# ENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA v. KAPIL WADHAWAN & ANR. ETC

- **Citation:** [2023] 5 S.C.R. 918
- **Court:** Supreme Court of India
- **Decided:** 2023-03-27
- **Case number:** Criminal Appeal Nos. 701-702 of 2020
- **Bench:** K. M. Joseph, Hrishikesh Roy, B.V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/enforcement-directorate-government-of-india-v-kapil-wadhawan-anr-etc-37146
- **Pages:** 31

## Headnote

Code of Criminal Procedure, 1973 : s. 167(2) proviso (a) (ii)
- Default Bail - Claim for - 60/90 day period of remand under
proviso (a) to s. 167(2) - Computation of - Day on which the
Magistrate orders remand to be included or excluded - Held: s.
167(2) pertains to the power of the Magistrate to remand an accused
and there is no reason why the date of the Magesterial Court's gaze
on the accused, should be excluded - Ignoring the date of remand
u/s. 167 in the 60/90 day period would militate against the legislative
intent of providing an accused protection from being in prolonged
custody, because of slothful investigation - Stipulated 60/90 day
remand period u/s. 167 ought to be computed from the date when a
Magistrate authorizes remand - Thus, the very moment the stipulated
60/90 day remand period expires, an indefeasible right to default
bail accrues to the accused - On facts, accused were remanded on
14.05.2020 and as such, the chargesheet ought to have been filed
on or before 12.07.2020 (i.e. the sixtieth day) - But the same was
filed, on the 61st day of their custody - Therefore, the right to default
bail accrued to the accused persons on 61st day at 12:00 AM,
midnight, onwards - On that very day, the accused filed their default
bail applications - ED filed the chargesheet, later in the day - Thus,
the default bail applications were filed well before the chargesheet
- In cases where the chargesheet/final report is filed on or after the
61st/91st day, the accused would be entitled to default bail - Thus,
the High Court justified in granting default bail to the respondents
by applying the proviso (a) (ii) of s.167(2) - Prevention of Money
Laundering Act, 2002 - s. 3.
s. 167(2) - Conflicting opinions as to computation of the 60/
90 day remand period by including/ excluding day of remand -
Rustam's case ignored the binding precedent in Chaganti's case on
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computing the prescribed 60/90 day period under proviso (a) of s.
167(2) - Thus, the decision in Rustam's case held to be per incuriam.
Doctrine of judicial precedent: Per incuriam - Rule of - Held:
Is an exception to the doctrine of judicial precedent - It provides
that when a judgment is passed in ignorance of a relevant precedent
or any other binding authority, the same is said to be postulating
incorrect law - It becomes pertinent to resolve the conflict arising
from diverging opinions by taking recourse to the ratio decidendi of
the earliest opinion.
General Clauses Act, 1897: Applicability of, while computing
period of 60/90 days given under proviso (a) of s.167(2) - Held:
General Clauses Act is not applicable to s. 167, as there is no definite
'from' period from which the stipulated remand, may commence.
Answering the Reference, the Court
HELD: 1.1 The law of binding precedent provides that the
rule of per incuriam is an exception to the doctrine of judicial
precedent. Quite literally, it provides that when a judgment is
passed in ignorance of a relevant precedent or any other binding
authority, the same is said to be postulating incorrect law. It
becomes pertinent to resolve the conflict arising from diverging
opinions by taking recourse to the ratio decidendi of the earliest
opinion. [Para 30][938-D-E]
1.2 In Chaganti's case, it was held that the 90/60 days
precribed in proviso (a) to Section 167 (2) can be reckoned only
from the date of remand and it is made clear through the
amendment that the legislature had intended to provide a 90/60
day remand period, for the purpose of investigation. It was also
expressly opined that the proviso (a) in reference to the total
period of detention can be interpreted on the plain language of
the proviso itself, being a complete code on its own and it being
wholly unnecessary to invoke provisions of the General Clauses
Act or Limitation Act. In State of M.P. vs. Rustam's case, it was
held that the period specified in proviso (a) to Section 167 (2)
should exclude the date of remand

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SUPREME COURT REPORTS
[2023] 5 S.C.R.
ENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA
v.
KAPIL WADHAWAN & ANR. ETC.
(Criminal Appeal Nos. 701-702 of 2020)
MARCH 27, 2023
[K. M. JOSEPH, HRISHIKESH ROY AND
B.V. NAGARATHNA, JJ.]
Code of Criminal Procedure, 1973 : s. 167(2) proviso (a) (ii)
- Default Bail - Claim for - 60/90 day period of remand under
proviso (a) to s. 167(2) - Computation of - Day on which the
Magistrate orders remand to be included or excluded - Held: s.
