PETITIONER:
DIRECTORATE OF ENFORCEMENT
Vs.
RESPONDENT:
DEEPAK MAHAJAN
DATE OF JUDGMENT31/01/1994
BENCH:
PANDIAN, S.R. (J)
BENCH:
PANDIAN, S.R. (J)
REDDY, K. JAYACHANDRA (J)
CITATION:
1994 AIR 1775 1994 SCR (1) 445
1994 SCC (3) 440 JT 1994 (1) 290
1994 SCALE (1)294
ACT:
HEADNOTE:
JUDGMENT:
The Judgment of the Court was delivered by
S. RATNAVEL PANDIAN, J.- The salient and indeed
substantial legal question which looms for determination in
this appeal may be formulated as follows:
Whether a Magistrate before whom a person
arrested under subsection (1) of Section 35 of
the Foreign Exchange Regulation Act of 1973
which is in pari materia with sub-section (1)
of Section 104 of the Customs Act of 1962, is
produced under sub-section (2) of Section 35
of the Foreign Exchange Regulation Act, has
jurisdiction to authorise detention of that
person under Section 167(2) of the Code of
Criminal Procedure?
2. As a preclude to the judgment, we would like to state
that though the appellant in the present case has been
arrested under sub-section (1) of Section 35 of Foreign
Exchange Regulation Act, 1973 (hereinafter referred to as
the ‘FERA’) and taken to the Magistrate under sub-section
(2) thereof, we while disposing the legal questions posed
for determination, are inclined to deal with the
corresponding provisions under the Customs Act also for the
reasons (i) that the scheme for both the FERA and the
Customs Act is more or less the same; (ii) the provisions
relating to the arrest and production of the arrestee before
the Magistrate are identical; (iii) the arguments by both
the parties have been advanced pertaining to provisions of
both the Acts; and (iv) almost all the decisions cited
relate to the provisions of both the Acts.
3. There is a vertical cleavage of opinion amongst the
various High Courts on the above legal question which has
come up for adjudication in the present appeal.
447
4. This appeal, by special leave is directed against the
judgment of the High Court of Delhi dated April 6, 1990
rendered by a five-Judge Bench in Criminal Writ No. 316 of
1989 overruling the decision of the same High Court in Union
of India v. O.P. Gupta’ rendered in Criminal Writ Nos. 104
and 116 of 1984 by a three-Judge Bench reversing an earlier
decision in Dalam Chand Baid v. Union of India2 which was
decided by a Division Bench of the same High Court holding
that a Magistrate has no power to remand a person accused of
an offence punishable under the Foreign Exchange Regulation
Act, 1973 (hereinafter refer-red to as ‘FERA’) to judicial
custody.
5. Though normally, it may not be necessary to make any
reference about the constitution of a particular bench which
is the prerogative of the Chief Justice of the High Court
concerned, yet regrettably in this case, it has become
unavoidable to make reference concerning the constitution of
the Bench since during the course of the arguments, a
diatribe, though not justifiable was made about the
formation of the Bench, presided over by Charanjit Talwar,
J. who gave a dissenting judgment in the case of O.P.
Gupta’.
6. In Gupta case’ the Bench was presided over by Yogeshwar
Dayal, J. (as he then was) and two other learned Judges,
namely, Charanjit Talwar and Malik Sharief-Ud-Din, JJ. of
whom Charanjit Talwar, J. gave his dissenting judgment.
7. When the decision of Gupta case’ was holding the field,
Respondent I namely Deepak Mahajan was arrested on March 13,
1989 by the officers of the Enforcement Directorate for an
offence punishable under the provisions of FERA and taken
before the Additional Chief Metropolitan Magistrate, New
Delhi on the next date as per the mandate of sub-section (2)
of Section 35 of the said Act. An application under Section
167(2) of the Code of Criminal Procedure (hereinafter
referred to as ‘the Code’) was moved by the Enforcement
Officer seeking petitioner’s detention under judicial
custody commonly known in the legal parlance as ‘judicial
remand’ on the ground that it was necessary to complete the
investigation. On the very same day, the respondent
unsuccessfully moved the court for bail. The Magistrate
remanded the first respondent to judicial custody for
fourteen days and subsequently extended the detention
period. The first respondent challenged the jurisdiction of
the Magistrate in authorising the detention (remand) and the
subsequent consecutive extensions. But his plea was
rejected on the basis of the decision in Gupta case’. This
order of the Magistrate was impugned before the High Court.
The Division Bench of the High Court comprising of Charanjit
Talwar, V.B. Bansal, JJ. in the light of the decision of
this Court in Chaganti Satyanarayana v. State of A.p.3
holding that the powers of remand vested in a Magistrate
become exercisable only after an accused is produced
1 (1990) 2 Del Lawyer 23 (FB)
2 1982 Cri LJ 747: (1982) 21 DLT 144 (Del)
3 (1986) 3 SCC 141: 1986 SCC (Cri) 321: AIR 1986 SC 2130:
(1986) 2 SCR 1128
448
before him in terms of sub-section (1) of Section 167 of the
Code, referred the matter by its order dated March 12, 1980
to a larger Bench opining that the law laid down in Gupta
case’ was no longer a good law and it required
reconsideration. The learned Chief Justice of the High
Court on such reference constituted a Full Bench comprising
of Charanjit Talwar, J.C. Jain and V.B. Bansal, JJ. This
three-Judge Bench after hearing the matter for sometime
expressed their view that the case should be heard and
decided by a five-Judge Bench since the judgment in Gupta
case’ was already decided by a three-Judge Bench. It was
under those circumstances, the Bench was constituted
comprising of Charanjit Talwar, Malik Sliarief-Ud-Din,
Sunanda Bhandare, P.K. Bahri and R.L. Gupta, JJ. Thus the
said case was heard by a five-Judge Bench.
8. By majority (per Charanjit Talwar, Sunanda Bhandare and
P.K. Bahri, JJ.) the decision in Gupta case’ has been
overruled though Malik ShariefUd-Din and R.L. Gupta, JJ.
gave their separate dissenting judgments. The result was
that the dictum laid down in Gupta case’ to the effect that
there is ” power available to a Magistrate under Section
167(2) of the Code to commit to custody a person produced
before him by a Customs Officer under Section 104 of the
Customs Act”, has been overruled. However, the conclusion
of Gupta case’ that “Section 437 of the Code of Criminal
Procedure does not confer implied power of remand on a
Magistrate” has been upheld.
9. Consequent upon the above dictum by majority, it has
been held in the present case that the Magistrate has no
power to remand a person produced before him in accordance
with Section 35(2) of FERA.
10. In this connection, be it noted that the provisions of
Section 35 of FERA [which corresponds to Section 19-B of the
old FERA Act (VII of 1947)] and sub-sections (1) to (3) of
Section 104 of the Customs Act are identical and they do not
explicitly lay down the procedure as to how the Magistrate
should deal with an arrestee, when brought before him either
by the Officer of the Enforcement Directorate or the Customs
Officer, as the case may be.
11. For proper understanding and scrutiny of this rule, let
us reproduce the relevant provisions of Section 35 of FERA
and Section 104 of the Customs Act.
“Section 35 of FERA
“35. (1) If any officer of Enforcement
authorised in this behalf by the Central
Government, by general or special order, has
reason to believe that any person in India or
within the Indian customs waters has
been guilty of an offence punishable under
this Act, he may arrest such person and shall,
as soon as may be, inform him of the grounds
for such arrest.
(2) Every person arrested under sub-section
(1) shall, without unnecessary delay, be taken
to a Magistrate.
449
(3) Where any officer of Enforcement has
arrested any person under sub-section (1), he
shall, for the purpose of releasing such
person on bail or otherwise, have the same
powers and be subject to the same provisions
as the officer-in-charge of a police station
has, and is subject to, under the Code of
Criminal Procedure, 1898 (5 of 1898).”
Section 104 of the Customs Act
“104. (1) If any officer of Customs empowered
in this behalf by general or special order of
the Collector of Customs has reason to believe
that any person in India or within the Indian
customs waters has been guilty of an offence
punishable under Section 135, he may arrest
such person and shall, as soon as may be,
inform him of the grounds for such arrest.
(2) Every person arrested under sub-section
(1) shall, without unnecessary delay, be taken
to a Magistrate.
(3) Where an officer of Customs has arrested
any person under subsection (1), he shall, for
the purpose of releasing such person on bail
or otherwise, have the same powers and be
subject to the same provisions as the officer-
in-charge of a police station has and is
subject to under the Code of Criminal
Procedure, 1898 (5 of 1898).
(4) Notwithstanding anything contained in
the Code of Criminal Procedure, 1898 (5 of
1898), an offence under this Act shall not be
cognizable.
12. Though there is no specific provision in FERA as sub-
section (4) of Section 104 of the Customs Act, Section 62
speaks of non-cognizable offences and that section reads as
follows:
“62. Certain offences to be non-cognizable.-
Subject to the provisions of Section 45 and
notwithstanding anything contained in the Code
of Criminal Procedure, 1898 (5 of 1898), an
offence punishable under Section 56 shall be
deemed to be non-cognizable within the meaning
of that Code.”
13. Sub-section (2) of Section 61 restricts
a court in taking cognizance of certain
offences and also in cases of certain offences
except under certain conditions. That
provision reads thus:
“61. Cognizance of offences.-
(2) No court shall take cognizance-
(i) of any offence punishable under sub-
section (2) of Section 44 or sub-section (1)
of Section 58,-
(a) where the offence is alleged to have
been committed by an officer of Enforcement
not lower in rank than an Assistant Director
of Enforcement, except with the previous
sanction of the Central Government;
(b) where the offence is alleged to have
been committed by an officer of Enforcement
lower in rank than an Assistant
450
Director of Enforcement, except with the
previous sanction of the Director of
Enforcement; or
(ii) of any offence punishable under Section
56 or Section 57, except upon complaint in
writing made by-
(a) the Director of Enforcement; or
(b) any officer authorised in writing in
this behalf by the Director of Enforcement or
the Central Government; or
(c) any officer of the Reserve Bank
authorised by the Reserve Bank by a general or
special order:
Provided that where any such offence is the
contravention of any of the provisions of this
Act or of any rule, direction or order made
thereunder which prohibits the doing of an act
without permission, no such complaint shall be
made unless the person accused of the offence
has been given an opportunity of showing that
he had such permission.”
14. The key questions that come up for consideration are
whether a Magistrate before whom a person arrested under
Section 35 is taken can detain that arrestee in judicial
custody and if not, what the Magistrate is expected to do?
To answer those questions, we have to examine sub-section
(2) of Section 35 of FERA and sub-section (2) of Section 104
of the Customs Act which are in pari materia reading:
“Every person arrested under sub-section (1)
shall, without unnecessary delay, be taken to
a Magistrate.”
15. Apart from the power of arrest provided under Section
35 of the FERA, Section 45 of that Act empowers any police
officer not below the rank of a Sub-Inspector of Police or
any other officer of the Central Government or State
Government authorised by the Central Government in this
behalf to enter into any public place and search and also
arrest without warrant any person found therein who is
reasonably suspected of having committed or of committing or
of being about to commit any contravention of the provisions
of sub-section (1) of Section 8. The procedure to be
followed, after effecting such arrest is contemplated under
sub-section (2) of Section 45 which states that:
“Where any person is arrested under sub-
section (1) by an officer other than a police
officer, such officer shall, without
unnecessary delay, take or send the person
arrested before a Magistrate having
jurisdiction in the case or before the
officer-in-charge of a police station.”
