# Kapil Wadhawan & Anr v. State thru. C.B.I

- **Citation:** (2022) 12 ILRA 669
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-29
- **Case number:** Criminal Misc. Bail Application No. 12007 of 2022
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kapil-wadhawan-anr-v-state-thru-c-b-i-47968
- **Pages:** 12

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 439 - Bail ,
Section
167
-
Procedure
when
investigation cannot be completed in
twenty four hours - Indian Penal Code,
1860 - Sections- 120B, 409, 420, 467, 468,
471, Prevention to the Corruption Act,
1988 - Sections 7A, 8, 13(2),13(1)(d) -
Any offence for which the sentence
provided is more than 10 years, custody
period would be extendable to 90 days.
(Para -32 )

Accused allegedly involved in commission of
offence(s) - Mind-boggling financial fraud -
regarding siphoning and misappropriation of
public
funds
of
thousands
of
crores
-
punishment
up
to
''for
life'
-
minimum
punishment of ''ten years not provided -
whether entitled to default bail - on expiry of
60
days
-
under
provisions
of
section
167(1)(a)(ii), Cr.P.C. - charge sheet not filed
within a period of sixty days.(Para - 33)

(B) Interpretation of Statute - golden rule
of
interpretation
-
words
used
by
legislature should be given their natural
meaning - text of section 167 of Cr.P.C. -
explicit and needs no great interpretation
- legislature in its wisdom extended a
custody period of 90 days without filing
charge sheet - respect of three kinds of
Offences where punishment is prescribed
- a. death; b. imprisonment for life; or c.
minimum sentence provided is not less
than 10 years. (Para 32)

HELD:-Extended period of 90 days would be
available to the investigating agency. Accusedapplicants not entitled to default bail on an
expiry of 60 days from the date of their custody.
(Para -33 )

Bail application rejected. (E-7)

List of Cases cited:-

## Text

12 All. Kapil Wadhawan & Anr. Vs. State thru. C.B.I.
669

20. In the interest of justice and
proper adjudication, the applicants are at
liberty to file an appeal under Section 14A
of the SC/ST Act.

21. The certified copy of the orders
and other relevant documents shall be
returned to the counsels for the applicants
after obtaining photostat copies, which
shall be kept on record.
----------
(2022) 12 ILRA 669
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.11.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Criminal Misc. Bail Application No. 12007 of
2022

Kapil Wadhawan & Anr. ...Applicants
Versus
State thru. C.B.I. ...Opposite Party

Counsel for the Applicants:
Sri Pranjal Krishna

Counsel for the Opposite Party:
Anurag Kumar Singh

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 439 - Bail ,
Section
167
-
Procedure
when
investigation cannot be completed in
twenty four hours - Indian Penal Code,
1860 - Sections- 120B, 409, 420, 467, 468,
471, Prevention to the Corruption Act,
1988 - Sections 7A, 8, 13(2),13(1)(d) -
Any offence for which the sentence
provided is more than 10 years, custody
period would be extendable to 90 days.
(Para -32 )

Accused allegedly involved in commission of
offence(s) - Mind-boggling financial fraud -
regarding siphoning and misappropriation of
public
funds
of
thousands
of
crores
-
punishment
up
to
''for
life'
-
minimum
punishment of ''ten years not provided -
whether entitled to default bail - on expiry of
60
days
-
under
provisions
of
section
167(1)(a)(ii), Cr.P.C. - charge sheet not filed
within a period of sixty days.(Para - 33)

(B) Interpretation of Statute - golden rule
of
interpretation
-
words
used
by
legislature should be given their natural
meaning - text of section 167 of Cr.P.C. -
explicit and needs no great interpretation
- legislature in its wisdom extended a
custody period of 90 days without filing
charge sheet - respect of three kinds of
Offences where punishment is prescribed
- a. death; b. imprisonment for life; or c.
minimum sentence provided is not less
than 10 years. (Para 32)

HELD:-Extended period of 90 days would be
available to the investigating agency. Accusedapplicants not entitled to default bail on an
expiry of 60 days from the date of their custody.
(Para -33 )

Bail application rejected. (E-7)

List of Cases cited:-

1. Rakesh Kumar Paul Vs St. of Assam, (2017)
15 SCC 67

2.
M.
Ravindran
Vs
Intelligence
Officer,
Directorate of Revenue Intelligence, (2021) 2
SCC 485

3. Sohan Lal Vs St. of U.P., 1991 SCC OnLine All
469

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. The present application under
Section 439, read with section 167 of the
Code
of
Criminal
Procedure
1973
(hereinafter referred to as "Cr.P.C.") has
been filed by the applicants, Kapil
Wadhawan
and
Dheeraj
Wadhawan,
seeking default bail in Crime No. RC
No.0062020A0005 under Sections- 120B,
670 INDIAN LAW REPORTS ALLAHABAD SERIES
409, 420, 467, 468, 471 of The Indian
Penal Code, 1860 (hereinafter referred to as
"I.P.C.") read with Sections 7A, 8,
13(2),13(1)(d)
of
Prevention
to
the
Corruption Act, 1988 Police Station-
CBI/ACB, Lucknow, after their bail
application for default bail bearing Bail
Application No. 7528 of 2022 got rejected
by the learned Special Judge, AntiCorruption, CBI (West), Lucknow, vide
order dated 1st October 2022.

