Supreme Court of India
ENFORCEMENT DIRECTORATE, GOVERNMENT OF versus KAPIL WADHAWAN & ANR. ETC. on 23 February 2021
721
ENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA
A
v.
KAPIL WADHAWAN & ANR. ETC.
(Criminal Appeal Nos. 701-702 of 2020)
B
FEBRUARY 23, 2021
[SANJAY KISHAN KAUL AND HRISHIKESH ROY, JJ.]
Code of Criminal Procedure, 1973 – s.167(2)(a)(ii) – Defaultbail – Issue as to whether while computing the period of 90 days or60 days as contemplated in s.167(2)(a)(ii) CrPC, the day of remandis to be included or excluded, for considering a claim for defaultbail – Because of the conflicting view on the proposition of law forgrant of default bail, a judicial conundrum has arisen which isrequired to be resolved for guidance of the Court – Issue referredto larger Bench – Bail.
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State of M.P. v. Rustom & Ors. 1995 (Supp) 3 SCC 221;Ravi Prakash Singh v. State of Bihar (2015) 8 SCC340 : [2015] 2 SCR 241; M. Ravindran v. IntelligenceOfficer, Director of Revenue Intelligence (2020) SCCOnLine SC 867; Chaganti Satyanarayan v. State ofAndhra Pradesh(1986) 3 SCC 141 : [1986]2 SCR 1128; CBI v. Anupam J Kulkarni (1992) 3 SCC141: [1992] 3 SCR 158; State v. Mohd. Ashraft Bhat(1996) 1 SCC 432 : [1995] 6 Suppl. SCR 300 State ofMaharashtra v. Bharati Chandmal Varma (2002) 2 SCC121 : [2001] 5 Suppl. SCR 422; Pragyna SinghThakur v. State of Maharashtra (2011) 10 SCC 445 :[2011] 14 SCR 617 – referred to.
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A[2001] 5 Suppl. SCR 422[2011] 14 SCR 617
referred to
Para 6
referred to
Para 6
CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos.701-702 of 2020.
BFrom the Judgment and Order dated 20.08.2020 of High Court ofJudicature at Bombay in LDVC Bail Application No. 400 of 2020.
Surya Prakash V. Raju, ASG, Zoheb Hussain, Ms. Sairica Raju,A. Venkatesh, Guntur Pramod Kumar, Ms. Zeal Shah, Vivek Gurnani,Agni Sen, Rajan K. Chourasia, B. V. Balaram Das, B. Krishna Prasad,CAdvs. for the Appellant.
Dr. Abhishek Manu Singhvi, Amit Desai, Mukul Rohatgi, Sr. Advs.,Mahesh Agarwal, Ankur Saigal, RohanDakshini, Ms. Aakanksha Saxena,Shubham Kulshreshtha, Ms. Tanvi Manchanda, E. C. Agrawala, SaradKumar Singhania, Amit K. Nain, Advs. for the Respondents.
DThe following order of the Court was passed:
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ORDER
1. These Appeals are directed against the order dated 20.08.2020of the Bombay High Court, granting default bail to the respondents underSection 167 (2)(a)(ii) of Code of Criminal Procedure, 1973 (for shortE“CrPC”). The respondents were arrested on 14.05.2020 for allegedcommission of offence under Section 3 of the Prevention of MoneyLaundering Act, 2002 and were remanded on the same date. On11.07.2020 through e-mail, the Enforcement Directorate filed a Complaintand subsequently on 13.7.2020, i.e., a Monday, a physical copy thereofFwas tendered before the Court. The applications for enlargement of bailwere moved on 13.07.2020 at 8.53 am with physical filing token beingissued by 11 am.
2. 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)Gand on the next day, the bail petition was presented before the Court.The learned Special Judge however denied default bail to the respondentstaking the view that the 60 days will have to be computed from 15.7.2020,by excluding the date of first remand. However, the High Court, underthe impugned judgment felt that, excluding the first date of remand whilecomputing the period of 60 days was erroneous and held that the filingH
of the Charge Sheet by the ED on 13.7.2020, being on the 61st day,would entitle the respondents to default bail. This order of the HighCourt was stayed on 3.9.2020.
3. The core issue that arises for consideration is whether whilecomputing the period of 90 days or 60 days as contemplated in Section167 (2)(a)(ii) of the CrPC, the day of remand is to be included or excluded,for considering a claim for default bail.
4. The moot question has been considered by this Court in variousmatters, but there is divergence of opinion on how the period availablefor completing the investigation is to be computed. Some judgementshave favoured the exclusion of date of remand, while few other caseshave taken a contrary view.
5. The appellants rely inter alia on the line of reasoning in State ofM.P. Vs. Rustom & Ors.[1], Ravi Prakash Singh Vs. State of Bihar[2]and M. Ravindran Vs. Intelligence Officer, Director of RevenueIntelligence[3] where it was held that the date of remand is to be excludedfor computing the permitted period for completion of investigation.
6. On the other hand, the Respondents seek to rely inter alia onChaganti Satyanarayan Vs. State of Andhra Pradesh[4], CBI Vs.Anupam J Kulkarni[5], State Vs. Mohd. Ashraft Bhat[6], State ofMaharashtra Vs. Bharati Chandmal Varma[7], and Pragyna SinghThakur Vs. State of Maharashtra[8]to contend that the date of remandmust be included for computing the available period for investigation fordetermining entitlement to default bail.
7. Because of the conflicting view on the proposition of law forgrant of default bail, a judicial conundrum has arisen which is required tobe resolved for guidance of the Court. In Chaganti[9], the Court examinedthe legislative intent for expeditious conclusion of investigation and theconsequences of the failure of the prosecution to conclude investigation 1 1995 (Supp) 3 SCC 2212 (2015) 8 SCC 3403 (2020) SCC OnLine SC 8674 (1986) 3 SCC 1415 (1992) 3 SCC 1416 (1996) 1 SCC 4327 (2002) 2 SCC 1218 (2011) 10 SCC 4459 Supra note 4.
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Awithin the permitted period. However, the ratio in Chaganti[10] and alsoin Mhd. Ashraft Bhat[11] was not brought to the notice of the 3 judgesbench in M Ravindran[12]and the Court took a contrary view in declaringthat the date of remand is to be excluded for computing the period ofinvestigation, to facilitate the claim of default bail by an accused.
B8. Since the earlier position of law was not considered and thelatest decision is of a 3 judges bench, it is necessary for a bench ofappropriate strength to settle the law taking note of the earlier precedents.Unless the issue is appropriately determined, the courts across the countrymay take decision on the issue depending upon which judgement is broughtto the Court’s notice or on the Courts own understanding of the law,Ccovering default bail under Section 167 (2)(a) II of CrPC.
9. In the above circumstances, we feel it appropriate to refer theabove-mentioned issue to a larger Bench of this Court for an authoritativepronouncement to quell this conflict of views as the same shall enablethe Courts to apply the law uniformly.D
10. Accordingly, we direct the Registry to place all the relevantdocuments before the Hon’ble Chief Justice for constituting a bench ofat least 3 judges to resolve the conflict in law on the issue of grant ofdefault bail.
E11. In the meantime, as the respondents are praying for benefit ofthe High Court’s bail order, which was stayed on 3.9.2020, this matterbe placed before a bench of 3 judges on a near date, for consideration ofthe interim prayer for the respondents.
F
Bibhuti Bhushan Bose
Matter referred to larger bench.
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10 Ibid.
11 Supra note 6.
12 Supra note 3.