ENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA versus KAPIL WADHAWAN & ANR. ETC on 27 March 2023

SUPREME COURT REPORTS

[2023] 5 S.C.R.

AENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA

v.

KAPIL WADHAWAN & ANR. ETC.

(Criminal Appeal Nos. 701–702 of 2020)

BMARCH 27, 2023

[K. M. JOSEPH, HRISHIKESH ROY ANDB.V. NAGARATHNA, JJ.]

Code of Criminal Procedure, 1973 : s. 167(2) proviso (a) (ii)– Default Bail – Claim for – 60/90 day period of remand underCproviso (a) to s. 167(2) – Computation of – Day on which theMagistrate orders remand to be included or excluded – Held: s.167(2) pertains to the power of the Magistrate to remand an accusedand there is no reason why the date of the Magesterial Court’s gazeon the accused, should be excluded – Ignoring the date of remandDu/s. 167 in the 60/90 day period would militate against the legislativeintent of providing an accused protection from being in prolongedcustody, because of slothful investigation – Stipulated 60/90 dayremand period u/s. 167ought to be computed from the date when aMagistrate authorizes remand – Thus, the very moment the stipulated60/90 day remand period expires, an indefeasible right to defaultEbail accrues to the accused – On facts, accused were remanded on14.05.2020 and as such, the chargesheet ought to have been filedon or before 12.07.2020 (i.e. the sixtieth day) – But the same wasfiled, on the 61st day of their custody – Therefore, the right to defaultbail accrued to the accused persons on 61[st] day at 12:00 AM,Fmidnight, onwards – On that very day, the accused filed their defaultbail 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 the61st/91st day, the accused would be entitled to default bail – Thus,the High Court justified in granting default bail to the respondentsGby applying the proviso (a) (ii) of s.167(2) – Prevention of MoneyLaundering 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 onH

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 providesthat when a judgment is passed in ignorance of a relevant precedentor any other binding authority, the same is said to be postulatingincorrect law – It becomes pertinent to resolve the conflict arisingfrom diverging opinions by taking recourse to the ratio decidendi ofthe earliest opinion.

General Clauses Act, 1897: Applicability of, while computingperiod 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 therule of per incuriam is an exception to the doctrine of judicialprecedent. Quite literally, it provides that when a judgment ispassed in ignorance of a relevant precedent or any other bindingauthority, the same is said to be postulating incorrect law. Itbecomes pertinent to resolve the conflict arising from divergingopinions by taking recourse to the ratio decidendi of the earliestopinion. [Para 30][938-D-E]

Conclusion

1.2 In Chaganti’s case, it was held that the 90/60 daysprecribed in proviso (a) to Section 167 (2) can be reckoned onlyfrom the date of remand and it is made clear through theamendment that the legislature had intended to provide a 90/60day remand period, for the purpose of investigation. It was alsoexpressly opined that the proviso (a) in reference to the totalperiod of detention can be interpreted on the plain language ofthe proviso itself, being a complete code on its own and it beingwholly unnecessary to invoke provisions of the General ClausesAct or Limitation Act. In State of M.P. vs. Rustam’s case, it washeld that the period specified in proviso (a) to Section 167 (2)should exclude the date of remand. On reading Rustam’s case, itcomes to light that the Court while counting the period hasconsidered Sections 9 and 10 of the General Clauses Act. But indoing so, the Court in Rustam’s case failed to appreciate the ratio A

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Ain Chaganti’s case where it was categorically observed, that forthe purpose of computing the period under Section 167(2), theprovisions of General Clauses Act will have no application.Considering the legislative intent behind Section 167 (2), andthe proviso (a) being a complete code in itself, as also elucidatedin Chaganti’s case the computation method laid down in Rustam’sBcase may not be the correct way. Further, since Rustam’s caseignored the binding precedent in Chaganti’s case on computingthe prescribed 60/90 day period under proviso (a) of Section167(2), from the date a Magistrate ordered remand, it is a perincuriam decision. Thus, the operative part in Rustam’s case withCrespect to the 60/90 day period of computation, arrived at after,invoking Sections 9 and 10 of the General Clauses Act, where thecourt excluded the date of remand and ignored the contraryopinion in Chaganti’s case, cannot be a binding judicial precedentas the same is rendered per incuriam. [Para 26, 28, 29, 31][937-D-F, G-H; 938-A-C; 939-B-C]D

1.3 In application Section 167, there is no starting or endingpoint for completion of the investigation. In the scheme of theCrPC, the provisions contained in sub–section (1) of Section 167runs in continuation of sub–section (2). The production of theaccused before the Magistrate is a sequel to his arrest by theEpolice and at the same time, the accused too has a right to beproduced before the Magistrate, within 24 hours of his arrest.The day on which the accused is brought on remand before theMagistrate, sub–section (2) of Section 167 empowers theMagistrate to authorize the detention with the police either byFcontinuing it or remanding him to Magisterial custody. Therecannot be a pause/break between the two processes. Nodelimitation is conceptualized in Section 167 nor can it be fittedinto a period of limitation ‘from’ and ‘to’ since there is no limitationfor completion of investigation and filing of the chargesheet. The production before the Magistrate is a process in continuation ofGarrest by the police and the Magistrate will authorize detentionfor not more than 15 days in the whole but if he is satisfied thatsufficient grounds exist, he may authorize an accused’s detentionbeyond 15 days otherwise than in the custody of police.Pertinently, there is no fixed end point within which, the policeHor investigation authorities are required to complete the

investigation. However, if the investigation is not completed andchargesheet is not filed within 60 or 90 days, a right of defaultbail accrues to the accused. The anterior period of custody withthe police prior to the remand is not detention. It is only so,pursuant to an authorization issued from the Magistrate. [Para34][939-H; 940-A-E]

1.4 The period of detention by the Magistrate runs fromthe very day of remand order. Sub–section (2) of Section 167CrPC pertains to the power of the Magistrate to remand anaccused and there is no reason why the date of the MagesterialCourt’s gaze on the accused, should be excluded. In order toavoid long incarceration of an accused only because theinvestigation is being carried out in a leisurely manner, thelegislature was prompted, to confer a right on the accused to bereleased on default bail if he is prepared to offer bail bond andthe investigation may still continue. This is why the GeneralClauses Act cannot be made applicable to sub–section (2) ofSection 167. Moreover, excluding the date of the remand orderwould also result in a break in the continuity of the custody of theaccused which begins on his date of arrest under Section 56 andcontinues till the stipulated 60/90 day period, under Section 167.Additionally, it is to be noted that when the date of remand orderis included as the first day of the stipulated remand period– therearises no fixed 60–day period for which the accused is remanded.Once the Magistrate authorises remand, irrespective of the timeof the day, when he does so, the prosecution, in each case willhave a varying period of custody which may range in a movingcursor manner from a spectrum of 59 days and 23 hours or so to59 days and 1 hour or so for offences covered under proviso(a)(ii) of Section 167(2). The exact period of remand for an accusedis subject to the first gaze of the Magesterial court and the signingof the remand order. This explains the finding in Chaganti’s casethat General Clauses Act is inapplicable to Section 167 CrPC, asthere is no definite ‘from’ period from which the stipulatedremand, may commence. Moreover, the fact that the date ofremand is included and not excluded from the stipulated period,is based on the pivotal consideration that personal liberty of theindividual commands that any lacuna in the specificity of the lawhas to be so interpreted in the accused’s favour. [Para 34][940-E-H; 941-A-C]

