1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 701-702 OF 2020

ENFORCEMENT DIRECTORATE,

GOVERNMENT OF INDIA APPELLANT(S)

VERSUS

KAPIL WADHAWAN & ANR. ETC. RESPONDENT(S)

J U D G M E N T

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

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

2

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.

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 e-mail 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

3

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

Bihar

3

and M. Ravindran Vs. Intelligence Officer, Director of Revenue

Intelligence

4

, 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.

2 1995 (Supp) 3 SCC 221

3 (2015) 8 SCC 340

4 (2021) 2 SCC 485

4

8. On the other hand, the Accused rely, inter alia, on Chaganti

Satyanarayan Vs. State of Andhra Pradesh

5

, CBI Vs. Anupam J Kulkarni,

6

State Vs. Mohd. Ashraft Bhat

7

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 3-judge

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

5 (1986) 3 SCC 141

6 (1992) 3 SCC 141

7 (1996) 1 SCC 432

8 (2002) 2 SCC 121

5

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:-

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

9 Gautam Navlakha Vs. National Investigation Agency, 2021 SCC OnLine SC 382

6

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 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

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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

17.1Assailing 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 60

th

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

Maharashtra

10

, State of MP vs. Rustam (supra) and Ravi Prakash Singh alias

Arvind Singh vs. State of Bihar (supra).

17.2An 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

10 (1992) 4 SCC 272.

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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 Orissa

11

.

17.3The 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 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.

18.1Per 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

Maharashtra

12

. The counsels for the respondents also rely on the decisions

in State Vs. Mohd Ashraf Bhat (supra), S.Kasi Vs. State

13

, and Gautam

Navlakha Vs. NIA (supra).

11 1985 Crl. LJ 939 (Ori)

12 (2011) 10 SCC 445

13 (2020) SCC Online SC 529

9

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 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, Sub-Section (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. Sub-section (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

14 MANU/MH/0843/2020; LD/VC Criminal Bail Application 197/2020.

10

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 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

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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 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

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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.As can be seen from the above, the further detention beyond 24 hours

of the accused is subject to authorization by the Magistrate and the power

of the Magistrate to authorize detention of the accused either in police

custody or under magisterial custody is circumscribed by the period

specified in Section 167 of the CrPC. If the Magistrate is satisfied that

continuing custody exceeding 15 days is warranted, he may authorize such

detention but in any case the authorized detention cannot exceed a period

of 90 days or 60 days, as the case may be. On the expiry of the stipulated

period specified in the proviso to Section 167 (2) of the CrPC, if the

prosecution fails to file the chargesheet/final report, the accused person

has an indefeasible right to be released on default bail.

24.Section 167, as originally enacted in the Code of Criminal Procedure,

1898 envisages completion of investigation within 24 hours. But, noticing

the difficulty in completing the investigation within the limited time,

particularly for complex crimes, the Law Commission of India recommended

13

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 Section 167 of the CrPC. With such

inclusion, while investigation is still expected to be completed with

promptitude, it was additionally provided that only with a Magistrate’s

authorization, further detention is permitted, for the period specified in

clauses (i) and (ii) under proviso (a). A Magistrate authorizing detention

must however record his reasons for extending detention of an accused

under sub-section (3) of Section 167. The purpose of the first proviso to

Section 167(2) is to impress upon the police officers to expeditiously

complete investigation within the prescribed period and prevent laxity. In

default, the Magistrate shall release the accused on bail. This is subject to

the restriction imposed in Section 436-A, providing for the maximum period

for which, an under-trial prisoner may be detained. Chapter XXXVI provides

for limitation for taking cognizance in certain offences. Section 468 imposes

a bar on taking cognizance of an offence specified in sub-section (2) after

the expiry of the period of limitation. Section 469 provides for

commencement of period of limitation and it is to be noted that while

setting out the date on which the period of limitation would have started,

sub-section (2) states that in computing the period of limitation, the day

from which such period is to be computed, shall be excluded. Barring the

said provision contained in Section 468 and Section 436A, there is no

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limitation prescribed in completion of investigation and the investigation

may continue except for the default-bail 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, the legislative intent providing for the 60/90 day

statutory period- serves a twin purpose, firstly speedy trial of the accused

which would transform him into a convict or his release on culmination of

the trial and secondly, to 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 was examined

and analyzed in Chaganti (supra). In writing the two-judge bench opinion in

the case, S. Natarajan J. had the occasion to examine the reasoning and the

ratio in Rajoo alias Raj Kishore Singh Vs. State of Bihar

15

as also the High

Court decisions in Raj Kumar Vs. State of Punjab

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 Judge observed the following :-

