 
dealing with oﬀ ences. This word has been derived from the French 
word “arrater” meaning “to stop or stay”. It signiﬁ es a restraint 
of a person. It is, thus, obliging the person to be obedient to law. 
Further, arrest may be deﬁ ned as “the execution of the command 
of a court of law or of a duly authorised oﬃ  cer”. Even, this decision 
recognises the power of the authorised oﬃ  cer to cause arrest during 
the inquiry to be conducted under the concerned legislations. While 
adverting to the safeguards provided under that legislation before 
eﬀ ecting 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 Oﬃ  cer is statutory in character and 
cannot be interfered with. Such power of arrest can be exercised 
only in those cases where the Customs Oﬃ  cer has “reason to 
believe” that a person has been guilty of an oﬀ ence 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 
oﬀ ence enumerated and the Customs Oﬃ  cer has reason to believe 
that a person sought to be arrested has been guilty of commission 
of such oﬀ ence. The power to arrest thus is circumscribed by 
objective considerations and cannot be exercised on whims, 
caprice or fancy of the oﬃ  cer.
37. The section Ed.: Section 104 of the Customs Act, 1962 also 
obliges the Customs Oﬃ  cer 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 Oﬃ  cer to 
exercise power to arrest a person who has committed certain
883
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 Oﬃ  cer. The 
investigation is to be done only by the authorities under the 2002 
Act and upon culmination of the investigation, to ﬁ le 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 
oﬀ ence of money-laundering, for which, a complaint has already 
been ﬁ led by him or against person not named in the complaint 
and by legal ﬁ ction, such further complaint is deemed to be part of 
the complaint originally ﬁ led. 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 oﬃ  cer has no 
express power to ﬁ le a closure report unlike the power bestowed 
on the police oﬃ  cer, if he had investigated the same crime under 
the NDPS Act. Once again, this lack of authority to ﬁ le 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 oﬀ ence 
of money-laundering is made out requiring ﬁ ling of a complaint, 
the Authority under the Act expected to ﬁ le such complaint, is 
permitted to ﬁ le 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)
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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. Oﬀ ences 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 oﬀ ence 
under Section 3, without the accused being committed to it for 
trial:
Provided that after conclusion of investigation, if no 
oﬀ ence of money-laundering is made out requiring ﬁ ling 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 ﬁ le a closure report before the Special Court after conclusion, if it ﬁ nds 
that there are no suﬃ  cient 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 ﬁ xed by Section 57, and there 
are grounds for believing that the accusation or information is well-
founded, the oﬃ  cer in charge of the police station or the police oﬃ  cer 
making the investigation, if he is not below the rank of sub-inspector,
885
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 ﬁ t, for a term not exceeding ﬁ fteen 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 ﬁ fteen days, if he is satisﬁ ed 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 
oﬀ ence 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 
oﬀ ence, 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 ﬁ rst 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;
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 speciﬁ ed 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 certiﬁ ed 
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 
CRIMINAL PROCEDURE 1898
SECTION 167 OF THE CODE OF 
CRIMINAL PROCEDURE 1973
167. Procedure When Investigation
Cannot be Completed in Twenty-Four 
Hours: 
(1) Whenever it appears that any investigation 
under this Chapter cannot be completed 
within the period of twenty-four hours ﬁ xed 
by section 61, and there are grounds for 
believing that the accusation or information 
is well-founded, the oﬃ  cer-in-charge of the
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
887
police-station shall forthwith transmit to the 
nearest, Magistrate a copy of the entries in 
the diary hereinafter prescribed relating to the 
case, and shall at the same time forward the 
accused (if any) to such Magistrate.
is well-founded, the oﬃ  cer in charge of the 
police station or the police oﬃ  cer making 
the investigation, if he is not below the 
rank of sub-inspector, shall forthwith 
transmit to the nearest Judicial Magistrate 
a copy of the entries in the diary hereinafter 
prescribed relating to the case, and shall at 
the same time forward the accused to such 
Magistrate.
(2) The Magistrate to whom an accused 
person is forwarded under this section may, 
whether he has or has not jurisdiction to try 
the case, from time to time authorise the 
detention of the accused in such custody 
as such Magistrate thinks ﬁ t, for a term not 
exceeding ﬁ fteen days in the whole. If he 
has not 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.
