Saturday, 22 August 2020

Bombay HC: Period for grant of default bail U/S 167 of CRPC includes the first day of remand of accused

It is pertinent to note the recent three Judge bench
decision of the Apex Court in case of S. Kasi Vs. State (Criminal
Appeal No.452 of 2020 decided on 19 th June 2020) 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. By this time, crossing several hurdles, the position of law
which has clearly emerged is that if the charge-sheet is not filed
and right for ‘default bail’ has ripened into a status of
indefeasibility, it cannot be frustrated by prosecution nor by the
Court on any pretext. It is time and again reiterated through
authoritative pronouncements that no subterfuge should be
resorted to defeat the indefeasible right of the accused for default
bail. The mandatory default bail is a sequel to non-filing of the
charge-sheet/challan within the period set out by clause (i) and
(ii) as the case may be of Section 167(2) (a) of the Code. The
merits of the matter cannot be gone into at this stage.
As a corollary to the aforesaid discussion, 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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
LDVC BAIL APPLICATION NO.400 of 2020

Kapil Wadhawan  Vs  Directorate of Enforcement,

CORAM: SMT. BHARATI DANGRE, J.
DATED : 20th AUGUST, 2020.


1 LDVC Bail Application No.400/2020 is filed by
Kapil Wadhawan and LDVC Bail Application No.401/2020 is
filed by Dheeraj Wadhawan. Since both the applicants are
arraigned as accused in the same ECIR registered by Directorate
of Enforcement, and since both the applications seek mandatory
default bail with the aid of 167(2)(a)(ii) of Cr.P.C, both the
applications were argued together and decided by this common
order.
2 The applicants came to be arraigned as accused in
ECIR/MBZO-I/3/2020 registered by the Enforcement
Directorate for the alleged commission of offence under Section 3
of the Prevention of Money Laundering Act, 2002 (PMLA). The
said ECIR was registered on 7th March 2020. Both the applicants
were shown to be arrested by the respondents in the said ECIR
from Taloja Jail where they were confined in judicial 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 counsel Shri Amit Desai has
extensively referred to Section 167 of the Code of Criminal
Procedure (hereinafter referred to as ‘the Code’) and in the
backdrop of the facts involved submit that the applicants came to
be arrested on 14th May 2020 and on the very same day, they was
remanded before the Magistrate. Remand orders were passed by
the Magistrate from time to time and it is on 11th July 2020, a
complaint was filed by the Enforcement Directorate (ED)
through e-mail, which according to him was the entire complaint
but only a forward. The said day being Saturday. On 13th July
2020 i.e. on Monday, the copy of the complaint in its physical
form was tendered before the Court.

4 Learned counsel assert the period of 60 days from the
date of remand of the applicants i.e. 14th May 2020 expired on
12th July 2020 (Sunday). On 13th July 2020, the applicants
moved an application seeking enlargement of bail under Section
167(2)(a)(ii) of the Code of Criminal Procedure. The application
was transmitted through an e-mail of the counsel for the
applicants at 8.53 a.m. On the very same day, at around 11.00
am, the Bail Application was presented for physical filing in the
Sessions Court and a token was issued and the said application
came to be numbered. The roznama placed on record dated 13th
July 2020 take note of the details of the filing and receipt of the email by the Special Court. The respondent claimed to have
forwarded complaint on 11/7/2020 through e-mail. On 13th July
itself, an application was moved by the respondent seeking
extension of judicial remand of the applicants. The in-charge
Court extended the judicial custody by one day till 14th July 2020
and the Bail Application was taken up for hearing through video
conferencing. The respondent filed their reply and contended
that 60 days period from the date of remand would be completed
on 13th July 2020 and the complaint has been filed physically on
that day. Shri Desai would submit that there was a roster for
Judges who were functional on 11th and 12th July 2020 though it
was Saturday and Sunday.
On 14th July 2020, the day on which the application
was heard, it came to be rejected by the Special Judge, refusing to

