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2020 (8) TMI 937 - HC - Money LaunderingSeeking grant of default bail with the aid of 167(2)(a)(ii) of Cr.P.C - whether in computation of 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? - HELD THAT - The anterior period of custody with the police prior to the remand is no detention pursuant to an authorization issued from the Magistrate. The period of detention by the Magistrate runs only from the date of order of first remand. Sub-section (2) of Section 167 of the Cr.P.C pertain to the power of the Magistrate to remand an accused and there is no reason why the first day has to be excluded. The sub-section finds place in a provision which prescribe the procedure when investigation cannot be completed in 24 hours and distinct contingencies are carved out in sub-section (2); the first being the Magistrate authorizing the detention of the accused for a term not exceeding 15 days in the whole, secondly, when the Magistrate do not consider further detention necessary and thirdly, the Magistrate authorise the detention beyond period of 15 days if adequate grounds exists for doing so. However, there is no time stipulated as to extension of custody beyond period of 15 days with a maximum limit on the same. The accused can be in magisterial custody for unlimited point of time if he is not admitted to bail. In order to avoid the long incarceration of an accused for the mere reason that the investigation is being carried out in a leisurely manner, prompted the legislature to confer a right on the accused to be released on bail if he is prepared to do so and the investigation can still continue. As regards the applicability of the provisions of Limitation Act, 1963 is concerned, which prescribe limitation in filing of suits, appeals and applications is concerned, the right of release being claimed as by way of default, there is no scope of applicability of the said enactment and in particular, Section 12 (1) and (2) since there is no decision/order, against which any Appeal/ Application is being preferred. It is pertinent to note the recent three Judge bench decision of the Apex Court in case of S. Kasi Vs. State 2020 (6) TMI 727 - SUPREME COURT 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. The power of Magistrate authorizing detention of accused in custody by prescribing the maximum period, cannot be extended directly or indirectly by any Court with an exception contained in Special Statutes, which to that extent modify the applicability of Section 167 of the Code. Undue delay is not conducive to administration of criminal justice. 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. Bail application allowed.
Issues Involved:
1. Whether the day of remand is to be included or excluded in computing the period of 90 days or 60 days as contemplated in Section 167(2)(a) of Cr.P.C. Issue-wise Detailed Analysis: 1. Computation of Remand Period: The primary issue in this case was whether the day of remand should be included or excluded in computing the period of 90 days or 60 days as per Section 167(2)(a) of the Code of Criminal Procedure (Cr.P.C). The applicants were arrested on 14th May 2020 and remanded on the same day. The Enforcement Directorate filed a complaint on 13th July 2020, and the applicants sought default bail on 13th July 2020, claiming the 60-day period expired on 12th July 2020. 2. Legal Framework and Arguments: The applicants' counsel argued that the period should be calculated from the first day of remand, referencing the judgment in Deepak Satyavan Kudalkar Vs. State of Maharashtra, which held that the period under Section 167(2) Cr.P.C. starts from the first day of remand and this day cannot be excluded. The opposing counsel cited the judgments in State of Madhya Pradesh Vs. Rustom and Ors and Ravi Prakash Vs. State of Bihar, asserting that the first day of remand should be excluded based on Section 9 of the General Clauses Act. 3. Judicial Precedents: The court reviewed several precedents, including Chaganti Satyanarayan Vs State of Andhra Pradesh, which clarified that the period of 90 days or 60 days begins from the date of the remand order. The judgment in CBI Vs. Anupam Kulkarni also supported this view. However, the judgments in Rustam and Ravi Prakash excluded the first day of remand by applying Section 9 of the General Clauses Act. 4. Analysis of General Clauses Act: The court analyzed Section 9 of the General Clauses Act, which generally excludes the first day in a series of days. However, it noted that Section 167(2) of Cr.P.C. does not fit the typical 'from' and 'to' period required for the application of Section 9, as there is no prescribed limitation period for completing an investigation. 5. Conclusion and Order: The court concluded that the first day of remand should not be excluded in computing the 60-day period under Section 167(2)(a) of Cr.P.C. Consequently, the applicants were entitled to default bail as the complaint was filed after the 60-day period, including the day of remand. The court ordered the release of the applicants on bail, subject to certain conditions, and rejected the request for a stay of the order. Order: (i) The applicants were directed to be released on bail upon executing a P.R. bond of Rs. One lakh each, with sureties. (ii) They were required to attend the Enforcement Directorate's office every Monday. (iii) They had to furnish their residence details and contact numbers. (iv) They were prohibited from leaving India without prior permission. (v) They were instructed not to tamper with evidence or dissuade witnesses. The court emphasized that the right to default bail is indefeasible once it accrues, and no court has the power to extend the period beyond 60 days.
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