“31. Some of the decisions cited on either side have been

rendered prior to the amendment of proviso (a) by Act 45 of 1978

and some have been rendered after the amendment. Mr. Ram

Reddy sought to make a distinction of the earlier decisions by

contending that they ceased to have relevance because of the

amendment to proviso (a) making it an independent paragraph all

by itself. Since, we have held that in whichever way proviso (a) is

construed i.e. with reference to Section 167(2) or without

reference to it the periods of 90 days and 60 days prescribed by

the legislature can be reckoned only from the date of remand the

distinction sought to be made between the decisions rendered

prior to Amendment Act 45 of 1978 and subsequent to it does not

have much of significance.

15 (1980) 1 SCC 108

16 AIR 1979 P&H 80

17 1980 Crl. LJ 748 (HP)

18 1984 Crl. LJ 79 (MP)

15

32. As the terms of proviso (a) with reference to the total periods

of detention can be interpreted on the plain language of the

proviso itself we do not think it is necessary to invoke the

provisions of the General Clauses Act or seek guidance from the

Limitation Act to construe the terms of the proviso.”

26.However, noticing that some of the aforenoted decisions were prior to

the insertion of proviso (a) by the amending Act 45 of 1978, it was opined in

Chaganti (supra) that those earlier case laws have no relevance. The Court

then went on to state 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.

27.The above authoritative pronouncement in Chaganti (supra) was later

considered in Gautam Navlakha (supra), wherein, for computing the

prescribed 60/90 day remand period, the date of remand was included.

28.In the above context, let us now examine the decision in State of M.P.

vs. Rustam (supra), and Ravi Prakash Singh Vs. State of Bihar (supra) which

are relied upon by the learned ASG to argue that the period specified in

proviso (a) to Section 167 (2) of the CrPC should exclude the date of

remand. On reading Rustam (supra), it comes to light that the Court while

counting the period has considered Sections 9 and 10 of the General

16

Clauses Act. But in doing so, the Court in Rustam(supra) failed to

appreciate the ratio in Chaganti (supra) 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. Insofar as Ravi

Prakash Singh (supra) cited by Mr. Raju, it can be seen that the Court

merely follows Rustam (supra) and it does not lay down any law as such,

which may have a bearing on the 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 in Chaganti

(supra), the computation method laid down in Rustam (supra), may not be

the correct way . Further, since Rustam (supra) ignored the binding

precedent in Chaganti (supra) 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.

30. 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. In this context

MN Venkatachaliah J., in the 7-judge Bench decision of A.R. Antulay vs.

R.S. Nayak [(1988) 2 SCC 602] opined that:

“…the point is that the circumstance that a decision is reached per

incuriam merely serves to denude the decision of its precedent value.

17

Such a decision would not be binding as a judicial precedent. A

coordinate Bench can disagree with it and decline to follow it. A larger

Bench can overrule such a decision…”

19

Likewise, a Constitution Bench in Shah Faesal vs. Union of India

20

taking

note of this Court’s decision in Sandeep Kumar Bafna Vs. State of

Maharashtra

21

pertinently observed:

“…a decision or judgement can also be per incuriam if it is not

possible to reconcile its ratio with that of a previously pronounced

judgement of a co-equal or larger bench or if the decision of the High

Court is not in consonance with the views of this court…”

31. It logically flows from the above that the operative part in Rustam

(Supra) with respect to the 60/90 day period of computation, arrived at

after, invoking Sections 9 and 10 of the General Clauses Act, 1897, where

the court excluded the date of remand and ignored the contrary opinion in

Chaganti (supra), cannot be a binding judicial precedent as the same is

rendered per incuriam.