extend the benefit of default bail to the present applicants. The
learned Special Court did not dispute the factual aspect that the
applicants were arrested on 14th May 2020 and produced for
remand before the Court on the same day and the complaint was
filed by the E.D on 13th July 2020. The learned Judge also 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 the said day cannot be excluded. The
counsel submits that the learned Single Judge has taken into

consideration the entire spectrum of the existing position of law
and held that there cannot be exclusion of any period from
authorized detention while computing the period of 60 days/90
days as the case may be by invoking the provisions of General
Clauses Act, 1897. By recording the said finding, the applicant
came to be released on bail in accordance with sub-section (2) of
Section 167.
6 His opponent, the learned Additional Solicitor
General however resists his claim and raise question over the
binding effect of the judgment in case of Deepak Kudalkar. The
submission of the learned Senior counsel for Enforcement
Directorate is to the effect that the said judgment is not good law
and he says so in light of two pronouncements of the Apex Court
being in case of State of Madhya Pradesh Vs. Rustom and ors,
1995 (Supp) 3 SCC 221 which is followed in Ravi Prakash Vs.
State of Bihar, 2015 (8) SCC 340. In light of the position where
the adversarial counsels are at loggerhead over the binding effect
of the judgment in case of Deepak Kudalkar, it has become
imperative for me to refer to the decisions relied by respective
parties in brief.
7 The counsel for the applicants has anchored his
submission on Chaganti Satyanarayan Vs State of Andhra
Pradesh, 1986 (3) SCC 141. Followed by judgment in case of

CBI Special Investigation Cell, New Delhi Vs Anupama
Kulkarni, 1992(3) SCC 141. The next judgment on which
reliance is placed is in case of Pragyna Singh Thakur Vs. State of
Maharashtra, 2011(10) SCC 445, where judgments in case of
Chaganti and Anupam Kulkarni were taken note of. Apart from
the aforesaid said three judgments, Shri Desai has also relied on
the following judgments:-
(1) State Vs. Mohd Ashraf Bhat,
1996 (1) SCC 432
(2) State of Maharashtra Vs. Bharati Chand Verma,
2002, (2) SCC 121.
(3) Uday Acharya Vs. State of Maharashtra
2001 (5) SCC 453
(4) S.Kasi Vs. State, 2020 SCC Online SC 529.
(5) Sanjay Dutt Vs. State, 1994 (5) SCC 410.
The learned senior counsel has also relied upon the
judgments of different High Courts including the judgment of
the Bombay High Court in case of State of Maharashtra Vs.
Sharad Sarda, 1982 SCC Online 287.
The fulcrum of arguments of Shri Anil Singh is the
judgment in case of Rustam and Ravi 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, as to the claim whether the first day of
remand has to be included or excluded. With the well researched
efforts put in by my brother Judge, in Deepak’s case, I will
cursorily refer to the ratio flowing from the judgment so as to
discern the stand of the respective parties in the backdrop of the
statutory scheme which I would briefly refer to.

9 The Code of Criminal Procedure which chart out the
procedure to be followed for investigation into an offence provide
machinery for prosecution, trial and punishment of offenders
under the various substantive criminal laws. Followance of the
procedure ensure a fair trial, in which the rights of the accused are
weighed in the scales of justice to the rights of the victim and of
the Society at large and an appropriate balance is struck. The
Scheme contained in the Code confer power to arrest person with
or without warrant who is suspected to be an offender. The
investigation contemplated under the Code includes all the
proceedings for collection of evidence collected by a police officer
or by any person who is authorized by a Magistrate in this behalf.
On completion of investigation into a cognizable/non-cognizable
offence as contemplated under Chapter XII of the Code, Section
173 stipulate submission of a report. The Code contemplates
every investigation under Chapter XII to be completed without
unnecessary delay. What should be contained in the report which
is to be forwarded to the Magistrate, empowered to take
cognizance of an offence on a police report is also prescribed by
the Code. Pertinent to note that there is no express limitation or
outer limit prescribed for completion of investigation. Barring
sub-section (1) of Section 173 which provide that every
investigation under this Chapter shall be completed without
unnecessary delay, no time frame is to be found. Sub-section (8)
of Section 173 authorizes the officer in charge of a police station,