2. The facts in brief of the present
case, which are relevant for the purposes of
deciding the present bail application are
mentioned as under:

3. On 2nd November 2019, an FIR No.
540 of 2019 came to be registered at Police
Station
Hazaratganj,
Lucknow
on
the
complaint of one I.M. Kaushal, Secretary,
Trust of Uttar Pradesh Power Corporation
Limited
(hereinafter
referred
to
as
"U.P.P.C.L.") against Mr. Praveen Kumar
Gupta,
ex-Secretary
(Trust)
and
Mr.
Sudhanshu Dwivedi, who served U.P.P.C.L.
in the capacity of Director (Finance) from
June 2016 to June 2019. During the
investigation names of several other accused
came to the light as the investigating agency
found these accused also involved and part of
deep-rooted criminal conspiracy in the mega
scam of several thousand crores Rupees.
Investigation of the said case was transferred
to the Central Bureau of Investigation (CBI)
and CBI registered the Regular Case and
undertook the investigation.

4. As per the FIR, in pursuance of the
implementation
of
the
Uttar
Pradesh
Electricity Reforms Transfer Scheme, 2000,
the Uttar Pradesh State Electricity Board was
divided on 14th January 2000 into 3
Companies i.e. (i) Uttar Pradesh Power
Corporation Limited, (ii) Uttar Pradesh Rajya
Vidut Utpadan Nigam Limited, and (iii) Uttar
Pradesh Hydro Power Corporation Limited.
On 14th January 2000, the employees
working in the Uttar Pradesh State Electricity
Board were assigned to the aforesaid three
corporations established in pursuance of the
Reform Scheme. In respect of all the
employees working in these three power
corporations, Uttar Pradesh State Power
Sector Employees Trust was constituted on
29th April 2000 under the provisions of the
Provident Fund Act, 1952 to manage the
general provident fund, gratuity fund, and
pension fund of the employees of three
electricity corporations so constituted.

5. A Trust-deed was executed on 24th
April 2000 for the creation of the Trust. As
per the trust deed, the aforesaid three funds
namely, General Provident Fund, Gratuity
Fund, and Pension Fund created for the
benefit of employees of three power
corporations shall be called "Uttar Pradesh
State Power Sector Employees General
Provident Fund", "Uttar Pradesh State Power
Sector Employees Gratuity Fund" and "Uttar
Pradesh State Power Sector Employees
Pension Fund". These funds collectively
would be referred to as "Funds".

6. As per the Trust-deed, the funds vest
in the Board of Trustees who shall administer
the Funds in accordance with the Rules as set
out in the Schedule of the Trust-deed. The
First Trustees are:

(i) ''Chairman cum Managing
Director, U.P.P.C.L.' Chairman of the Trust;

(ii) ''Chairman cum Managing
Director of U.P.R.V.U.N.L.' Member; and

(iii) ''Chairman cum Managing
Director, U.P. Hydro Power Corporation
Ltd.', Member.
12 All. Kapil Wadhawan & Anr. Vs. State thru. C.B.I.
671

7. For the management of the
provident fund of the employees joining the
U.P.P.C.L. on 14.01.2000 or later, Uttar
Pradesh Power Corporation Contributory
Provident Fund Rules, 2004 was enacted
and made applicable with effect from 1st
April
2004.
Uttar
Pradesh
Power
Corporation Contributory Provident Trust
(hereinafter referred to as "CPF") was
constituted on 25th June 2006 under the
Provident Fund Act, 1952.

8. Appropriation and the management
of Provident Funds of the employees of the
Uttar
Pradesh
State
Power
Sector
Employees Trust and the Uttar Pradesh
Corporation
C.P.F.
Trust
were
the
responsibility of the Secretary (Trust) and
Director
(Finance)
U.P.P.C.L.
The
management and appropriation and other
related actions concerning the provident
fund's account of the employees were to be
performed by the Secretary (Trust) and
Director (Finance) of both the Trusts in
accordance with the directions issued by
the Central Government from time to time.

9. The amount deducted from the
salaries of the member employees of the
Uttar
Pradesh
State
Power
Sector
Employees Trust and the Uttar Pradesh
Corporation Contributory Provident Fund
Trust were forwarded to the Trust office by
all three Corporations which then were
required to be invested by the Secretary
(Trust) on the approval of Director
(Finance) and trustees and in accordance
with the directions issued from time to time
by the Board of Trustees in various
approved schemes.