32. Significantly the principle of computing the 60/90 day period by

including the date of remand, as laid down in Chaganti (supra), has been

followed in State vs. Mohd. Ashraft Bhat (supra), Pragnya Singh Thakur

(supra), and in Gautam Navlakha (supra).

33. The 3-Judge Bench in M. Ravinrdan (supra), followed Rustam (supra)

viz. a viz. Ravi Prakash (Supra), wherein the date of remand is excluded.

However, the computation as stipulated in Rustam (supra), being per

incuriam, cannot in our opinion be considered as the correct law. Therefore,

the Court in Ravindran (supra) ought to have followed the computation

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

18

principle laid down in Chaganti and not Rustam.

34. The learned Single Judge in the impugned judgment was conscious of

the ratio in Rustam (supra) and Ravi Prakash (supra) where the Court had

taken into consideration Section 9 of the General Clauses Act, 1897 and

observed that Section 9 may have some relevance where the concerned

statute prescribes the period of limitation and 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 be attracted when a period is delimited

by a Statute or Rule, which has both a beginning and an end; the word

‘from’ indicates the beginning, i.e. the opening day which is to be excluded

and, the last day is included by use of the word ‘to’. The requisite ‘from’ for

applicability of Section 9 is prescribed for a period ‘from’ and ‘to’, i.e. when

the period is marked by terminus quo and terminus ad quem. This principle

being the underlying method for applicability of Section 9 of the General

Clauses Act, 1897. Significantly, in Section 167 application, there is no

starting or ending point for completion of the investigation. In the scheme

of the CrPC, as has been elaborated above, 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

19

police either by continuing it or remanding him to Magisterial custody.

There cannot be a pause/break between the two processes. No de-

limitation 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 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. The period of detention by the Magistrate runs from the very

day of remand order. Sub-section (2) of Section 167 of the 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

20

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 we include the date of remand order 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 (supra) 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.

35. The learned ASG placing reliance on Econ

22

and Saketh

23

to contend

22 Econ Antri Ltd. vs. Rom Industries [(2014) 11 SCC 769]

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

21

that Section 9 of the General Clauses Act would be applicable to Section 167

CrPC, as there is a particular time period fixed, irrespective of 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 which the investigation is to

be completed. As explained above, when we include the 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 to a neat 60/90 days time.

Thereby, making the General Clauses Act, inapplicable.

36. Section 57 of the 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) of

the CrPC. This will lead to an apparent legal vacuum. This can however

be avoided if the remand period is considered from the very day of the

22

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 in our opinion, militate against

the legislative intent of providing an accused protection from being in

prolonged custody, because of slothful investigation.

37.In Rakesh Kumar Paul vs. State of Assam

24

a three-judge Bench of

this Court while examining the ratio in Union of India vs. Nirala Yadav

25

and Uday Mohanlal Acharya vs. State of Maharashtra,

26

observed that on

the expiry of the 60/90 day period as the case may be, an indefeasible

right accrues in favour of the accused for being released on bail on account

of default by the investigating agency in completion of the investigation

within the prescribed period. The opinion in Sanjay Dutt Vs. Bombay

through C.B.I.

27

was also considered, wherein the Constitution Bench laid

down that if the chargesheet is not filed and the right for “default bail” has

ripened into the status of indefeasibility, such right cannot be frustrated by

24 (2017) 15 SCC 67

25 (2014) 9 SCC 457

26 (2001) 5 SCC 453

27 1994 (5) SCC 410

23

the prosecution.

38.Similarly in Bikramjit Singh vs. State of Punjab

28

a three-Judge bench

observed, that the right to secure a default bail under the first proviso to

Section 167 (2) of the Code is a part of the procedure established 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 in this context

observed that while considering the consequences that flow towards liberty

of an accused, it is immaterial whether the accused makes a written or an

oral application for default bail and the Court is only required to deal with

such an application by considering the statutory requirements, namely,

whether the statutory period for filing a chargesheet or challan had expired

and whether the accused is prepared to and does furnish bail. In other

words, to claim default bail under Section 167 (2) first proviso CrPC, the

accused does not have to make out any substantive grounds for securing

bail nor does he have to file a detailed bail application. All he has to aver

in the application is that since the stipulated 60/90 day period has expired

and the chargesheet has not been filed, he is entitled to bail and such

indefeasible right cannot be defeated by filing the chargesheet after the

accused has offered to furnish bail.