who even after submission of the report of investigation to the
Magistrate, on obtaining further evidence can forward a further
report regarding such evidence.
During the course of investigation, when a person is
arrested suspecting his alleged involvement in the offence by a
police officer, the Code levies a limitation on his detention and it
is found in Section 57 which reads as under :-
“No police officer shall detain in custody a person arrested
without warrant 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
founded, the police officer making investigation is duty bound to
transmit the accused to the Magistrate along with the copy of the
entries in the diary. This is the mandate of sub-section (1) of
Section 167. Sub-section (2) then set out the course of action to
be followed by the Magistrate to whom the accused person is
forwarded. The Magistrate is assigned a role to oversee the course
of investigation and to prevent abuse of law by the Investigating
Agency.
The Magistrate in terms of sub-section (2) may
authorize the detention of the accused in such custody as he
thinks fit for a term not exceeding 15 days in the whole but if he
has no jurisdiction to try the case or commit it for trial and
consider that the detention is unnecessary, on perusal of the
entries in the diary, he may release the accused or forward him to
the Magistrate having jurisdiction. The sub-section is appended
with a proviso which places an embargo on the power of the
Magistrate and authorizes detention of the accused person
beyond period of 15 days, other than in the custody of the police,
if he is of the opinion that adequate grounds demand so but the
Magistrate shall not authorize the detention of the accused person
in custody for a total period exceeding 90 days in clause (i) or 60
days in clause (ii). A right accrues to the accused if the

investigation is not completed within the period prescribed in
clause (i) or clause (ii) and on expiry of the said period, the
accused person shall be released on bail if he is prepared to and
furnish bail for his release.
12 The procedure prescribed in Section 167 charter a
course of action for an accused who has been arrested by a police
officer and on expiry of period of 24 hours, which is the
maximum period for which the police officer can detain him, and
his further detention is subject to authorization by the Magistrate.
Sub-section (1) and (2) of Section 167 of the Code contains a
linkage and as soon as the period of 24 hours fixed by Section 57
is over, it is followed by the production of the accused before the
Magistrate and the procedure contemplated in sub-section (2)
immediately ensue in line. The wording applied in sub-section
(2) makes it amply clear. The Magistrate to whom the accused
person is forwarded shall “authorize the detention of the accused”
in custody as he thinks fit for a term not exceeding 15 days in the
whole. The mandate 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 investigation in serious
offence failed to adhere to the intention of the legislature,
completing the investigation in 24 hours. Though the
expectation of the legislature surfaced through Section 167
enacted in the Code, 1898, it did not make any distinction in the
nature of offence or the punishment. The Law Commission of
India in its 41st Report, proposed to increase the time limit for
completion of investigation to 60 days with an expectation that
such extension may result in maximum period becoming the rule
in every case as a matter of routine. The recommendation of the
Law Commission were carefully examined and accepted and
keeping in view the broader perspective of an accused getting a

fair trial, but at the same time, avoiding any unnecessary delay in
investigation and particularly when it was not only harmful to the
accused but to those seeking justice and to the Society. The
provision therefore, came to be amended by Act 45 of 1978
inserting sub-section (a) which included clauses (i) and (ii).
14 The provisions of the Code, in particular, section 57
and section 167 manifest the legislative anxiety that once the
liberty of the person is interfered with by the police arresting him
without a Court’s order or the warrant, the investigation must be
carried out with utmost promptitude and completed within a
period allowed by proviso (a) to Section 167(2). On failure of
prosecuting agency to grab the urgency and a default on its part to
file a challan within the stipulated period, the accused would be
entitled to be released on bail.
15 The Section contemplate a continuous process in subsection
(1) and sub-section (2) and sub-section (2) authorizes the
custody by a police officer for 24 hours which he had availed for
the purposes of investigation. The power of Magistrate in further
authorizing his detention exceeding 15 days with a limitation of
15 days in the police custody, if adequate grounds exist, serves
two-fold purpose. The detention of the accused in custody of
police is only on the authorization of the Magistrate. Sub-section
(3) of Section 167 makes it mandatory for the Magistrate to

record reasons whenever custody is granted to the police. The
Magistrate may refuse the custody of an accused to the police if he
is of the view that the custodial interrogation is unwarranted.
However, when the accused is forwarded to the Magisterial
custody, 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 provision contained in Section 468 and Section