(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 ﬁ t, for a term 
not exceeding ﬁ fteen 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 ﬁ fteen days, if he is satisﬁ ed 
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 oﬀ ence 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 oﬀ ence, 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 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 
speciﬁ ed 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 certiﬁ ed 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.
889
(3) A Magistrate authorising under this 
section detention in the custody of the police 
shall record his reasons for so doing.
(3) A Magistrate authorising under this 
section detention in the custody of the 
police shall record his reasons for so doing.
(4) If such order is given by a Magistrate other 
than the District Magistrate or Subdivisional-
Magistrate, he shall forward a copy of his 
order, with his reasons for making it, to 
the Magistrate to whom he is immediately 
subordinate. 
(4) Any Magistrate other than the Chief 
Judicial Magistrate making such order 
shall forward a copy of his order, with his 
reasons for making it to the Chief Judicial 
Magistrate.
As we could see, there is no diﬀ erence 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 satisﬁ ed 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 oﬃ  cer 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 conﬁ rmation 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 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 ﬁ rst 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 ﬁ xed day to another 
ﬁ xed 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 deﬁ ned 
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:
891
“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 ﬁ t” 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” :—
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 
ﬁ ndings, was, at the time of injury, totally dependent upon the employee 
for support. The word total is deﬁ ned 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
893
a detention diﬀ erent from custody. Custody will be either to the court or an 
investigating agency. Detention is normally made only by an investigating 
agency prior to the production before the 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 deﬁ ned in CrPC, and we must resort to few dictionaries to 
appreciate their contours in ordinary and legal parlance:
9.1. Oxford Dictionary (online) deﬁ nes “custody” as imprisonment, 
detention, conﬁ nement, 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) deﬁ nes “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) clariﬁ es 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.
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 
conﬁ nement, 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 
Oﬀ enses; Rescue” adumbrates that
“custody, within the meaning of statutes deﬁ ning 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 conﬁ ne 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 ﬁ nal, 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.”
895
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 diﬀ erent 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 ﬁ rst 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 diﬀ erent 
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 ﬁ nal 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 
ﬁ led within the period of limitation mentioned in the said Chapter of 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 oﬀ ences”. 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 
ﬁ ling 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 ﬁ ling of the complaint or initiation of the prosecution 
and not for taking cognizance. It of course prohibits the court from 
taking cognizance of an oﬀ ence where the complaint is ﬁ led 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 speciﬁ cally says that the period of limitation in relation to an 
oﬀ ence shall commence either from the date of the oﬀ ence or from 
the date when the oﬀ ence 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 oﬀ ender
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 
oﬀ ence the complaint of which is ﬁ led 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 oﬀ ence in regard to which 
a complaint is ﬁ led or prosecution is initiated beyond the period of 
limitation prescribed under the Code. Apart from the statutory 
indication of this view of ours, we ﬁ nd 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.
897
Therefore, a complaint ﬁ led 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 suﬀ er, 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 oﬀ ence 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 
suﬀ er. If any interim orders are made during the pendency of the 
litigation, they are subject to the ﬁ nal 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 ﬁ led 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 ﬁ led 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 beneﬁ t from his 
own wrongful act.”
××× 
×××  
×××
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 
suﬀ ered 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 suﬀ er 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 beneﬁ t from mere pendency of 
the case in a court of law, as the interim order always merges in 
the ﬁ nal 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 beneﬁ t 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 ﬁ led. 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 suﬀ er 
from the act of the court and in case an interim order has been
899
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 suﬀ ered but for the 
orders of the court. The successful party can demand the delivery of 
beneﬁ t 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 conﬁ ned 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 suﬀ ered an impoverishment which 
it would not have suﬀ ered, but for the order of the court and the 
act of such party, then the successful party ﬁ nally 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 beneﬁ t 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 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 diﬀ erence 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 beneﬁ t 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 aﬀ ords 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
901
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 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 Coalﬁ elds 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 ﬁ nal decision. The validity of an interim 
order, passed in favour of a party, stands reversed in the event of a 
ﬁ nal 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
suﬀ ered 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 beneﬁ ts 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 modiﬁ cation, 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
903
three senses : (i) return or restoration of some speciﬁ c thing 
to its rightful owner or status; (ii) compensation for beneﬁ ts 
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 modiﬁ ed 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 modiﬁ cation of a decree or order. The interim order
passed by 
the court merges into a ﬁ nal decision. The validity of an interim 
order, passed in favour of a party, stands reversed in the event of 
a ﬁ nal 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.