10. On 08.05.2013, it was resolved by
the Board of Trustees of the U.P. State
Power Sector Employees Trust that the
amount of the General Provident Fund
would be invested in term deposits of the
nationalized Banks for a period of 1 to 3
years. Further, it was resolved in the
meeting of the Board of Trustees of the
Uttar
Pradesh
State
Power
Sector
Employees Trust on 21st April 2014 that in
case there were alternative investment
avenues available that were as safe as an
investment in the Banks and offered more
assured interest, they should be presented
after deliberations and considerations and,
if needed then the Director (Finance)
should be duly authorized to take the
services of an investment advisor.

11. In pursuance of the aforesaid
resolutions till October 2016, Provident
Fund amounts of the two Trusts were
deposited in the Nationalized Banks in term
deposits accruing interest.

12. However, in the month of
December 2016 on the proposal of the then
Secretary of the Trust, Mr. Praveen Kumar
Gupta, after obtaining the approvals from
the then Director (Finance), Mr. Sudhanshu
Dwivedi, and the then Managing Director,
U.P.P.C.L., Mr. A.P. Mishra who was
working as Managing Director, U.P.P.C.L.,
started investing the G.P.F. and C.P.F.
funds in the P.N.B. Housing term deposits.
In the same series, the G.P.F. and C.P.F.
funds were invested as term deposits by
Mr. Sudhanshu Dwivedi and Mr. Praveen
Kumar Gupta from March 2017 in a private
institution named Deewan Housing Finance
Ltd (hereinafter referred to as ''DHFL') with
the approval of the Managing Director,
U.P.P.C.L. Mr. A.P. Mishra without any
authority of law in illegal and mala fide
manner for personal gains. Mr. A.P. Mishra
approved investing the amount of two
Funds in NBFC, i.e. DHFL in active
connivance and furtherance of deep-rooted
criminal conspiracy with the purpose and
672 INDIAN LAW REPORTS ALLAHABAD SERIES
motive of earning huge illegal brokerage
and misappropriation of thousand crores
Rupees of the contributions made by
employees in power companies by the
accused. The applicants were the Managing
Director and Director of DHFL and they
were in complete control of the affairs of
DHFL at the relevant time.

13. It is alleged that forged and
fabricated minutes of the meeting of the
Board of Trustees of the Contributory
Provident Fund allegedly held on 24th
March 2017 were prepared to justify the
illegal investment of a huge sum of money
from two funds in DHFL. In the aforesaid
meeting, it was allegedly resolved that "the
Board of Trustees agreed to consider the
investment proposals as per the government
notification dated 2nd March 2015 in the
securities with higher security and highinterest rates other than deposits of
nationalized
banks
in
AAA-rated
Companies. As per prevailing practice,
further investment and the securities would
be decided by Secretary (Trust) on a caseto-case basis with the consent/approval of
Director (Finance), U.P.P.C.L. trustee."

14. It has been alleged that as per
records available in the office of trust from
March 2017 to December 2018, the then
Secretary (Trust) Mr. Praveen Kumar
Gupta who was in charge of both C.P.F.
and G.P.F. Trust after obtaining approval
from the then Director (Finance), Mr.
Sudhanshu Dwivedi and Mr. A.P. Mishra
who was working as Managing Director of
U.P.P.C.L. and transgressing the clear
directives of the Government of India as
contained in its notification dated 2nd
March 2015 which specifically provide that
the money of the employees Provident
Fund should not be invested in any of the
institutions
other
than
scheduled/unscheduled commercial banks,
with ill intentions invested more than 50%
of the amount of two trusts in term deposit
of DHFL, in connivance and furtherance of
criminal conspiracy of accused including
the present accused-applicants knowing
fully well that it did not fall in the category
of unscheduled commercial banks and, it
was an unsecured private institution.

15. It is also alleged that according to
the records available, GPF contributions
amounting to Rs.2631.20 crores were
invested in DHFL out of which only
Rs.1185.50 crores have been received by
the trust office and an amount of
Rs.1445.70 crores plus interest is yet to be
received.
Similarly,
an
amount
of
Rs.1491.5 crores of the Contributory
Provident Fund was invested in the DHFL,
out of which Rs.669.3 crores have been
received by the office of the trust and
Rs.822.2 crores plus interest is yet to be
received. Thus, the total amount of
Rs.2267.90 crores (Principal Amount) and
interest could not be received from the
DHFL and DHFL itself has gone into
liquidation.