167(2) pertains to the power of the Magistrate to remand an accused
and there is no reason why the date of the Magesterial Court's gaze
on the accused, should be excluded - Ignoring the date of remand
u/s. 167 in the 60/90 day period would militate against the legislative
intent of providing an accused protection from being in prolonged
custody, because of slothful investigation - Stipulated 60/90 day
remand period u/s. 167 ought to be computed from the date when a
Magistrate authorizes remand - Thus, the very moment the stipulated
60/90 day remand period expires, an indefeasible right to default
bail accrues to the accused - On facts, accused were remanded on
14.05.2020 and as such, the chargesheet ought to have been filed
on or before 12.07.2020 (i.e. the sixtieth day) - But the same was
filed, on the 61st day of their custody - Therefore, the right to default
bail accrued to the accused persons on 61st day at 12:00 AM,
midnight, onwards - On that very day, the accused filed their default
bail applications - ED filed the chargesheet, later in the day - Thus,
the default bail applications were filed well before the chargesheet
- In cases where the chargesheet/final report is filed on or after the
61st/91st day, the accused would be entitled to default bail - Thus,
the High Court justified in granting default bail to the respondents
by applying the proviso (a) (ii) of s.167(2) - Prevention of Money
Laundering Act, 2002 - s. 3.
s. 167(2) - Conflicting opinions as to computation of the 60/
90 day remand period by including/ excluding day of remand -
Rustam's case ignored the binding precedent in Chaganti's case on
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computing the prescribed 60/90 day period under proviso (a) of s.
167(2) - Thus, the decision in Rustam's case held to be per incuriam.
Doctrine of judicial precedent: Per incuriam - Rule of - Held:
Is an exception to the doctrine of judicial precedent - It provides
that when a judgment is passed in ignorance of a relevant precedent
or any other binding authority, the same is said to be postulating
incorrect law - It becomes pertinent to resolve the conflict arising
from diverging opinions by taking recourse to the ratio decidendi of
the earliest opinion.
General Clauses Act, 1897: Applicability of, while computing
period of 60/90 days given under proviso (a) of s.167(2) - Held:
General Clauses Act is not applicable to s. 167, as there is no definite
'from' period from which the stipulated remand, may commence.
Answering the Reference, the Court
HELD: 1.1 The law of binding precedent provides that the
rule of per incuriam is an exception to the doctrine of judicial
precedent. Quite literally, it provides that when a judgment is
passed in ignorance of a relevant precedent or any other binding
authority, the same is said to be postulating incorrect law. It
becomes pertinent to resolve the conflict arising from diverging
opinions by taking recourse to the ratio decidendi of the earliest
opinion. [Para 30][938-D-E]
1.2 In Chaganti's case, it was held that the 90/60 days
precribed in proviso (a) to Section 167 (2) can be reckoned only
from the date of remand and it is made clear through the
amendment that the legislature had intended to provide a 90/60
day remand period, for the purpose of investigation. It was also
expressly opined that the proviso (a) in reference to the total
period of detention can be interpreted on the plain language of
the proviso itself, being a complete code on its own and it being
wholly unnecessary to invoke provisions of the General Clauses
Act or Limitation Act. In State of M.P. vs. Rustam's case, it was
held that the period specified in proviso (a) to Section 167 (2)
should exclude the date of remand. On reading Rustam's case, it
comes to light that the Court while counting the period has
considered Sections 9 and 10 of the General Clauses Act. But in
doing so, the Court in Rustam's case failed to appreciate the ratio
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in Chaganti's case where it was categorically observed, that for
the purpose of computing the period under Section 167(2), the
provisions of General Clauses Act will have no application.
Considering the legislative intent behind Section 167 (2), and
the proviso (a) being a complete code in itself, as also elucidated
in Chaganti's case the computation method laid down in Rustam's
case may not be the correct way. Further, since Rustam's case
ignored the binding precedent in Chaganti's case on computing
the prescribed 60/90 day period under proviso (a) of Section
167(2), from the date a Magistrate ordered remand, it is a per
incuriam decision. Thus, the operative part in Rustam's case with
respect to the 60/90 day period of computation, arrived at after,
invoking Sections 9 and 10 of the General Clauses Act, where the
court excluded the date of remand and ignored the contrary
opinion in Chaganti's case, cannot be a binding judicial precedent
as the same is rendered per incuriam. [Para 26, 28, 29, 31][937D-F, G-H; 938-A-C; 939-B-C]
1.3 In application Section 167, there is no starting or ending
point for completion of the investigation. In the scheme of the
CrPC, the provisions contained in sub-section (1) of Section 167
runs in continuation of sub-section (2). The production of the
accused before the Magistrate is a sequel to his arrest by the
police and at the same time, the accused too has a right to be
produced before the Magistrate, within 24 hours of his arrest.
The day on which the accused is brought on remand before the
Magistrate, sub-section (2) of Section 167 empowers the
Magistrate to authorize the detention with the police either by
continuing it or remanding him to Magisterial custody. There
cannot be a pause/break between the two processes. No
delimitation is conceptualized in Section 167 nor can it be fitted
into a period of limitation 'from' and 'to' since there is no limitation
for completion of investigation and filing of the chargesheet. The
production before the Magistrate is a process in continuation of
arrest by the police and the Magistrate will authorize detention
for not more than 15 days in the whole but if he is satisfied that
sufficient grounds exist, he may authorize an accused's detention
beyond 15 days otherwise than in the custody of police.