436A, there is no limitation prescribed in completion of
investigation and the investigation can continue but for the right
which accrues to the accused on expiry of 60th and 90th day in
terms of sub-section (2) of Section 167. This being the entire
scheme of investigation of offences contemplated under the Code
of Criminal Procedure which serves a twin purpose, firstly speedy
trial of the accused which would transform him into a convict or
his release on culmination of the trial and secondly, to assure
justice to the victim and to the society in general.
17 In light of the statutory scheme, I would refer to the
judgments relied upon by the parties during the course of
arguments. The judgment in case of Chaganti (supra) clearly dealt
with the proviso (a) of Section 167(2) and the question which fell
for consideration was whether total period of 90 days or 60 days
prescribed in sub-clause (i) & (ii) of proviso (a) to be computed
from the date of remand of the accused or from the date of his
arrest. The question arose in the backdrop of the fact that the
accused was arrested on 19th July 1985 produced before the Addl.
Munsif Magistrate on 20th July 1985, remanded to judicial
custody for a period of 15 days and the remand was extended
from time to time till 18th October 1985. The charge-sheet was
filed on 17.10.1985 i.e. on 90th day of remand in the offence of
murder and rioting. After analyzing the historical background of
the legislative provision, Their Lordships held as under :-

14 Apart from these anomalous features, if an
accused were to contend that he was taken into custody
more than 24 hours before his production before the
Magistrate and the police officer refutes the statement, the
Magistrate will have to indulge in a fact finding inquiry to
determine when exactly the accused was arrested and from
what point of time the remand period of 15 days is to be
reckoned. Such an exercise by a Magistrate ordering
remand is not contemplated or provided for in the Code. It
would, therefore, be proper to give the plain meaning of
the words occurring in sub-section (2) and holding that a
Magistrate is empowered to authorise the detention of an
accused produced before him for a full period of 15 days
from the date of production of the accused.
16 As sub-section (2) of Section 167 as well as
proviso (1) of sub-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 has at the same time taken care to
see that the interests of the accused are not jeopardised by
his being placed under police custody beyond a total
period of 15 days, under any circumstances, irrespective of
the gravity of the offence or the serious nature of the case.
19 Now coming to proviso (a) itself, the proviso
authorises a Magistrate to order further detention of an
accused person, otherwise than in police custody which as
already stated means that the maximum period under
which a Magistrate can place an accused in police custody
is only 15 days. A limitation to the powers of further
remand is, however, placed by interdicting the Magistrate
from authorising the detention of an accused person in
custody beyond a total period of 90 days where the offence
is punishable with death, imprisonment for life or for a
term of not less than 10 years and beyond a total period of
60 days in other cases. The interdiction will, however,
operate only in those cases where the accused persons are
in a position to furnish bail.
20 The words used in proviso (a) are "no Magistrate
shall authorise the detention of the accused person in
custody", "under this paragraph", "for a total period
exceeding i.e. 90 days/60 days". Detention can be
authorized by the Magistrate only from the time the order
of remand is passed. The earlier period when the accused
is in the custody of a police officer in exercise of his
powers under Section 57 cannot constitute detention
pursuant to an authorization issued by the Magistrate. It,
therefore, stands to reason that the total period of 90 days
or 60 days can begin to run only from the date of order of
remand.