16. Thus, allegations in sum and
substance
are
that
the
accused
in
furtherance of criminal conspiracy with
mala fide intention for personal gain and in
violation of the relevant provisions of the
law have invested a huge amount of two
funds i.e. Uttar Pradesh Power Sector
Employees General Provident Fund and
Uttar Pradesh Power Corporation Limited
Contributory Provident Fund in DHFL, a
company
incorporated
under
the
Companies Act. Their mala fide decision
has caused a huge loss to these funds to the
extent of Rs.2267.9 crores (Principal
Amount) besides interest. The investigation
has revealed that the investments have been
12 All. Kapil Wadhawan & Anr. Vs. State thru. C.B.I.
673
made in the DHFL by the accused for
personal gain as they have received a huge
amount from DHFL as a commission for
making such investments.

17. The applicants were produced
before the learned Special Judge, AntiCorruption, CBI (West), Lucknow on
26.5.2022 by the CBI and they were
remanded to the custody of the CBI on the
same day. After custody of the applicants
for 15 days got over, the accused-applicants
were remanded to judicial custody on
9.6.2022 in connection with the F.I.R. in
question.

18. According to the applicants, 60
days got expired on 24.7.2022 from the
date of their custody, i.e., 26.5.2022. It is
said that no charge sheet was filed against
the applicants within the prescribed time of
60 days and, therefore, the applicants had
preferred an application seeking default
bail under section 167 of the Cr.P.C. on the
said ground. The CBI filed an objection to
the said application and said that since the
offence under sections 409 and 467 of the
I.P.C. had been invoked against the
applicants, for which punishment provided
is for life and the CBI had already filed
charge sheet within the stipulated period of
90 days as per section 167(2) of the Cr.P.C.
therefore, the application filed on behalf of
the accused-applicants for seeking default
bail was to be rejected being misconceived.

19. Sri S.C. Mishra and Sri Nandit
Srivastava,
learned
Senior
Advocates
assisted by Sri Pranjal Krishna, Smt. Janaki
Garade, Smt. Urvi Purve, and Sri Samarth
Agarwal,
learned
Advocates,
have
submitted that under the provisions of
section
167
of
the
Cr.P.C,
if
the
investigating agency has failed to file a
charge sheet in respect of the offences for
which the accused-applicants have been
charged within a period of 60 days from the
date of their initial custody, they are
entitled to be enlarged on default bail.
Learned Senior Advocate has submitted
that there is no dispute in respect of the fact
that 60 days got expired on 24.7.2022 and
the CBI could not file the charge sheet
within the outer limit of 60 days and,
therefore, the applicants are entitled to be
enlarged on default bail.

20. It is further submitted that it is the
mandate of section 167(2)(a)(ii) of the
Cr.P.C. that if the investigating agency fails
to file the charge sheet for offences, where
the
minimum
period
of
10
years
imprisonment
as
punishment
is
not
provided, the accused is entitled to be
enlarged on bail after the lapse of 60 days
irrespective of maximum punishment of
life.

21. In support of the aforesaid
submissions Sri Mishra has placed reliance
on judgments in the case of Rakesh
Kumar Paul v. State of Assam, (2017) 15
SCC 67; M. Ravindran v. Intelligence
Officer,
Directorate
of
Revenue
Intelligence, (2021) 2 SCC 485; and a
judgment of this court in the case of Sohan
Lal v. State of U.P., 1991 SCC OnLine
All 469.

22. On the other hand, Sri Anurag
Kumar Singh, learned counsel appearing
for the CBI has submitted that the accusedapplicants are charge-sheeted, inter alia, for
the offences under section 407, 467, I.P.C.
and
these
offences
entail
maximum
punishment up to 'for life'. He has
submitted that the accused-applicants have
been
charge-sheeted
for
committing
offences under section 120-B, read with
sections 409, 420, 467, 468, 471, I.P.C. and
674 INDIAN LAW REPORTS ALLAHABAD SERIES
section 7A, 8, 13(2), read with section
13(1)(d) of Prevention to the Corruption
Act, 1988. As per section 109 of the I.P.C.
punishment for the said offences would be
the same, if the accused-applicants have
been charged without the aid of section
120-B IPC. Sri Anurag Kumar Singh
learned counsel for the CBI has further
submitted that the judgments relied on by
Sri Mishra, Learned Senior Counsel do not
support his submission. Sri Anurag Kumar
Singh has also placed reliance on the same
very judgments to buttress his submission
that since the punishment for which the
accused-applicants have been charged, the
punishment provided is up to ''for life', the
accused-applicants cannot claim that since
the charge sheet could not be filed within
60 days, they are entitled to default bail
under section 167(2) of the Cr.P.C.