Pertinently, there is no fixed end point within which, the police
or investigation authorities are required to complete the
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investigation. However, if the investigation is not completed and
chargesheet is not filed within 60 or 90 days, a right of default
bail accrues to the accused. The anterior period of custody with
the police prior to the remand is not detention. It is only so,
pursuant to an authorization issued from the Magistrate. [Para
34][939-H; 940-A-E]
1.4 The period of detention by the Magistrate runs from
the very day of remand order. Sub-section (2) of Section 167
CrPC pertains to the power of the Magistrate to remand an
accused and there is no reason why the date of the Magesterial
Court's gaze on the accused, should be excluded. In order to
avoid long incarceration of an accused only because the
investigation is being carried out in a leisurely manner, the
legislature was prompted, to confer a right on the accused to be
released on default bail if he is prepared to offer bail bond and
the investigation may still continue. This is why the General
Clauses Act cannot be made applicable to sub-section (2) of
Section 167. Moreover, excluding the date of the remand order
would also result in a break in the continuity of the custody of the
accused which begins on his date of arrest under Section 56 and
continues till the stipulated 60/90 day period, under Section 167.
Additionally, it is to be noted that when the date of remand order
is included as the first day of the stipulated remand period- there
arises no fixed 60-day period for which the accused is remanded.
Once the Magistrate authorises remand, irrespective of the time
of the day, when he does so, the prosecution, in each case will
have a varying period of custody which may range in a moving
cursor manner from a spectrum of 59 days and 23 hours or so to
59 days and 1 hour or so for offences covered under proviso
(a)(ii) of Section 167(2). The exact period of remand for an accused
is subject to the first gaze of the Magesterial court and the signing
of the remand order. This explains the finding in Chaganti's case
that General Clauses Act is inapplicable to Section 167 CrPC, as
there is no definite 'from' period from which the stipulated
remand, may commence. Moreover, the fact that the date of
remand is included and not excluded from the stipulated period,
is based on the pivotal consideration that personal liberty of the
individual commands that any lacuna in the specificity of the law
has to be so interpreted in the accused's favour. [Para 34][940E-H; 941-A-C]
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1.5 Section 57 CrPC mandates that the accused be produced
before a Magistrate within 24 hours of arrest and under Section
167(2) the Judicial Magistrate is required to scrutinize the
executive action and determine whether the rights of the accused
are not subjugated by police action. The separation of the
Executive and the Judicial exercise of power, ultimately protects
an individual's personal liberty which is also constitutionally
protected under Articles 21 and 22(2). If the date of remand
ordered by a Magistrate is ignored, then an accused even though
in custody, the same will not be counted within the 60/90 day
period. The custody on the date of remand is distinct from the
arrest of an accused under Section 56 CrPC as that is considered
as a period prior to production before the Magistrate. By this
logic, even if the accused is under custody it would neither be
under Section 56, nor under 167(2) CrPC. This would lead to an
apparent legal vacuum. This can however be avoided if the
remand period is considered from the very day of the remand
order. Furthermore, if an accused is remanded by a Magistrate
on say, 01.01.2023, then, the police, post judicial scrutiny, is
empowered to investigate, starting on the same day, as per
Section 167 CrPC, irrespective of whether the police actually
commence investigation on the same day. So, if the police is
empowered to investigate an accused person on the day of the
remand order itself, the 60/90 day stipulated period, upon whose
expiry, the right of default bail accrues to the accused, should
logically be calculated from that day itself. Ignoring the date of
remand under Section 167 CrPC in the 60/90 day period, would
militate against the legislative intent of providing an accused
protection from being in prolonged custody, because of slothful
investigation. [Para 36][941-E-G; 942-A-C]
1.6 The 60/90 day limit is a statutory requirement which
allows the State agencies to investigate serious offences beyond
the 15-day police custody. In case the State fails to file chargesheet
or supplementary request for remand within the stipulated 60/90
day period, a balance is to be striked between the rights of the
individual and the restriction on those rights and prevent
prolonged incarceration without legal support. The very instance,
the statutory remand period ends, an indefeasible right to default
bail accrues to the accused and same needs to be guarded. The
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liberty of the individual is surely relative and regulated. Absolute
liberty is something that cannot be conceived in a societal setting.
The law therefore allows authorities to detain accused persons
and facilitate investigation. However, it is the duty of this court
to discourage prolonged incarceration. The right to default bail
is not extinguished by the subsequent filing of the chargesheet,
and the accused continues to have the right to default bail. [Para
42][944-C-E]
1.7 When the day of remand order is included in the
stipulated period under Section 167(2), the same would encourage
the prosecution to promptly comply with Section 57 CrPC. The
leaning towards the accused's right to personal liberty by reducing
the 60 day period to something more than 59 days, and a few
hours, is based on the constitutional protection afforded to an
accused under Article 22(2) and Article 21. In this way, the Code's
application in dealing with an accused would be consistent with
the inviolable right of personal liberty and dignity. [Para 48][947C-D]
1.8 Since there exists vacuum in the application and details
of Section 167 CrPC, an interpretation which advances the cause
of personal liberty is opted. The accused were remanded on
14.05.2020 and as such, the chargesheet ought to have been filed
on or before 12.07.2020 (i.e. the sixtieth day). But the same was
filed, only on 13.07.2020 which was the 61st day of their custody.
Therefore, the right to default bail accrued to the accused persons
on 13.07.2020 at 12:00 AM, midnight, onwards. On that very
day, the accused filed their default bail applications at 8:53 AM.
