ENFORCEMENT DIRECTORATE, GOVERNMENT OFversusKAPIL WADHAWAN & ANR. ETC.

                         [2021] 1 S.C.R. 721                           721


 ENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA                          A
                                 v.
               KAPIL WADHAWAN & ANR. ETC.
              (Criminal Appeal Nos. 701-702 of 2020)
                       FEBRUARY 23, 2021                               B
  [SANJAY KISHAN KAUL AND HRISHIKESH ROY, JJ.]
       Code of Criminal Procedure, 1973 – s.167(2)(a)(ii) – Default
bail – Issue as to whether while computing the period of 90 days or
60 days as contemplated in s.167(2)(a)(ii) CrPC, the day of remand
                                                                       C
is to be included or excluded, for considering a claim for default
bail – 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 resolved for guidance of the Court – Issue referred
to larger Bench – Bail.
                                                                       D
      State of M.P. v. Rustom & Ors. 1995 (Supp) 3 SCC 221;
      Ravi Prakash Singh v. State of Bihar (2015) 8 SCC
      340 : [2015] 2 SCR 241; M. Ravindran v. Intelligence
      Officer, Director of Revenue Intelligence (2020) SCC
      OnLine SC 867; Chaganti Satyanarayan v. State of
      Andhra Pradesh (1986) 3 SCC 141 : [1986]                         E
      2 SCR 1128; CBI v. Anupam J Kulkarni (1992) 3 SCC
      141: [1992] 3 SCR 158; State v. Mohd. Ashraft Bhat
      (1996) 1 SCC 432 : [1995] 6 Suppl. SCR 300 State of
      Maharashtra v. Bharati Chandmal Varma (2002) 2 SCC
      121 : [2001] 5 Suppl. SCR 422; Pragyna Singh
                                                                       F
      Thakur v. State of Maharashtra (2011) 10 SCC 445 :
      [2011] 14 SCR 617 – referred to.
                      Case Law Reference
1995 (Supp) 3 SCC 221          referred to                Para 5
[2015] 2 SCR 241               referred to                Para 5       G

[1986] 2 SCR 1128              referred to                Para 5
[1992] 3 SCR 158               referred to                Para 6
[1995] 6 Suppl. SCR 300        referred to                Para 6
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722            SUPREME COURT REPORTS                          [2021] 1 S.C.R.


A     [2001] 5 Suppl. SCR 422          referred to                  Para 6
      [2011] 14 SCR 617                referred to                  Para 6
           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      Nos.701-702 of 2020.
B           From the Judgment and Order dated 20.08.2020 of High Court of
      Judicature at Bombay in LDVC Bail Application No. 400 of 2020.
            Surya Prakash V. Raju, ASG, Zoheb Hussain, Ms. Sairica Raju,
      A. Venkatesh, Guntur Pramod Kumar, Ms. Zeal Shah, Vivek Gurnani,
      Agni Sen, Rajan K. Chourasia, B. V. Balaram Das, B. Krishna Prasad,
C     Advs. for the Appellant.
           Dr. Abhishek Manu Singhvi, Amit Desai, Mukul Rohatgi, Sr. Advs.,
      Mahesh Agarwal, Ankur Saigal, RohanDakshini, Ms. Aakanksha Saxena,
      Shubham Kulshreshtha, Ms. Tanvi Manchanda, E. C. Agrawala, Sarad
      Kumar Singhania, Amit K. Nain, Advs. for the Respondents.
D           The following order of the Court was passed:
                                     ORDER
             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
E
      “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
      11.07.2020 through e-mail, the Enforcement Directorate filed a Complaint
      and subsequently on 13.7.2020, i.e., a Monday, a physical copy thereof
F     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)
G     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
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                                                                                723


of the Charge Sheet by the ED on 13.7.2020, being on the 61st day,              A
would entitle the respondents to default bail. This order of the High
Court was stayed on 3.9.2020.
       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,    B
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            C
have taken a contrary view.
       5. The appellants rely inter alia on the line of reasoning in State of
M.P. Vs. Rustom & Ors.1, Ravi Prakash Singh Vs. State of Bihar2
and M. Ravindran Vs. Intelligence Officer, Director of Revenue
Intelligence3 where it was held that the date of remand is to be excluded       D
for computing the permitted period for completion of investigation.
      6. On the other hand, the Respondents seek to rely inter alia on
Chaganti Satyanarayan Vs. State of Andhra Pradesh 4, CBI Vs.
Anupam J Kulkarni 5 , State Vs. Mohd. Ashraft Bhat 6, State of
Maharashtra Vs. Bharati Chandmal Varma 7, and Pragyna Singh                     E
Thakur Vs. State of Maharashtra8 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     F
be resolved for guidance of the Court. In Chaganti9, the Court examined
the legislative intent for expeditious conclusion of investigation and the
consequences of the failure of the prosecution to conclude investigation
1
  1995 (Supp) 3 SCC 221
2
  (2015) 8 SCC 340
3
  (2020) SCC OnLine SC 867
                                                                                G
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.                                                                 H
724              SUPREME COURT REPORTS                            [2021] 1 S.C.R.


A     within the permitted period. However, the ratio in Chaganti10 and also
      in Mhd. Ashraft Bhat11 was not brought to the notice of the 3 judges
      bench in M Ravindran12 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.
B            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,
C     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 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.
D
             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.

E            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.

      Bibhuti Bhushan Bose                             Matter referred to larger bench.
F




G


      10
         Ibid.
      11
         Supra note 6.
      12
         Supra note 3.
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