23. The applicants were not named as
accused in the F.I.R. or the charge sheet
and supplementary charge sheet earlier
filed. The applicants were in CBI custody
in Mumbai for some other offences
allegedly committed by them. The accusedapplicants
are
Managing
Director/
Directors of the company Dewan Housing
Development Finance Ltd. (DHFL) where
the investment of Rs. 4,122.7 crores from
four GPF and CPF Trusts of Uttar Pradesh
Power
Companies
was
made
unauthorizedly in connivance with the
accused-applicants
to
earn
huge
commission offered by the accusedapplicants on behalf of M/s DHFL and out
of this amount of Rs. 4,122.7 crores Rs.
2267.9 crores and interest thereon allegedly
got misappropriated by the DHFL, a
company controlled by the accusedapplicants. The CBI had investigated their
role
in
the
commission
of
fund
misappropriation of thousands of crores,
i.e. public money by them and a charge
sheet has been filed against them. DHFL
and accused-applicants are accused of
misappropriating several thousand crores of
rupees from financial institutions of the
country besides the amount of two trusts of
power companies of the Government of
Uttar Pradesh.

24. The only question which requires
consideration in the present case is whether
the accused who are allegedly involved in
the commission of the offence(s) for which
punishment is up to ''for life', but minimum
punishment of ''ten years is not provided,
would he be entitled to default bail under
the provisions of section 167(1)(a)(ii),
Cr.P.C. as the charge sheet has not been
filed within a period of sixty days.

25. Section 167 of the Cr.P.C. reads
as under:

"Section 167, Cr.P.C.- Procedure
when investigation cannot be completed in
twenty-four hours.

(1) Whenever any person is
arrested and detained in custody and it
appears that the investigation cannot be
completed within the period of twenty- four
hours fixed by section 57, and there are
grounds for believing that the accusation
or information is well-founded, the officer
in charge of the police station or the police
officer making the investigation, if he is not
below the rank of sub-inspector, shall
forthwith transmit to the nearest Judicial
Magistrate a copy of the entries in the
diary hereinafter prescribed relating to the
case, and shall at the same time forward
the accused to such Magistrate.

(2) The Magistrate to whom an
accused person is forwarded under this
section may, whether he has or has not
12 All. Kapil Wadhawan & Anr. Vs. State thru. C.B.I.
675
jurisdiction to try the case, from time to
time, authorize the detention of the accused
in such custody as such Magistrate thinks
fit, for a term not exceeding fifteen days in
the whole; and if he has no jurisdiction to
try the case or commit it for trial, and
considers further detention unnecessary, he
may order the accused to be forwarded to a
Magistrate
having
such
jurisdiction:
Provided that-

(a) the Magistrate may authorize
the detention of the accused person,
otherwise than in the custody of the police,
beyond the period of fifteen days; if he is
satisfied that adequate grounds exist for
doing so, but no Magistrate shall authorize
the detention of the accused person in
custody under this paragraph for a total
period exceeding,-

(i)
ninety
days,
where
the
investigation
relates
to
an
offence
punishable with death, imprisonment for
life, or imprisonment for a term of not less
than ten years;

(ii)
sixty
days,
where
the
investigation relates to any other offence,
and, on the expiry of the said period of
ninety days, or sixty days, as the case may
be, the accused person shall be released on
bail if he is prepared to and does furnish
bail, and every person released on bail
under this subsection shall be deemed to be
so released under the provisions of Chapter
XXXIII for the purposes of that Chapter;]

(b) no Magistrate shall authorize
detention in any custody under this section
unless the accused is produced before him;

(c) no Magistrate of the second
class, not specially empowered on this behalf
by the High Court, shall authorize detention
in the custody of the police. Explanation I.-
For the avoidance of doubts, it is hereby
declared that, notwithstanding the expiry of
the period specified in paragraph (a), the
accused shall be detained in custody so long
as he does not furnish bail;] Explanation II.-
If any question arises whether an accused
person was produced before the Magistrate
as required under paragraph (b), the
production of the accused person may be
proved by his signature on the order
authorizing detention.]

(2A)
Notwithstanding
anything
contained in sub- section (1) or sub- section
(2), the officer in charge of the police station
or the police officer making the investigation,
if he is not below the rank of a sub- inspector,
may, where a Judicial Magistrate is not
available, transmit to the nearest Executive
Magistrate, on whom the powers of a Judicial
Magistrate or Metropolitan Magistrate have
been conferred, a copy of the entry in the
diary hereinafter prescribed relating to the
case, and shall, at the same time, forward the
accused to such Executive Magistrate, and
thereupon such Executive Magistrate, may,
for reasons to be recorded in writing,
authorise the detention of the accused person
in such custody as he may think fit for a term
not exceeding seven days in the aggregate;
and, on the expiry of the period of detention
so authorised, the accused person shall be
released on bail except where an order for
further detention of the accused person has
been made by a Magistrate competent to
make such order; and, where an order for
such further detention is made, the period
during which the accused person was
detained in custody under the orders made by
an Executive Magistrate under this sub-
section."