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A1.5 Section 57 CrPC mandates that the accused be producedbefore a Magistrate within 24 hours of arrest and under Section167(2) the Judicial Magistrate is required to scrutinize theexecutive action and determine whether the rights of the accusedare not subjugated by police action. The separation of theExecutive and the Judicial exercise of power, ultimately protectsBan individual’s personal liberty which is also constitutionallyprotected under Articles 21 and 22(2). If the date of remandordered by a Magistrate is ignored, then an accused even thoughin custody, the same will not be counted within the 60/90 dayperiod. The custody on the date of remand is distinct from theCarrest of an accused under Section 56 CrPC as that is consideredas a period prior to production before the Magistrate. By thislogic, even if the accused is under custody it would neither beunder Section 56, nor under 167(2) CrPC. This would lead to anapparent legal vacuum. This can however be avoided if theremand period is considered from the very day of the remandDorder. Furthermore, if an accused is remanded by a Magistrateon say, 01.01.2023, then, the police, post judicial scrutiny, isempowered to investigate, starting on the same day, as perSection 167 CrPC, irrespective of whether the police actuallycommence investigation on the same day. So, if the police isEempowered to investigate an accused person on the day of theremand order itself, the 60/90 day stipulated period, upon whoseexpiry, the right of default bail accrues to the accused, shouldlogically be calculated from that day itself. Ignoring the date ofremand under Section 167 CrPC in the 60/90 day period, wouldmilitate against the legislative intent of providing an accusedFprotection from being in prolonged custody, because of slothfulinvestigation. [Para 36][941-E-G; 942-A-C]

1.6 The 60/90 day limit is a statutory requirement whichallows the State agencies to investigate serious offences beyondthe 15–day police custody. In case the State fails to file chargesheetGor supplementary request for remand within the stipulated 60/90day period, a balance is to be striked between the rights of theindividual and the restriction on those rights and preventprolonged incarceration without legal support. The very instance,the statutory remand period ends, an indefeasible right to defaultHbail accrues to the accused and same needs to be guarded. The liberty of the individual is surely relative and regulated. Absoluteliberty is something that cannot be conceived in a societal setting.The law therefore allows authorities to detain accused personsand facilitate investigation. However, it is the duty of this courtto discourage prolonged incarceration. The right to default bailis not extinguished by the subsequent filing of the chargesheet,and the accused continues to have the right to default bail. [Para42][944-C-E]

1.7 When the day of remand order is included in thestipulated period under Section 167(2), the same would encouragethe prosecution to promptly comply with Section 57 CrPC. Theleaning towards the accused’s right to personal liberty by reducingthe 60 day period to something more than 59 days, and a fewhours, is based on the constitutional protection afforded to anaccused under Article 22(2) and Article 21. In this way, the Code’sapplication in dealing with an accused would be consistent withthe inviolable right of personal liberty and dignity. [Para 48][947-C-D]

1.8 Since there exists vacuum in the application and detailsof Section 167 CrPC, an interpretation which advances the causeof personal liberty is opted. The accused were remanded on14.05.2020 and as such, the chargesheet ought to have been filedon or before 12.07.2020 (i.e. the sixtieth day). But the same wasfiled, only on 13.07.2020 which was the 61st day of their custody.Therefore, the right to default bail accrued to the accused personson 13.07.2020 at 12:00 AM, midnight, onwards. On that veryday, 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 defaultbail before the chargesheet/final report is filed, then such rightwould not stand frustrated or extinguished by any suchsubsequent filing. The stipulated 60/90 day remand period underSection 167 CrPC ought to be computed from the date when aMagistrate authorizes remand. If the first day of remand isexcluded, the remand period, will extend beyond the permitted60/90 days’ period resulting in unauthorized detention beyondthe period envisaged under Section 167 CrPC. In cases where

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Athe chargesheet/final report is filed on or after the 61st/91st day,the accused would be entitled to default bail. The very momentthe stipulated 60/90 day remand period expires, an indefeasibleright to default bail accrues to the accused. [Para 50][947-G; 948-A-D]

B1.9 The impugned order of the High Court granting defaultbail to the respondents by applying the proviso (a) (ii) of Section167(2) is found to be in order. Hence, the judgment passed bythe Single Judge of the High Court is upheld. [Para 51][948-E]

State of M.P. Vs. Rustam & Ors. 1995 (Supp) 3 SCCC221 – 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 SCC340 : [2015] 2 SCR 241; M. Ravindran Vs. IntelligenceOfficer, Director of Revenue Intelligence (2021) 2 SCC485; 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 ofMaharashtra Vs. Bharati Chandmal Varma (2002) 2SCC 121 : [2001] 5 Suppl. SCR 422; Gautam NavlakhaVs. National Investigation Agency 2021 SCC OnLineSC 382; Aslam Babalal Desai vs. State of M aharashtra(1992) 4 SCC 272 : [1992] 1 Suppl. SCR 545; N. SureyaReddy 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 SatyavanKudalkar vs. State of Maharashtra MANU/MH/0843/2020 LD/VC; Rajoo alias Raj Kishore Singh Vs. Stateof Bihar (1980) 1 SCC 108; Raj Kumar Vs. State ofPunjab AIR 1979 P&H 80; Batna Ram vs. State of H.P1980 Crl. LJ 748 (HP); Jagdish vs. State of M.P. 1984Crl. LJ 79 (MP); A.R. Antulay vs.R.S. Nayak (1988) 2SCC 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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ENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA v.KAPIL WADHAWAN & ANR. ETC.

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

Rom Industries (2014) 11 SCC 769 : [2013] 14 SCR74; Saketh India Ltd. vs. India Securities Ltd. (1999) 3SCC 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. Stateof Maharashtra (2001) 5 SCC 453 : [2001] 2 SCR878; Sanjay Dutt Vs. Bombay through C.B.I. 1994 (5)SCC 410 : [1994] 3 Suppl. SCR 263; Bikramjit Singhvs. State of Punjab (2020) 10 SCC 616; AK Gopalanvs. State of Madras, AIR 1950 SC 27 : [1950] SCR 88;Rustom Cavasjee Cooper vs. Union of India (1970) 1SCC 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 SCC225 : [1973] 0 Suppl. SCR 1; Olmstead vs. US, 277 US438 (1928); ADM Jabalpur vs. Shivkant Shukla (1976)2 SCC 521 : [1976] 0 Suppl. SCR 172; K.S. PuttaswamyVs. Union of India (2017) 10 SCC 1 : [2017] 10 SCR569; Munn v. Illinois, 94 U.S. 113 (1876); Kharak Singhvs. State of UP (1964) 1 SCR 332; Francis CorallieMullin vs. The Administrator, 1981 AIR 746 – referredto.

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.

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926SUPREME COURT REPORTS

[2023] 5 S.C.R.

Tushar Mehta, Solicitor General, S. V. Raju, Sanjay Jain, A.S.Gs.,HMukesh Kumar Maroria, Kanu Agarwal, Rajan Kumar Choursia, Annam Venkatesh, Ms. Sairica Raju, Arkaj Kumar, Zoheb Hussain, Advs. forthe Appellant.