The ED filed the chargesheet, later in the day, at 11:15 AM. Thus,
the default bail applications were filed well before the chargesheet.
If the accused persons avail their indefeasible right to default
bail before the chargesheet/final report is filed, then such right
would not stand frustrated or extinguished by any such
subsequent filing. The stipulated 60/90 day remand period under
Section 167 CrPC ought to be computed from the date when a
Magistrate authorizes remand. If the first day of remand is
excluded, the remand period, will extend beyond the permitted
60/90 days' period resulting in unauthorized detention beyond
the period envisaged under Section 167 CrPC. In cases where
ENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA v.
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the chargesheet/final report is filed on or after the 61st/91st day,
the accused would be entitled to default bail. The very moment
the stipulated 60/90 day remand period expires, an indefeasible
right to default bail accrues to the accused. [Para 50][947-G; 948A-D]
1.9 The impugned order of the High Court granting default
bail to the respondents by applying the proviso (a) (ii) of Section
167(2) is found to be in order. Hence, the judgment passed by
the Single Judge of the High Court is upheld. [Para 51][948-E]
State of M.P. Vs. Rustam & Ors. 1995 (Supp) 3 SCC
221 - per incuriam.
Chaganti Satyanarayan Vs. State of Andhra Pradesh
(1986) 3 SCC 141 : [1986] 2 SCR 1128 - relied on.
Ravi Prakash Singh Vs. State of Bihar (2015) 8 SCC
340 : [2015] 2 SCR 241; M. Ravindran Vs. Intelligence
Officer, Director of Revenue Intelligence (2021) 2 SCC
485; CBI Vs. Anupam J Kulkarni (1992) 3 SCC 141 :
[1992] 3 SCR 158; State Vs. Mohd. Ashraft Bhat (1996)
1 SCC 432 : [1995] 6 Suppl. SCR 300; State of
Maharashtra Vs. Bharati Chandmal Varma (2002) 2
SCC 121 : [2001] 5 Suppl. SCR 422; Gautam Navlakha
Vs. National Investigation Agency 2021 SCC OnLine
SC 382; Aslam Babalal Desai vs. State of M aharashtra
(1992) 4 SCC 272 : [1992] 1 Suppl. SCR 545; N. Sureya
Reddy vs. State of Orissa 1985 Crl. LJ 939 (Ori);
Pragyna Singh Thakur Vs. State of Maharashtra (2011)
10 SCC 445 : [2011] 14 SCR 617; S.Kasi Vs. State
(2020) SCC Online SC 529; Deepak Satyavan
Kudalkar vs. State of Maharashtra MANU/MH/0843/
2020 LD/VC; Rajoo alias Raj Kishore Singh Vs. State
of Bihar (1980) 1 SCC 108; Raj Kumar Vs. State of
Punjab AIR 1979 P&H 80; Batna Ram vs. State of H.P
1980 Crl. LJ 748 (HP); Jagdish vs. State of M.P. 1984
Crl. LJ 79 (MP); A.R. Antulay vs.R.S. Nayak (1988) 2
SCC 602 : [1988] 1 Suppl. SCR 1; Shah Faesal vs.
Union of India (2020) 4 SCC 1 : [2020] 3 SCR 1115;
Sandeep Kumar Bafna Vs. State of Maharashtra 2014
(16) SCC 623 : [2014] 4 SCR 486; Econ Antri Ltd. vs.
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Rom Industries (2014) 11 SCC 769 : [2013] 14 SCR
74; Saketh India Ltd. vs. India Securities Ltd. (1999) 3
SCC 1 : [1999] 1 SCR 963; Rakesh Kumar Paul vs.
State of Assam (2017) 15 SCC 67 : [2017] 8 SCR 785;
Union of India vs. Nirala Yadav (2014) 9 SCC 457 :
[2014] 6 SCR 148; Uday Mohanlal Acharya vs. State
of Maharashtra (2001) 5 SCC 453 : [2001] 2 SCR
878; Sanjay Dutt Vs. Bombay through C.B.I. 1994 (5)
SCC 410 : [1994] 3 Suppl. SCR 263; Bikramjit Singh
vs. State of Punjab (2020) 10 SCC 616; AK Gopalan
vs. State of Madras, AIR 1950 SC 27 : [1950] SCR 88;
Rustom Cavasjee Cooper vs. Union of India (1970) 1
SCC 248 : [1970] 3 SCR 530; Maneka Gandhi vs.
Union of India AIR 1978 SC 597 : [1978] 2 SCR 621;
Kesavananda Bharti vs. State of Kerala (1973) 4 SCC
225 : [1973] 0 Suppl. SCR 1; Olmstead vs. US, 277 US
438 (1928); ADM Jabalpur vs. Shivkant Shukla (1976)
2 SCC 521 : [1976] 0 Suppl. SCR 172; K.S. Puttaswamy
Vs. Union of India (2017) 10 SCC 1 : [2017] 10 SCR
569; Munn v. Illinois, 94 U.S. 113 (1876); Kharak Singh
vs. State of UP (1964) 1 SCR 332; Francis Corallie
Mullin vs. The Administrator, 1981 AIR 746 - referred
to.