26. A three judges Bench of the
Supreme Court in Rakesh Kumar Paul
676 INDIAN LAW REPORTS ALLAHABAD SERIES
(supra)
considered
the
question
that
whether the accused charged with an
offence punishable with imprisonment for a
period from 4-10 years would be entitled to
default bail on expiry of 60 days on the
ground that no charge sheet has been filed
within the statutory period and whether the
period of investigation for such an offence
would be 60 or 90 days. The majority view
is of Hon'ble Mr. Justice Madan B. Lokur
and Hon'ble Mr. Justice Deepak Gupta.
Hon'ble Mr. Justice Madan B. Lokur held
that an offence punishable with a sentence
of death or imprisonment for life or
imprisonment for a term which may extend
to 10 years is a serious offence requiring
intensive or perhaps extensive investigation
and it would, therefore, appear that given
the seriousness of the offence, the extended
period of 90 days should be available to the
investigating
officer
in
such
cases.
Paragraph 27 of the said judgment, which
is relevant is extracted hereinbelow:

"27.
Indeed,
an
offence
punishable with a sentence of death or
imprisonment for life or imprisonment for a
term that may extend to 10 years is a
serious offence entailing intensive and
perhaps extensive investigation. It would
therefore appear that given the seriousness
of the offence, the extended period of 90
days
should
be
available
to
the
investigating officer in such cases. In other
words, the period of investigation should be
relatable to the gravity of the offence -
understandably
so.
This
could
be
contrasted with an offence where the
maximum punishment under the IPC or any
other penal statute is (say) 7 years, the
offence being not grave enough to warrant
an extended period of 90 days of
investigation. This is certainly a possible
view and indeed the Cr.P.C. makes a
distinction in the period of investigation for
'default bail' depending on the gravity of
the offense. Nevertheless, to avoid any
uncertainty or ambiguity in interpretation,
the
law
was
enacted
with
two
compartments. Offences punishable with
imprisonment of not less than ten years
have been kept in one compartment
equating them with Offences punishable
with death or imprisonment for life. This
category of Offences undoubtedly calls for
deeper investigation since the minimum
punishment is pretty stiff. All other
Offences have been placed in a separate
compartment, since they provide for a
lesser minimum sentence, even though the
maximum punishment could be more than
ten
years
imprisonment.
While
such
Offences
might
also
require
deeper
investigation (since the maximum is quite
high) they have been kept in a different
compartment
because
of
the
lower
minimum imposable by the sentencing
court, thereby reducing the period of
incarceration during investigations that
must be concluded expeditiously. The cutoff, whether one likes it or not, is based on
the wisdom of the Legislature and must be
respected."

27. Hon'ble Mr. Justice Deepak
Gupta, who along with Hon'ble Mr. Justice
Madan B. Lokur constituted a majority in
the said judgment made the position
categorical and clear and held that if the
offence
was
punishable
with
life
imprisonment,
even
if
the
minimum
sentence provided is less than 10 years, the
period of detention for default bail would
be 90 days. Paragraphs 62-67 which are
relevant are extracted hereinbelow:

"62. We are only concerned with
the interpretation of the phrase "for a term
of not less than ten years" occurring in
Section 167(2)(a)(i), which provides a
12 All. Kapil Wadhawan & Anr. Vs. State thru. C.B.I.
677
period of 90 days where the investigation
relates to an offence punishable with death,
imprisonment for life or imprisonment for a
term not less than 10 years.

63. In my view, without indulging
in semantic gymnastics, this provision's
meaning is absolutely clear. It envisages
three types of Offences:

(i) Offences that are punishable
with death;

(ii) Offences that are punishable
with imprisonment for life;

(iii) Offences that are punishable
with a term not less than 10 years.

64. In my view the language of the
statute is unambiguous. Out of the three
categories of Offences, we need to deal only
with that category of Offences where the
punishment prescribed is not less than 10
years. If an offence is punishable by death
then whatever the minimum punishment, the
period of investigation permissible would be
90 days. Similarly, if the offence is punishable
with life imprisonment, even if the minimum
sentence provided is less than 10 years, the
period of detention before 'default bail' is
available would be 90 days.

65. Keeping in view the legislative
history of Section 167, it is clear that the
legislature was carving out the more serious
Offences and giving the investigating agency
another 30 days to complete the investigation
before the accused became entitled to a grant
of 'default bail'. It categorizes these Offences
into three classes:

I. the first category comprises
those
Offences
where
the
maximum
punishment was death;

II. the Second category comprises
those
Offences
where
the
maximum
punishment is life imprisonment.

III. The third category comprises
Offences that are punishable with a term of
fewer than 10 years.

66. In the first two categories, the
legislature made reference only to the
maximum
punishment
imposable,
regardless of the minimum punishment,
which may be imposed. Therefore, if a
person is charged with an offense, which is
punishable by death or life imprisonment,
but the minimum imprisonment is less than
10 years, then also the period of 90 days
will apply. However, when we look at the
third category, the words used by the
legislature are "not less than ten years".
This means that the punishment should be
10 years or more. This cannot include
Offences where the maximum punishment is
10 years. It means that the minimum
punishment is 10 years whatever the
maximum punishment.