Kapil Sibal, Mukul Rohatgi, Amit Desai, Sr. Advs., MaheshAgarwal, Ankur Saigal, Rohan Dakshini, Shubham Kulshreshtha,Kaustubh Singh, Ms. Kamakshi Sehgal, Ms. Pooja Kothari, Ms. UrviGupte, Ms. Kajal Dalal, Ms. Akanksha Saxena, E. C. Agrawala, ShrirangB. Varma, Siddharth Dharmadhikari, Aaditya Aniruddha Pande, BharatBagla, 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 toabolish or restrain, but to preserve and enlarge Freedom: For in allthe 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 singleday or even less. Ostensibly, one may presume this to be insignificant.However, the constitutional import of the matter is such, that personalliberty, which may only be taken away by a just and fair procedureestablished by law, needs to be analyzed and protected. The issue issimple to state but hard to answer. It is embedded in a maze of case lawthat this Court needs to negotiate. Simply put, the Court needs to answerwhether the period of remand under the first proviso to Sec. 167 (2) ofthe Code of Criminal Procedure, 1973 (hereinafter ‘CrPC’) is inclusiveof the day on which the Magistrate orders remand. Whatever be theoutcome, this Court is conscious that none should suffer incarcerationwithout legal authority. Although, the State is tasked to prevent crimeand maintain security, personal liberty-should not be the collateral.

3. We have heard Mr. S.V. Raju, learned Additional SolicitorGeneral of India on behalf of the appellants. Mr. Mukul Rohatgi, Mr.Kapil Sibal and Mr. Amit Desai, learned Senior Counsel appear for therespondents who were granted the benefit of default bail by the HighCourt.

1 John Locke, ‘The Second Treatise of Civil Government’, December 1689.

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A4.These Appeals are directed against the order dated 20.08.2020of the Bombay High Court, granting default bail to the respondents underproviso (a) (ii) of Section 167 (2) of the CrPC. The respondents werearrested on 14.05.2020 for alleged commission of offence under Section3 of the Prevention of Money Laundering Act, 2002 (hereinafter ‘PMLA’)and were remanded on the same date. On 11.07.2020 through e-mail,Bthe Enforcement Directorate (hereinafter ‘ED’) claimed to file aComplaint and subsequently on 13.7.2020, i.e., a Monday, a physicalcopy thereof was tendered before the Court. The applications forenlargement of bail were moved on 13.07.2020 at 8:53 AM, through e-mail and physical filing token being issued by 11 AM.C

5. It was asserted by the respondents that the period of 60 daysfrom 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 beforethe Court. The learned Special Judge, however, denied default bail tothe respondents taking the view that the 60 day period would start fromD15.5.2020, 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 waserroneous and held that the filing of the Chargesheet by the ED on13.7.2020, being the 61st day, would entitle the respondents to defaultbail. The aforesaid decision of the High Court was stayed by this CourtEon 3.9.2020.

ISSUES AND REFERENCE

6. The core issue that arises for consideration is whether the dateof remand is to be included or excluded, for considering a claim fordefault bail, when computing the 60/90 day period as contemplated inFproviso (a) of Section 167 (2) of the CrPC. The moot question has beenconsidered by this Court in various cases, but there is a divergence ofopinion on how the stipulated period, for the right of default bail, accruingto the accused, is to be computed. Some judgements have favoured theexclusion of date of remand, while a contrary view is taken in otherGcases.

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 SinghVs. State of Bihar[3]and M. Ravindran Vs. Intelligence Officer,2 1995 (Supp) 3 SCC 221H3 (2015) 8 SCC 340

Director of Revenue Intelligence[4], where it was held that the date ofremand 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 ChagantiSatyanarayan Vs. State of Andhra Pradesh[5], CBI Vs. Anupam JKulkarni,[6] State Vs. Mohd. Ashraft Bhat[7]and State of MaharashtraVs. Bharati Chandmal Varma,[8]to contend that the first date of remandmust be included for computing the remand period for determining anaccused’s entitlement to default bail.

9. Due to the aforementioned conflict in law, a judicial conundrumhas arisen which is required to be resolved in this reference. In Chaganti(supra), this Court while examining the legislative intent, with regard toconclusion of investigation within the statutory remand period, held thatthe day of remand order should be included. On the other hand, the 3-judge bench in M Ravindran (supra), relied on Ravi Prakash (supra),which in turn followed the principle laid down in Rustam (supra) anddeclared that the date of remand is to be excluded for computing themandated 60/90 day period, in order to facilitate the accused’s right todefault bail.

10. The earlier position of law as declared in Chaganti was ignoredin Rustam. And since, Rustam later became the basis for excluding thedate of remand from the stipulated period in Ravi Prakash and thereafterin Ravindran, which is the latest decision of a 3-judge bench, it becomesnecessary for a bench of appropriate strength to settle the law takingnote of the earlier precedents and the confusion therein. Unless theissue is resolved, there will be a divergence of opinion on how the rightto 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 thedivergence of law on computation of the 60/90 day remand period underproviso (a) of Section 167 (2) of the CrPC, referred the issue to thisthree-judge Bench. The answer here will facilitate a uniform applicationof the law on the issue of right to default bail. The reference is beinganswered as under:-4 (2021) 2 SCC 4855 (1986) 3 SCC 1416 (1992) 3 SCC 1417 (1996) 1 SCC 4328 (2002) 2 SCC 1219 Gautam Navlakha Vs. National Investigation Agency, 2021 SCC OnLine SC 382

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FACTUAL BACKDROP

12. The two respondents, while being confined in judicial custodysince 10.5.2020 in RC No.219/2020 registered by the CBI, came to bearraigned as accused in ECIR/MBZO-I/3/2020 registered by the EDfor the alleged commission of offence under Section 3 of the PMLA.BOn 14.5.2020, the applicants were produced before the learned SpecialCourt, Mumbai and were then remanded to police custody and on27.5.2020 were subsequently remanded to judicial custody. The HighCourt while granting default bail to the applicants formulated the followingquestion for decision:

C“Whether in computing the remand period of 60 or 90 daysas 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 theywere arrested on 14.5.2020 and on the very same day, they wereDremanded by the Magistrate and such remand orders came to be passedfrom time to time. As per the ED, on 11.7.2020, (i.e. a Saturday), acomplaint was filed by them, through e-mail and it was argued by theapplicants that this was only a forward but not the entire complaint. On13.7.2020 i.e. Monday, the ED filed the physical complaint before theCourt. Based on these facts, the applicants’ counsel submitted that theEperiod 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 soughtenlargement on default bail, under the proviso (a) (ii) of Section 167 (2),CrPC. Initially, the applications were transmitted through e-mail at around8:53 AM and after about two hours on 13.7.2020, at around 11 AM, theFbail applications were presented for physical filing in the Sessions Courtand a token acknowledging the filing was issued and the applicationswere also numbered.

14. The ED claimed to have filed the complaint through e-mail on11.7.2020 followed by a physical application on 13.7.2020. As per theGED, 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, asper the ED, complaint was filed in time.

15. The learned Special Court denied default bail on 14.7.2020with the understanding that the 60 days’ time limit for filing the complaintexpired. The learned Judge opined that the date of remand will have toH

be excluded and the 60 days period will have to be computed from 15thMay 2020. With this reasoning the bail application came to be rejected.

16. On respondents’ challenge to the rejection of their default bailapplications, the High Court after analyzing the implication of the rivalsubmissions and interpreting the statutory provisions and their applicationsto the facts of the case, concluded that the learned Special Judgeincorrectly excluded the date of remand, while computing the 60 dayperiod. Since the chargesheet by the ED was filed on 13.7.2020, beingbeyond 60 days by including the day of remand i.e. 14.5.2020, theapplicants were found to be entitled to default bail. Accordingly, a directionwas issued for release of the respondents by adverting to the provisionsof Section 167 (2) of the CrPC, subject to the accused persons furnishingtheir bail bonds. This order of the High Court is challenged in the presentappeals.