In this context, a perplexed question arises as to what the
Magistrate or the police officer has to do in case the
arrestee under Section 45(1) of FERA is taken or sent before
him? Section 46 lays down the procedure in respect of
foreign exchange or any other goods seized by police
officers. Though we are not very much concerned in this
case with the procedure laid down in Section 46, the fact
remains that in the FERA, the police officers are given some
independent authority to act in exercise of certain
provisions of this Act. There is no provision in the
Customs Act similar to Sections 45 and 46
451
of the FERA. However, Section 151 of Customs Act empowers
and requires certain specified officers enumerated under
clauses (a) to (e) to assist officers of Customs in the
execution of the Act. One of the officers enumerated under
clause (c) is ‘officers of police’. But this section does
not empower police officers to exercise the powers conferred
upon customs officers by and under the Act but only
authorises and requires the police officers to assist the
customs officer in the exercise of their powers.
16. The ‘proper officer’ referred to in various provisions
of the Customs Act, who is to perform any function under the
said Act, means the officer of Customs who is assigned those
functions by the Board or Collector of Customs as defined
under clause (34) of Section 2 of Customs Act, but it does
not include the officers of Police or any other officers
enumerated under Section 151. Therefore the police officers
have no independent role to play in exercise of the powers
under the Customs Act as in Sections 45 and 46 of the FERA.
17. For the disposal of this appeal, we have to deal with
the intendment and application of various provisions of the
FERA particularly Sections 35, 45, 46, Section 104 of
Customs Act, Section 68 of the Gold Control Act and various
provisions of the Code of Criminal Procedure in particular
Sections 4(2), 41, 56, 57, 157(2), 167(1)(2), 436, 437 and
the allied provisions, in the light of the principles of law
enunciated by the judicial pronouncements of this Court as
well as of some High Courts. In fact, in the impugned
judgment, the High Court also has examined all those
provisions from various angles, but the question would be
whether the interpretation given and the conclusion arrived
at by the majority of the court below can be sustained?
18. Reverting to the judgment under challenge, Charanjit
Talwar, J. in his separate judgment with which Sunanda
Bhandare and P.K. Bahri, JJ. agreed, has given the following
reasons for his conclusions. Those being:
(1) Neither an officer of Enforcement nor
the Customs Officer within the meaning of the
provisions of FERA or Customs Act respectively
is a police officer, in charge of a police
station or a police officer making an
investigation as contemplated under Section
167(1) of the Code and, therefore, a
Magistrate before whom an arrestee is taken or
sent by an Enforcement Officer or Customs
Officer, as the case may be, cannot authorise
the detention of the persons so produced or
presented, either to judicial custody or to
the custody of the arrestor or make subsequent
periodical extension of detention or remand in
exercise of the powers under Section 167(2) of
the Code. In other words, the power to arrest
a person coupled with the duty to produce or
present him before a Magistrate under Section
35 of FERA or Section 104 of Customs Act ipso
facto does not attract the operation of
clauses (1) and (2) of Section 167 of the
Code.
(2) Neither the Officer of Enforcement
authorised under Section 35 of FERA nor the
Officer of Customs empowered under Section 104
is a
452
police officer nor is the person arrested by
any of them is yet an accused triable by a
Magistrate having jurisdiction or an accused
to be committed for trial at that stage.
(3) Neither the Officer of Enforcement nor
the Customs Officer is empowered with the
power of investigation as contemplated under
Chapter XII of the Code or under any specific
provisions of the special laws.
(4) Neither the officer holding inquiry
under the provisions of FERA or the Customs
Act can exercise the power of investigation as
contemplated under Chapter XII of the Code by
virtue of Section 4(2) of the Code.
(5) The power conferred on such authorised
or empowered officer to make arrest of any
person on reasonable belief that such person
has been guilty of an offence punishable under
the provisions of FERA or Section 135 of the
Customs Act, as the case may be, and to
produce the arrestee before a Magistrate is
though similar with a duty cast on a police
officer as under Sections 56 and 57 of the
Code, those officers are not equivalent to
police officers with the power of
investigation into the commission of an
offence as empowered under Chapter XII of the
Code though they are enjoying the limited
power, as given to the officer-incharge of a
police station under the Code for the purpose
of releasing an arrestee on bail or otherwise.
19. Ere we turn to the legal issues raised by the
respective parties, it has become inevitably necessary to
first examine the issues on the legal principle and then to
interpret the construction of the language of the statute,
deployed both implicitly and explicitly with reference to
the provisions of the Code and of the other allied special
laws.
20. Manifestly, the significant and axial issue that arises
in this appeal for decision is pristinely a legal question
which we have indicated in the proemial part of this
judgment and which we have to examine in the backdrop of the
various provisions of the general procedural laws, keeping
in mind of the dividing arguendo and the shades of divergent
judicial opinions of various High Courts though the
controversy centres around a short point.
21. In order to resolve that controversy, it has become
essential to focus our attention on the task of proper
application of the concerned law by ascertaining the
purposeful meaning of the language deployed, the spirit and
sense which the legislature has aimed and intended to convey
and the conclusions to be drawn which are in the tenor of
the law though not within the letter of the law.
22. In the background of the above principle of statutory
interpretation, now coming to and dealing with the legal
challenges, several vital queries have to be considered and
answered. Those are:
(1) Whether the jurisdiction of the
Magistrate to authorise detention of an
arrestee produced before him either in
judicial custody or otherwise under Section
167(2) of the Code is completely excluded or
ousted by
453
the absence of any specific provision in the
FERA or the Customs Act empowering the
Magistrate to authorise the detention’ of the
arrestee under the Code?
(2) When the jurisdiction of the Magistrate
to authorise detention is not expressly
forbidden by any specific exclusionary
provision and when such exclusion of
jurisdiction cannot be clearly implied or
readily inferred, does the detention
authorised by the Magistrate either to
judicial custody or otherwise become ab initio
void and illegal and can the Magistrate be
said to have exceeded or abused his authority?
(3) What is the procedure to be followed and
the order required to be passed by the
Magistrate when a person arrested under the
FERA or Customs Act is presented before him?
(4) When the Officer of Enforcement or
Customs Officer is not inclined to release the
arrestee on bail or otherwise by exercising
the power under sub-section (3) of Section 35
of FERA or Section 104 of the Customs Act, a
s
the case may be, but produces the arrestee
before a Magistrate as mandated by sub-section
(2) of the abovesaid provisions, will it not
be a legal absurdity to say that the
Magistrate should forthwith let go the
arrestee without ordering detention and also
extension of further detention or remand? and
(5) Whether the Magistrate has no other
alternative except to release that arrested
person, produced before him on bail or direct
him to be freed unconditionally and whether
the Magistrate is completely stripped off his
authority to refuse bail and take him to
judicial custody?
The above questions are some of the legal challenges
canvassed before the Full Bench of the High Court, which by
a majority opinion, has negatively answered.
23. Keeping in view the cardinal principle of law that
every law is designed to further the ends of justice but not
to frustrate on the mere technicalities, we shall deal with
all those challenges in the background of the principles of
statutory interpretations and of the purpose and the spirit
of the concerned Acts as gathered from their intendment.
24. The concerned relevant provisions of the Acts with
which we are concerned, no doubt, pose some difficulty in
resolving the question with regard to the jurisdiction of
the Magistrate authorising detention and subsequent
extension of the same when the provisions of those Acts are
narrowly and literally interpreted. Though the function of
the courts is only to expound the law and not to legislate,
nonetheless the legislature cannot be asked to sit to
resolve the difficulties in the implementation of its
intention and the spirit of the law. In such circumstances,
it is the duty of the court to mould or creatively interpret
the legislation by liberally interpreting the statute.
25. In Maxwell on Interpretation of Statutes, Tenth Edn. at
page 229, the following passage is found:
454
“Where the language of a statute, in its
ordinary meaning and grammatical construction,
leads to a manifest contradiction of the
apparent purpose of the enactment, or to some
inconvenience or absurdity, hardship or
injustice, presumably not intended, a
construction may be put upon it which modifies
the meaning of the words, and even the
structure of the sentence. … Where the main
object and intention of a statute are clear,
it must not be reduced to a nullity by the
draftsman’s unskilfulness or ignorance of the
law, except in a case of necessity, or the
absolute intractability of the language used.”
26. In Seaford Court Estates Ltd. v. Asher4
Denning, L.J. said:
“[W]hen a defect appears a judge cannot simply
fold his hands and blame the draftsman. He
must set to work on the constructive task of
finding the intention of Parliament … and
then he must supplement the written word so as
to give ‘force and life’ to the intention of
the legislature. A Judge should ask himself
the question how, if the makers of the Act had
themselves come across this ruck in the
texture of it, they would have straightened it
out? He must then do as they would have done.
A judge must not alter the material of which
the Act is woven, but he can and should iron
out the creases.”
27. Though the above observations of Lord Denning were
disapproved in appeal by the House of Lords in Magor and St.
Mellons v. Newport Corpn5 Sarkar, J. speaking for the
Constitution Bench in M. Pentiah v. Muddala Veeramallappa6
adopted that reasoning of Lord Denning. Subsequently also,
Beg, C.J. in Bangalore Water Supply and Sewerage Board v. A.
Rajappa7 approved the observations of Lord Denning stating
thus : (SCC p. 285, para 148)
“Perhaps, with the passage of time, what may
be described as the extension of a method
resembling the ’arm-chair rule’ in the
construction of wills, Judges can more frankly
step into the shoes of the legislature where
an enactment leaves its own intentions in much
too nebulous or uncertain a state.”
(emphasis
supplied)
28. It will be befitting, in this context,
to recall the view expressed by Judge Frank in
Guiseppi v. Walling8 which read thus:
“The necessary generality in the wordings of
many statutes, and ineptness of drafting in
others frequently compels the court, as best
as they can, to fill in the gaps, an activity
which no matter how one may label it, is in
part legislative. Thus the courts in their
way, as administrators perform the task of
supplementing statutes. In the case of
courts, we call it ‘interpretation’ or
‘filling in the gaps’; in the case of
administrators we call it ‘delegation’ or
authority to supply the details.”
4 (1949) 2 All ER 155, 164
5 (1951) 2 All ER 839 (HL)
6 (1961) 2 SCR 295: AIR 1961 SC 1107
7 (1978) 2 SCC 213:1978 SCC (L&S) 215: AIR 1978 SC 548
8 144 F 2d 608, 620, 622 (CCA 2d, 1944) quoted in 60
Harvard Law Review 370, 372
455
29. Subba Rao, C.J. speaking for the Bench in Chandra Mohan
v. State of U.P.9 has pointed out that the fundamental rule
of interpretation is that in construing the provisions of
the Constitution or the Act of Parliament, the Court “will
have to find out the express intention from the words of the
Constitution or the Act, as the case may be …” and eschew
the construction which will lead to absurdity and give rise
to practical inconvenience or make the provisions of the
existing law nugatory.
