Full Judgment Text
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)
O R D E R
1. These Appeals are directed against the order
dated 20.08.2020 of the Bombay High Court, granting
default bail to the respondents under Section 167 (2)
(a)(ii) of Code of Criminal Procedure, 1973 (for
short “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 and were remanded on the same date. On
Signature Not Verified
Digitally signed by
ASHA SUNDRIYAL
Date: 2021.02.27
13:26:51 IST
Reason:
11.07.2020 through e-mail, the Enforcement
Directorate filed a Complaint and subsequently on
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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 with physical filing token being issued by 11 am.
2. 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 bail petition was presented before the
Court. The learned Special Judge however denied
default bail to the respondents taking the view that
the 60 days will have to be computed from 15.7.2020,
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. This order of the High Court was
stayed on 3.9.2020.
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3. The core issue that arises for consideration is
whether while computing the period of 90 days or 60
days as contemplated in Section 167 (2)(a)(ii) of the
CrPC, the day of remand is to be included or
excluded, for considering a claim for default bail.
4. The moot question has been considered by this
Court in various matters, but there is divergence of
opinion on how the period available for completing
the investigation is to be computed. Some judgements
have favoured the exclusion of date of remand, while
few other cases have taken a contrary view.
5. The appellants rely inter alia on the line of
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reasoning in State of M.P. Vs. Rustom & Ors. , Ravi
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Prakash Singh Vs. State of Bihar and M. Ravindran
Vs. Intelligence Officer, Director of Revenue
3
Intelligence where it was held that the date of
remand is to be excluded for computing the permitted
period for completion of investigation.
1
1995 (Supp) 3 SCC 221
2
(2015) 8 SCC 340
3 (2020) SCC OnLine SC 867
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6. On the other hand, the Respondents seek to rely
inter alia on Chaganti Satyanarayan Vs. State of
4 5
Andhra Pradesh , CBI Vs. Anupam J Kulkarni , State Vs.
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Mohd. Ashraft Bhat , State of Maharashtra Vs. Bharati
7
Chandmal Varma , and Pragyna Singh Thakur Vs. State
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of Maharashtra to contend that the date of remand
must be included for computing the available period
for investigation for determining entitlement to
default bail.
7. Because of the conflicting view on the
proposition of law for grant of default bail, a
judicial conundrum has arisen which is required to be
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resolved for guidance of the Court. In Chaganti , the
Court examined the legislative intent for expeditious
conclusion of investigation and the consequences of
the failure of the prosecution to conclude
investigation within the permitted period. However,
4 (1986) 3 SCC 141
5 (1992) 3 SCC 141
6 (1996) 1 SCC 432
7
(2002) 2 SCC 121
8
(2011) 10 SCC 445
9 Supra note 4.
5
10 11
the ratio in Chaganti and also in Mhd. Ashraft Bhat
was not brought to the notice of the 3 judges bench
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in M Ravindran and the Court took a contrary view in
declaring that the date of remand is to be excluded
for computing the period of investigation, to
facilitate the claim of default bail by an accused.
8. Since the earlier position of law was not
considered and the latest decision is of a 3 judges
bench, it is necessary for a bench of appropriate
strength to settle the law taking note of the earlier
precedents. Unless the issue is appropriately
determined, the courts across the country may take
decision on the issue depending upon which judgement
is brought to the Court’s notice or on the Courts own
understanding of the law, covering default bail under
Section 167 (2)(a) II of CrPC.
9. In the above circumstances, we feel it
appropriate to refer the above-mentioned issue to a
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Ibid .
11
Supra note 6.
12 Supra note 3.
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larger Bench of this Court for an authoritative
pronouncement to quell this conflict of views as the
same shall enable the Courts to apply the law
uniformly.
10. Accordingly, we direct the Registry to place all
the relevant documents before the Hon’ble Chief
Justice for constituting a bench of at least 3 judges
to resolve the conflict in law on the issue of grant
of default bail.
11. In the meantime, as the respondents are praying
for benefit of the High Court’s bail order, which was
stayed on 3.9.2020, this matter be placed before a
bench of 3 judges on a near date, for consideration
of the interim prayer for the respondents.
……………………………………………………J.
(SANJAY KISHAN KAUL)
……………………………………………………J.
(HRISHIKESH ROY)
NEW DELHI
FEBRUARY 23, 2021
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ITEM NO.107 Court 9 (Video Conferencing) 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. ETC. Respondent(s)
([ PART-HEARD BY HON'BLE SANJAY KISHAN KAUL AND HON'BLE HRISHIKESH
ROY ,JJ. ]
[ TO BE TAKEN UP BEFORE ITEM NO. 101 I.E. C.A.NO.3592-3593/2020 ]
Date : 23-02-2021 These matters were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE HRISHIKESH ROY
For Appellant(s) Mr. Surya Prakash V. Raju, ASG
Mr. Zoheb Hossain, Adv.
Ms. Sairica Raju, Adv.
Mr. A. Venkatesh, Adv.
Mr. Guntur Pramod Kumar, Adv.
Ms. Zeal Shah, Adv.
Mr. Vivek Gurnani, Adv.
Mr. Agni Sen, Adv.
Mr. Rajan K. Chourasia, Adv.
Mr. B.V. Balram Das, Adv,
Mr. B. Krishna Prasad, AOR
For Respondent(s) Dr. Abhishek Manu Singhvi, Sr. Adv.
Mr. Amit Desai, Sr. Adv.
Mr. Mahesh Agarwal, Adv.
Mr. Ankur Saigal, Adv.
Mr. Rohan Dakshini, Adv.
Ms. Aakanksha Saxena, Adv.
Mr. Shubham Kulshreshtha, Adv.
Ms. Tanvi Manchanda, Adv.
Mr. E. C. Agrawala, AOR
Mr. Mukul Rohatgi, Sr. Adv.
Mr. Mahesh Agarwal, Adv.
Mr. Ankur Saigal, Adv.
Mr. Rohan Dakshini, Adv.
Mr. Aakanksha Saxena, Adv.
Mr. Shubham Kulshreshtha, Adv.
Ms. Tanvi Manchanda, Adv.
Mr. E.C. Agrawala, Adv.
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Mr. Sarad Kumar Singhania, AOR
Mr. Amit K. Nain, AOR
UPON hearing the counsel the Court made the following
O R D E R
The issue
is referred to a larger Bench in terms of the
reportable signed order.
(ASHA SUNDRIYAL) (POONAM VAID)
ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)
[Signed reportable order is placed on the file]