A Single Bench of Bombay High Court of Justice Smt. Bharati Dangre gave an order in the case of Kapil Wadhwan & Another v. Directorate of Enforcement, in which the court granted bail to the accused.
Facts of the Case
An ECIR was lodged against Kapil Wadhwan and Dheeraj Wadhwan by the Enforcement Directorates on 7th March 2020, and they have been in judicial custody since 10th May 2020. On 14th May, the accused were presented before the special court and from there were remanded to police custody. On 27th May, they were remanded to judicial custody. The main issue before the court, in this case, was:
“Whether in computing 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?”
The counsel for the applicant submitted that:
- The period of 60 days (from the day of remand of the applicants, i.e. 14th May 2020) for filing the complaint expired on 12th July 2020, and therefore on 13th July, application for granting bail was filed in the special court.
- However, on the same day, i.e. 13th July, an application was moved by the respondent to extend the judicial custody for one more day, i.e. till 14th July. As a result, judicial custody was increased. On 14th July, the special court judge refused the argument of default bail to be given to the applicant.
- The accused are charged under Sections 3 and 4 of the Prevention of Money Laundering Act, under which the punishment is 7 years imprisonment, and as per the provision of sec. 167(2)(a), the accused should be released after the expiry of 60 days if the authorities do not file the complaint.
- The special judge did not include the day when the accused were sent to remand and stated that the 60 days expires on 15th July 2020.
- In Deepak Satyavan Kudalkar vs. The state of Maharashtra, it was held by the Bombay High Court that the period provided under Section 167 of CRPC should include the day of the remand/order also and the same cannot be excluded.
The counsel for the respondent submitted that, the judgment on which the applicant supports its case is bad in law as per the apex court judgment of State of Madhya Pradesh v. Rustam, followed by another judgment Ravi Prakash v. the State of Bihar.
The Court extensively dealt with several judgments pronounced by the Hon’ble Supreme Court and different High Courts. The Court, other than the cases relied upon the parties, also analysed the judgments given by the Supreme Court, including Chaganti Satyanarayanan & Ors. v. State of Andhra Pradesh, Central Bureau of Investigation v. Anupama J. Kulkarni and Sadhwi Pragyna Singh Thakur v. the State of Maharashtra. They observed that while calculating 60/90 days provided under Section 167 of the Criminal Procedure Code, the date of remand and not the date of arrest shall be calculated. In the present case, the special court’s order that 60 days was completed on 15th July is bad in law.
The Court gave the following orders:
- The accused are granted bail and have to deposit one lakh rupees each as a personal bond for guarantee.
- They cannot leave India without the permission of the special court. The accused Dheeraj Wadhwan was asked to surrender his passport to the ED.
- The argument of the Additional Solicitor General that the court’s decision should be stayed because he wants to appeal for testing the question of law propounded by the court was rejected on the ground that once the indefeasible right of 60 days of the grant of default bail accrued, the same cannot be stayed and this is supported by the Apex Court judgment in the Kasi case.
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