67.
While
interpreting
any
statutory provision, it has always been
accepted as a golden rule of interpretation
that the words used by the legislature
should be given their natural meaning.
Normally, the courts should be hesitant to
add words or subtract words from the
statutory provision. ......"

28. In paragraph 75 of the said
judgment also it has been said that in
respect of offence under section 304-B of
I.P.C. that since the offence is punishable
with imprisonment for a term, which shall
not be less than 7 years, but may extend to
imprisonment for life, then the fact that the
minimum sentence provided is 7 years
would make no difference. It is only when
678 INDIAN LAW REPORTS ALLAHABAD SERIES
the maximum sentence is less than life
imprisonment, then the minimum sentence
must be 10 years to fall into the third
category of cases.

29. Hon'ble Mr. Justice Gupta had
given examples of such cases, e.g. Offences
punishable under sections 21-C and 22-C
of the Narcotic Drug and Psychotropic
Substances Act, 1985 which provide a
minimum sentence of 10 years and a
maximum sentence of 20 years. The
conclusions
have
been
recorded
in
paragraphs 84.1 to 84.4, which reads as
under:

"84.1. I agree with both my
learned brothers that the amendment made
to the Prevention of Corruption Act,1988
by the Lokpal and Lokayuktas Act, 2013
applies to all accused charged with
Offences under this Act irrespective of the
fact whether the action is initiated under
the Lokpal and Lokayuktas Act, 2013, or
any other law;

84.2. Section 167(2)(a)(i) of the
Code is applicable only in cases where the
accused is charged with (a) Offences
punishable with death and any lower
sentence; (b) Offences punishable with life
imprisonment and any lower sentence and
(c) Offences punishable with a minimum
sentence of 10 years;

84.3. In all cases where the
minimum sentence is less than 10 years but
the maximum sentence is not death or life
imprisonment then Section 167(2)(a)(ii)
will apply and the accused will be entitled
to grant of 'default bail' after 60 days in
case charge-sheet is not filed.

84.4. The right to get this bail is
an indefeasible right and this right must be
exercised by the accused by offering to
furnish bail."

30. In the case of M. Ravindran
(supra) question before the Supreme Court
was as to whether the indefeasible right
accruing to the accused under section
167(2) of the Cr.P.C. gets extinguished by
the subsequent filing of an additional
complaint by the investigating officer. The
Supreme Court in passing remarks in
paragraph 17.7 in the said judgment
observed that the majority opinion in
Rakesh Kumar Paul (supra) was that 90
days remand extension under section
167(2)(a)(i) would be available in respect
of Offences where the minimum period of
the sentence is 10 years stipulated.

31. Paragraph 17.7 is extracted
hereinbelow:

"17.7 Therefore, as mentioned
supra, Section 167(2) is integrally linked to
the
constitutional
commitment
under
Article 21 promising protection of life and
personal liberty against unlawful and
arbitrary detention and must be interpreted
in a manner that serves this purpose. In this
regard we find it useful to refer to the
decision of the three-Judge Bench of this
Court in Rakesh Kumar Paul v. State of
Assam, (2017) 15 SCC 67, which laid down
certain seminal principles as to the
interpretation of Section 167(2), CrPC
though the questions of law involved were
somewhat different from the present case.
The questions before the three-Judge Bench
in Rakesh Kumar Paul were whether,
firstly, the 90-day remand extension under
Section 167(2)(a)(i) would be applicable in
respect of Offences where the maximum
period of imprisonment was 10 years,
though the minimum period was less than
10 years. Secondly, whether the application
12 All. Kapil Wadhawan & Anr. Vs. State thru. C.B.I.
679
for bail filed by the accused could be
construed as an application for default
bail, even though the expiry of the statutory
period under Section 167(2) had not been
specifically pleaded as a ground for bail.
The majority opinion held that the 90-day
limit is only available in respect of
Offences where a minimum ten-year
imprisonment period is stipulated and that
the oral arguments for default bail made by
the counsel for the accused before the High
Court would suffice in lieu of a written
application. This was based on the
reasoning that the Court should not be too
technical in matters of personal liberty.
Madan B. Lokur, J. in his majority opinion,
pertinently observed as follows:

"29. Notwithstanding this, the
basic legislative intent of completing
investigations within twenty-four hours and
within an otherwise timebound period
remains unchanged, even though that
period has been extended over the years.
This is an indication that in addition to
giving
adequate
time
to
complete
investigations, the legislature has also
always put a premium on personal liberty
and has always felt that it would be unfair
to an accused to remain in custody for a
prolonged or indefinite period. It is for this
reason and to hold the investigating agency
accountable that time limits have been laid
down by the legislature...