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 prescribed60/90 day remand period, one of the days on either side of the remandperiod has to be excluded and in the present case, either the date ofremand i.e. 14.5.2020 or the 60[th]day i.e. 12.07.2020 must be excludedfor computing the eligibility for default bail. In support of the ED’scontentions, Mr. Raju would place strong reliance, inter-alia, on AslamBabalal Desai vs. State of Maharashtra[10], 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 ifthe 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, theprovisions of Section 10, General Clauses Act would come into playand as such the 60 day period which expired on Sunday will stand extendedto Monday i.e. 13.7.2020. In support of such contention, Mr. Raju placedreliance on N. Sureya Reddy vs. State of Orissa[11].

17.3. The learned ASG additionally argued that the ratio inChaganti (supra) was wrongly relied upon by the High Court to computethe 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)

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ACrPC. Since the date of arrest is the same as the date of remand, theratio in Chaganti (supra) according to the learned ASG has no applicationand was therefore wrongly applied by the High Court in the presentfacts.

18.1 Per contra, Mr. Mukul Rohatgi, Mr. Kapil Sibal and Mr. AmitBDesai, learned Senior Counsels for the respondents, argue that the periodenvisaged under proviso (a) of Section 167 (2) of the CrPC must becalculated from the date of remand order and exclusion of the first dayof the Court’s gaze upon the accused would be illogical. The counselhave based their arguments on the ratio in Chaganti (supra) whichwas approved in several subsequent judgements such as CBI SpecialCInvestigation Cell, New Delhi Vs Anupama Kulkarni (supra), PragynaSingh Thakur Vs. State of Maharashtra[12]. The counsels for therespondents also rely on the decisions in State Vs. Mohd Ashraf Bhat(supra), S.Kasi Vs. State[13], and Gautam Navlakha Vs. NIA (supra).

DISCUSSION

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19. In the impugned judgment, the learned Judge of the BombayHigh Court had cited with approval, the judgment of a coordinate Benchin Deepak Satyavan Kudalkar vs. State of Maharashtra,[14]where allthe previous judgments of the Supreme Court applicable for default bailwere considered and analyzed. We may benefit from the opinion pennedEdown by Prakash D. Naik J., who had analyzed the applicable provisionsof the CrPC in the following paragraph.

“ 7 . On perusal of aforesaid provision (Sec. 167 CrPC), itmay be seen that sub-Section (1) is the mandatory provision,governing what a police officer should do, when the personFis arrested and detained in custody and when it appears thatthe investigation cannot be completed within the period ofTwenty Four hours fixed by Section 57. Sub-Section (2)pertains to the powers of remand available to a Magistrateand the manner in which, such powers should be exercised.GThe term of Sub- Section (1) of Section 167 have to be readin conjunction with Section 57. It is clear that Section 57interdicts a police officer from keeping in custody a personwithout warrant for a longer period then Twenty Four hours 12 (2011) 10 SCC 445

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ENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA v.KAPIL WADHAWAN & ANR. ETC. [HRISHIKESH ROY, J.]

without production before the Magistrate, subject to theexception that the time taken for performing the journey fromthe place of arrest to the Magistrate Court, can be excludedfrom the prescribed period of Twenty Four hours. Since, Sub-Section (1) provides that, if the investigation cannot becompleted, within the period of Twenty Four hours, fixed bySection 57, the accused has to be forwarded to the Magistratealong with the entries in the diary, it follows that a policeofficer is entitled to keep an arrested person in custody for amaximum period of Twenty Four hours for the purposes ofinvestigation. Hence, the initial period of custody of anarrested person, till he is produced before a Magistrate isneither referable to nor in pursuance of an order of remandpassed by a Magistrate. The powers of remand given to aMagistrate, become exercisable after an accused is producedbefore him in terms of Sub-Section (1) of Section 167. Sub-section (1) of Section 167 covers this procedure and alsostate that the police officer while forwarding the accused tothe nearest Magistrate should also transmit a copy of entriesin the diary relating to the case. The entries in the diary aremeant to afford to the Magistrate the necessary informationupon which he can take the decision whether the accusedshould be detained in the custody or not. The law enjoinsupon 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 promptlyin prescribed period. The proviso to sub-section (2) fixes theouter limit within which investigation must be completed andin case the same is not completed within the prescribed period,the accused would acquire a right to be released on bail andif he is prepared to and does furnish bail, the Magistrateshall release him on bail and such release shall be deemed tobe grant of bail under chapter XXXIII of Cr.P.C. The provisoinserted by Act No. 45 of 1978, comes into operation wherethe Magistrate thinks fit that further detention beyond theperiod of fifteen days is necessary and it lays down that, theMagistrate may authorise the detention of the accused personotherwise than in the custody of police beyond period of 15days. The proviso to Section 167(2) clearly state that the total ABC

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Aperiod of detention should not exceed Ninety days in caseswhere the investigation relates to serious offences mentionedtherein and sixty days in other cases and if by that timecharge-sheet is not filed on the expiry of said periods theaccused shall be released on bail.”

B20. The precedents referred to in the impugned judgment, and thecoordinate Bench in Deepak Satyavan (supra), show that the Courtconfers power on the prosecution to arrest a suspect and the investigationcontemplated under the Code would cover all the steps includingproceedings for collection of evidence and on conclusion of theinvestigation a report is required to be furnished under Section 173 ofCthe CrPC. The aim of Chapter XII is that investigation should becompleted without unnecessary delay, although there is no express outerlimit for completion of investigation. The CrPC prescribes, under Section173(2), for filing the final report, which empowers the Court, to takecognizance of an offence. It also allows for further investigation underDsub-Section (8) of Section 173. Further, as per Section 173(4), upon thefinal report being filed, if an accused has been released on bail, his bailbond maybe cancelled by the Magistrate based on merits of theinvestigation. Thus, the protection extended to an accused in lieu of proviso(a) of Section 167(2) CrPC is only with respect to the prescribed 60/90day period, beyond which an accused’s custody cannot be sought, even Eif the investigation is incomplete.

21. Unless a special order from a Magistrate is obtained underSection 167 of the CrPC, a person arrested cannot be detained for morethan 24 hours as stipulated under Section 57 of the CrPC. The timenecessary for the journey from the place of arrest to the Magistrate’sFCourt can however be excluded, for computing the 24 hours permittedto the Police to keep an accused in their custody prior to a Magistrate’sauthorization, as mandated under Section 167 CrPC.

22. After the accused is arrested and police is unable to completethe investigation within the mandated 24 hours period, the police officerGmaking the investigation is duty bound to transmit the accused to theMagistrate under Section 167 of the CrPC. Sub-section (2) of Section167 then sets out the action to be taken by the Magistrate to whom theaccused person is forwarded and the Magistrate may then authorize thedetention of the accused to further custody. In terms of sub-section (2),Hthe Magistrate may authorize the detention of the accused in such custody as he thinks fit for a term not exceeding 15 days in the whole but if hehas no jurisdiction to try the case or commit it for trial and consider thatthe detention is unnecessary, on perusal of the entries in the diary, hemay release the accused or forward him to the Magistrate havingappropriate jurisdiction. The sub-section is appended with a proviso whichplaces an embargo on the power of the Magistrate and authorizesdetention of the accused person beyond the 15 days period, other than inthe custody of the police, if he is of the opinion that the circumstances sodemand. But, the Magistrate shall not authorize the detention of anaccused person in custody for a total period exceeding 90 or 60 days inclause (i) or clause (ii) of proviso (a), respectively. A right accrues to theaccused if the investigation is not completed within the period prescribedin clause (i) or clause (ii) and on expiry of the said period, the accusedperson shall be released on bail if he is prepared to and furnishes bail forhis release.