VM Bachal,Indian Journal of Political Science,
Vol.25,No.3/4 (July-Sept. Dec,1964), pp. 231-240;
Second Treatise of Government by John Locke -
referred to.
Case Law Reference
[2015] 2 SCR 241
referred to
Para 7
(2021) 2 SCC 485
referred to
Para 7
[1986] 2 SCR 1128
referred to
Para 8
[1992] 3 SCR 158
referred to
Para 8
[1995] 6 Suppl. SCR 300
referred to
Para 8
[2001] 5 Suppl. SCR 422
referred to
Para 8
[1992] 1 Suppl. SCR 545
referred to
Para 17.1
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[2011] 14 SCR 617
referred to
Para 18.1
AIR 1979 P&H 80
referred to
Para 25
[1995] (Supp) 3 SCC 221
per incuriam
Para 29, 31, 33
[1988] 1 Suppl. SCR 1
referred to
Para 30
[2020] 3 SCR 1115
referred to
Para 30
[2014] 4 SCR 486
referred to
Para 30
[2013] 14 SCR 74
referred to
Para 35
[1999] 1 SCR 963
referred to
Para 35
[2017] 8 SCR 785
referred to
Para 37
[2014] 6 SCR 148
referred to
Para 37
[2001] 2 SCR 878
referred to
Para 37
[1994] 3 Suppl. SCR 263
referred to
Para 37
(2020) 10 SCC 616
referred to
Para 41
(2017) 15 SCC (109)
referred to
Para 43
[1950] SCR 88
referred to
Para 43
[1970] 3 SCR 530
referred to
Para 43
[1978] 2 SCR 621
referred to
Para 43
[1973] 0 Suppl. SCR 1
referred to
Para 45
[1976] 0 Suppl. SCR 172
referred to
Para 45
[2017] 10 SCR 569
referred to
Para 45
(1964) 1 SCR 332
referred to
Para 47
1981 AIR 746
referred to
Para 47
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos.701-702 of 2020.
From the Judgment and Order dated 20.08.2020 of the High Court
of Judicature at Bombay in LDVC Bail Application Nos.400 and 401 of
2020.
Tushar Mehta, Solicitor General, S. V. Raju, Sanjay Jain, A.S.Gs.,
Mukesh Kumar Maroria, Kanu Agarwal, Rajan Kumar Choursia, Annam
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Venkatesh, Ms. Sairica Raju, Arkaj Kumar, Zoheb Hussain, Advs. for
the Appellant.
Kapil Sibal, Mukul Rohatgi, Amit Desai, Sr. Advs., Mahesh
Agarwal, Ankur Saigal, Rohan Dakshini, Shubham Kulshreshtha,
Kaustubh Singh, Ms. Kamakshi Sehgal, Ms. Pooja Kothari, Ms. Urvi
Gupte, Ms. Kajal Dalal, Ms. Akanksha Saxena, E. C. Agrawala, Shrirang
B. Varma, Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat
Bagla, Ms. Kirti Dadheech, Sarad Kumar Singhania, Amit K. Nain, Advs.
for the Respondents.
The Judgment of the Court was delivered by
HRISHIKESH ROY, J.
1. John Locke in his work, Two Treatises of Government (1689)-
stressed on personal liberty and stated that, "The end of Law is not to
abolish or restrain, but to preserve and enlarge Freedom: For in all
the states of created beings capable of Laws, where there is no law,
there is no Freedom."1
2. In the present case, we discuss the rights of such accused,
whose right to default bail, hangs in the balance by difference of a single
day or even less. Ostensibly, one may presume this to be insignificant.
However, the constitutional import of the matter is such, that personal
liberty, which may only be taken away by a just and fair procedure
established by law, needs to be analyzed and protected. The issue is
simple to state but hard to answer. It is embedded in a maze of case law
that this Court needs to negotiate. Simply put, the Court needs to answer
whether the period of remand under the first proviso to Sec. 167 (2) of
the Code of Criminal Procedure, 1973 (hereinafter 'CrPC') is inclusive
of the day on which the Magistrate orders remand. Whatever be the
outcome, this Court is conscious that none should suffer incarceration
without legal authority. Although, the State is tasked to prevent crime
and maintain security, personal liberty-should not be the collateral.
3. We have heard Mr. S.V. Raju, learned Additional Solicitor
General of India on behalf of the appellants. Mr. Mukul Rohatgi, Mr.
Kapil Sibal and Mr. Amit Desai, learned Senior Counsel appear for the
respondents who were granted the benefit of default bail by the High
Court.
1 John Locke, 'The Second Treatise of Civil Government', December 1689.
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4.These Appeals are directed against the order dated 20.08.2020
of the Bombay High Court, granting default bail to the respondents under
proviso (a) (ii) of Section 167 (2) of the CrPC. The respondents were
arrested on 14.05.2020 for alleged commission of offence under Section
3 of the Prevention of Money Laundering Act, 2002 (hereinafter 'PMLA')
and were remanded on the same date. On 11.07.2020 through e-mail,
the Enforcement Directorate (hereinafter 'ED') claimed to file a
Complaint and subsequently on 13.7.2020, i.e., a Monday, a physical
copy thereof was tendered before the Court. The applications for
enlargement of bail were moved on 13.07.2020 at 8:53 AM, through email and physical filing token being issued by 11 AM.