A.P. Sen, J. in Organo Chemical Industries v. Union of
India10 has stated thus: (SCR p. 89 : SCC p. 586, para 23)
“A bare mechanical interpretation of the words
‘devoid of concept or purpose’ will reduce
most of legislation to futility. It is a
salutary rule, well established, that the
intention of the legislature must be found by
reading the statute as a whole.”
30. Krishna Iyer, J. has pointed out in his inimitable
style in Chairman, Board of Mining Examination and Chief
Inspector of Mines v. Ramjee11: “To be literal in meaning is
to see the skin and miss the soul of the Regulation.”
31. True, normally courts should be slow to pronounce the
legislature to have been mistaken in its constantly
manifested opinion upon a matter resting wholly within its
will and take its plain ordinary grammatical meaning of the
words of the enactment as affording the best guide, but to
winch up the legislative intent, it is permissible for
courts to take into account of the ostensible purpose and
object and the real legislative intent. Otherwise, a bare
mechanical interpretation of the words and application of
the legislative intent devoid of concept of purpose and
object will render the legislature inane. In cases of this
kind, the question is not what the words in the relevant
provision mean but whether there are certain grounds for
inferring that the legislature intended to exclude
jurisdiction of the courts from authorising the detention of
an arrestee whose arrest was effected on the ground that
there is reason to believe that the said person has been
guilty of an offence punishable under the provisions of FERA
or the Customs Act which kind of offences seriously create a
dent on the economy of the nation and lead to hazardous
consequences. Authorities, a few of which we have referred
to above, show that in given circumstances, it is
permissible for courts to have functional approaches and
look into the legislative intention and sometimes it may be
even necessary to go behind the words and enactment and take
other factors into consideration to give effect to the
legislative intention and to the purpose and spirit of the
enactment so that no absurdity or practical inconvenience
may result and the legislative exercise and its scope and
object may not become futile.
32. In the light of the above exposition of the principle
of law, we have no reason to believe and in fact do not
believe that the provisions of the
(1967) 1 SCR 77: AIR 1966 SC 1987: (1967) 1 LLJ 412 (1979)
4 SCC 573: 1980 SCC (L&S) 92: (1980) 1 SCR 61
(1977)2SCC256:1977SCC(L&S)226:AIRI977SC965
456
FERA and Customs Act were passed for any other purpose
rather than their ostensible purposes, vital among which
being the economic development of the country and
augmentation of revenue.
33. Bearing in mind the above principles of interpretation
and the legal proposition, we shall now approach all the
challenges canvassed and examine the legal issue on the
principle of interpretation of law, more so with the aid of
some other provisions of the procedural law so that no
obscurity or absurdity may result in resolving the legal
intricacy posed for consideration in this case.
34. To begin with, we shall examine the primary question
whether Section 35(2) of FERA or Section 104(2) of the
Customs Act serves as a substitute to Section 167(1) of the
Code. To say in other words, whether Section 167(1) is
replaced or substituted by the abovesaid provisions of two
special Acts. The majority of the Judges in O.P. Gupta’ in
paragraph 37 had posed a similar question for their
consideration and answered that question in the following
words:
“Section 167(1) of the Code is already
replaced by Section 104(2) of the Customs Act
and Section 35(2) of the Foreign Exchange
Regulation Act. What is to be done to a
person who is so produced before the
Magistrate is dealt with only under Section
167(2) of the Code and not under Section
167(1) of the Code.”
But Talwar, J. dissented from that view observing, ”the
power to arrest a person coupled with the duty to produce
him or present him before the Magistrate ipso facto does not
attract the provisions of Section 167 of the Code.”
35. The same learned Judge (Talwar, J.) in his judgment in
Deepak Mahajan which is impugned herein again considered
that question and reaffirmed his earlier stand rejecting
altogether the contention that Section 35(2) of FERA and
Section 104(2) of the Customs Act are substitutes to Section
167(1) of the Code and that it is nothing but only a
mismatch of the provisions of the Code and the provisions of
the Customs Act and FERA, mainly on the ground that the pre-
requisite conditions required for invocation of Section
167(1) are conspicuously absent in the provisions of the
other two special Acts, those being: (1) Section 167 of the
Code specifically refers only to a person arrested and
detained in custody by a police officer on well-founded
accusation or information; (2) there must be an
investigation by a police officer as explained in Section
167(1) of the Code; (3) the words ‘officer-in-charge of a
police station or a police officer making the investigation,
if he is not below the rank of Sub-Inspector’ cannot be
substituted by the words ‘Customs Officer or Officer of
Enforcement’; (4) there is no question of transmission of a
copy of the entries in the diary as prescribed relating to
the case in respect of the accused arrested and (5) the
person arrested by the Officer of Enforcement or Customs
Officer is not an accused within the purview of the Code and
that the officer concerned is not investigating the
commission of an offence
457
triable by a Magistrate though they have been given a
limited power of the officer-in-charge of a police station
“to grant or not to grant bail” and nothing more.
36. The majority of the Judges in Deepak Mahajan have gone
to the extent of holding that Section 4(2) of the Code
cannot come in aid to invoke Section 167(2) even on
interpretation of the provisions of those two special Acts
read with Section 4(2) of the Code.
37. We shall now examine the provisions of Section 167(1)
and (2) of the Code vis-a-vis Section 35(2) of FERA and
Section 104(2) of the Customs Act having regard to the
purpose for which these provisions are enacted.
38. The caption of Section 167 reads: “Procedure when
investigation cannot be completed in twenty-four hours.” A
conjoint reading of Section 57 (corresponding to Section 61
of the old Code) and Section 167(1) and (2) barring the
provisos to sub-section (2) of the Code together, manifestly
shows that the legislature has contemplated that the
investigation of the offence in case of a person arrested
without a warrant should be completed in the first instance
within twenty-four hours and if the investigation cannot be
completed within that period, then the Magistrate can
authorise the detention of the accused in such custody as he
thinks fit for a term not exceeding fifteen days.
39. The original proviso added to sub-section (2) of
Section 167 of the Code empowered the Magistrate to
authorise detention of the accused persons otherwise than in
custody of the police, beyond the period of fifteen days for
a total period not exceeding sixty days and on the expiry of
the said period of sixty days, the accused person shall be
released on bail. But subsequently, in place of the
original proviso, the present proviso was substituted by
Section 13(a) of CrPC (Amendment) Act, 1978 w.e.f. December
18, 1978 whereby the period of 60 days prescribed in general
for all kinds of cases under the original proviso has been
modified as ninety days, where the investigation relates to
an offence punishable with death, imprisonment for life or
imprisonment for a term of not less than ten years, and
sixty days, where the investigation relates to any other
offence, By Section 13(b) of the said Amendment Act,
original Explanation 1 was renumbered as Explanation II and
Explanation 1 was added.
40. Sub-section (2-A) to Section 167 of the Code has been
inserted by Section 13(c) of the abovesaid Amendment Act
w.e.f. December 18, 1978. Before the introduction of the
proviso to Section 167(2), further remand on the expiry of
fifteen days was made on the strength of the Explanation to
Section 344 of the old Code under the heading “Reasonable
cause for remand” which corresponded to the present
Explanation 1 of Section 309 of the new Code. The
reasonable cause for such extension of remand was the
collection of sufficient evidence within the first period of
fifteen days to raise a suspicion that the accused might
have committed an offence and that it appeared likely that
further evidence might be obtained by such a remand.
458
This extension of remand was for enabling the investigating
agency to collect further material pertaining to the offence
under investigation. See (1) A. Lakshmanarao v. Judicial
Magistrate, Parvatipuram 12, (2) Gouri Shankar Jha v. State
of Bihar13 and (3) Matabar Parida v. State of Orissa 14.
41. The present proviso (a)(i) and (ii) of Section 167(2)
empowers the Magistrate to authorise the detention of the
accused person otherwise than in the custody of the police
beyond the period of fifteen days, if the Magistrate is
satisfied that adequate grounds exist for doing so, but no
Magistrate can authorise the detention of the accused person
in custody for a total period exceeding ninety days or sixty
days as the case may be. If the investigation is not
completed within the prescribed period, the accused is
entitled to bail as embodied in the statute itself, provided
the accused person is ‘prepared to and does furnish bail’
and the person released on bail under Section 167(2) of the
Code should be deemed to have been so released under the
provisions of Chapter XXXII for the purposes of that
Chapter. Reference may be made to Hussainara Khatoon v.
Home Secretary, State of Bihar] 5 and Khatri v. State of
Bihar16.
42. A doubtful question may arise as to whether the
Magistrate can detain the accused person for further period
beyond the prescribed period of ninety or sixty days if the
accused is not prepared to and does not furnish bail. This
doubt is cleared by Explanation 1 of Section 167(2) stating
that notwithstanding the expiry of the period specified in
paragraph (a), the accused shall be detained in custody so
long as he does not furnish bail. We feel that it is not
necessary, in this context, to go in detail of the powers of
the Magistrate to extend the period of detention under
Section 167(2) or to remand the accused resorting to
Explanation 1 of Section 309 corresponding to Explanation of
Section 344 of the old Code since that question is not
germane to the issue pertaining to this case. However,
reference may be made to Chaganti Satyanarayana v. State of
A.p.3 paragraph 10.
43. To say differently, Section 167(2) in its entirety uses
the expression only ‘detention’ but not ‘remand’ (as found
in Section 309 of the Code). Under Section 167(2) the
Magistrate to whom the accused person is forwarded
irrespective of the fact that whether he has or has not
jurisdiction to try the case, authorises the detention of
the accused in such custody as he thinks fit for a term not
exceeding fifteen days 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. Under
the proviso, the Magistrate can authorise the detention for
a specified period as envisaged in the proviso to sub-
section (2)
12 (1970) 3 SCC 501: 1971 SCC (Cri) 107
13 (1972) 1 SCC 564: 1972 SCC (Cri) 328
14 (1975) 2 SCC 220: 1975 SCC (Cri) 484
15 (1980) 1 SCC 81: 1980 SCC (Cri) 23: (1979) 3 SCR 169
16 (1981) 1 SCC 627: 1981 SCC (Cri) 228
459
of Section 167 of the Code beyond the period of fifteen
days, on his being satisfied with the existence of adequate
grounds.
44. Section 167 is one of the provisions falling under
Chapter XII of the Code commencing from Section 154 and
ending with Section 176 under the caption “Information to
the police and other powers to investigate”. Though Section
167(1) refers to the investigation by the police and the
transmission of the case diary to the nearest Magistrate as
prescribed under the Code etc., the main object of sub-
section (1) of Section 167 is the production of an arrestee
before a Magistrate within twenty-four hours as fixed by
Section 57 when the investigation cannot be completed within
that period so that the Magistrate can take further course
of action as contemplated under subsection (2) of Section
167.
45. The first limb of sub-section (1) of Section 167 uses
the expression person is arrested and detained in custody”.
The word ‘accused’ occurring in the second limb of sub-
section (1) and in sub-section (2) of Section 167 refers
only that person “arrested and detained in custody”.
46. The word ’arrest’ is derived from the French word
‘Arreter’ meaning “to stop or stay” and signifies a
restraint of the person. Lexicologically, the meaning of
the word ‘arrest’ is given in various dictionaries depending
upon the circumstances in which the said expression is used.
One of us, (S. Ratnavel Pandian, J. as he then was being
the Judge of the High Court of Madras) in Roshan Beevi v.