23. As can be seen from the above, the further detention beyond24 hours of the accused is subject to authorization by the Magistrate andthe power of the Magistrate to authorize detention of the accused eitherin police custody or under magisterial custody is circumscribed by theperiod specified in Section 167 of the CrPC. If the Magistrate is satisfiedthat continuing custody exceeding 15 days is warranted, he may authorizesuch detention but in any case the authorized detention cannot exceed aperiod of 90 days or 60 days, as the case may be. On the expiry of thestipulated period specified in the proviso to Section 167 (2) of the CrPC,if the prosecution fails to file the chargesheet/final report, the accusedperson has an indefeasible right to be released on default bail.

24. Section 167, as originally enacted in the Code of CriminalProcedure, 1898 envisages completion of investigation within 24 hours.But, noticing the difficulty in completing the investigation within the limitedtime, particularly for complex crimes, the Law Commission of Indiarecommended to increase the time limit for completion of investigation.On the basis of the recommendation in the 41[st]Law Commission Report(September, 1969), CrPC was amended through the Act 45 of 1978.The Proviso (a) containing clauses (i) and (ii) were inserted to Section167 of the CrPC. With such inclusion, while investigation is still expectedto be completed with promptitude, it was additionally provided that onlywith a Magistrate’s authorization, further detention is permitted, for theperiod specified in clauses (i) and (ii) under proviso (a). A Magistrate AB

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Aauthorizing detention must however record his reasons for extendingdetention of an accused under sub-section (3) of Section 167. The purposeof the first proviso to Section 167(2) is to impress upon the police officersto expeditiously complete investigation within the prescribed period andprevent laxity. In default, the Magistrate shall release the accused onbail. This is subject to the restriction imposed in Section 436-A, providingBfor the maximum period for which, an under-trial prisoner may bedetained. Chapter XXXVI provides for limitation for taking cognizancein certain offences. Section 468 imposes a bar on taking cognizance ofan offence specified in sub-section (2) after the expiry of the period oflimitation. Section 469 provides for commencement of period of limitationCand it is to be noted that while setting out the date on which the period oflimitation would have started, sub-section (2) states that in computingthe period of limitation, the day from which such period is to be computed,shall be excluded. Barring the said provision contained in Section 468and Section 436A, there is no limitation prescribed in completion ofinvestigation and the investigation may continue except for the default-Dbail right which accrues to the accused on expiry of the 60th or 90th day,in terms of the first proviso to sub-section (2) of Section 167. Thus, thelegislative intent providing for the 60/90 day statutory period- serves atwin purpose, firstly speedy trial of the accused which would transformhim into a convict or his release on culmination of the trial and secondly,Eto assure speedy justice to the victim and to the society in general.

25. The insertion of proviso (a) to Section 167(2) of the Code wasexamined and analyzed in Chaganti (supra). In writing the two-judgebench opinion in the case, S. Natarajan J. had the occasion to examinethe reasoning and the ratio in Rajoo alias Raj Kishore Singh Vs. StateFof Bihar[15]as also the High Court decisions in Raj Kumar Vs. State ofPunjab[16], Batna Ram vs. State of H.P[17], Jagdish vs. State of M.P.[18]and N. Sureya Reddy vs. State of Orissa (supra) and the learned Judgeobserved the following :- “31. Some of the decisions cited on either side have beenGrendered prior to the amendment of proviso (a) by Act 45 of1978 and some have been rendered after the amendment. Mr.

15 (1980) 1 SCC 10816 AIR 1979 P&H 8017 1980 Crl. LJ 748 (HP)H18 1984 Crl. LJ 79 (MP)

ENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA v.KAPIL WADHAWAN & ANR. ETC. [HRISHIKESH ROY, J.]

Ram Reddy sought to make a distinction of the earlier decisionsby contending that they ceased to have relevance because ofthe amendment to proviso (a) making it an independentparagraph all by itself. Since, we have held that in whicheverway proviso (a) is construed i.e. with reference to Section167(2) or without reference to it the periods of 90 days and60 days prescribed by the legislature can be reckoned onlyfrom the date of remand the distinction sought to be madebetween the decisions rendered prior to Amendment Act 45 of1978 and subsequent to it does not have much of significance.

32. As the terms of proviso (a) with reference to the totalperiods of detention can be interpreted on the plain languageof the proviso itself we do not think it is necessary to invokethe provisions of the General Clauses Act or seek guidancefrom the Limitation Act to construe the terms of the proviso.”

26. However, noticing that some of the aforenoted decisions wereprior to the insertion of proviso (a) by the amending Act 45 of 1978, itwas opined in Chaganti (supra) that those earlier case laws have norelevance. The Court then went on to state that the 90/60 days precribedin proviso (a) to Section 167 (2) can be reckoned only from the date ofremand and it is made clear through the amendment that the legislaturehad intended to provide a 90/60 day remand period, for the purpose ofinvestigation. It was also expressly opined that the proviso (a) in referenceto the total period of detention can be interpreted on the plain languageof the proviso itself, being a complete code on its own and it being whollyunnecessary to invoke provisions of the General Clauses Act orLimitation Act.

27. The above authoritative pronouncement in Chaganti (supra)was later considered in Gautam Navlakha (supra), wherein, forcomputing the prescribed 60/90 day remand period, the date of remandwas included.

28. In the above context, let us now examine the decision in Stateof M.P. vs. Rustam (supra), and Ravi Prakash Singh Vs. State ofBihar (supra) which are relied upon by the learned ASG to argue thatthe period specified in proviso (a) to Section 167 (2) of the CrPC shouldexclude the date of remand. On reading Rustam (supra), it comes tolight that the Court while counting the period has considered Sections 9

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Aand 10 of the General Clauses Act. But in doing so, the Court inRustam(supra) failed to appreciate the ratio in Chaganti (supra) whereit was categorically observed, that for the purpose of computing theperiod under Section 167 (2), the provisions of General Clauses Actwill have no application. Insofar as Ravi Prakash Singh (supra) citedby Mr. Raju, it can be seen that the Court merely follows Rustam (supra)Band it does not lay down any law as such, which may have a bearing onthe present consideration.

29. Considering the legislative intent behind Section 167 (2) CrPC,and the proviso (a) being a complete code in itself, as also elucidated inChaganti (supra), the computation method laid down in Rustam (supra),Cmay not be the correct way . Further, since Rustam (supra) ignored thebinding precedent in Chaganti (supra) on computing the prescribed 60/90 day period under proviso (a) of Section 167(2), from the date aMagistrate ordered remand, it is a per incuriam decision.