5. It was asserted by the respondents that the period of 60 days
from the date of remand i.e., 14.5.2020, expired on 12.7.2020 (Sunday)
and on the next day, the default bail applications were presented before
the Court. The learned Special Judge, however, denied default bail to
the respondents taking the view that the 60 day period would start from
15.5.2020, thereby excluding the date of remand (i.e. 14.5.2020).
However, the High Court, under the impugned judgment felt that,
excluding the date of remand while computing the 60- day period was
erroneous and held that the filing of the Chargesheet by the ED on
13.7.2020, being the 61st day, would entitle the respondents to default
bail. The aforesaid decision of the High Court was stayed by this Court
on 3.9.2020.
ISSUES AND REFERENCE
6. The core issue that arises for consideration is whether the date
of remand is to be included or excluded, for considering a claim for
default bail, when computing the 60/90 day period as contemplated in
proviso (a) of Section 167 (2) of the CrPC. The moot question has been
considered by this Court in various cases, but there is a divergence of
opinion on how the stipulated period, for the right of default bail, accruing
to the accused, is to be computed. Some judgements have favoured the
exclusion of date of remand, while a contrary view is taken in other
cases.
7. The prosecution relies, on the line of reasoning in State of M.P.
Vs. Rustam & Ors.2, which was later followed in Ravi Prakash Singh
Vs. State of Bihar3 and M. Ravindran Vs. Intelligence Officer,
2 1995 (Supp) 3 SCC 221
3 (2015) 8 SCC 340
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Director of Revenue Intelligence4, where it was held that the date of
remand is to be excluded for computing the stipulated 60/90 day period,
for the right of default bail, to arise.
8. On the other hand, the Accused rely, inter alia, on Chaganti
Satyanarayan Vs. State of Andhra Pradesh5, CBI Vs. Anupam J
Kulkarni,6 State Vs. Mohd. Ashraft Bhat7 and State of Maharashtra
Vs. Bharati Chandmal Varma,8 to contend that the first date of remand
must be included for computing the remand period for determining an
accused's entitlement to default bail.
9. Due to the aforementioned conflict in law, a judicial conundrum
has arisen which is required to be resolved in this reference. In Chaganti
(supra), this Court while examining the legislative intent, with regard to
conclusion of investigation within the statutory remand period, held that
the day of remand order should be included. On the other hand, the 3judge bench in M Ravindran (supra), relied on Ravi Prakash (supra),
which in turn followed the principle laid down in Rustam (supra) and
declared that the date of remand is to be excluded for computing the
mandated 60/90 day period, in order to facilitate the accused's right to
default bail.
10. The earlier position of law as declared in Chaganti was ignored
in Rustam. And since, Rustam later became the basis for excluding the
date of remand from the stipulated period in Ravi Prakash and thereafter
in Ravindran, which is the latest decision of a 3-judge bench, it becomes
necessary for a bench of appropriate strength to settle the law taking
note of the earlier precedents and the confusion therein. Unless the
issue is resolved, there will be a divergence of opinion on how the right
to default bail, which is ultimately a fundamental right,9 is to be protected.
11. A two-judge Bench of this Court, on 23.2.2021, noticing the
divergence of law on computation of the 60/90 day remand period under
proviso (a) of Section 167 (2) of the CrPC, referred the issue to this
three-judge Bench. The answer here will facilitate a uniform application
of the law on the issue of right to default bail. The reference is being
answered as under:-
4 (2021) 2 SCC 485
5 (1986) 3 SCC 141
6 (1992) 3 SCC 141
7 (1996) 1 SCC 432
8 (2002) 2 SCC 121
9 Gautam Navlakha Vs. National Investigation Agency, 2021 SCC OnLine SC 382
ENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA v.
KAPIL WADHAWAN & ANR. ETC. [HRISHIKESH ROY, J.]
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FACTUAL BACKDROP
12. The two respondents, while being confined in judicial custody
since 10.5.2020 in RC No.219/2020 registered by the CBI, came to be
arraigned as accused in ECIR/MBZO-I/3/2020 registered by the ED
for the alleged commission of offence under Section 3 of the PMLA.
On 14.5.2020, the applicants were produced before the learned Special
Court, Mumbai and were then remanded to police custody and on
27.5.2020 were subsequently remanded to judicial custody. The High
Court while granting default bail to the applicants formulated the following
question for decision:
"Whether in computing the remand period of 60 or 90 days
as contemplated in proviso (a) of Section 167 (2) of CrPC,
the day of remand is to be included or excluded."
13. The applicants contended before the High Court that they
were arrested on 14.5.2020 and on the very same day, they were
remanded by the Magistrate and such remand orders came to be passed
from time to time. As per the ED, on 11.7.2020, (i.e. a Saturday), a
complaint was filed by them, through e-mail and it was argued by the
applicants that this was only a forward but not the entire complaint. On
13.7.2020 i.e. Monday, the ED filed the physical complaint before the
Court. Based on these facts, the applicants' counsel submitted that the
period of 60 days from the date of remand of the applicants (14.5.2020)
expired on 12.7.2020 (Sunday) and the applicants on 13.7.2020 sought
enlargement on default bail, under the proviso (a) (ii) of Section 167 (2),
CrPC. Initially, the applications were transmitted through e-mail at around
8:53 AM and after about two hours on 13.7.2020, at around 11 AM, the
bail applications were presented for physical filing in the Sessions Court
and a token acknowledging the filing was issued and the applications
were also numbered.