18 As regards the applicability of the provisions of
General Clauses Act in light of the submissions advanced by the
learned counsel for the State, the judgment overrules a series of
judgments relied upon from various High Courts and in
paragraph no.32, it is held as under :-
“As the terms of proviso (a) with reference to the total
periods of detention can be interpreted on the plain language
of the proviso itself we do not think it is necessary to invoke
the provisions of the General Clauses Act or seek guidance
from the Limitation Act to construe the terms of the proviso”.
19 The next judgment relied upon is in the case of CBI
Vs. Anupam Kulkarni (supra) where the issue was slightly
different. The question that 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 date of order or remand. Section 167(2A) which has
been introduced for pragmatic reasons states than if an
arrested person is produced before and Executive Magistrate
for remand the said Magistrate may authorise the detention
of the accused not exceeding seven days in aggregate. It
further provides that the period of remand by the Executive
Magistrate should also be taken into account for computing
the period specified in the proviso i.e. aggregate periods of
ninety days or sixty days. Since the Executive Magistrate is
empowered to order detention only for seven days in such
custody as he thinks fit, he should therefore either release the
accused or transmit him to the nearest Judicial Magistrate
together with the entries in the diary before the expiry of
seven days. The Section also lays down that the Judicial
Magistrate who is competent to make further orders of
detention, for the purposes of computing the period of
detention has to take into consideration the period of
detention ordered by the Executive Magistrate. Therefore on
a combined reading of Section 167(2) and (2A) it emerges
that the Judicial Magistrate to whom the Executive
Magistrate has forwarded the arrested accused can order
detention in such custody namely police custody or judicial
custody under Section 167(2)for the rest of the first fifteen
days after deducting the period of detention ordered by the
Executive Magistrate. The detention thereafter could only be
in judicial custody. Likewise the remand under Section 309
Cr. P.C. can be only to judicial custody interims mentioned
therein. This has been concluded by this Court and the
language of the Section also is clear. Section 309 comes into
operation after taking cognizance and not during the period
of investigation and the remand under this provision can only
be to judicial custody and there cannot be any controversy
about the same., vide Natabar Parida and other v. State of
Orissa, [1975] 2 SCC 220.

20 Conclusively, it upheld the judgment of the High
Court which allowed the petition holding that period of 90 days
envisaged by the proviso to Section 167(2) has to be computed
only from the date of remand as against the finding of Magistrate
who held it to be reckoned from the date of arrest. Mr.Desai has
heavily relied upon the judgment in case of Chaganti and has
submitted that this judgment excludes the applicability of
General Clauses 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 finds that there is no violation of
Article 22(2) of the Constitution, because on being arrested
on October 23, 2008, the appellant was produced before
the Chief Judicial Magistrate, Nasik on October 24, 2008
and subsequent detention in custody is pursuant to order of
remand by the Court, which orders are not being
challenged, apart from the fact that Article 22(2) is not
available against a Court i.e. detention pursuant to an
order passed by the Court.
50 The appellant has not been able to establish that
she was arrested on October 10, 2008. Both the Courts
below have concurrently so held which is well founded and
does not call for any interference by this Court.
51 Though this Court has come to the conclusion
that the appellant has not been able to establish that she
was arrested on October 10, 2008, even if it is assumed for
the sake of argument that the appellant was arrested on
October 10, 2008 as claimed by her and not on October 23,
2008 as stated by the prosecution, she is not entitled to
grant of default bail because this Court finds that the
charge sheet was filed within 90 days from the date of first
order of remand. In other words, the relevant date of
counting 90 days for filing charge sheet is the date of first
order of the remand and not the date of arrest. This
proposition has been clearly stated in the Chaganti
Satyanarayana and Others vs. State of Andhra Pradesh
(1986) 3 SCC 141.
52 If one looks at the said judgment one finds that
the facts of the said case are set out in paragraphs 4 and 5
of the judgment. In paragraph 20 of the reported decision it
has been clearly laid down as a proposition of law that 90
days will begin to run only from the date of order of
remand. This is also evident if one reads last five lines of
Para 24 of the reported decision. Chaganti Satyanarayana
and Others (Supra) has been subsequently followed in the
following four decisions of this Court :