Joint Secretary, Government of T.N.17 had an occasion to go
into the gamut of the meaning of the word ‘arrest’ with
reference to various textbooks and dictionaries, the New
Encyclopaedia Britannica, Halsbury’s Laws of England, A
Dictionary of Law by L.B. Curzon, Black’s Law Dictionary and
Words and Phrases. On the basis of the meaning given in
those text book sand lexicons, it has been held that :
“[T]he word ‘arrest’ when used in its ordinary
and natural sense, means the apprehension or
restraint or the deprivation of one’s personal
liberty. The question whether the person is
under arrest or not, depends not on the
legality of the arrest, but on whether he has
been deprived of his personal liberty to go
where he pleases. When used in the legal
sense in the procedure connected with criminal
offences, an arrest consists in the taking
into custody of another person under authority
empowered by law, for the purpose of holding
or detaining him to answer a criminal charge
or of preventing the commission of a criminal
offence. The essential elements to constitute
an arrest in the above sense are that there
must be an intent to arrest under the
authority, accompanied by a seizure or
detention of the person in the manner known to
law, which is so understood by the person
arrested.”
47. There are various sections in Chapter V of the Code
titled “Arrest of persons” of which Sections 41, 42, 43 and
44 empower different authorities and even private persons to
arrest a person in given situation. Section 41 deals with
the power of a police officer to arrest any person without
an order
17 1984 Cri LJ 134: (1984) 15 ELT 289: 1983 MLW (Cri) 289
(Mad)
460
from a Magistrate and without a warrant. Section 42 deals
with the power of a police officer to arrest any person who
in the presence of a police officer has committed or has
been accused of committing a non-cognizable offence and who
refuses on demand “to give his name and residence or gives a
name or residence which such officer has reason to believe
to be false”. Section 43 empowers any private person to
arrest any person who in his presence commits a non-
cognizable offence, or any proclaimed offender. Section 44
states that when any offence is committed in the presence of
a Magistrate whether Executive or Judicial, within his local
jurisdiction, he may himself arrest or order any person to
arrest the offender and may thereupon subject to the
provisions contained in the Code as to bail commit the
offender to custody.
48. Thus the Code gives power of arrest not only to a
police officer and a Magistrate but also under certain
circumstances or given situations to private persons.
Further, when an accused person appears before a Magistrate
or surrenders voluntarily, the Magistrate is empowered to
take that accused person into custody and deal with him
according to law. Needless to emphasize that the arrest of
a person is a condition precedent for taking him into
judicial custody thereof. To put it differently, the taking
of the person into judicial custody is followed after the
arrest of the person concerned by the Magistrate on
appearance or surrender. It will be appropriate, at this
stage, to note that in every arrest, there is custody but
not vice versa and that both the words ‘custody’ and
‘arrest’ are not synonymous terms. Though 1 custody’ may
amount to an arrest in certain circumstances but not under
all circumstances. If these two terms are interpreted as
synonymous, it is nothing but an ultra legalist
interpretation which if under all circumstances accepted and
adopted, would lead to a startling anomaly resulting in
serious consequences, vide Roshan Beevi17.
49. While interpreting the expression ‘in custody’ within
the meaning of Section 439 CrPC, Krishna Iyer, J. speaking
for the Bench in Niranjan Singh v. Prabhakar Rajaram
Kharote18 observed that: (SCC p. 563, para 9)
“He can be in custody not merely when the
police arrests him, produces him before a
Magistrate and gets a remand to judicial or
other custody. He can be stated to be in
judicial custody when he surrenders before the
court and submits to its directions.”
50. The next vital question, in this connection that crops
up for consideration is as to whether the registration of a
case and the entries in the diary relating to that case as
prescribed by the Code are sine qua non for a Magistrate
taking into custody of a person when that person appears or
surrenders or is brought before the Magistrate and whether
that person should have assimilated the characteristic of
“an accused of an offence” at that stage itself within the
meaning of sub-section (1) of Section 167 or subsection (1)
of Section 437 CrPC.
18 (1980) 2 SCC 559, 563: 1980 SCC (Cri) 508
461
51. This question is in a way answered in Gurbaksh Singh
Sibbia v. State of Punjab19. While examining the scope of
Section 438 of the Code in that case, Chandrachud, C.J.
speaking for the Constitution Bench held that: (SCR p. 418:
SCC p. 590, para 37)
“The filing of a first information report is
not a condition precedent to the exercise of
the powers under Section 438. The imminence
of a likely arrest founded on a reasonable
belief can be shown to exist even if an FIR is
not yet filed.”
52. The dictum laid down in that case indicates that the
registration of a case and the entries of the case diary are
not necessary for entertaining an application for grant of
anticipatory bail, but the mere imminence of a likely arrest
on a reasonable belief on an accusation of having committed
a nonbailable offence, will be sufficient to invoke that
provision.
53. In the backdrop of the above legal position, the
conclusion that can be derived is that a Magistrate can
himself arrest or order any person to arrest any offender if
that offender has committed an offence in his presence and
within his local jurisdiction or on his appearance or
surrender or is produced before him and take that person
(offender) into his custody subject to the bail provisions.
If a case is registered against an offender arrested by the
Magistrate and a follow-up investigation is initiated, or if
an investigation has emanated qua the accusations levelled
against the person appearing or surrendering or being
brought before the Magistrate, the Magistrate can in
exercise of the powers conferred on him by Section 167(2)
keep that offender or person under judicial custody in case
the Magistrate is not inclined to admit that offender or
person to bail.
54. The above deliberation leads to a derivation that to
invoke Section 167(1), it is not an indispensable pre-
requisite condition that in all circumstances, the arrest
should have been effected only by a police officer and none
else and that there must necessarily be records of entries
of a case diary. Therefore, it necessarily follows that a
mere production of an arrestee before a competent Magistrate
by an authorised officer or an officer empowered to arrest
(notwithstanding the fact that he is not a police officer in
its stricto sensu) on a reasonable belief that the arrestee
“has been guilty of an offence punishable” under the
provisions of the special Act is sufficient for the
Magistrate to take that person into his custody on his being
satisfied of the three preliminary conditions, namely (1)
the arresting officer is legally competent to make the
arrest; (2) that the particulars of the offence or the
accusation for which the person is arrested or other grounds
for such arrest do exist and are well-founded; and (3) that
the provisions of the special Act in regard to the arrest of
the persons and the production of the arrestee serve the
purpose of Section 167(1) of the Code.
55. In this background, it has become obligatory and
imperative to settle the spinal issue as to whether Section
35(2) of FERA and Section 104(2) of
19 (1980) 2 SCC 565: 1980 SCC (Cri) 465: (1980) 3 SCR 383
462
the Customs Act serve as a substitute of Section 167(1)
substantially fulfilling the basic conditions contained
therein.
56. No doubt, there is no investigation by any officer
equivalent or comparable to an officer-in-charge of police
station or a police officer in a proceeding under any of
these two special Acts as contemplated under Chapter XII of
the Code. But what Section 167 envisages is that the
arrestee is an accused or accused person against whom there
is well-founded information or accusation requiring an
investigation. Firstly the reason given in the impugned
judgment for holding that Section 167(1) is neither replaced
nor substituted by any provision of the special Acts is that
the arrestee by the authorised officer or empowered officer
under the FERA or Customs Act respectively cannot be said to
be ‘an accused’ or ‘accused person’ which expressions are
used in Section 167 or ‘accused of an offence’ which
expression is used in Article 20(3) of the Constitution and
in Sections 25 and 27 of the Evidence Act. In support of
this reasoning, some decisions of this Court have been
relied upon about which we would deal at the later part of
this judgment.
57. We shall presently ponder over the true meaning of the
word/words person’, ‘accused’, ‘accused person’, “person
accused of an offence” and ” person accused of any offence”
used in various provisions of the varied laws in different
context and scrutinise as to whether they are
interchangeable words and have the same connotation in and
under all situations and circumstances which exercise will
render much assistance in ascertaining the significance and
import of the words, ‘persons’, ‘accused’ appearing in
Section 167 of the Code.
58. It is germane to note that though the word “person” is
defined in the Indian Penal Code (Section 11) and the
General Clauses Act [Section 3(42)] which are identical and
are not exhaustive but an inclusive one, the words I
accused’ or ‘accused person’ or ‘accused of an offence’ are
not defined either in the Indian Penal Code or in the Indian
Evidence Act or in the General Clauses Act, 1897. In the
Code of Criminal Procedure also, these words are not defined
except an inclusive meaning of the word ‘accused’ is given
in the Explanation to Section 273 of the Code of 1973, of
course, confined only to the mode of taking and recording
evidence in the course of the trial or other proceedings as
envisaged in the said section. Though this explanation of
the word ‘accused’ limited to that Section 273 cannot and
should not be strained and stretched to such an extreme
extent to make it applicable in all circumstances wherever
the word ‘accused’ appears in the Code, this explanation
gives a clue providing or suggesting an answer to the
problem that we are trying to solve.
59. To perfectly understand the vital significance and
impetus of the introduction of this new explanation, one
must take note of the legislative change in the substantive
provision of Section 273 which corresponds to Section 353 of
the old Code which section laid down the general rule that
at any inquiry or trial, all evidence “shall be taken in the
presence of the
463
accused…… As recommended by the Joint Committee to make
it clear that the provision of this section would apply not
only to proceedings against an accused but also other
proceedings inclusive of the security proceedings under
Chapter VIII of the Code, the words and figures “under
Chapters XVIII, XX, XXI, XXII, XXIII” occurring in old
Section 353 have been substituted in the present section by
the words “in the course of the trial or other proceeding”.
Consequent upon the change in the substantive part of the
section, it had become necessary to introduce the
explanation so that the evidence in security proceeding
against a person also shall be taken in his presence or in
the presence of his pleader when his personal attendance is
dispensed with.
The relevant explanation reads:
“In this section, ‘accused’ includes a person
in relation to whom any proceeding under
Chapter VIII has been commenced under this
Code.”
(emphasis supplied)
60. Chapter VIII deals with (1) security for keeping the
peace (a) on conviction; (b) on information; and (2) with
security for good behaviour, covering Sections 106 to 124 of
the Code. The provisions of this Chapter are preventive in
their scope and object and they are not intended to punish
but to prevent against possible hazard to the community as
well as commission of crimes. There is no question of
making any investigation by any police officer as
contemplated under Chapter XII of the Code and forwarding of
any report under Section 173(2) of the Code to a Magistrate
pertaining to security proceedings under this Chapter though
such proceedings are criminal in nature but not relating to
any offence.
61. In none of the sections in Chapter VIII, the words
‘accused’ or ,accused person’ or ‘accused of an offence’ or
‘accused of any offence’ are used barring the word ‘person’
as deployed in Section 35 of the FERA and Section 104 of the
Customs Act.
62. We shall now examine this aspect of the matter in
relation to other provisions of the Code.
63. The proviso to Section 113 of the Code states that if
it appears to a Magistrate “that there is reason to fear the
commission of a breach of the peace, and that such breach of
the peace cannot be prevented otherwise than by the
immediate arrest of such person, the Magistrate may at any
time issue a warrant for his arrest”. The necessary
corollary is that when the person after his arrest on such
warrant is produced before the Magistrate, the Magistrate
has either to detain him or to- release him on bail. For
the enforcement of preventive action under Chapter VIII of
the Code, the officer incharge of a police station is
authorised under Section 41(2) of the Code to arrest or
cause to be arrested any person belonging to one or some of
the categories of persons specified in Sections 109 or 1 10
of the Code. It may be recalled in this context that
Magistrate under Section 122 of the Code can commit any
person to prison if that person ordered to give security
under Section 106 or Section 117 of the Code does not give
such security.
