TMI Blog2020 (8) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... rizing 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 bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial custody since 10th May 2020 in RC No. 219/2020 registered by the CBI. On 14th May 2020 itself, the applicants were produced before the learned Special Court, Mumbai and were remanded to police custody. On 27th May 2020, the applicants were remanded to judicial custody. Since these are the limited facts which are necessary for determination of the question involved, I need not refer to further details of the case. Shorn off the unnecessary details about the nature of accusation levelled against the present applicants and their plea of denial, these bare necessary facts being not in dispute, I will advert the neat question of law and adjudge the same which arises in the present two applications. After hearing the learned senior counsel Shri Amit Desai for the applicants and the learned Additional Solicitor General Shri Anil Singh opposing him in the applications seeking default bail for the applicants, the question which arises for consideration can be formulated in a forthright manner as under :- 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 . 3 Learned Senior c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and before the Court on the same day and the complaint was filed by the E.D on 13th July 2020. The learned Judge also agreed that the offence under Sections 3 read with 4 of PMLA Act prescribe punishment which may extend to 7 years and hence, the time limit for filing of complaint is 60 days. On the debatable question as to from what date the period of 60 days for filing complaint shall be calculated, the learned Judge took a view that it will have to be computed from 15th May 2020, by excluding the date of first remand. With this conclusion being recorded, the application came to be rejected. 5 As per learned Senior Counsel Shri Amit Desai, the latest judgment deciding the issue in question is delivered by the learned Single Judge of this Court, (Justice Prakash D. Naik) recently and to be precise on 29th July 2020. According to him, the judgment in Deepak Satyavan Kudalkar Vs. State of Maharashtra (LDVC Criminal Bail Application No. 197 of 2020), has put the issue involved in the application to rest. In this case, according to Shri 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avi Prakash (supra) which follow Rustam. His submission is, in Ravi Prakash s case the judgment in Chaganti is considered. He also rely on judgment of a Single Judge (Justice S.B. Shukre) of this Court in case of Shaikh Nasir Shaikh Rehman vs. State of Maharashtra, (Criminal WP No. 228 of 2017). According to the learned counsel, the consistent view taken from the year 1995 in case of Rustam is, the first day of remand is to be excluded by applying the well known principle contained in Section 9 of the General Clauses Act. He would asseverate that the learned Single Judge in case of Deepak has not given due weightage to the consistent position of law in excluding the first day of remand and he is in vehement opposition of the learned counsel for the applicants relying upon the judgments which, according to him, do not directly involve the issue which has been put to rest by the verdicts in Rustam and Ravi Prakash (supra). 8 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate' s Court 10 This provision stands in harmony with Article 22 of the Constitution, which enumerates protection against arrest and detention in certain cases and sub-section (2) of the said Article confer a right on a person who is arrested and detained in custody to be produced before the nearest Magistrate within 24 hours of such arrest and prohibits his detention in custody beyond the said period without the authority of a Magistrate. 11 If the investigation is not completed within 24 hours when the accused is arrested, the procedure to be adopted is set out in Section 167 of the Code. When a person is arrested and detained in custody (by police) and it appears to the police officer that the investigation cannot be completed within the period available under Section 57 and there are grounds for believing that the information received or the accusation against him is well foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of the Magistrate is, therefore, to authorize the detention of the accused in custody i.e. either the police custody or the Magisterial custody but the words not exceeding 15 days in the whole , again put fetters on the power of the Magistrate. The proviso contained in sub-section (a) authorizes further detention of the accused produced before him but with a rider that he shall not authorize his detention in police custody for more than 15 days. If the Magistrate is satisfied that adequate grounds exist for continuing the custody exceeding 15 days, he is empowered to do so and such detention will be an authorized one. The authorized detention is however, circumscribed by period of 90 days and 60 days depending upon the nature of offence and on expiry of such period, the accused person has an indefeasible right to be released on bail. 13 While enacting the Code of Criminal Procedure as early in 1898, the Code inserted a provision which set out the procedure to be followed in the event the investigation into an offence cannot be completed within 24 hours. The legislature intended expeditious completion of investigation, however, on the practical side, the complexities of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy, the investigation can still continue. i.e. the collection of evidence, with only reprieve that when the accused is in magisterial custody, he can seek his release on bail. 16 