(1)Central Bureau of Investigation, Special Investigation
Cell-I, New Delhi vs. Anupam J.
Kulkarni (1992) 3 SCC 141, para 9 placitum d-e, para 13
placitum c where it has been authoritatively laid down
that :
"The period of 90 days or 60 days has to be computed from
the date of detention as per the orders of the Magistrate
and not from the date of arrest by the police".
(2) State through State through CBI vs. Mohd.
Ashraft Bhat and another (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 reproduction :-

3 We find that the High Court was in error - both in the
matter of computation of the period of 90 days prescribed as
also in applying the principle of compulsive bail on
entertaining a petition after the challan was filed as the socalled
"indefeasible right" of the accused, in our view, stood
defeated by efflux of time. The prescribed period of 90 days,
in our view, would instantly commence either from 4-9-1993
(excluding from it 3-9-1993) or 3-12-1993 (including in it 2-
12-1993). Clear 90 days have to expire before the right
begins. Plainly put, one of the days. Sections 9 and 10 of the
General Clauses Act warrant such an interpretation in
computing the prescribed period of 90 days. The period of
limitation thus computed on reckoning 27 days of September,
31 days of October and 30 days of November would leave two
clear days in December to compute 90 days and on which
date the challan was filed, when the day running was the 90th
day. The High Court was, thus, obviously in error in assuming
that on 2-12-1993 when the challan was filed, period of 90
days had expired”
The judgment sketchily refers to the facts but
highlight the date of remand to be 3.9.1993 and state that the
date of submission of challan was 2.12.1993. In para 3 while
counting the period of 90 days, it has been counted from
4/9/1993 (excluding 3/9/1993) i.e. the date of remand. The
judgment in Chaganti was not noted.
22 In case of Union of India Vs. Nirala Yadav, 2014 (9)
SCC 457, a Co-ordinate Bench of the Apex Court overruled State
of M.P. Vs. Rustam and in paragraph 22, it referred to the
judgment in Uday Mohanlal Acharya with the following
observation:-

“13 … Since the legislature has given its mandate, it would
be the bounden duty of the Court to enforce the same and it
would not be in the interest of justice to negate the same by
interpreting the expression ‘if not availed of’ in a manner
which is capable of being abused by the prosecution. A two
Judge Bench decision of this Court in State of M.P.
Vs.Rustom setting aside the order of grant of bail b the High
Court on a conclusoin that on the day of order, the
prosecution had already submitted a police report and,
therefore, the right stood extinguished, in our considered
opinion, does not express the correct position in law of the
expression ‘if already not availed of’ used by the Constitution
Bench in Sanjay 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 Court and then the right as such was not
available.
23 The judgment in Rustam was then followed in Ravi
Prakash (supra) but Ravi Prakash also contain a reference to
Chaganti and the proposition that period of 90 days shall be
computed from the date of remand of the accused and not from
the date of his arrest, was followed. However, on the factual
aspect being the appellant Ravi Prakash who has surrendered
before the CJM on 5th July 2013 for the offence punishable under
sections 302 read with Section 34 and 120B of the IPC and who
was remanded to judicial custody till 19th July 2013 and the last
remand being granted till 3rd October 2013 on which date an
endorsement was made by the CJM that charges-sheet has already
been received, as such, Bail Application moved under Section
167(2) was rejected. On facts of the case, it was held that the
relevant date as the date when the accused surrendered and was
remanded by the Court should be taken into consideration and
relying upon Rustam, the date on which the accused was
remanded to judicial custody was excluded and date on which
challan was filed, was included. 5th July 2013 was therefore,
excluded and the charge-sheet filed on 3rd October 2013 was