464
Similarly, under Section 151 which falls under Chapter XI
under the heading “Preventive action of the police”, the
police officer is empowered to arrest a person so as to
prevent the commission of a cognizable offence where
commission of the offence cannot be otherwise prevented.
Sub-section (2) of Section 151 restricts the period of
detention of the person arrested in custody for a period
exceeding 24 hours unless his further detention is required
or authorised under any of the provisions of the Code or for
any other law for the time being in force. In all the above
provisions of the Code, the word used is ‘person’ alone.
64. Likewise, Section 41(1) of the Code which gives
authority to a police officer to arrest a person without
warrant does not use the expression I accused’ or ‘accused
person’ under any of the enumerated categories (a) to (i)
but uses the expression ‘person’. However, the person
arrested under the provision of Section 41(1) when produced
before the Magistrate is detained in exercise of the power
vested on the Magistrate under sub-sections (1) and
(2) of Section 167. We have already referred to various
sections empowering the Magistrate or any private person to
effect an arrest and in that case also, the subsequent
detention is made by the Magistrate only in exercise of his
powers under Section 167(2) of the Code. 65. As we have
pointed out in the preceding part of this judgment, that in
the first limb of Section 167(1), the expression used is
“person … arrested and detained in custody” and the word
‘accused’ occurs only in the second limb of the same
provision denoting that “person arrested and detained in
custody” as envisaged in the first limb of that section.
66. Section 35 of FERA and Section 104 of the Customs Act
which confer power on the prescribed officer to effect the
arrest deploy only the word ‘person’ and not ‘accused’ or
‘accused person’ or ‘accused of any offence’. In fact, the
word ‘accused’ appears only in the penal provisions of the
special Acts, namely sub-section (4) of Section 56 of FERA
and subsection (3) of Section 135 of the Customs Act while
explaining as to what would be the special and adequate
reasons for awarding the sentence of imprisonment for a sub-
minimum period, though sub-sections (1) to (3) of Section 56
of FERA and sub-sections (1) and (2) of Section 135 of
Customs Act use the expression ‘person’ who becomes
punishable on conviction under the penal provisions by the
court trying the offence.
67. In this context, a relevant doubtful question arises
for deliberation whether the expressions ‘person’, ‘accused’
or ‘accused person’ found in Section 167 of the Code and
“person accused of any offence” used in Article 20(3) of the
Constitution and Sections 25 and 27 of the Evidence Act
denote one and the same meaning. Though it is not
absolutely essential to exhaustively examine the connotation
of these two expressions and render our considered and
reasoned opinion, yet it has become necessary to fonder over
to the limited question as to whether the
expression .’accused’ and I accused person’ appearing in
Section 167(1) and (2) denote “a person
463
accused…… As recommended by the Joint Committee to make
it clear that the provision of this section would apply not
only to proceedings against an accused but also other
proceedings inclusive of the security proceedings under
Chapter VIII of the Code, the words and figures “under
Chapters XVIII, XX, XXI, XXII, XXIII” occurring in old
Section 353 have been substituted in the present section by
the words “in the course of the trial or other proceeding”.
Consequent upon the change in the substantive part of the
section, it had become necessary to introduce the
explanation so that the evidence in security proceeding
against a person also shall be taken in his presence or in
the presence of his pleader when his personal attendance is
dispensed with.
The relevant explanation reads:
“In this section, ‘accused’ includes a person in relation to
whom any proceeding under Chapter VIII has been commenced
under this Code.”
(emphasis supplied)
60. Chapter VIII deals with (1) security for keeping the
peace (a) on conviction; (b) on information; and (2) with
security for good behaviour, covering Sections 106 to 124 of
the Code. The provisions of this Chapter are preventive in
their scope and object and they are not intended to punish
but to prevent against possible hazard to the community as
well as commission of crimes. There is no question of
making any investigation by any police officer as
contemplated under Chapter XII of the Code and forwarding of
any report under Section 173(2) of the Code to a Magistrate
pertaining to security proceedings under this Chapter though
such proceedings are criminal in nature but not relating to
any offence.
61. In none of the sections in Chapter VIII, the words
‘accused’ or ,accused person’ or ‘accused of an offence’ or
‘accused of any offence’ are used barring the word ‘person’
as deployed in Section 35 of the FERA and Section 104 of the
Customs Act.
62. We shall now examine this aspect of the matter in
relation to other provisions of the Code.
63. The proviso to Section 113 of the Code states that if
it appears to a Magistrate “that there is reason to fear the
commission of a breach of the peace, and that such breach of
the peace cannot be prevented otherwise than by the
immediate arrest of such person, the Magistrate may at any
time issue a warrant for his arrest”. The necessary
corollary is that when the person after his arrest on such
warrant is produced before the Magistrate, the Magistrate
has either to detain him or to release him on bail. For the
enforcement of preventive action under Chapter VIII of the
Code, the officer in-charge of a police station is
authorised under Section 41(2) of the Code to arrest or
cause to be arrested any person belonging to one or some of
the categories of persons specified in Sections 109 or 1 10
of the Code. It may be recalled in this context that
Magistrate under Section 122 of the Code can commit any
person to prison if that person ordered to give security
under Section 106 or Section 117 of the Code does not give
such security.
464
Similarly, under Section 151 which falls under Chapter XI
under the heading “Preventive action of the police”, the
police officer is empowered to arrest a person so as to
prevent the commission of a cognizable offence where
commission of the offence cannot be otherwise prevented.
Sub-section (2) of Section 151 restricts the period of
detention of the person arrested in custody for a period
exceeding 24 hours unless his further detention is required
or authorised under any of the provisions of the Code or for
any other law for the time being in force. In all the above
provisions of the Code, the word used is ‘person’ alone.
64. Likewise, Section 41(1) of the Code which gives
authority to a police officer to arrest a person without
warrant does not use the expression ,accused’ or ‘accused
person’ under any of the enumerated categories (a) to (i)
but uses the expression ‘person’. However, the person
arrested under the provision of Section 41 (1) when produced
before the Magistrate is detained in exercise of the power
vested on the Magistrate under sub-sections (1) and (2) of
Section 167. We have already referred to various sections
empowering the Magistrate or any private person to effect an
arrest and in that case also, the subsequent detention is
made by the Magistrate only in exercise of his powers under
Section 167(2) of the Code.
65. As we have pointed out in the preceding part of this
judgment, that in the first limb of Section 167(1), the
expression used is “person … arrested and detained in
custody” and the word ‘accused’ occurs only in the second
limb of the same provision denoting that “person arrested
and detained in custody” as envisaged in the first limb of
that section.
66. Section 35 of FERA and Section 104 of the Customs Act
which confer power on the prescribed officer to effect the
arrest deploy only the word ‘person’ and not ‘accused’ or
‘accused person’ or ‘accused of any offence’. In fact, the
word ‘accused’ appears only in the penal provisions of the
special Acts, namely sub-section (4) of Section 56 of FERA
and subsection (3) of Section 135 of the Customs Act while
explaining as to what would be the special and adequate
reasons for awarding the sentence of imprisonment for a sub-
minimum period, though sub-sections (1) to (3) of Section 56
of FERA and sub-sections (1) and (2) of Section 135 of
Customs Act use the expression ‘person’ who becomes
punishable on conviction under the penal provisions by the
court trying the offence.
67. In this context, a relevant doubtful question arises for
deliberation whether the expressions ‘person’, ‘accused’
or ‘accused person’ found in Section 167 of the Code and
“person accused of any offence” used in Article
20(3) of the Constitution and Sections 25 and 27 of the
Evidence Act denote one and the same meaning. Though it is
not absolutely essential to exhaustively examine the
connotation of these two expressions and render our
considered and reasoned opinion, yet it has become necessary
to fonder over to the limited question as to whether the
expression .’accused’ and ,accused person’ appearing in
Section 167(1) and (2) denote “a person
465
accused of any offence” at the stage of authorising
detention on production of an arrestee before a Magistrate.
68. The legislative change in Section 436 of the old Code
(about which we shall deal with presently) and the
introduction of the Explanation to Section 273 of the new
Code as well as the legislative intendment of some other
provisions of the Code to be mentioned hereafter insinuate
in finding out the answer to the above query.
69. It may be noted in Section 436 of the old Code (1898)
which corresponded to Section 437 of the Code of 1861 and
Section 298 of the Code of 1872, the expression ‘accused
person’ alone was employed but subsequently, the expression
was substituted by “person accused of an offence” by Section
117 of Act XVIII of 1923. This legislative change by
substituting the new expression was made in order to
supersede a number of rulings rendered under the old Code
(Section 437) employing the words, ,accused person’ which
held the section applicable to proceedings against person
proceeded under Chapter VIII also as “persons against whom
there is an accusation in the ordinary acceptation of the
word”.
70. In this connection, reference may be made to a judgment
of the Madras High Court in which Justice Miller in Re Kora
Ayyappa2O held that persons ordered to give security for
keeping peace or to be of good behaviour are not persons
accused of an offence.
71. The present Section 398 (power to order further inquiry)
of the new Code which corresponds to Section 436 of the old
Code are similar except for the substitution of the words
‘Chief Judicial Magistrate’ in place of the words ‘District
Magistrate’.
72. In other words, by the introduction of the expression
“person accused of an offence” Section 398 is made
inapplicable to the security proceedings as well as to
proceedings under Sections 133, 144 and 145 of the Code.
73. The above legislative change of the expression in
Section 436 of the old Code serves as a guide in adjudging
the distinction between the two expressions “accused person”
and “accused of an offence”.
74.Let us now approach this aspect of the matter from
different angle with reference to the provisions of Article
20(3) of the Constitution as well as to Sections 24 to 27 of
the Evidence Act.
75. The prohibitive sweep of Article 20(3) which imposes the
ban on self-accusation reads, “No person accused of any
offence shall be compelled to be a witness against himself.”
76. In explaining the intendment of Article 20(3), relating
to search and seizure of documents under Sections 94 and 96
of the old Code, an eight Judge Bench of this Court in M.P.
Sharma v. Satish Chandra, District Magistrate, Delhi21 held
that one of the components for invoking sub-clause
20 (1910) It Cri LJ 251: 7 MLJ 104: 5 IC 809 (Mad)
21 1954 SCR 1077: AIR 1954 SC 300: 1954 Cri LJ 865
466
(3) of Article 20 should be that it is a right pertaining to
a person ‘accused of an offence.’
77. Having regard to the facts therein, it has been held:
(SCR pp. 1086-87)
“The cases with which we are concerned have
been presented to us on the footing that the
persons against whom the search warrants were
issued, were all of them persons against whom
the First Information Report was lodged and
who were included in the category of accused
therein and that therefore they are persons
“accused of an offence” within the meaning of
Article 20(3) and also that the documents for
whose search the warrants were issued, being
required for investigation into the alleged
offences, such searches were for incriminating
material.”