14. The ED claimed to have filed the complaint through e-mail on
11.7.2020 followed by a physical application on 13.7.2020. As per the
ED, relying on Rustam(supra), the 60 day period ends on 13.7.2020
(wherein it seeks to exclude the date of remand i.e. 14.5.2020). Thus, as
per the ED, complaint was filed in time.
15. The learned Special Court denied default bail on 14.7.2020
with the understanding that the 60 days' time limit for filing the complaint
expired. The learned Judge opined that the date of remand will have to
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be excluded and the 60 days period will have to be computed from 15th
May 2020. With this reasoning the bail application came to be rejected.
16. On respondents' challenge to the rejection of their default bail
applications, the High Court after analyzing the implication of the rival
submissions and interpreting the statutory provisions and their applications
to the facts of the case, concluded that the learned Special Judge
incorrectly excluded the date of remand, while computing the 60 day
period. Since the chargesheet by the ED was filed on 13.7.2020, being
beyond 60 days by including the day of remand i.e. 14.5.2020, the
applicants were found to be entitled to default bail. Accordingly, a direction
was issued for release of the respondents by adverting to the provisions
of Section 167 (2) of the CrPC, subject to the accused persons furnishing
their bail bonds. This order of the High Court is challenged in the present
appeals.
CONTENTIONS OF THE COUNSEL
17.1 Assailing the legality of the judgment dated 20.8.2020, Mr.
S.V. Raju, learned ASG, argues that for computation of the prescribed
60/90 day remand period, one of the days on either side of the remand
period has to be excluded and in the present case, either the date of
remand i.e. 14.5.2020 or the 60th day i.e. 12.07.2020 must be excluded
for computing the eligibility for default bail. In support of the ED's
contentions, Mr. Raju would place strong reliance, inter-alia, on Aslam
Babalal Desai vs. State of Maharashtra10, State of MP vs. Rustam
(supra) and Ravi Prakash Singh alias Arvind Singh vs. State of Bihar
(supra).
17.2 An alternate argument is also made to the effect that even if
the period of 60 days as stipulated under the first proviso to Section 167
(2) of the CrPC expired on 12.7.2020, the same being a Sunday, the
provisions of Section 10, General Clauses Act would come into play
and as such the 60 day period which expired on Sunday will stand extended
to Monday i.e. 13.7.2020. In support of such contention, Mr. Raju placed
reliance on N. Sureya Reddy vs. State of Orissa11.
17.3. The learned ASG additionally argued that the ratio in
Chaganti (supra) was wrongly relied upon by the High Court to compute
the period of default bail under the first proviso to Section 167 (2) of the
10 (1992) 4 SCC 272.
11 1985 Crl. LJ 939 (Ori)
ENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA v.
KAPIL WADHAWAN & ANR. ETC. [HRISHIKESH ROY, J.]
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CrPC. Since the date of arrest is the same as the date of remand, the
ratio in Chaganti (supra) according to the learned ASG has no application
and was therefore wrongly applied by the High Court in the present
facts.
18.1 Per contra, Mr. Mukul Rohatgi, Mr. Kapil Sibal and Mr. Amit
Desai, learned Senior Counsels for the respondents, argue that the period
envisaged under proviso (a) of Section 167 (2) of the CrPC must be
calculated from the date of remand order and exclusion of the first day
of the Court's gaze upon the accused would be illogical. The counsel
have based their arguments on the ratio in Chaganti (supra) which
was approved in several subsequent judgements such as CBI Special
Investigation Cell, New Delhi Vs Anupama Kulkarni (supra), Pragyna
Singh Thakur Vs. State of Maharashtra12. The counsels for the
respondents also rely on the decisions in State Vs. Mohd Ashraf Bhat
(supra), S.Kasi Vs. State13, and Gautam Navlakha Vs. NIA (supra).
DISCUSSION
19. In the impugned judgment, the learned Judge of the Bombay
High Court had cited with approval, the judgment of a coordinate Bench
in Deepak Satyavan Kudalkar vs. State of Maharashtra,14 where all
the previous judgments of the Supreme Court applicable for default bail
were considered and analyzed. We may benefit from the opinion penned
down by Prakash D. Naik J., who had analyzed the applicable provisions
of the CrPC in the following paragraph.
" 7 . On perusal of aforesaid provision (Sec. 167 CrPC), it
may be seen that sub-Section (1) is the mandatory provision,
governing what a police officer should do, when the person
is arrested and detained in custody and when it appears that
the investigation cannot be completed within the period of
Twenty Four hours fixed by Section 57. Sub-Section (2)
pertains to the powers of remand available to a Magistrate
and the manner in which, such powers should be exercised.
