Day Of Remand To Be Included While Computing Period Under Section 167(2)(a) CrPC: Bombay HC Grants Bail To DHFL Promoters Kapil & Dheeraj Wadhwan [Read Order]

The Bombay High Court on Thursday granted bail to DHFL promoters Kapil Wadhwan and Dheeraj Wadhwan in the Enforcement Directorate's case of money laundering registered against them as the agency failed to file a chargesheet within 60 days from the date of remand. However, the Wadhwan brothers will remain in jail as the CBI has another case registered against them.

Justice Bharati Dangre heard the bail applications filed by the brothers who are accused in the Yes Bank fraud case. Both the applicants are arraigned as accused in the same ECIR registered by Enforcement Directorate on March 7, 2020.

They were confined in judicial custody since May 10 in relation to the said case registered by the CBI. On May 14, the applicants were produced before the Special Court, Mumbai and were remanded to police custody. Thereafter, they applied for default bail on July 13 and the lower court judge denied the request. The ED filed charge sheet also on July 13. He concluded that the period within which the investigation was to be completed will be starting from May 15, meaning that the first day of remand will be excluded.

Thus, the applicants filed their applications before the High Court. The HC formulated the issue in the case as follows:

"Whether in computing the period of 90 days or 60 days as contemplated in Section 167(2)(a) of Cr.P.C, the day of remand is to be included or excluded"

Senior Advocate Amit Desai appeared on behalf of the applicants and referred to the judgment delivered by Justice PD Naik on July 29, 2020. According to him, the judgment in Deepak Satyavan Kudalkar Vs. State of Maharashtra, has put the issue involved in the application to rest.

According to Desai, it has been held that the period envisaged under Section 167(2) of Cr.P.C. has to be calculated from the first day of remand/order and the said day cannot be excluded. He submitted that the Single Judge has taken into consideration the entire spectrum of the existing position of law and held that there cannot be exclusion of any period from authorized detention while computing the period of 60 days/90 days as the case may be by invoking the provisions of General Clauses Act, 1897.

However, Additional Solicitor General of India Anil Singh appeared for ED and resisted Desai's claim. He raised questions over the binding effect of the judgment in case of Deepak Kudalkar (supra). The said judgment is not good law and in light of two pronouncements of the Apex Court being in the case of State of Madhya Pradesh Vs. Rustom and ors, followed in Ravi Prakash Vs. State of Bihar, he submitted.

Desai relied upon the judgment of the Supreme Court in Chaganti Satyanarayan Vs State of Andhra Pradesh. Followed by judgment in case of CBI Special Investigation Cell, New Delhi Vs Anupama Kulkarni. Also, the judgment in case of Pragya Singh Thakur Vs. State of Maharashtra, wherein judgments in case of Chaganti and Anupam Kulkarni were taken note of.

Court noted-

"The bone of contention between the parties is the judgment in case of Deepak Kudalkar (supra). The said judgment penned down in an elaborate manner has taken into consideration the catena of decisions holding the field as per the version of the opponents, as to the claim whether the first day of remand has to be included or excluded. With the well researched efforts put in by my brother Judge, in Deepak's case, I will cursorily refer to the ratio flowing from the judgment so as to discern the stand of the respective parties in the backdrop of the statutory scheme which I would briefly refer to."

After going through the contentions on behalf of ED as well as the applicants, Justice Dangre observed-

"The purpose of the proviso to Section 167(2) is to impress upon the need for expeditious completion of investigation by the police officer within the prescribed limitation and to prevent laxity on that behalf. On a default being committed, the Magistrate shall release the accused on bail if he is ready to furnish the same."

Justice Dangre noted that while deciding the said judgment of the apex court in the State of Madhya Pradesh Vs. Rustom and ors, relied upon by the State, earlier decisions including date of remand were not placed for consideration-

"The judgment in Deepak has in great detail dealt with the law of precedent and as to what decision of the Apex Court would be followed in case of a conflict and para 42 it is conclusively held that the earlier decisions including the date of remand were not placed for consideration while deciding Rustam."

Court instead relied upon the recent three Judge bench decision of the Apex Court in the case of S. Kasi Vs. State where it is reiterated that the period u/s.167 is inviolable and cannot be extended by the Supreme Court even while exercising its power under Article 142.

Finally, allowing the bail applications, Justice Dangre observed-

"As a corollary to the aforesaid discussion, the impugned order passed by the Sessions Judge, excluding the first day of remand while computing the period of 60 days cannot be sustained and is liable to be set aside and the filing of the chargesheet by the Directorate of Enforcement on 13th July 2020, being after of 60 days, by excluding the day of remand i.e. 14th May 2020, make the applicants entitled for default bail. They deserve to be released on bail in light of the right conferred u/s.167(2)(a) (ii), if they are prepared to and furnish the bail."

Case No.- LD VC Bail Application No.s 400 & 401 of 2020

Case Name: Kapil Wadhwan Vs Directorate of Enforcement

Coram: Bharati Dangre J

Counsel: Sr Adv Amit Desai for the Applicants, ASG Anil Singh For ED and APP Prajakta Shinde for the State

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