78.Thereafter, a Constitution Bench of this Court in Raja
Narayanlal Bansilal v. Maneck Phiroz Mistry22 while dealing
with the import of Article 20(3) with reference to certain
provisions of the Indian Companies Act made the following
observation, relying on the decision in M.P. Sharma21: (SCR
p. 438)
“Similarly, for invoking the constitutional
right against testimonial compulsion
guaranteed under Article 20(3) it must appear
that a formal accusation has been made against
the party pleading the guarantee and that it
relates to the commission of an offence which
in the normal course may result in
prosecution. Here again the nature of the
accusation and its probable sequel or
consequence are regarded as important.”
In the above two judgments, both the Benches have not
discussed the distinction between the expression ‘accused
person’ and ‘person accused of any offence’.
79. Subsequently, an eleven-Judge Bench of this Court in
State of Bombay v. Kathi Kalu Oghad23 went into the question
and by majority concluded that an accused person cannot be
said to have been compelled to be a witness against himself
simply because he made a statement while in police custody,
without anything more.
80.What is that ‘anything more’ required has been explained
in the following words: (SCR p. 37)
“(6) ‘To be a witness’ in its ordinary
grammatical sense means giving oral testimony
in Court. Case-law has gone beyond this
strict literal interpretation of the
expression which may now bear a wider meaning,
namely, bearing testimony in Court or out of
Court by a person accused of an offence,
orally or in writing.
(7) To bring the statement in question within
the prohibition of Article 20(3), the
person accused must have stood in the
character of an accused person at the time
he made the statement. It is not enough that
22 (1961) 1 SCR 417,438:AIR 1961 SC 29:(1960)
30 Comp Cas 644
23 (1962) 3 SCR 10: AIR 1961 SC 1808: (1961) 2
Cri LJ 856
467
he should become an accused any time after the
statement has been made.”
See also Nandini Satpathy v. P.L. Dani24.
81. The essence of the above decisions is that to bring a
person within the meaning of ‘accused of any offence’, that
person must assimilate the character of an ‘accused person’
in the sense that he must be accused of any offence.
82.We think it is not necessary to interpret the expression,
“person accused of any offence” as appearing in Article
20(3) any more but suffice to note that the same expression
is found in Sections 25 and 27 of the Evidence Act.
83. It is apposite to note that clauses (1) to (3) of
Article 22 which speak of a ‘person arrested’ use only the
word ‘person’. Article 22(2) states that “every person who
is arrested and detained in custody…… A similar
expression is used in Section 167(1) of the code reading,
“Whenever any person is arrested and detained in
custody……. Thus while referring to a person arrested and
detained neither Article 22 nor Section 167 employs the
expression “accused of any offence”.
84.Coming to the provisions of the Evidence Act, Section 24
uses the expression ‘accused person’ whereas in Sections 25
and 27, the identical expression “person accused of any
offence” is used. But in Section 26 neither of these two
expressions is used but “any person”. It was only while in
examining the admissibility or otherwise of a statement of
an ‘accused person’ or “a person accused of any offence”,
this Court in a series of judgments has dealt with the
connotation of these two expressions but not otherwise.
85. Justice J.C. Shah who was member of the Bench in Raja
Narayanlal Bansilal22 speaking for the majority of a
Constitution Bench in State of U.P. v.Deoman Upadhyaya25 has
observed as follows: (SCR p. 21)
“The ban which is partial under Section 24 and
complete under Section 25 applies equally
whether or not the person against whom
evidence is sought to be led in a criminal
trial was at the time of making the confession
in custody. For the ban to be effective the
person need not have been accused of an
offence when he made the confession. The
expression, ‘accused person’ in Section 24 and
the expression ‘a person accused of any
offence’ have the same connotation and
describe the person against whom evidence is
sought to be led in a criminal proceeding.”
86. The judgment in Deoman case25 is refer-red to State of
Bombay v. Kathi Kalu Oghad23 but that Bench has not
expressed any view as to whether the expression ‘accused
person’ and the expression “person accused of any
24 (1978) 2 SCC 424: 1978 SCC (Cri) 236
25 (1961) 1 SCR 14: AIR 1960 SC 1125:1960 Cri LJ 1504
468
offence” have the same connotation. But in none of these
judgments, Section 167 has come up for interpretation.
87. in Ramesh Chandra Mehta v. State of W.B.26 a
Constitution Bench of this Court while examining the
admissibility of a statement recorded under Section 171-A of
the Sea Customs Act of 1878 (which Act is now repealed)
corresponding to Section 108 of the Customs Act of 1962 has
held that a person arrested by a Customs Officer is not a
person accused of an offence within the meaning of Article
20(3) of the Constitution or within the meaning of Section
25 of the Evidence Act.
88. In Veera Ibrahim v. State of Maharashtra27 a Division
Bench of this Court following the dictum laid down in Ramesh
Chandra Mehta26 observed that in order to claim the benefit
of the guarantee against testimonial compulsion embodied in
clause (3) of Article 20 it must be shown, firstly that the
person who made the statement was “accused of any offence”;
secondly that he made the statement under compulsion. It
has been further held that when the statement of a person is
recorded by the Customs Officer under Section 108, he is not
a person “accused of an offence under the Customs Act” and
that an accusation which would stamp a person with the
character of an accused of any offence is levelled only when
the complaint is filed against that person by the Customs
Officer complaining of the commission of any offence under
the provisions of the Customs Act.
89. In a recent decision, this Court in Poolpandi v.
Superintendent, Central Excise28 has reiterated the same
view and held that a person being interrogated during
investigation under Customs Act or FERA is not a person
accused of any offence within the meaning of Article 20(3)
of the Constitution. See also Percy Rustomji Basta v. State
of Maharashtra29.
90.In this connection, reference may be made to a decision
in Ramanlal Bhogilal Shah v. D.K. Guha30 which has
distinguished Ramesh Chandra Mehta26 and held on the facts
of that case that the person served with summons under the
FERA, was an accused within the meaning of Article 20(3) of
the Constitution of India. The decision in Ramanlal
Bhogilal30 has taken a different view to that of Ramesh
Chandra Mehta26 which view was examined in Poolpandi28 and
was distinguished on the ground that a first information
report in Ramanlal Bhogilal Shah30 has been lodged earlier
and consequently it was settled that the person was accused
of an offence within the meaning of Article 20(3).
91. Though this Bench is bound by the decisions of all the
above Constitution Benches yet these decisions are
distinguishable since none of the above decisions relates to
the interpretation of Section 167 of the Code explaining the
meaning of the word ‘accused’ or ‘accused person’ limited to
26 AIR 1970 SC 940: (1969) 2 SCR 461: 1970 Cri LJ 863
27 (1976) 2 SCC 302: 1976 SCC (Cri) 278
28 (1992) 3 SCC 259: 1992 SCC (Cri) 620
29 (1971) 1 SCC 847
30 (1973) 1 SCC 696: 1973 SCC (Cri) 583
469
the purpose of Section 167. On the other hand, all those
decisions are rendered only on the question of admissibility
or otherwise of the statement of a person arrested under the
provisions of the general Act or special Acts concerned and
recorded while in the custody of the arrester.
92. A thorough and careful study of all the provisions of
the Code manifestly discloses that the word ‘accused’ in the
Code denotes different meanings according to the context in
which it is deployed; in that sometimes the said word is
employed to denote a person arrested, sometimes a person
against whom there is an accusation, but who is yet not put
on trial and sometimes to denote a person on trial and so
on.
93. It is apposite, in this context, to refer to the
following passage found in Chapter 4 in the book titled
The Loom of Language :
“Words are not passive agents meaning the same
thing and carrying the same value at all times
and in all contexts. They do not come in
standard shapes and sizes like coins from the
mint, nor do they go forth with a decree to
all the world that they shall mean only so
much, no more and no less. Through its own
particular personality, each word has a
penumbra of meaning which no draftsman can
entirely cut away. It refuses to be used as a
mathematical symbol.”
94. It may not be out of place to mention here that an
officer-in-charge of a police station who is empowered under
Section 156 to investigate on an information received under
Section 154 or otherwise takes up the investigation by
proceeding to the spot “for the discovery and arrest of the
offender when he has reason to suspect the commission of an
offence” as contemplated under Section 157 of the Code. At
that stage, the investigating officer does not suddenly jump
to a conclusion that the person against whom the
investigation has commenced has committed an offence. But
he can arrive at such a conclusion only when the
investigation consummates to a finality on the collection of
evidence eliminating all suspicion and establishing the
commission of the offence. In case the investigating
officer arrives at a conclusion that no offence is made out
he forwards his final report to that effect.
95.The view of majority in the impugned judgment that the
person arrested under the FERA or Customs Act cannot fall
within the meaning of the word ‘accused’ for invoking
Section 167 solely based on the decisions of this Court,
namely Ramesh Chandra Mehta26 as well as Illias v. Collector
of Customs, Madras31 is not logically concluded for more
than one reason
96. Firstly, almost all the decisions of this Court holding
that “a person arrested by an Enforcement Officer or Customs
Officer, as the case may be, is not a ‘person accused of an
offence’ “ have been rendered only in the context of
examining the question of admissibility or otherwise of the
statement of a person arrested under those special Acts but
not with reference
31 AIR 1970 SC 1065: (1969) 2 SCR 613
470
to authorising the detention of an arrestee under Section
167 of the Code by a Magistrate and so the dictum laid down
in those decisions is clearly distinguishable;
97. Secondly, in the teeth of the newly introduced
explanation to Section 273 of 1973 Code it is made clear
that the word ‘accused’ includes a person against whom any
proceeding under Chapter VIII of the Code has been
commenced. Thus the explanation gives a clear clue that in
given situation the word ‘person’ can be construed as
‘accused’ or ‘accused person’.
98. Thirdly, in the Code different expressions are used
under various provisions to denote a person involving in a
criminal proceeding such as I offender’, ‘person’,
‘accused’, ‘accused person’, “accused of an offence”
depending on the nature of the proceeding.
99. Fourthly, the very legislative change made in Section
436 of the old Code corresponding to Section 398 of the new
Code substituting the words It person accused of an offence”
in the place of “accused person” as originally stood makes
it clear that in the procedural code, these two expressions
cannot always denote the same meaning or be construed as
synonymous or interchangeable and this legislative change
indicates that the Legislature in its wisdom intended to
make a clear distinction between these expressions for the
reasons mentioned supra.
100. Fifthly, if the expression ‘accused person’ and “a
person accused of an offence” are to be held denoting the
same meaning and interchangeable at all times and
situations, it will become fallacious and pernicious in the
implementation of the procedural law of the Code.
101. Sixthly, in interpreting a statute in its true spirit,
the right direction should be to give a full and literal
meaning to the language aiming ever to show fidelity to the
meaningful purpose of the statute and never to make it
sterile and impotent by giving a strict literal
interpretation putting blinkers for judicial approach;
because such interpretation will run counter to the
legislative intent.
102. From the foregoing discussion, it is clear that the
word ‘accused’ or accused person’ is used only in a
generic sense in Section 167(1) and (2) denoting the’person’
whose liberty is actually restrained on his arrest by a
competent authority on well-founded information or formal
accusation or indictment. Therefore, the word ‘accused’
limited to the scope of Section 167(1) and (2) particularly
in the light of Explanation to Section 273 of the Code
includes ‘any person arrested’. The inevitable consequence
that follows is that “any person is arrested” occurring in
the first limb of Section 167(1) of the Code takes within
its ambit “every person arrested” under Section 35 of FERA
or Section 104 of the Customs Act also as the case may be
and the ‘person arrested’ can be detained by the Magistrate
in exercise of his power under Section 167(2) of the Code.