therefore, held not to confer any right on the accused to seek bail
as there was no infringement of Section 167(2) of the Code. The
Appeal came to be dismissed.
24 The judgment in case of Deepak Kudalkar (supra) in
great detail, has referred to the judgment in case of Nirala Yadav
(supra) and it has been extensively relied upon and particularly,
para 44 of the said decision, finds a mention to the effect that
decision in case of Rustam did not state the correct position of law
and it should not have been considered in Pragyna Singh
Thakur’s case while expressing view in para 54 and 58 of the said
decision. In Deepak Kudalkar (supra), Reliance was placed on
State of Maharashtra Vs. Sharad Sarda where in paragraph no.9, it
was held that on plain reading of Section 167 of the Code, it do
not admit two meanings and plainly read and giving effect to the
intention of the legislature, the accused cannot be allowed to
remain in custody for more than 60 or 90 days. The date of arrest
under Section 57 cannot be included while computing the period
of 60 or 90 days. I need not repeat the exercise undertaken by the
learned Judge in Deepak in dealing with the judgment in case 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 decisino 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 to the custody. Although,
decision in the case of Rustam was delivered subsequently,
both the aforesaid decisions in Chaganti Satyanarayan and
CBI Vs. Anupam Kulkarni judgment was not placed for
consideration while deciding Rustam’s case. In the case of
Pragnya Singh Thakur (supra) also it was observed that the
period as stated above starts running from the date of order
of remand. This decision was delivered after decisions in
Rustam’s case.
34 Thus, consistently, it has been held that the
detention is authorized from the date of remand and
therefore, the period of 60 days or 90 days starts running
from the date of the order of the remand. The date of remand
has not been excluded in those decisions.
The judgment in Deepak has in great detail dealt with the law of
precedent and as to what decision of the Apex Court would be
followed in case of a conflict and para 42 it is conclusively held
that the earlier decisions including the date of remand were not
placed for consideration while deciding Rustam. As far as the
applicability of the General Clauses Act is concerned, in case of

Chaganti, the Supreme Court in paragraph 32 (which is quoted
above), has excluded the applicability of provisions of General
Clauses Act or Limitation Act.
25 The exclusion of the provisions of General Clauses
Act, 1897 to Section 167 of the Code, is based on the practical
implementation of the procedural aspect contained in the said
Section and need a little more deliberation, since Rustam and
Ravi Prakash has taken into account Section 9 of the General
Clauses Act, 1897. It would be appropriate to reproduce the said
section :-
9 Commencement and termination of time :-
(1) In any Central Act or Regulation made after the
commencement of this Act, it shall be sufficient, for the
purpose of excluding the first in a series of 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”.
(2) This section applies to all Central Act made after the
third day of January, 1868, and to all Regulations made on or
after the fourteenth day of January, 1887.
The principle contained in the said section is based
on the principle of Halsbury Law of England, 37th Edition, Vol.3,
page 92 and it would be appropriate to quote the same.
“Days included or excluded – 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 injured in the course of his employment
with the defendant. On 8.11.1957, he filed a Suit claiming
damages for the injuries which he alleged were caused by the
defendants’ negligence. The defendants pleaded, inter alia, that
the plaintiffs cause of action, if any, accrued on 8.11.1954 and the
proceedings had not been commenced within the period of three
years, contrary to Section 2(1) of Limitation Act, 1939. While
excluding the day of accident and rejecting the plea of the
defendant, it was held as under :-

“207. …..The general rule in cases in which a period is
fixed within which a person must act or take the
consequences if day of the act or event from which the
period runs, should not be counted against him. This rule
is especially reasonable in the case in which that person is
not necessarily cognisant of the act or event; and further in
support of it there is consideration that in case the period
allowed, was one day only, the consequence of including
that day would be able to reduce a few hours or minutes the
time within which the person affected should take action.
208. In view of these considerations, the general rule is
that as well in cases where limitation of time is imposed by
an act of the parties as in those where it is imposed by a
statute, the day from which the time begins to run is
excluded; thus, where a period is fixed within which a
criminal prosecution or a civil action may be commenced,
the day on which the offence is committed or the cause of
action arises is excluded in the computation...”
The principle enunciated above has been extensively
quoted in case of Haroo Das Gupta Vs State of West Bengal,
1972 (1) SCC 639 and in a further decision of Three Judges
Bench in case of Econ Antri Ltd. Vs Rom Industries, 2014 (11)
SCC 769. In case of Haroon Das Gupta (supra), the petitioner
was arrested and detained on 5th February 1971 by order of
Magistrate passed on that day. The order of confirmation and
continuation which was to be passed within three months from
the date of detention, that was 5th May 1971. The question for
decision was as to when the period of three months can be said to
have expired. The contention of the petitioner was that the