30. The law of binding precedent provides that the rule of perDincuriam is an exception to the doctrine of judicial precedent. Quiteliterally, it provides that when a judgment is passed in ignorance of arelevant precedent or any other binding authority, the same is said to bepostulating incorrect law. It becomes pertinent to resolve the conflictarising from diverging opinions by taking recourse to the ratio decidendiEof the earliest opinion. In this context MN Venkatachaliah J., in the 7-judge Bench decision of A.R. Antulay vs. R.S. Nayak [(1988) 2 SCC602] opined that:

“…the point is that the circumstance that a decision is reachedper incuriam merely serves to denude the decision of itsFprecedent value.Such a decision would not be binding as a judicial precedent.A coordinate Bench can disagree with it and decline to followit. A larger Bench can overrule such a decision…”[19]

Likewise, a Constitution Bench in Shah Faesal vs. Union ofGIndia[20]taking note of this Court’s decision in Sandeep Kumar BafnaVs. State of Maharashtra[21]pertinently observed:

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19 AR Antulay vs. RS Nayak (1988) 2 SCC 602, para 183 (per MN Venkatchaliah J.)20 Shah Faesal vs. Union of India, (2020) 4 SCC 1 (para 33)21 2014 (16) SCC 623

“…a decision or judgement can also be per incuriam if it isnot possible to reconcile its ratio with that of a previouslypronounced judgement of a co-equal or larger bench or ifthe decision of the High Court is not in consonance with theviews of this court…”

31. It logically flows from the above that the operative part inRustam (Supra) with respect to the 60/90 day period of computation,arrived at after, invoking Sections 9 and 10 of the General ClausesAct, 1897, where the court excluded the date of remand and ignoredthe contrary opinion in Chaganti (supra), cannot be a binding judicialprecedent as the same is rendered per incuriam.

32. Significantly the principle of computing the 60/90 day periodby including the date of remand, as laid down in Chaganti (supra), hasbeen followed in State vs. Mohd. Ashraft Bhat (supra), Pragnya SinghThakur (supra), and in Gautam Navlakha (supra).

33. The 3-Judge Bench in M. Ravinrdan (supra), followedRustam (supra) viz. a viz. Ravi Prakash (Supra), wherein the date ofremand is excluded. However, the computation as stipulated in Rustam(supra), being per incuriam, cannot in our opinion be considered as thecorrect law. Therefore, the Court in Ravindran (supra) ought to havefollowed the computation principle laid down in Chaganti and not Rustam.

34. The learned Single Judge in the impugned judgment wasconscious of the ratio in Rustam (supra) and Ravi Prakash (supra)where the Court had taken into consideration Section 9 of the GeneralClauses Act, 1897 and observed that Section 9 may have somerelevance where the concerned statute prescribes the period of limitationand the exclusion of first in a series of days or any other period of time,may then be in order. The Court observed that “the principle” would beattracted when a period is delimited by a Statute or Rule, which has botha beginning and an end; the word ‘from’ indicates the beginning, i.e. theopening day which is to be excluded and, the last day is included by useof the word ‘to’. The requisite ‘from’ for applicability of Section 9 isprescribed for a period ‘from’ and ‘to’, i.e. when the period is markedby terminus quo and terminus ad quem. This principle being theunderlying method for applicability of Section 9 of the General ClausesAct, 1897. Significantly, in Section 167 application, there is no startingor ending point for completion of the investigation. In the scheme of theCrPC, as has been elaborated above, the provisions contained in sub- A

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Asection (1) of Section 167 runs in continuation of sub-section (2). Theproduction of the accused before the Magistrate is a sequel to his arrestby the police and at the same time, the accused too has a right to beproduced before the Magistrate, within 24 hours of his arrest. The dayon which the accused is brought on remand before the Magistrate, sub-section (2) of Section 167 empowers the Magistrate to authorize theBdetention with the police either by continuing it or remanding him toMagisterial custody. There cannot be a pause/break between the twoprocesses. No de- limitation is conceptualized in Section 167 nor can itbe fitted into a period of limitation ‘from’ and ‘to’ since there is no limitationfor completion of investigation and filing of the chargesheet. TheCproduction before the Magistrate is a process in continuation of arrestby the police and the Magistrate will authorize detention for not morethan 15 days in the whole but if he is satisfied that sufficient groundsexist, he may authorize an accused’s detention beyond 15 days otherwisethan in the custody of police. Pertinently, there is no fixed end pointwithin which, the police or investigation authorities are required toDcomplete the investigation. However, if the investigation is not completedand chargesheet is not filed within 60 or 90 days, a right of default bailaccrues to the accused. The anterior period of custody with the policeprior to the remand is not detention. It is only so, pursuant to anauthorization issued from the Magistrate. The period of detention by theEMagistrate runs from the very day of remand order. Sub-section (2) ofSection 167 of the CrPC pertains to the power of the Magistrate toremand an accused and there is no reason why the date of the MagesterialCourt’s gaze on the accused, should be excluded. In order to avoid longincarceration of an accused only because the investigation is being carriedout in a leisurely manner, the legislature was prompted, to confer a rightFon the accused to be released on default bail if he is prepared to offerbail bond and the investigation may still continue. This is why the GeneralClauses Act cannot be made applicable to sub-section (2) of Section167. Moreover, excluding the date of the remand order would also resultin a break in the continuity of the custody of the accused which beginsGon 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 whenwe include the date of remand order as the first day of the stipulatedremand period- there arises no fixed 60-day period for which the accusedis remanded. Once the Magistrate authorises remand, irrespective ofthe time of the day, when he does so, the prosecution, in each case willH

have a varying period of custody which may range in a moving cursormanner from a spectrum of 59 days and 23 hours or so to 59 days and 1hour 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 ofthe Magesterial court and the signing of the remand order. This explainsthe finding in Chaganti (supra) that General Clauses Act is inapplicableto Section 167 CrPC, as there is no definite ‘from’ period from whichthe stipulated remand, may commence. Moreover, the fact that the dateof remand is included and not excluded from the stipulated period, isbased on the pivotal consideration that personal liberty of the individualcommands that any lacuna in the specificity of the law has to be sointerpreted in the accused’s favour.

35. The learned ASG placing reliance on Econ[22]and Saketh[23]tocontend that Section 9 of the General Clauses Act would be applicableto Section 167 CrPC, as there is a particular time period fixed, irrespectiveof a ‘from’ and ‘to’ stipulation, within which investigation is to be done.This we find to be fallacious as there is no fixed time period under whichthe investigation is to be completed. As explained above, when we includethe date of remand in the stipulated 60/90 day period under Section 167,then it would result in a varying remand period not exactly amounting toa neat 60/90 days time. Thereby, making the General Clauses Act,inapplicable.

36. Section 57 of the CrPC mandates that the accused be producedbefore a Magistrate within 24 hours of arrest and under Section 167(2)the Judicial Magistrate is required to scrutinize the executive action anddetermine whether the rights of the accused are not subjugated by policeaction. The separation of the Executive and the Judicial exercise ofpower, ultimately protects an individual’s personal liberty which is alsoconstitutionally protected under Articles 21 and 22(2). If the date ofremand ordered by a Magistrate is ignored, then an accused even thoughin custody, the same will not be counted within the 60/90 day period. Thecustody on the date of remand is distinct from the arrest of an accusedunder Section 56 CrPC as that is considered as a period prior to productionbefore the Magistrate. By this logic, even if the accused is under custodyit would neither be under Section 56, nor under 167(2) of the CrPC. Thiswill lead to an apparent legal vacuum. This can however be avoided if 22 Econ Antri Ltd. vs. Rom Industries [(2014) 11 SCC 769]

23 Saketh India Ltd. vs. India Securities Ltd. (1999) 3 SCC 1

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Athe 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 toinvestigate, starting on the same day, as per Section 167 CrPC, irrespectiveof whether the police actually commence investigation on the same day.So, if the police is empowered to investigate an accused person on theBday of the remand order itself, the 60/90 day stipulated period, uponwhose expiry, the right of default bail accrues to the accused, shouldlogically be calculated from that day itself. Ignoring the date of remandunder Section 167 CrPC in the 60/90 day period, would in our opinion,militate against the legislative intent of providing an accused protectionCfrom being in prolonged custody, because of slothful investigation.