39. In S.Kasi vs. State (supra), the court discussed the applicability of the

Limitation Act to Section 167 (2) CrPC, the right to personal liberty, and the

prosecution’s right to file a chargesheet. The court safeguarding individual

freedom then held that Supreme Court’s earlier direction to relax limitation

28 (2020) 10 SCC 616

24

requirements, in light of Covid-19 pandemic,

29

would not allow the State or

the investigation agencies, any relaxation in terms of computing the

investigation period and thereby allowing additional incarceration of the

accused- curtailing their personal liberty.

40. In construction of a penal statute in case of ambiguity, whether actual

or assumed, in order to, fulfill the legislative intent underlying Section

167(2) CrPC, the ambiguity must be resolved in favour of the accused

person 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 a penal

statute, the Courts must favour the interpretation which leans

towards protecting the rights of the accused, given the ubiquitous

power disparity between an individual and the State.”

41. Similarly, In Rakesh Paul (supra), a three-judge bench of this court, in

context of, Section 167, held that where, on reading the statute, two views

are possible, then the provision that curtails individual liberty should be

read strictly. It was observed that since Article 21 rights are involved, the

Court should lean in favour of the interpretation that upholds and protects

personal liberty.

30

This interpretation is also supported by the idea that

Constitutional law is logically, morally and legally superior to the statutory

law.

31

Therefore, any statutory provision, must be in conformity with the

constitutional law. Further, In the specific context of the right to default

29 Suo Motu Writ Petition (Civil) No. 3/2020

30 Rakesh Kumar Paul vs. State of Assam, (2017) 15 SCC (109) para 72-73, (per Lokur

J.)

31 VM Bachal, The Indian Journal of Political Science, Vol. 25, No. 3/4, Conference

Number For XXVI Indian Political Science Conference 1964: Annamalainagat (July—Sept.—

December, 1964), pp. 231-240

25

Bail, under the first proviso to Section 167 (2) of theCrPC, this court in

Gautam Navlakha (supra) held that, right to default bail is a fundamental

right and in case a remand order is passed mechanically or in violation of

law or be afflicted with vice of lack of jurisdiction, a writ of habeas corpus

would lie.

42. 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, we need to strike a balance

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 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. Further,

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.

43. The Constitutional foundation, touching upon the liberty of an

individual was first explained in the dissenting opinion of Justice Fazl Ali in

AK Gopalan

32

- where he described the doctrine of interoperability of rights.

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 Indian

Constitution.

26

This minority view became the majority ruling in the later case of RC

Cooper

33

and Maneka Gandhi.

34

The doctrine stipulates that fundamental

rights are not isolated and separate, but rather form an interconnected web

of liberty and freedom. Any law that takes away liberty has to be just, fair

and reasonable and pass muster of the collective operation of rights

mentioned under Articles 14, 19 and 21. Any interpretation, given to the

statutory contours of Section 167 CrPC, have to necessarily measure up to

the standards of reasonableness, fairness and immutability of rights.

Furthermore, this court in Kesavananda Bharti,

35

speaking through the

then Chief Justice Sikri, noted that, India having acceded to the Universal

Declaration of Human Rights (1948), and the Constitutional mandate in

Article 51, would require the Court to treat rights as inalienable, and this

should guide the constitutional interpretation.

44. At this stage, we may benefit by remembering the dissenting opinion of

Justice Louis D. Brandeis in Olmstead vs. US.

36

His words in the 1920’s

ruling on personal liberty, ring true even after a century. Justice Brandeis

observed:

“Experience should teach us to be most on our guard to

protect liberty when the government's purposes are beneficent.