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
904
SUPREME COURT REPORTS 
[2023] 12 S.C.R.
28. That no one shall suﬀ er by an act of the court is not a rule 
conﬁ ned 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 beneﬁ ts 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 ﬁ nally 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 oﬃ  cer, 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 
ﬁ t”, “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
905
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 ﬁ rst 15 
days alone for the police custody. 
64. We would only reiterate that the proviso creates a ﬁ ne balance 
between individual liberty and adequate investigation. The time limit ﬁ xed 
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 beneﬁ t 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 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
906
SUPREME COURT REPORTS 
[2023] 12 S.C.R.
of this Court, we ﬁ nd 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 eﬀ ect 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 ﬁ ling 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 
oﬃ  cers would ﬁ le “preliminary charge-sheets” after the expiry of 
the remand period. The State would then request the Magistrate to
907
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 ﬁ nal charge-sheet was ﬁ led. 
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 ﬁ nal report being ﬁ led before the courts. It 
was also pointed out that there was conﬂ ict in judicial opinion as 
to whether the Magistrate was bound to release the accused if the 
police report was not ﬁ led within 15 days.
17.3. Hence the Law Commission in Report No. 14 recommended 
the need for an appropriate provision speciﬁ cally 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 ﬁ ling of the police report before the Magistrate. It was 
pointed out that in England, even a person accused of grave oﬀ ences 
such as treason could not be indeﬁ nitely 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 ﬁ ling “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 indeﬁ nitely 
while the investigation can go on in a leisurely manner’. Hence 
the Commission recommended ﬁ xing 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.
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 eﬀ ort 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 oﬀ ence 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 suﬃ  cient 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 oﬃ  cers are compelled 
to act swiftly and eﬃ  ciently 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 oﬀ ence, so that society at large does not lose faith and develop 
cynicism towards the criminal justice system.
909
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 ﬁ nd 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 
diﬀ erent 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, ﬁ rstly, the 90-day 
remand extension under Section 167(2)(a)(i) would be applicable 
in respect of oﬀ ences where the maximum period of imprisonment 
was 10 years, though the minimum period was less than 10 years. 
Secondly, whether the application for bail ﬁ led 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 
speciﬁ cally pleaded as a ground for bail. The majority opinion held 
that the 90-day limit is only available in respect of oﬀ ences 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 suﬃ  ce 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 indeﬁ nite 
period. It is for this reason and also to hold the investigating 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 oﬀ ence 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 beneﬁ t 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.
911
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 ﬂ owing from the said provision, 
courts will have to give due eﬀ ect to it, and thus any detention 
beyond this period would certainly
be illegal, being an aﬀ ront 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 beneﬁ t 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 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 eﬀ ect 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 satisﬁ ed 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:
913
“9. Having considered and deliberated over the issue involved herein 
in the light of the legal position and existing facts of the case, we ﬁ nd 
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 justiﬁ ed 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 oﬃ  cers 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 oﬃ  cers upon the authorised oﬃ  cers for the purpose 
of arrest and then custody to the police. That does not mean that there is no 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
914
SUPREME COURT REPORTS 
[2023] 12 S.C.R.
power under the PMLA, 2002 read with the CrPC, 1973 to the Authorised 
Oﬃ  cer 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 
beneﬁ t 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 
oﬃ  cer. …”
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 oﬃ  cer’ 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 deﬁ ned under Section 2(h) of the 
present Code [which is an exact reproduction of Section 4(1)(b) of
915
the old Code] which is an inclusive deﬁ nition as including all the 
proceedings under the Code for the collection of evidence conducted 
by a police oﬃ  cer 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 oﬀ ender, (4) Collection of evidence relating 
to the commission of the oﬀ ence which may consist of (a) the 
examination of various persons (including the accused) and the 
reduction of their statements into writing, if the oﬃ  cer thinks ﬁ t, 
(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 ﬁ ling 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 Oﬃ  cer of Enforcement or a Customs Oﬃ  cer is 
not a police oﬃ  cer though such oﬃ  cers 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 oﬃ  cers under 
the special Acts are not vested with the powers of a police oﬃ  cer 
qua investigation of an oﬀ ence under Chapter XII of the Code 
including the power to forward a report under Section 173 of the 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 oﬃ  cer of Enforcement or Customs is not 
undertaking an investigation as contemplated under Chapter XII of 
the Code, yet those oﬃ  cers 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 oﬀ ence 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 oﬀ ence/oﬀ ences.