In other words, the ‘person arrested’ under FERA or Customs
Act is assimilated with the characteristics of an ‘accused’
within the range of Section 167(1) and as such liable to be
detained under Section 167(2) by a Magistrate when produced
before him.
471
103. In fact, Justice Yogeshwar Dayal speaking for the
majority in Union of India v. O.P. Gupta’ has rightly
observed thus:
“The expression ’accused’ used in Section
167(2) of the Code is not in the sense of
accused under Article 20(3) of the
Constitution and/or Section 25 of the Indian
Evidence Act with which the Supreme Court was
concerned in the cases of Ramesh Chander
Mehta26 and/or Illias31. The word, ‘accused’
in Section 167(2) of the Code is merely used
in the sense of defining a person who has been
arrested, detained and produced before a
Magistrate and not in the sense of accused
person under the Customs Act and/or Foreign
Exchange Regulation Act since that person has
been defined in the aforesaid two judgments as
only that person against whom cognizance has
been taken by the Magistrate on a complaint
being filed. Therefore, the judgments of the
Supreme Court in the cases of Ramesh Chander
Mehta26 or IlliaS31 referred to above do not
stand in the way of applicability of Section
167(2) of the Code to the person detained and
produced by competent officer before the
Magistrate in pursuance of Section 104(2) of
the Customs Act or Section 35(2) of the
Foreign Exchange Regulation Act.”
104. Further, in the later part of his judgment the learned
Judge has observed :
“The word accused is to be construed in its
widest connotations. It means the one who is
arrested and detained.”
After having observed as above, it has been concluded by the
learned Judge thus :
“Section 167(1) of the Code is already
replaced by Section 104(2) of the Customs Act
and Section 35(2) of the Foreign Exchange
Regulation Act. What is to be done to a
person who is so produced before the
Magistrate is dealt with only under Section
167(2) and not under Section 167(1) of
the Code.”
105. Agreeing with the majority judgment in O.P. Gupta’ and
with the view of the High Court of Kerala in Supdt. of
Customs, C.L U. Cochin v. P.K Ummerkutty32 and M.K Ayoob v.
Superintendent, C.I W., Cochin33 as well as of the Gujarat
High Court in N.H. Dave v. Mohmed Akhtar34 Arunachalam, J.
of the Madras High Court in his well-reasoned judgment in
Senior Intelligence Officer v. M.KS. Abu Bucker35 has
observed as follows:
“Obviously in relation to a person arrested
under the Customs Act, Section 167(1), CrPC,
is covered suitably by Section 104(1) and (2)
of the Customs Act. In that event, the
application of Section 167(2) of the
32 1983 Cri LJ 1860 (Ker)
33 1984 Cri LJ 949: 1984 KLT 215 (Ker)
34 (1984) 15 ELT 353 (Guj)
35 1989 LW (Cri) 325
472
Code can pose no difficulty, except the
consideration of the words accused person’
used in that sub-section.
* * * *
If we construe the words ‘an accused person’
in Section 167(2) of the Code, it will be
clear that the words would take in, the person
who is arrested or detained in custody by the
Customs Officer who had reason to believe that
such person was guilty of an offence
punishable under Section 135 of the Act.
* * * *
Looked at in this background, the word
‘accused’ in Section 167(2), CrPC, will have
to be construed in its widest connotation
meaning ’one who has been arrested and
detained’ which will include even a person
suspected of having committed an offence.
* * * *
I hold that the Magistrate has the power to
remand a person produced before him in
accordance with Section 104 of the Customs Act
by virtue of the powers of remand under
Section 167(2) and (3) of the Code and could
further exercise the powers under Section 437
of the Code.”
106. In our considered opinion, the view taken in O.P.
Gupta’ and M.K.S. Abu Bucker35 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 subsection (2) of Section 167. In
passing, it may be stated that there is no expression
‘police officer’ deployed in Section 167(1) nor does it
appear in any part of Section 167(2). The authority for
detaining a person as contemplated under Section 167(2) is
in aid of investigation to be carried on by any prosecuting
agency who is invested with the power of investigation.
107. We next proceed to consider the second question whether
the authorised or empowered officer under FERA or Customs
Act exercises all or any of the powers of a police officer
outlined under Chapter XII of the Code and conducts any
investigation within the meaning of Section 2(h) of the
Code.
108.The word ‘investigation’ is defined under Section 2(h)
of the present Code [which is an exact reproduction of
Section 4(1)(b) of the old Code] which is an inclusive
definition as including all the proceedings under the Code
for the collection of evidence conducted by a police officer
or any
473
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 Delhi36. In that
decision, it has been held that: (SCR pp. 1157-58)
“[U]nder the Code investigation consists generally of the
following steps: (1) Proceeding to the spot, (2)
Ascertainment of the facts and circumstances of the case,
(3) Discovery and arrest of the suspected offender, (4)
Collection of evidence relating to the commission of the
offence which may consist of (a) the examination of various
persons (including the accused) and the reduction of their
statements into writing, if the officer thinks fit, (b) the
search of places of seizure of things considered necessary
for the investigation and to be produced at the trial, and
(5) Formation of the opinion as to whether on the material
collected there is a case to place the accused before a
Magistrate for trial and if so taking the necessary steps
for the same by the filing of a charge-sheet under Section
173.”
The steps involved in the course of investigation, as
pointed out in Rishbud case36 have been reiterated in State
of M.P. v. Mubarak Ali37.
109. No doubt, it is true that there are a series of
decisions holding the view that an Officer of Enforcement or
a Customs Officer is not a police officer though such
officers are vested with the powers of arrest and other
analogous powers. Vide Ramesh Chandra v. State of W.B.26
and Illias v. Collector of Customs, MadraS31. In the above
decisions, this Court has held that the above officers under
the special Acts are not vested with the powers of a police
officer qua investigation of an offence under Chapter XII of
the Code including the power to forward a report under
Section 173 of the Code. See also State of Punjab v. Barkat
Ram38 and Badku Joti Savant v. State of Mysore39.
110. As we have pointed out in the preceding part of this
judgment, Section 167(1) falls under Chapter XII relating to
“Information to the Police and their powers to investigate”.
Sub-section (1) of Section 167 speaks of the arrest by a
police officer and the follow-up investigation by him.
Section 35(1) of FERA and Section 104(1) of the Customs Act
empower the authorised officer under the relevant provisions
to effect arrest of a person against whom there is reason to
believe that he has been guilty of an offence under the
respective concerned Acts.
36 (1955) 1 SCR 1150: AIR 1955 SC 196: 1955 Cri LJ 526
37 1959 Supp 2 SCR 201: AIR 1959 SC 707: (1960) 1 LLJ 36
38 (1962) 3 SCR 338: AIR 1962 SC 276: (1962) 1 Cri LJ 217
39 (1966) 3 SCR 698: AIR 1966 SC 1746: 1966 Cri LJ 1353
474
111. Neither the Police Act, 1861 (Act V of 1861) nor any
other statute defines the expression ‘police officer’.
Shortly stated, the main duties of the police are the
prevention, detention and investigation of crimes. As the
powers and duties of the State have increased and are
increasing manifold, various Acts dealing with Customs,
Excise, Forest, Taxes etc. have come to be passed and
consequently the prevention, detention and investigation of
offences as prescribed under those Acts have come to be
entrusted to officers with different nomenclatures
appropriate to the subject with reference to which they
function. However, as stated supra, though the powers of
customs officers and enforcement officers are not identical
to those of police officers qua the investigation under
Chapter XII of the Code yet the officers under the FERA and
Customs Act are vested with certain powers similar to the
powers of police officers.
112. The expression ‘diary’ referred to in Section 167(1) of
the Code is the special diary mentioned in Section 167(2)
which should contain full and unabridged statements of
persons examined by the police so as to give the Magistrates
on a perusal of the said diary, a satisfactory and complete
source of information which would enable him to decide
whether or not the accused person should be detained in
custody but it is different from the general diary
maintained under Section 44 of the Police Act.
113. Though an authorised officer of Enforcement or Customs
is not undertaking an investigation as contemplated under
Chapter XII of the Code, yet those officers are enjoying
some analogous powers such as arrest, seizures,
interrogation etc. Besides, a statutory duty is enjoined on
them to inform the arrestee of the grounds for such arrest
as contemplated under Article 22(1) of the Constitution and
Section 50 of the Code. Therefore, they have necessarily to
make records of their statutory functions showing the name
of the informant, as well as the name of the person who
violated any other provision of the Code and who has been
guilty of an offence punishable under the Act, nature of
information received by them, time of the arrest, seizure of
the contraband if any and the statements recorded during the
course of the detection of the offence/offences.
114. Apart from those two special Acts under consideration,
there are various Central Acts containing provisions of
prevention of offences enumerated therein and also for
enforcement of the said provisions. Certain provisions of
the Central Acts which we would like to give below by way of
illustration in a tabular form showing the powers vested and
the duties cast on the officers concerned will show that
those officers enjoy certain powers during the course of any
investigation or inquiry or proceeding under the special
Acts concerned though not in strict sense of an
investigation under Chapter XII of the Code as undertaken by
police officers including the filing of a police report
under Section 173(2) of the Code.
475
51. Name of the Act Power to Power to search
Power
No. search suspected to
premises persons,search
entering orpersons
leaving India
2 3 4 5
1. Foreign Exchange Sec. 37 Sec. 34Sec. 34
Regulation Act, 1973
2. The Customs Act Sec. 105 Sec. 100Sec.
101
3. The Gold (Control) Act Sec. 58 Sec. 60
(now repealed)
4. The Prevention of Food Sec. 10(2) S. 6 to be
r/w S.
Adulteration Act. 18 or the Sea
Customs Act.
5. The Railway Property Sec. 10
(Unlawful Possession) and Sec.
Act. I I
Power to Power to Power to Power toPower to
stop and seize arrest. examinesummon persons
search goods, personsto give evidence
conveyances documents and produce
etc. documents
6 7 8 9 10
Sec.36 Sec.38 Sec.35 Sec.39 Sec.40
Sec.106 Sec.110 Sec.104 Sec.107 Sec.108
Sec.61 Sec.66 Sec.68 Sec.64 Sec.63
Sec.10 Sec.
10(B)
Sec.6 Sec.9
476
115. The above table manifestly imparts that all the powers
vested on various authorities as given in the table are
equipollent as being enjoyed by a police officer under the
Code and exercised during investigation under Chapter XII
because the investigation is nothing but an observation or
inquiry into the allegations, circumstances or relationships
in order to obtain factual information and make certain
whether or not a violation of any law has been committed.