Men born to freedom are naturally alert to repel invasion of their

liberty by evil-minded rulers. The greatest dangers to liberty lurk

in insidious encroachment by men of zeal, well-meaning but

without understanding.”

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. Beg

J.), paras 47 and 56 (per Chandrachud J.)

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

36 Olmstead vs. US, 277 US 438 (1928), dissenting

27

45.The above passage was approvingly quoted by Justice HR Khanna in

his dissenting opinion in ADM Jabalpur.

37

It hardly needs to be emphasized

that the question of default Bail is inextricably linked to personal liberty

and Article 21. Justice Khanna’s minority view in ADM Jabalpur found

approval in Justice DY Chandrachud’s lead opinion in the privacy

judgement in KS Puttaswamy,

38

wherein the learned Judge opined that even

in absence of Article 21 of the Constitution, the State has no power to

deprive a person of his life or personal liberty without the authority of the

law; that being the essential postulate and basic assumption.

39

It logically

follows therefrom that life and personal liberty are inalienable and are rights

that are inseparable from a dignified human existence.

46. Writing on ‘natural liberty’, William Blackstone in his commentaries

on Laws of England, in 1965 described those as absolute rights which were

vested in the individual by the immutable laws of nature. In other words,

the right to personal liberty came to be recognized as an unalienable and

immutable right.

47. The right to personal liberty is directly related to the inalienable right

towards human dignity and personhood. The concept of dignity is central to

our Constitutional law discourse. In fact, the Preamble itself, provides the

guarantee of upholding ‘the dignity of the individual’. The Constitution

37 ADM Jabalpur vs. Shivkant Shukla (1976) 2 SCC 521, (para 529) per HR Khanna J.

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 of India

(2017) 10 SCC 1, cites John Locke’s Second Treatise (1690), stating that liberties are a matter

of fundamental natural law.

28

scheme provides that all human rights, including the right to personal

liberty, are specifications of one special fundamental right- that is the right

to have one’s personal dignity respected. The same proposition is also

supported by the scholar Hannah Arendt. According to Arendt, dignity

consists of the ‘right to have rights’ and the ‘right to equal political

membership of some kind of organized community ’.

40

Furthermore,

constitutional courts around the world have endorsed that the question of

human dignity and equality form the base of 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 US Constitution, and stated that, “by the term

‘liberty’, as used in the provision, something more is meant than mere

freedom from physical restraint or the bounds of a prison. It means freedom

to go where one may choose, and to act in such manner, not inconsistent with

the equal rights of others, ….. that is, to pursue such callings and avocations

as may be most suitable to develop (individual) capacities and give to them

their highest enjoyment.”

43

These words were later adopted by this Court, in

the context of Article 21 to suggest that life under Article 21 does not mean,

mere animal existence, but rather, a dignified 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 a given day,

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 approval by

Supreme Court of India, in case of Kharak Singh vs. State of UP (1964) 1 SCR 332 and later in

KS Puttaswamy vs. UoI (2017) 10 SCC 1.

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

29

say, 01.01.2023, and if Section 9 of the General Clauses Act is not applied,

then only a few minutes of that day would have to be counted as an entire

day for purposes of calculating the remand period. In such a situation a

short ten minute window or less, would be available for the police for

custodial investigation. On this it must be observed that production of an

accused before a Magistrate say at 11:50 PM, has more to do with police

producing the accused within the prescribed 24 hour period as mandated

under Section 57 CrPC. Therefore, the legal position vis-à-vis proviso (a) of

Section 167 (2) CrPC, cannot be resolved in favour of the investigation

agencies, with such an extreme example. As stated earlier, 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, as explained above.

49. Returning now to the English philosopher John Locke, with whose

words this judgment commenced,

45

we have elected to answer this reference

by endorsing that interpretation of law which advances the cause of justice

and freedom. The relevant provisions of the CrPC are the laws, that are

45 Locke’s, in The Second Treatise of Government,  argues that sovereignty resides in the

people and explains the nature of legitimate government in terms of natural rights and the

social contract.