××× 
×××  
×××
116. It should not be lost sight of the fact that a police oﬃ  cer making 
an investigation of an oﬀ ence representing the State ﬁ les a report 
under Section 173 of the Code and becomes the complainant whereas 
the prosecuting agency under the special Acts ﬁ les 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 diﬀ erently, the police oﬃ  cer 
after consummation of the investigation
ﬁ les a report under Section 
173 of the Code upon which the Magistrate may take cognizance of 
any oﬀ ence disclosed in the report under Section 190(1)(b) of the 
Code whereas the empowered or authorised oﬃ  cer of the special Acts 
has to ﬁ le only a complaint of facts constituting any oﬀ ence under the 
provisions of the Act on the receipt of which the Magistrate may take 
cognizance of the said oﬀ ence under Section 190(1)(a) of the Code. 
After taking cognizance of the oﬀ ence 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.
917
Therefore, the word ‘investigation’ cannot be limited only to police 
investigation but on the other hand, the said word is with wider 
connotation and ﬂ exible so as to include the investigation carried 
on by any agency whether he be a police oﬃ  cer or empowered or 
authorised oﬃ  cer or a person not being a police oﬃ  cer 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 Oﬃ  cer 
of Enforcement or the Customs Oﬃ  cer is not empowered with the 
power of investigation though not with the power of ﬁ ling a ﬁ nal report 
as in the case of a police oﬃ  cer.
××× 
×××  
×××
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 eﬀ ect 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 oﬀ ences.”
××× 
×××  
×××
131. The submission that as there is no investigation within the terms 
of the Code in the ﬁ eld 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 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
918
SUPREME COURT REPORTS 
[2023] 12 S.C.R.
of investigation, inquiry and trial of the oﬀ ences 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 oﬀ ence under the special Acts 
also inasmuch as there is no speciﬁ c 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 ﬂ aw 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 
eﬀ ect 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
919
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 speciﬁ cally 
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 speciﬁ c 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, conﬁ scation, 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 oﬃ  cer 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 ﬁ led 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)
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 ﬁ rst 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 eﬀ ort 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.”
921
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 ﬁ rst 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 ﬁ eld. 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 ﬁ ts
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 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 deﬁ ne. 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 Oﬃ  ce 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 deﬁ nition. It will require qualiﬁ cation 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 ﬂ exibility, one additional or diﬀ erent fact may 
make a world of diﬀ erence between conclusions in two cases. 
Disposal of cases by blindly placing reliance on a decision is not 
proper.
923
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 signiﬁ cant 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 ﬁ nd 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 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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, inﬂ ated 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 ﬁ nds 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.
925
(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 
eﬀ ect that a police custody shall only be within the ﬁ rst 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 ﬁ ne 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 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 diﬀ erent 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 diﬀ erent 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 eﬀ ective 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 oﬀ ence 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 ﬁ rst 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,
927
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 
ﬁ ndings 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 ﬁ rst 15 days of remand or 
spanning over the entire period of investigation - 60 or 90 days, as the case 
may be, as a whole. 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 ﬁ nality.
81. We shall ﬁ rst consider the maintainability of the writ petition ﬁ led. 
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 ﬁ ling 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, 
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 ﬁ nd 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 ﬁ nd 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
929
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 oﬃ  cer under the PMLA, 2002 is 
not a police oﬃ  cer as declared in Vijay Madanlal Choudhary (supra). As 
stated, an oﬃ  cer 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 diﬀ erent 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 diﬀ erent 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 aﬀ ect 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.
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
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 beneﬁ t of the person arrested. 
For such non-compliance, the Competent Court shall have the 
power to initiate action under Section 62 of the PMLA, 2002.
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 ﬁ ne 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.
931
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 eﬀ ect 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 ﬁ led 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 ﬁ rst 15 days of remand or spanning over the entire 
period of investigation – 60 or 90 days, as the case may be, as a whole. 
Headnotes prepared by:  
Appeals dismissed.
Ankit Gyan
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY 
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]