37. In Rakesh Kumar Paul vs. State of Assam[24]a three-judgeBench of this Court while examining the ratio in Union of India vs.Nirala Yadav[25] and Uday Mohanlal Acharya vs. State ofMaharashtra,[26]observed that on the expiry of the 60/90 day period asDthe case may be, an indefeasible right accrues in favour of the accusedfor being released on bail on account of default by the investigatingagency in completion of the investigation within the prescribed period.The opinion in Sanjay Dutt Vs. Bombay through C.B.I.[27]was alsoconsidered, wherein the Constitution Bench laid down that if thechargesheet is not filed and the right for “default bail” has ripened intoEthe status of indefeasibility, such right cannot be frustrated by theprosecution.

38. Similarly in Bikramjit Singh vs. State of Punjab[28]a three-Judge bench observed, that the right to secure a default bail under thefirst proviso to Section 167 (2) of the Code is a part of the procedureFestablished by law under Article 21 of the Constitution of India. Therefore,the right therein is raised to the status of a fundament right. The Court inthis context observed that while considering the consequences that flowtowards liberty of an accused, it is immaterial whether the accused makesa written or an oral application for default bail and the Court is onlyGrequired to deal with such an application by considering the statutoryrequirements, namely, whether the statutory period for filing a chargesheet24 (2017) 15 SCC 6725 (2014) 9 SCC 45726 (2001) 5 SCC 45327 1994 (5) SCC 410H28 (2020) 10 SCC 616

or challan had expired and whether the accused is prepared to anddoes furnish bail. In other words, to claim default bail under Section 167(2) first proviso CrPC, the accused does not have to make out anysubstantive grounds for securing bail nor does he have to file a detailedbail application. All he has to aver in the application is that since thestipulated 60/90 day period has expired and the chargesheet has notbeen filed, he is entitled to bail and such indefeasible right cannot bedefeated by filing the chargesheet after the accused has offered to furnishbail.

39. In S.Kasi vs. State (supra), the court discussed the applicabilityof the Limitation Act to Section 167 (2) CrPC, the right to personalliberty, and the prosecution’s right to file a chargesheet. The courtsafeguarding individual freedom then held that Supreme Court’s earlierdirection to relax limitation requirements, in light of Covid-19 pandemic,[29]would not allow the State or the investigation agencies, any relaxation interms of computing the investigation period and thereby allowing additionalincarceration of the accused- curtailing their personal liberty.

40. In construction of a penal statute in case of ambiguity, whetheractual or assumed, in order to, fulfill the legislative intent underlying Section167(2) CrPC, the ambiguity must be resolved in favour of the accusedperson since liberty is at stake. This was the opinion expressed in M.Ravindran (supra) where the following was pronounced:

“whenever there is any ambiguity in the construction of apenal statute, the Courts must favour the interpretation whichleans towards protecting the rights of the accused, given theubiquitous power disparity between an individual and theState.”

41. Similarly, In Rakesh Paul (supra), a three-judge bench of thiscourt, in context of, Section 167, held that where, on reading the statute,two views are possible, then the provision that curtails individual libertyshould be read strictly. It was observed that since Article 21 rights areinvolved, the Court should lean in favour of the interpretation that upholdsand protects personal liberty.[30]This interpretation is also supported bythe idea that Constitutional law is logically, morally and legally superior 29 Suo Motu Writ Petition (Civil) No. 3/202030 Rakesh Kumar Paul vs. State of Assam, (2017) 15 SCC (109) para 72-73, (per LokurJ.)

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Ato the statutory law.[31]Therefore, any statutory provision, must be inconformity with the constitutional law. Further, In the specific context ofthe right to default Bail, under the first proviso to Section 167 (2) oftheCrPC, this court in Gautam Navlakha (supra) held that, right todefault bail is a fundamental right and in case a remand order is passedmechanically or in violation of law or be afflicted with vice of lack ofBjurisdiction, a writ of habeas corpus would lie.

42. The 60/90 day limit is a statutory requirement which allowsthe State agencies to investigate serious offences beyond the 15-daypolice custody. In case the State fails to file chargesheet or supplementaryrequest for remand within the stipulated 60/90 day period, we need toCstrike a balance between the rights of the individual and the restrictionon those rights and prevent prolonged incarceration without legal support.The very instance, the statutory remand period ends, an indefeasibleright to default bail accrues to the accused and same needs to be guarded.The liberty of the individual is surely relative and regulated. AbsoluteDliberty is something that cannot be conceived in a societal setting. Thelaw therefore allows authorities to detain accused persons and facilitateinvestigation. However, it is the duty of this court to discourage prolongedincarceration. Further, the right to default bail is not extinguished by thesubsequent filing of the chargesheet, and the accused continues to havethe right to default bail.E

43. The Constitutional foundation, touching upon the liberty of anindividual was first explained in the dissenting opinion of Justice Fazl Aliin AK Gopalan[32]- where he described the doctrine of interoperability ofrights. This minority view became the majority ruling in the later case ofRC Cooper[33]and Maneka Gandhi.[34]The doctrine stipulates thatFfundamental rights are not isolated and separate, but rather form aninterconnected web of liberty and freedom. Any law that takes awayliberty has to be just, fair and reasonable and pass muster of the collectiveoperation of rights mentioned under Articles 14, 19 and 21. Any 31 VM Bachal, The Indian Journal of Political Science, Vol. 25, No. 3/4, ConferenceGNumber For XXVI Indian Political Science Conference 1964: Annamalainagat (July—Sept.— December, 1964), pp. 231-240

32 AK Gopalan vs. State of Madras, AIR 1950 SC 27, 1950 SCR 88; page 297, para 131.Justice Fazl Ali notes that Natural Justice is not a conception unknown, to the IndianConstitution.

33 Rustom Cavasjee Cooper vs. Union of India (1970) 1 SCC 248, para-1,4 and 5

34 Maneka Gandhi vs. Union of India AIR 1978 SC 597 paras 216, 218 to 227 (per H.HBeg J.), paras 47 and 56 (per Chandrachud J.)

interpretation, given to the statutory contours of Section 167 CrPC, haveto necessarily measure up to the standards of reasonableness, fairnessand immutability of rights. Furthermore, this court in KesavanandaBharti,[35]speaking through the then Chief Justice Sikri, noted that, Indiahaving acceded to the Universal Declaration of Human Rights (1948),and the Constitutional mandate in Article 51, would require the Court totreat rights as inalienable, and this should guide the constitutionalinterpretation.

44. At this stage, we may benefit by remembering the dissentingopinion of Justice Louis D. Brandeis in Olmstead vs. US.[36]His words inthe 1920’s ruling on personal liberty, ring true even after a century. JusticeBrandeis observed:

“Experience should teach us to be most on our guardto protect liberty when the government’s purposes arebeneficent. Men born to freedom are naturally alert to repelinvasion of their liberty by evil-minded rulers. The greatestdangers to liberty lurk in insidious encroachment by men ofzeal, well-meaning but without understanding.”