30

essential to protect an individual’s liberty. It regulates the societal need for

limited detention of persons charged with serious offences. We have

therefore adopted the interpretation whereby personal liberty is safeguarded

and justice would not be compromised and in the grand scheme of things,

the unjustified detention of individuals is eschewed. As a court of law, once

the legal stipulations of the Code are satisfied, we are duty bound to apply

the law and prevent unlawful detention and protect personal liberty.

50. Since there exists vacuum in the application and details of Section 167

CrPC, we have opted for an interpretation which advances the cause of

personal liberty. The accused herein 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

61

st

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. In Ravindran(supra)

and Bikramjit (supra), which followed the Constitution Bench in Sanjay

Dutt(supra) it was rightly held that 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. We therefore declare that the stipulated 60/90 day

remand period under Section 167 CrPC ought to be computed from the date

31

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 61

st

/91

st

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.

51. Following the above discussion and opinion, the impugned order of the

High Court granting default bail to the respondents by applying the 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 learned Single Judge

of the Bombay High Court. Any other pending issues arising from these

appeals are to be addressed by an appropriate Bench of this Court.

………………………………J.

[K.M. JOSEPH]

………………………………J.

[HRISHIKESH ROY]

………….……………………J.

[B.V. NAGARATHNA]

NEW DELHI

MARCH 27, 2023

32

ITEM NO.1501 COURT NO.16 SECTION II-A

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Criminal Appeal No(s).701-702/2020

ENFORCEMENT DIRECTORATE GOVERNMENT OF INDIA Appellant(s)

VERSUS

KAPIL WADHAWAN & ANR. Respondent(s)

Date : 27-03-2023 These matters were called on for pronouncement of

Judgment today.

For Appellant(s) Mr. Tushar Mehta, Solicitor General

Mr. Sanjay Jain, A.S.G.

Mr. S.v. Raju, A.S.G.

Mr. Mukesh Kumar Maroria, AOR

Mr. Kanu Agarwal, Adv.

Mr. Rajan Kumar Choursia, Adv.

Mr. Annam Venkatesh, Adv.

Ms. Sairica Raju, Adv.

Mr. Arkaj Kumar, Adv.

Mr. Zoheb Hussain, Adv.

Mr. Ankit Bhatia, Adv.

Mr. Anshuman Singh, Adv.

Ms. Madhumitha Kesavan, Adv.

Mr. Hitarth Raja, Adv.

For Respondent(s) Mr. Kapil Sibal, Sr. Adv.

Mr. Mukul Rohatgi, Sr. Adv.

Mr. Amit Desai, Sr. Adv.

Mr. Mahesh Agarwal, Adv.

Mr. Ankur Saigal, Adv.

Mr. Rohan Dakshini, Adv.

Mr. Shubham Kulshreshtha, Adv.

Mr. Kaustubh Singh, Adv.

Ms. Kamakshi Sehgal, Adv.

Ms. Pooja Kothari, Adv.

Ms. Urvi Gupte, Adv.

Ms. Kajal Dalal, Adv.

Ms. Akanksha Saxena, Adv.

Mr. E. C. Agrawala, AOR

Mr. Shrirang B. Varma, Adv.

Mr. Siddharth Dharmadhikari, Adv.

Mr. Aaditya Aniruddha Pande, AOR

33

Mr. Bharat Bagla, Adv.

Mr. Sourav Singh, Adv.

Mr. Sarad Kumar Singhania, AOR

Mr. Amit K. Nain, AOR

Hon’ble Mr. Justice Hrishikesh Roy pronounced the reportable

judgment of the Bench comprising Hon’ble Mr Justice K.M. Joseph,

His Lordship and Hon’ble Ms. Justice B. V. Nagarathna.

The reference is answered in terms of the Signed Reportable

Judgment, the operative part of which is as under:-

“Following the above discussion and opinion, the

impugned order of the High Court granting default bail

to the respondents by applying the 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 learned Single Judge of the Bombay High Court. Any

other pending issues arising from these appeals are to

be addressed by an appropriate Bench of this Court.“

(DEEPAK JOSHI) (NAND KISHOR)

COURT MASTER (SH) COURT MASTER (NSH)

(Signed Reportable Judgment is placed on the File)