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Day Of Remand Should Be Included For Considering Default Bail Claim : Supreme Court Answers Reference
LIVELAW NEWS NETWORK
27 March 2023 8:45 AM GMT
Answering a reference on a significant point of law, the Supreme Court has held that the day of remand is to be included for considering for considering a claim for default bail.The remand period will be calculated from the date when the Magistrate remanded the accused, held a bench comprising Justices KM Joseph, BV Nagarathna and Hrishikesh Roy.An accused becomes entitled to default bail if...
Answering a reference on a significant point of law, the Supreme Court has held that the day of remand is to be included for considering for considering a claim for default bail.
The remand period will be calculated from the date when the Magistrate remanded the accused, held a bench comprising Justices KM Joseph, BV Nagarathna and Hrishikesh Roy.
An accused becomes entitled to default bail if the chargesheet isn't filed by 61st or the 91st day of the remand, the bench stated. Holding so, the bench dismissed the appeal filed by the Enforcement Directorate challenging the default bail granted to former DHFL promoters, Kapil Wadhawan & Dheeraj Wadhawan in the Yes Bank case.
The bench observed that an interpretation which advances personal liberty should be adopted.
"We therefore declare that 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, as we notice will extend beyond the permitted 60/90 days’ period resulting in unauthorized detention beyond the period envisaged under Section 167 CrPC. In cases where the chargesheet/final report is filed on or after the 61st/91st day, the accused in our considered opinion would be entitled to default bail. In other words, the very moment the stipulated 60/90 day remand period expires, an indefeasible right to default bail accrues to the accused", the bench observed.
"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", the judgment authored by Justice Roy stated.
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 appeal was filed against the Bombay High Court judgment which held that the day of remand has to be included for the purpose of computing the period of 90 days or 60 days as contemplated in Section 167 (2)(a)(ii) of the Code of Criminal Procedure.
In this case, the accused were remanded on 14.05.2020. The chargesheet was filed on 13.7.2020. The accused argued that the 60 days expired on 12.07.2020, if it is computed from the day of remand. ED contended otherwise. The trial court denied default bail to the accused taking the view that the 60 days will have to be computed by excluding the date of first remand. However, the High Court, under the impugned judgment felt that, excluding the first date of remand while computing the period of 60 days was erroneous and held that the filing of the Charge Sheet by the ED on 13.7.2020, being on the 61st day, would entitle the respondents to default bail.
Reference made to larger bench
In March 2021, a 2-judge bench comprising Justices Sanjay Kishan Kaul and Hrishikesh Roy had referred to a larger bench the question whether the day of remand is to be included or excluded, for considering a claim for default bail
The referring bench noticed that, in State of M.P. Vs. Rustom & Ors.1995 (Supp) 3 SCC 221 , Ravi Prakash Singh Vs. State of Bihar (2015) 8 SCC 340 and M. Ravindran Vs. Intelligence Officer, Director of Revenue Intelligence, it was held that the date of remand is to be excluded for computing the permitted period for completion of investigation. On the other hand, the judgments in Chaganti Satyanarayan Vs. State of Andhra Pradesh (1986) 3 SCC 141 , CBI Vs. Anupam J Kulkarni (1992) 3 SCC 141 , State Vs. Mohd. Ashraft Bhat (1996) 1 SCC 432 , State of Maharashtra Vs. Bharati Chandmal Varma (2002) 2 SCC 121, and Pragyna Singh Thakur Vs. State of Maharashtra (2011) 10 SCC 445, have held that the date of remand must be included for computing the available period for investigation for determining entitlement to default bail.
Case Title : ENFORCEMENT DIRECTORATE vs. KAPIL WADHAWAN
Citation. : 2023 LiveLaw (SC) 249
Code of Criminal Procedure 1973- Section 167 -The day of remand is to be included for considering for considering a claim for default bail-the stipulated 60/90 day remand period under Section 167 CrPC ought to be computed from the date when a Magistrate authorizes remand -In cases where the chargesheet/final report is filed on or after the 61st/91st day, the accused in our considered opinion would be entitled to default bail. In other words, the very moment the stipulated 60/90 day remand period expires, an indefeasible right to default bail accrues to the accused - 3 judge bench answers reference.