period of three years expired on midnight of 4th May 1971 and
any confirmation and continuation of detention thereafter could
not be valid. After having reference to several 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, which has both a
beginning and an end; the word ‘from’ indicate the beginning and
then the opening day is to be excluded and then the last day is

included by use of words ‘to’. The requisite form for applicability
of Section 9 is prescribed for a period ‘from’ and ‘to’, i.e. when the
period is marked by terminus quo and terminus ad quem.
If this principle is the underlining principle for
applicability of Section 9 of the General Clauses Act, 1897,
perusal of Section 167 (2) would reveal that there is no starting
point or an end point. In the scheme of the Code, as has been
elaborated above, the provisions contained in sub-section (1) of
Section 167 runs in continuation of sub-section (2). Production
of the accused before the Magistrate is a sequel of his arrest by the
police in exercise of their power and the mandate of the police,
and at the same time, a right of the accused to be produced before
the Magistrate within 24 hours. The day on which the accused is
brought on remand before the Magistrate, sub-section (2) of
Section 167 empowers the Magistrate to authorize the detention
with the police either by continuing it or remanding him to
Magisterial custody. There cannot be a pause/break between the
two processes. There is no de-limitation conceptualized in
Section 167 nor can it be befitted into a period of limitation
‘from’ and ‘to’ as there is no limitation for completion of
investigation and filing of the charge-sheet. The production
before the Magistrate is a process in continuation of his arrest by
the police and the Magistrate will authorize his detention for not
more than 15 days in the whole but if he is satisfied that sufficient
ground exist, he may authorise his detention beyond 15 days

otherwise than in custody of police. There is no starting point or
end point for the authorities to complete their action but if the
investigation is not completed and charge-sheet not filed within
60 days or 90 days, a right accrues to the accused to be released
on bail.
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. 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 remand will have to be excluded, would result into
a break in the continuity of the custody of the accused which
begin on his arrest and which could have continued till
conclusion of investigation but for insertion of proviso to subsection
(2) of Section 167.
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.
28 It is pertinent to note the recent three Judge bench
decision of the Apex Court in case of S. Kasi Vs. State (Criminal
Appeal No.452 of 2020 decided on 19 th June 2020) 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. By this time, crossing several hurdles, the position of law
which has clearly emerged is that if the charge-sheet is not filed
and right for ‘default bail’ has ripened into a status of
indefeasibility, it cannot be frustrated by prosecution nor by the
Court on any pretext. It is time and again reiterated through
authoritative pronouncements that no subterfuge should be
resorted to defeat the indefeasible right of the accused for default
bail. The mandatory default bail is a sequel to non-filing of the
charge-sheet/challan within the period set out by clause (i) and
(ii) as the case may be of Section 167(2) (a) of the Code. The
merits of the matter cannot be gone into at this stage.
As a corollary to the aforesaid discussion, 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. Hence, I pass the
following order :-

O R D E R
(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 them from disclosing the facts to
Court or any Police Officer and shall not tamper with evidence.
29 At this point of time, after the order is pronounced
and the applicants being held entitled for compulsive default bail,
the learned Additional Solicitor General- Shri Anil Singh, request

for grant of stay since according to him, the Directorate of
Enforcement would like to test the pure question of law that has
been formulated and answered by this Court. The request of the
learned Additional Solicitor General deserves a rejection on a
simple count that once the view has been taken that the custody
beyond 60 days, accrues indefeasible right in favour of the
applicants and once this right has accrued, the applicants must be
set forth at liberty without any further detention and in the latest
judgment of the Hon’ble Apex Court in case of S.Kasi (supra), it
has been authoritatively held that no Court has power to extend
the said period. In view of this, request of Shri Anil Singh is
declined.
SMT. BHARATI DANGRE, J

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