The term of Sub- Section (1) of Section 167 have to be read
in conjunction with Section 57. It is clear that Section 57
interdicts a police officer from keeping in custody a person
without warrant for a longer period then Twenty Four hours
12 (2011) 10 SCC 445
13 (2020) SCC Online SC 529
14 MANU/MH/0843/2020; LD/VC Criminal Bail Application 197/2020.
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without production before the Magistrate, subject to the
exception that the time taken for performing the journey from
the place of arrest to the Magistrate Court, can be excluded
from the prescribed period of Twenty Four hours. Since, SubSection (1) provides that, if the investigation cannot be
completed, within the period of Twenty Four hours, fixed by
Section 57, the accused has to be forwarded to the Magistrate
along with the entries in the diary, it follows that a police
officer is entitled to keep an arrested person in custody for a
maximum period of Twenty Four hours for the purposes of
investigation. Hence, the initial period of custody of an
arrested person, till he is produced before a Magistrate is
neither referable to nor in pursuance of an order of remand
passed by a Magistrate. The powers of remand given to a
Magistrate, become exercisable after an accused is produced
before him in terms of Sub-Section (1) of Section 167. Subsection (1) of Section 167 covers this procedure and also
state that the police officer while forwarding the accused to
the nearest Magistrate should also transmit a copy of entries
in the diary relating to the case. The entries in the diary are
meant to afford to the Magistrate the necessary information
upon which he can take the decision whether the accused
should be detained in the custody or not. The law enjoins
upon the investigating agency to carry out the investigation,
in a case where a person has been arrested and detained,
with utmost urgency and complete the investigation promptly
in prescribed period. The proviso to sub-section (2) fixes the
outer limit within which investigation must be completed and
in case the same is not completed within the prescribed period,
the accused would acquire a right to be released on bail and
if he is prepared to and does furnish bail, the Magistrate
shall release him on bail and such release shall be deemed to
be grant of bail under chapter XXXIII of Cr.P.C. The proviso
inserted by Act No. 45 of 1978, comes into operation where
the Magistrate thinks fit that further detention beyond the
period of fifteen days is necessary and it lays down that, the
Magistrate may authorise the detention of the accused person
otherwise than in the custody of police beyond period of 15
days. The proviso to Section 167(2) clearly state that the total
ENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA v.
KAPIL WADHAWAN & ANR. ETC. [HRISHIKESH ROY, J.]
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period of detention should not exceed Ninety days in cases
where the investigation relates to serious offences mentioned
therein and sixty days in other cases and if by that time
charge-sheet is not filed on the expiry of said periods the
accused shall be released on bail."
20. The precedents referred to in the impugned judgment, and the
coordinate Bench in Deepak Satyavan (supra), show that the Court
confers power on the prosecution to arrest a suspect and the investigation
contemplated under the Code would cover all the steps including
proceedings for collection of evidence and on conclusion of the
investigation a report is required to be furnished under Section 173 of
the CrPC. The aim of Chapter XII is that investigation should be
completed without unnecessary delay, although there is no express outer
limit for completion of investigation. The CrPC prescribes, under Section
173(2), for filing the final report, which empowers the Court, to take
cognizance of an offence. It also allows for further investigation under
sub-Section (8) of Section 173. Further, as per Section 173(4), upon the
final report being filed, if an accused has been released on bail, his bail
bond maybe cancelled by the Magistrate based on merits of the
investigation. Thus, the protection extended to an accused in lieu of proviso
(a) of Section 167(2) CrPC is only with respect to the prescribed 60/90
day period, beyond which an accused's custody cannot be sought, even
if the investigation is incomplete.
21. Unless a special order from a Magistrate is obtained under
Section 167 of the CrPC, a person arrested cannot be detained for more
than 24 hours as stipulated under Section 57 of the CrPC. The time
necessary for the journey from the place of arrest to the Magistrate's
Court can however be excluded, for computing the 24 hours permitted
to the Police to keep an accused in their custody prior to a Magistrate's
authorization, as mandated under Section 167 CrPC.
22. After the accused is arrested and police is unable to complete
the investigation within the mandated 24 hours period, the police officer
making the investigation is duty bound to transmit the accused to the
Magistrate under Section 167 of the CrPC. Sub-section (2) of Section
167 then sets out the action to be taken by the Magistrate to whom the
accused person is forwarded and the Magistrate may then authorize the
detention of the accused to further custody. In terms of sub-section (2),
the Magistrate may authorize the detention of the accused in such custody
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as he thinks fit for a term not exceeding 15 days in the whole but if he
has no jurisdiction to try the case or commit it for trial and consider that
the detention is unnecessary, on perusal of the entries in the diary, he
may release the accused or forward him to the Magistrate having
appropriate jurisdiction. The sub-section is appended with a proviso which
places an embargo on the power of the Magistrate and authorizes
detention of the accused person beyond the 15 days period, other than in
the custody of the police, if he is of the opinion that the circumstances so
demand. But, the Magistrate shall not authorize the detention of an
accused person in custody for a total period exceeding 90 or 60 days in
clause (i) or clause (ii) of proviso (a), respectively. A right accrues to the
accused if the investigation is not completed within the period prescribed
in clause (i) or clause (ii) and on expiry of the said period, the accused
person shall be released on bail if he is prepared to and furnishes bail for
his release.
23.