116. It should not be lost sight of the fact that a police
officer making an investigation of an offence representing
the State files a report under Section 173 of the Code and
becomes the complainant whereas the prosecuting agency under
the special Acts files a complaint as a complainant i.e.
under Section 61(ii) in the case of FERA and under Section
137 of the Customs Act. To say differently, the police
officer after consummation of the investigation files a
report under Section 173 of the Code upon which the
Magistrate may take cognizance of any offence disclosed in
the report under Section 190(1)(b) of the Code whereas the
empowered or authorised officer of the special Acts has to
file only a complaint of facts constituting any offence
under the provisions of the Act on the receipt of which the
Magistrate may take cognizance of the said offence under
Section 190(1)(a) of the Code. After taking cognizance of
the offence either upon a police report or upon receiving a
complaint of facts, the Magistrate has to proceed with the
case as per the procedure prescribed under the Code or under
the special procedure, if any, prescribed under the special
Acts. Therefore, the word ‘investigation’ cannot be limited
only to police investigation but on the other hand, the said
word is with wider connotation and flexible so as to include
the investigation carried on by any agency whether he be a
police officer or empowered or authorised officer or a
person not being a police officer under the direction of a
Magistrate to make an investigation vested with the power of
investigation.
117. It may be recalled, in this connection, that Section
202(1) of the Code falling under Chapter XV under the
caption “Complaints to Magistrates” envisages that any
Magistrate on receipt of a complaint of an offence of which
he is authorised to take cognizance or which has been made
over to him under Section 192 of the Code can direct an
investigation to be made by a police officer or ‘by such
other person as he thinks fit’. As regards the conferment
of power on such person, sub-section (3) of Section 202
reads:
“If an investigation under sub-section (1) is
made by a person not being a police officer,
he shall have for that investigation all the
powers conferred by this Code on an officer in
charge of a police station except the power to
arrest without warrant.”
The expression “all the powers conferred by this Code on an
officer-incharge of a police station” will include the
powers conferred on the police officer under the relevant
provisions of Chapter XII also.
477
118. M.P. Thakkar, C.J. of the Gujarat High Court (as he
then was) speaking for a Division Bench in N.H. Dave,
Inspector of Customs v. Mohmed Akhtar34 while examining the
import of Section 104 of the Customs Act has ruled thus:
“The expression ‘investigation’ has been
defined in Section 2(h). It is an inclusive
definition. No doubt it will not strictly
fall under the definition of ‘investigation’
insofar as the inclusive part is concerned.
But then it being an inclusive definition the
ordinary connotation of the expression
‘investigation’ cannot be overlooked. An
‘investigation’ means search for material and
facts in order to find out whether or not an
offence has been committed. It does not
matter whether it is made by the police
officer or a customs officer who intends to
lodge a complaint.”
We are in total agreement with the above view of M.P.
Thakkar, C.J.
119. The word ‘investigation’ though is not shown in any one
of the sections of the Customs Act, certain powers enjoyed
by the police officer during the investigation are vested on
the specified officer of customs as indicated in the table
given above. However, in the FERA the word ‘investigation’
is used in various provisions, namely Sections 34, 36, 37,
38 and 40 reading, “… any investigation or proceeding
under this Act……. though limited in its scope.
120. From the above discussion it cannot be said that either
the Officer of Enforcement or the Customs Officer is not
empowered with the power of investigation though not with
the power of filing a final report as in the case of a
police officer.
121.Lastly, it falls for our consideration whether Section
4(2) of the Code of Criminal Procedure can be availed of for
investigating, inquiring or trying offences under any law
other than the Indian Penal Code which expression includes
FERA and Customs Act etc.
122. Section 4(2) of the Code corresponds to Section 5(2) of
the old Code. Section 26(b) of the Code corresponds to
Section 29 of the old Code except for a slight change.
Under the present Section 26(b) any offence under any other
law shall, when any court is mentioned in this behalf in
such law, be tried by such court and when no court is
mentioned in this behalf, may be tried by the High Court or
other court by which such offence is shown in the First
Schedule to be triable. The combined operation of Sections
4(2) and 26(b) of the Code is that the offence complained of
should be investigated or inquired into or tried according
to the provisions of the Code where the enactment which
creates the offence indicates no special procedure.
123. We shall now consider the applicability of provisions
of Section 167(2) of the Code in relation to Section 4(2) to
a person arrested under FERA or the Customs Act and produced
before a Magistrate. As we have indicated above, a reading
of Section 4(2) read with Section 26(b) which governs every
criminal proceeding as regards the course by which an
offence is to be tried and as to the procedure to be
followed, renders the provisions
478
of the Code applicable in the field not covered by the
provisions of the FERA or Customs Act.
124.We are not concerned with sub-section (1) of Section 4
in this matter which provides for the procedure to be
followed in every investigation, inquiry or trial in
relation to offences under the Indian Penal Code stating
that all offences under the Indian Penal Code “shall be
investigated, inquired into, tried and otherwise dealt with
according to the provisions hereinafter contained”.
125. In this context, Section 5 of the Code which is for all
practical purposes identical with the relevant portion of
the corresponding Section 1(2) of the old Code, also may be
referred to which states,
“Nothing contained in this Code shall, in the
absence of a specific provision to the
contrary, affect any special or local law for
the time being in force, or any special
jurisdiction or power conferred, or any
special form of procedure prescribed, by any
other law for the time being in force.”
The expression ‘special law’ or ‘local law’ is defined under
Sections 41 and 42 of the Indian Penal Code.
126. Desai, J. in Vishwa Mitter of Vijay Bharat Cigarette
Stores v. O.P. Poddar40 speaking for the Bench on the import
of Section 4(2) has stated thus: (SCC p. 704, para 4)
“… Section 190 thus confers power on any
Magistrate to take cognizance of any offence
upon receiving a complaint of facts which
constitute such offence. It does not speak of
any particular qualification for the
complainant. Generally speaking, anyone can
put the criminal law in motion unless there is
specific provision to the contrary. This is
specifically indicated by the provision of
sub-section (2) of Section 4 which provides
that all offences under any other law meaning
thereby law other than the Indian Penal Code
shall be investigated, inquired into, tried
and otherwise dealt with according to the
provisions in the Code of Criminal Procedure
but subject to any enactment for the time
being in force regulating the manner or place
of investigating, inquiring into, trying or
otherwise dealing with such offences. It
would follow as a necessary corollary that
unless in any statute other than the Code of
Criminal Procedure which prescribes an offence
and simultaneously specifies the manner or
place of investigating, inquiring into, trying
or otherwise dealing with such offences, the
provisions of the Code of Criminal Procedure
shall apply in respect of such offences and
they shall be investigated, inquired into,
tried and otherwise dealt with according to
the provisions of the Code of Criminal
Procedure.”
127. In A.R. Antulay v. Ramdas Sriniwas Nayak41 a
Constitution Bench of this Court while examining the similar
question with regard to
40 (1983) 4 SCC 701: 1984 SCC (Cri) 29
41 (1984) 2 SCC 500: 1984 SCC (Cri) 277: (1984) 2 SCR 914
479
applicability of Section 4 with reference to the Prevention
of Corruption Act has laid down the law thus: (SCR p. 935:
SCC p. 517, para 16)
“In the absence of a specific provision made
in the statute indicating that offences will
have to be investigated, inquired into, tried
and otherwise dealt with according to that
statute, the same will have to be
investigated, inquired into, tried and
otherwise dealt with according to the Code of
Criminal Procedure. In other words, Code of
Criminal is the parent statute which provides
for investigation, inquiring into and trial of
cases by criminal courts of various
designations.”
128. To sum up, Section 4 is comprehensive and that Section
5 is not in derogation of Section 4(2) and it only relates
to the extent of application of the Code in the matter of
territorial and other jurisdiction but does not nullify the
effect of Section 4(2). In short, the provisions of this
Code would be applicable to the extent in the absence of any
contrary provision in the special Act or any special
provision excluding the jurisdiction or applicability of the
Code. In fact, the second limb of Section 4(2) itself
limits he application of the provisions of the Code
reading……. but subject to any enactment for the time
being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing
with such offences.”
129. It is also significant to take note of the “Objects and
Reasons” for the introduction of the present Section 104 of
the Customs Act replacing the existing Sections 173, 174
and 175 of the Sea Customs Act with some amendments one of
which being, “in addition to the power to commit an arrested
person to jail or order him to be kept in police custody,
the Magistrate is being empowered to order the arrested
person to be kept in such other custody as he deems fit”.
Vide S. O.R. Gaz. of India 1962, Pt.
S. 2 Ext. p. 334.
130. The Select Committee expressed its view on the proposed
amendment as follows:
“The Committee are of the view that an Officer
of Customs arresting a person under the clause
should have the power to release the arrested
person on bail or otherwise similar to the
power conferred on the officer in charge of a
police station under the Code of Criminal
Procedure, 1898 so as to obviate the necessity
of detaining an arrested person till he can be
taken to a Magistrate.
The Committee feel that sub-clause (3) being
merely a repetition of the provisions of the
Criminal Procedure Code, 1898 should be
omitted.”
The view of the Committee expressed above can be taken as a
guide in understanding the import of Section 35 of FERA.
131. The submission that as there is no investigation within
the terms of the Code in the field of FERA or Customs Act,
Section 4(2) of the Code can have no part to play, has to be
rejected for the reasons given by us while disposing of the
contention “What investigation means and is” in the
preceding part of this judgment.
480
132. For the aforementioned reasons, we hold that the
operation of Section 4(2) of the Code is straightaway
attracted to the area of investigation, inquiry and trial of
the offences under the special laws including the FERA and
Customs Act and consequently Section 167 of the Code can be
made applicable during the investigation or inquiry of an
offence under the special Acts also inasmuch as there is no
specific provision contrary to that excluding the operation
of Section 167.
133. Though much argument was advanced on the expression
“otherwise dealt with”, we think it is not necessary to go
deep into the matter except saying that the said expression
is very wide and all comprehensive. Vide Bhim Singh v.
State of U. P. 42 and Delhi Admn. v. Ram Singh43.
134. There are a series of decisions of various High Courts,
of course with some exception, taking the view that a
Magistrate before whom a person arrested by the competent
authority under the FERA or Customs Act is produced, can
authorise detention in exercise of his powers under Section
167. Otherwise the mandatory direction under the provision
of Section 35(2) of FERA or Section 104(2) of the Customs
Act, to take every person arrested before the Magistrate
without unnecessary delay when the arrestee was not released
on bail under sub-section (3) of those special Acts, will
become purposeless and meaningless and to say that the
courts even in the event of refusal of bail have no choice
but to set the person arrested at liberty by folding their
hands as a helpless spectator in the face of what is termed
as “legislative casus omissus” or legal flaw or lacuna, it
will become utterly illogical and absurd.
135. We are in total agreement with the above view of the
various High Courts for the discussion made already and
conclusions arrived at thereto.
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 Customs
Act and that the Magistrate has jurisdiction under Section
167(2) to authorise detention of a person arrested by any
authorised officer of the Enforcement under FERA and taken
to the Magistrate in compliance of Section 35(2) of FERA.
137. In the result, the impugned judgment of the Full
Bench (five Judges) of the High Court holding the view that
the law laid down in O.P. Gupta’ “regarding the powers
available to a Magistrate under Section 167(2) of the Code
of Criminal Procedure to commit to custody a person taken
before him by the Customs Officer is incorrect” is set
aside. The law enunciated in O.P. Gupta’ by a three-Judge
Bench is the correct law and accordingly the said decision
is upheld.
138. The appeal is allowed accordingly.
42 AIR 1955 SC 435: (1955) 1 SCR 1444: 1955 Cri LJ 1010
43 (1962) 2 SCR 694: AIR 1962 SC 63: (1962) 1 Cri LJ 106
483