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 in that behalf. On a default being committed, the Magistrate shall release the accused on bail if he is ready to furnish the same. This is subject to the restriction imposed in Section 436-A providing for maximum period for which an under-trial prisoner can be detained. Chapter XXXVI provides for limitation for taking cognizance of 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 be said to have started, subsection (2) state that in computing the period of limitation, the day from which such period is to be computed, shall be excluded. Barring the said prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (2) of Section 309 relate to the powers of remand of a Magistrate, though under different situations, the two provisions call for a harmonious reading in so far as the periods of remand are concerned. It would, therefore, follow that the words 15 days in the whole occurring in sub-section (2) of Section 167 would be tantamount to a period of 15 days at a time but subject to the condition that if the accused is to be remanded to police custody the remand should be for such period as is commensurate with the requirements of a case with provision for further extensions for restricted periods, if need be, but in no case should the total period of remand to police custody exceed 15 days. Where an accused is placed in police custody for the maximum period of 15 days allowed under law either pursuant to a single order of remand or to more than one order, when the remand is restricted on each occasion to a lesser number of days, further detention of the accused, if warranted, has to be necessarily to judicial custody and not otherwise. The Legislature having provided for an accused being placed under police custody under orders of remand for effective investigation of cases ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at arose for consideration was whether a person arrested and produced before the nearest Magistrate as required under Section 167(1), can still be remanded to police custody after expiry of initial period of 15 days. Since this was a first judgment on the said point, the provision was considered in great depth along with its legislative history. While deliberating on the said issue in paragraph no. 9, the judgment in Chaganti was referred to and the following observations made :- 9 At this juncture we want to make another aspect clear namely the computation of period of remand. The proviso to Section 167(2) clearly lays down 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 congnizance is not taken on the expiry of the said periods the accused shall be released on bail as mentioned therein. In Chaganti Satyanarayan's case it was held that It, therefore, stands to reason that the total period of 90 days or 60 days can begin to run from the date of order or remand. Therefore the first period of detention should be computed from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lauses Act and Limitation Act to the provision in question after a detailed discussion and therefore, this is an authoritative pronouncement on the issue that the period of 60/90 days should be computed from the date of remand and therefore, the first day of remand cannot be excluded. This judgment has been consistently followed and in Pragyna Thakur (supra) while determining the issue as to what is the relevant date for counting 90 days for filing charge-sheet, it has been unequivocally held that date of first order of remand is the relevant date and not the date of arrest. Though this judgment has been impliedly overruled on an aspect whether this right is absolute and can be availed after the charge-sheet is filed. However, the following observations in Pragyna s case in paragraph nos. 49 to 52 still hold the field. 49 As far as Section 167(2) of the Criminal Procedure Code is concerned this Court is of the firm opinion that no case for grant of bail has been made out under the said provision as charge sheet was filed before the expiry of 90 days from the date of first remand. In any event, right in this regard of default bail is lost once charge sheet is filed. This Court f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her (1996) 1 SCC 432, Para 5. (3) State of Maharashtra Vs. Bharati Chandmal Varma (Mrs) (2002) 2 SCC 121 Para 12, and (4) State of Madhya Pradesh vs. Rustom and Others 1995 Supp. (3) SCC 221 , Para 3. 53 Section 167(2) is one, dealing with the power of the learned Judicial Magistrate to remand an accused to custody. The 90 days limitation is as such one relating to the power of the learned Magistrate. In other words the learned Magistrate cannot remand an accused to custody for a period of more than 90 days in total. Accordingly, 90 days would start running from the date of first remand. It is not in dispute in this case that the charge sheet is filed within 90 days from the first order of remand. Therefore, the appellant is not entitled to default bail. 21 Now, I deal with the two judgments on which Shri Anil Singh has placed heavy reliance; first being in case of Rustam (supra). A short judgment delivered in the peculiar facts while dealing with the indefeasible right of the accused exclude the date of remand and include the date of filing of the charge-sheet by applying Section 9 of the General Clauses Act. Para 3 of the said judgment needs a reproduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay Dutt . Further, while disapproving the ratio in Pragyna Singh Thakur s case as recorded in para 56 58 based on the decision in Rustam, Bipin Shantilal Panchal, Dinesh Dalmia and Mustaq Ahmed Mohd. Isaq and Uday Mohanlal Acharya, it was held as under :- 44. At this juncture it is absolutely essential to delve into what were the precise principles