xxx

32...Such views and opinions over
a prolonged period have prompted the
legislature for more than a century to
ensure the expeditious conclusion of
investigations so that an accused person is
not unnecessarily deprived of his or her
liberty by remaining in prolonged custody
for an offence that he or she might not even
have committed. In our opinion, the entire
debate before us must also be looked at
from the point of view of the expeditious
conclusion of investigations and the angle
of personal liberty and not from a pure
dictionary
or
textual
perspective
as
canvassed by the learned counsel for the
State.

xxx

41. We take this view keeping in
mind that in matters of personal liberty and
Article 21 of the Constitution, it is not
always advisable to be formalistic or
technical. The history of the personal
liberty jurisprudence of this Court and
other
constitutional
courts
includes
petitions for a writ of habeas corpus and
other writs being entertained even based on
a letter addressed to the Chief Justice or
the Court." (emphasis supplied)

Therefore, the Courts cannot
adopt a rigid or formalistic approach
whilst considering any issue that touches
upon the rights contained in Article 21."

32. The said judgment in M. Ravindran
(supra) was not on the issue regarding a
custody period of 90 days for offences where
the maximum punishment is imprisonment
''for life' but the minimum punishment is not
prescribed in the statute, as the issue is in the
present case. The language of section
167(2)(a)(i) of the Cr.P.C. is clear and while
interpreting any statutory provision it is the
golden rule of interpretation that the words
used by the legislature should be given their
natural meaning. The text of section 167 of
the Cr.P.C. is explicit and needs no great
interpretation. The legislature in its wisdom
has extended a custody period of 90 days
without filing the charge sheet in respect of
the
three
kinds
of
Offences
where
punishment is prescribed: a. death; b.
680 INDIAN LAW REPORTS ALLAHABAD SERIES
imprisonment for life; or c. minimum
sentence provided is not less than 10 years. If
the punishment provided for an offence is
life, then the custody period is extendable to
90 days irrespective of the fact that a
minimum sentence of 10 years is not
provided as in the case of an offence under
section 304-B of the I.P.C. Any offence for
which the sentence provided is more than 10
years, custody period would be extendable to
90 days.

33. The offences for which the accusedapplicants have been charge sheeted involve
intensive and extensive investigation as mindboggling financial fraud regarding siphoning
and misappropriation of public funds of
thousands of crores is involved in the present
case. The role of the accused-applicants was
required to be investigated deeply and further,
the offence is under sections 467 and 409 of
the I.P.C. provide punishment up to ''for life'
and, therefore, I am of the view that the
extended period of 90 days would be available
to the investigating agency for such an
offence. In view thereof, I do not find much
substance in the submissions of Sri S.C.
Mishra,
learned
Senior
Advocate.
The
accused-applicants did not get entitled to
default bail on an expiry of 60 days from the
date of their custody in the present case. The
present application thus is hereby rejected.
----------
(2022) 12 ILRA 680
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.11.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Bail Application No. 27563 of
2020

Pushpendra Chauhan
 ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri
Mohit
Singh,Sri
Dhirendra
Kumar
Srivastava, Sri Rajiv Sisodia, Sri Sadaful
Islam Jafri, Sri N.I. Jafri

Counsel for the Opposite Partiy:
G.A., Sri Shivam Yadav

(A) Criminal Law - Bail - The Code of
Criminal Procedure, 1973 - Sections
161,164 , Section 2 (wa) - Victim -
Indian Penal Code, 1860 - Section
375,376D,506
-
Against
her
will
-
Without her consent - Protection of
Children from Sexual Offences Act, 2012
- Sections 5/6

Victim in touch with applicant - mobile
chatting - enticed her away - committed rape
to the victim - co-accused and unknown
person also committed rape - threatened to
kill her father and brother - on disclosing
their
identity
-
Investigating
Officer
exonerated other named accused persons in
the final report - charge-sheet filed against
applicant only - conversations between the
applicant and the victim - indicate proximity
between the two - one quilt and two packets
of condoms were recovered.(Para -3,12,16 )

HELD:- Consent can be obtained by putting
someone in fear or under pressure or by
persuasive influence or other more subtle
methods. Thus, the consent, if any, pales into
insignificance. Not a fit case for granting bail
to the applicant.(Para -20,22)

Bail application dismissed. (E-7)

List of Cases cited:-

1. Kalim Vs St. of U.P. & anr., Criminal revision
no. 568 of 2022

2. Sushil Kumar Vs Rakesh Kumar, (2003) 8 SCC
673

(Delivered by Hon'ble Krishan Pahal, J.)