45. The above passage was approvingly quoted by Justice HRKhanna in his dissenting opinion in ADM Jabalpur.[37]It hardly needs tobe emphasized that the question of default Bail is inextricably linked topersonal liberty and Article 21. Justice Khanna’s minority view in ADMJabalpur found approval in Justice DY Chandrachud’s lead opinion inthe privacy judgement in KS Puttaswamy,[38]wherein the learned Judgeopined that even in absence of Article 21 of the Constitution, the Statehas no power to deprive a person of his life or personal liberty withoutthe authority of the law; that being the essential postulate and basicassumption.[39]It logically follows therefrom that life and personal libertyare inalienable and are rights that are inseparable from a dignified humanexistence.

35 Kesavananda Bharti vs. State of Kerala (1973) 4 SCC 225. (Per CJ Sikri)

36 Olmstead vs. US, 277 US 438 (1928), dissenting 37 ADM Jabalpur vs. Shivkant Shukla (1976) 2 SCC 521, (para 529) per HR KhannaJ. dissenting 38 K.S. Puttaswamy Vs. Union of India (2017) 10 SCC 1.

39 Justice DY Chandrachud, in his majority opinion in KS Puttaswamy vs. Union ofIndia (2017) 10 SCC 1, cites John Locke’s Second Treatise (1690), stating that libertiesare a matter of fundamental natural law.

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46. Writing on ‘natural liberty’, William Blackstone in hiscommentaries on Laws of England, in 1965 described those as absoluterights which were vested in the individual by the immutable laws ofnature. In other words, the right to personal liberty came to be recognizedas an unalienable and immutable right.

B47. The right to personal liberty is directly related to the inalienableright towards human dignity and personhood. The concept of dignity iscentral to our Constitutional law discourse. In fact, the Preamble itself,provides the guarantee of upholding ‘the dignity of the individual’.The Constitution scheme provides that all human rights, including theright to personal liberty, are specifications of one special fundamentalCright- that is the right to have one’s personal dignity respected. Thesame proposition is also supported by the scholar Hannah Arendt.According to Arendt, dignity consists of the ‘right to have rights’ andthe ‘right to equal political membership of some kind of organizedcommunity’.[40]Furthermore, constitutional courts around the world haveDendorsed that the question of human dignity and equality form the baseof personal liberty.[41]The US Supreme Court in Munn Vs. Illinois[42],explained the term liberty in context of the 14[th]Amendment to the USConstitution, and stated that, “by the term ‘liberty’, as used in theprovision, something more is meant than mere freedom from physicalrestraint or the bounds of a prison. It means freedom to go where Eone may choose, and to act in such manner, not inconsistent withthe equal rights of others, ….. that is, to pursue such callings andavocations as may be most suitable to develop (individual) capacitiesand give to them their highest enjoyment.”[43]These words were lateradopted by this Court, in the context of Article 21 to suggest that lifeFunder Article 21 does not mean, mere animal existence, but rather, adignified existence.[44]

48. Let us now test the argument propounded by the learned ASG,that if an accused is produced before a Magistrate at 11:50 PM on agiven day, say, 01.01.2023, and if Section 9 of the General Clauses Act G

40 Hannah Arendt, The Origins of Totalitarianism (1951)

41 See the German Constitution (1945) and the Helsinki Accords (1975).

42 Munn v. Illinois, 94 U.S. 113 (1876)

43 Munn v. Illinois, 94 U.S. 113 (1876), page 142. Munn v. Illinois- cited with approvalby Supreme Court of India, in case of Kharak Singh vs. State of UP (1964) 1 SCR 332and later in KS Puttaswamy vs. UoI (2017) 10 SCC 1.

44 Francis Corallie Mullin vs. The Administrator, 1981 AIR 746. (per PN Bhagwati J.)

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is not applied, then only a few minutes of that day would have to becounted as an entire day for purposes of calculating the remand period.In such a situation a short ten minute window or less, would be availablefor the police for custodial investigation. On this it must be observed thatproduction of an accused before a Magistrate say at 11:50 PM, hasmore to do with police producing the accused within the prescribed 24hour period as mandated under Section 57 CrPC. Therefore, the legalposition vis-à-vis proviso (a) of Section 167 (2) CrPC, cannot be resolvedin favour of the investigation agencies, with such an extreme example.As stated earlier, when the day of remand order is included in thestipulated period under Section 167(2), the same would encourage theprosecution to promptly comply with Section 57 CrPC. The leaningtowards the accused’s right to personal liberty by reducing the 60 dayperiod to something more than 59 days, and a few hours, is based on theconstitutional protection afforded to an accused under Article 22(2) andArticle 21. In this way, the Code’s application in dealing with an accusedwould be consistent with the inviolable right of personal liberty and dignity,as explained above.

49. Returning now to the English philosopher John Locke, withwhose words this judgment commenced,[45]we have elected to answerthis reference by endorsing that interpretation of law which advancesthe cause of justice and freedom. The relevant provisions of the CrPCare the laws, that are essential to protect an individual’s liberty. It regulatesthe societal need for limited detention of persons charged with seriousoffences. We have therefore adopted the interpretation whereby personalliberty is safeguarded and justice would not be compromised and in thegrand scheme of things, the unjustified detention of individuals iseschewed. As a court of law, once the legal stipulations of the Code aresatisfied, we are duty bound to apply the law and prevent unlawfuldetention and protect personal liberty.

50. Since there exists vacuum in the application and details ofSection 167 CrPC, we have opted for an interpretation which advancesthe cause of personal liberty. The accused herein were remanded on14.05.2020 and as such, the chargesheet ought to have been filed on orbefore 12.07.2020 (i.e. the sixtieth day). But the same was filed, only on 45 Locke’s, in The Second Treatise of Government, argues that sovereignty resides in thepeople and explains the nature of legitimate government in terms of natural rights andthe social contract.

AB

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D

E

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A13.07.2020 which was the 61[st]day of their custody. Therefore, the rightto default bail accrued to the accused persons on 13.07.2020 at 12:00AM, midnight, onwards. On that very day, the accused filed their defaultbail applications at 8:53 AM. The ED filed the chargesheet, later in theday, at 11:15 AM. Thus, the default bail Applications were filed wellbefore the chargesheet. In Ravindran(supra) and Bikramjit (supra),Bwhich followed the Constitution Bench in Sanjay Dutt(supra) it wasrightly held that if the accused persons avail their indefeasible right todefault bail before the chargesheet/final report is filed, then such rightwould not stand frustrated or extinguished by any such subsequent filing.We therefore declare that the stipulated 60/90 day remand period underCSection 167 CrPC ought to be computed from the date when a Magistrateauthorizes remand. If the first day of remand is excluded, the remandperiod, as we notice will extend beyond the permitted 60/90 days’ periodresulting in unauthorized detention beyond the period envisaged underSection 167 CrPC. In cases where the chargesheet/final report is filedon or after the 61[st]/91[st]day, the accused in our considered opinion wouldDbe entitled to default bail. In other words, the very moment the stipulated60/90 day remand period expires, an indefeasible right to default bailaccrues to the accused.

51. Following the above discussion and opinion, the impugned orderof the High Court granting default bail to the respondents by applyingEthe proviso (a) (ii) of Section 167(2) CrPC is found to be in order. Hence,we uphold the impugned judgment dated 20.08.2020 passed by the learnedSingle Judge of the Bombay High Court. Any other pending issues arisingfrom these appeals are to be addressed by an appropriate Bench of thisCourt.

F

Nidhi Jain(Assisted by : Tamana, LCRA)

Reference answered.

G

H