stated in Uday Mohanlal Acharya s case and how the two Judge bench has understood the same in Pragnya Singh Thakur. We have already reproduced the paragraphs in extenso from Uday Mohan Acharya case and the relevant paragraphs from Pragnya which has drawn support from Rustom s case to buttress the principle it has laid down though in Uday Acharya the said decision has been held not to have stated the correct position of law and therefore, the same could not have been placed reliance upon . The Judgment in Rustam was thus overruled with the finding that the High Court had passed an erroneous order and particularly, paragraph no. 4 of the judgment in case of Rustam where it was held that the dates when the High Court entertained the petition for bail, and granted it to the accused, undeniably, the challan stood filed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Shaikh Nasir relied by the learned ASG. In paragraph no. 33, the learned Single Judge held as under :- 33 It is evident from various decisions referred to hereinabove that the Apex Court has examined the provision of Section 167(2) of Cr.P.C and has held that the detention of the accused is authorized on the date when he is produced before the Court and remanded to custody. The period of 60 days/90 days would start running from the date of remand. The first decision delivered after in depth analysis of the right of bail construed under Section 167(2) of Cr.P.C in the case of Chaganti Satyanarayan. Undisputedly, the said decision was not placed before the Hon ble Supreme Court while deciding the case of State of M.P. Vs. Rustam and Ors. From the ratio in CBI Vs. Anupam Kulkarni also, it is crystal clear that the period of detention envisaged under Section 167(2) shall be calculated from the date of remand. In both these decisions, the Apex Court has not observed that the date of remand is to be excluded and in the light of Section 57 and Section 167 of Cr.P.C, it was held that the period has to be counted from the date when the accused produced before the Court and remanded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcluded when the period of time running from a given date or even to another date or event is prescribed by law or fixed as a contract, and the question arises whether the computation is to be made inclusively or exclusively of the first mention or of the last mentioned day, regard must be had to the context and to the purposes for which the computation has to be made. Where there is a room for doubt, the enactment or instrument ought to be construed as to effectuate and not to defeat the intention of Parliament or of the purpose as the case may be. Expression such as from such a day or until such a day; are equivocal since they do not make it clear whether the inclusion or inclusion of the day named, may be intended. As a general rule, however, the effect of defining a period in such a manner is to exclude a first day and to include a last day . 26 In Marren Vs. Dawson Bentley and Co. Limited, [1961] 2 All ER 270 (S 127 MCA), while excluding the day of accident and computing the period within which action should be brought, reliance was placed on the passage from Halsbury Law of England. In the said case, an accident occurred on 8.11.1954, whereby the plaintiff was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l English decisions on the point, the submission advanced that the date of commencement of detention i.e. 5th February 1971 is to be included was rejected with the following observation : These decisions show that Courts have drawn a distinction between the term created within which an act may be done and the time limited for doing of an act. The rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded . 27 The applicability of the aforesaid principle and also of the provision contained in Section 9 of the General Clauses Act would be of some semblance/relevance, where the law/statute prescribes a limitation and in terms of Section 9, if in any Central Act or Regulation made after the commencement of the General Clauses Act, 1897 it shall be sufficient for the purpose of excluding the first in a series of days or any other days or any other period of time, to use the word from and for the purpose of including the last in a series of days or any other period of time to use the word to . The principle would be attracted when a period is delimited by a Statute or Rule, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 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. This is the precise reason why the General clauses Act cannot be made applicable to sub-section (2) of Section 167 and the submission of Mr. Singh to the effect that the first day of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. Hence, I pass the following order :- ORDER (i) Applicant Kapil Wadhawan (LDVC BA No. 400/2020) and Applicant Dheeraj Wadhawan (LDVC BA No. 401/2020) are directed to be released on bail in connection with ECIR/MBZO-I/3/2020 registered by Enforcement Directorate on executing P.R. bond in the sum of Rs. One lakh each, with one or more sureties in the like amount. (ii) The applicants shall attend the office of the Enforcement Directorate every Monday till further orders. (iii) The applicants shall furnish the details of the place of residence and their contact numbers to the Investigating Officer, on being released on bail. (iv) The applicants shall not leave India without prior permission of the Special Court. The applicant Dheeraj Wadhawan will surrender his passport to the Enforcement Directorate. (v) The applicants shall not directly or indirectly make any inducement, threat or promise to any person acquainted with facts of case so as to dissuade ..... 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