MANISH KUMAR CHOUKSAY Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) No act, however abhorrent it may be to the collective conscience of the society or the State is an offence, unless proscribed by law and met with sanctions for its transgression. An offence is a creature of statute, clear and unambiguous, which puts the prospective offender on guard with the liability he would suffer in the event he violated it. These applications under Section 439 of the Code of Criminal Procedure, 1973 raises two important questions. The first question being, whether there can be an investigation by the police without registration of an FIR u/s. 154 Cr.P.C? and the second question that arises is whether the Magistrate, in exercise of his powers u/s. 167 Cr.P.C, can remand a person to judicial custody where no FIR has been registered against such a person u/s. 154 Cr.P.C? The applicants herein have been arrested by the police in connection with Istgasa No.1/2017 under sections 102/41(1-4) of Cr.P.C. and 379 of IPC registered at Police Station-MISROD, District-Bhopal.

(2.) The genesis of the instant case can be traced back to decision of the Government of India to cancel overnight, the "legal tender" character of bank notes in the denomination of Rs. 500 and Rs. 1000 by an executive fiat being notification bearing number S.O.3407(E) dated 08/11/2016 issued by the Ministry of Finance with the hallowed intention of curbing the menace of unaccounted wealth or "black money". Citizens were given time to exchange or deposit into their account with banks, the old currencies in their possession. A grace period, expiring on 31/12/2016 was given to all resident Indians and 31/03/2017 to Non- Resident Indians (hereinafter referred to as "NRI") to deposit the old currency notes in retail banks (for resident Indians) and directly in the Reserve Bank of India for the NRI's.

(3.) In order to create a liability upon persons still holding demonetized notes after the expiry of the grace period, the Government of India promulgated the "The Specified Bank Notes (Cessation of Liabilities) Ordnance, 2016" (hereinafter referred to as the "Ordnance of 2016") on 30/12/2016 which came into effect from 31/12/2016 after receiving the assent of the President of India. Section 2(1)(e) of the Ordnance of 2016 defined the term "Specified Bank Note" to mean bank notes of the denominational value of rupees five hundred and one thousand in the series existing before 08/11/2016. After the expiry of the grace period, possession of the demonetized notes was prohibited under section 5 of the Ordnance of 2016. The only exception being in circumstances enumerated in Sections 5(a)(ii) (A) and 5(a)(ii)(B) of the Ordnance of 2016. Section 5(a)(ii)(A) legitimised the possession of the demonetised notes where a person possessed not more than ten notes of either denomination and Section5(a)(ii)(B) legitimised the possession of not more than twenty five notes of the demonetised currency, where the same was held for the purposes of study, research or numismatics. But for possession under the aforementioned conditions, it was illegal to bear in hand the demonetised currency after 31/12/2016 (for resident Indians) and 31/03/2017 (for NRI's) and the said act was made punishable under sections 6 and 7 of the Ordnance of 2016.