TaxTMI 
TaxTMI 
2023 (3) TMI 1453
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....dha Pande, AOR Mr. Bharat Bagla, Adv. Mr. Sourav Singh, Adv. Mr. Sarad Kumar Singhania, AOR Mr. Amit K. Nain, AOR JUDGMENT HRISHIKESH ROY, J. 1. John Locke in his work, Two Treatises of Government (1689)- stressed on personal liberty and stated that, "The end of Law is not to abolish or restrain, but to preserve and enlarge Freedom: For in all the states of created beings capable of Laws, where there is no law, there is no Freedom." [John Locke, 'The Second Treatise of Civil Government', December 1689.] 2. In the present case, we discuss the rights of such accused, whose right to default bail, hangs in the balance by difference of a single day or even less. Ostensibly, one may presume this to be insignificant. However, the constitutional import of the matter is such, that personal liberty, which may only be taken away by a just and fair procedure established by law, needs to be analyzed and protected. The issue is simple to state but hard to answer. It is embedded in a maze of case law that this Court needs to negotiate. Simply put, the Court needs to answer whether the period of remand under the first proviso to Sec. 167 (2) of the Code of Criminal Procedure, 1973 (hereinafter....
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....y this Court in various cases, but there is a divergence of opinion on how the stipulated period, for the right of default bail, accruing to the accused, is to be computed. Some judgements have favoured the exclusion of date of remand, while a contrary view is taken in other cases. 7. The prosecution relies, on the line of reasoning in State of M.P. Vs. Rustam & Ors. 1995 (Supp) 3 SCC 221, which was later followed in Ravi Prakash Singh Vs. State of Bihar (2015) 8 SCC 340 and M. Ravindran Vs. Intelligence Officer, Director of Revenue Intelligence (2021) 2 SCC 485, where it was held that the date of remand is to be excluded for computing the stipulated 60/90 day period, for the right of default bail, to arise. 8. On the other hand, the Accused rely, inter alia, on Chaganti Satyanarayan Vs. State of Andhra Pradesh (1986) 3 SCC 141, CBI Vs. Anupam J Kulkarni (1992) 3 SCC 141, State Vs. Mohd. Ashraft Bhat (1996) 1 SCC 432 and State of Maharashtra Vs. Bharati Chandmal Varma (2002) 2 SCC 121, to contend that the first date of remand must be included for computing the remand period for determining an accused's entitlement to default bail. 9. Due to the aforementioned conflict in law, a ....
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....ts contended before the High Court that they were arrested on 14.5.2020 and on the very same day, they were remanded by the Magistrate and such remand orders came to be passed from time to time. As per the ED, on 11.7.2020, (i.e. a Saturday), a complaint was filed by them, through e-mail and it was argued by the applicants that this was only a forward but not the entire complaint. On 13.7.2020 i.e. Monday, the ED filed the physical complaint before the Court. Based on these facts, the applicants' counsel submitted that the period of 60 days from the date of remand of the applicants (14.5.2020) expired on 12.7.2020 (Sunday) and the applicants on 13.7.2020 sought enlargement on default bail, under the proviso (a) (ii) of Section 167 (2), CrPC. Initially, the applications were transmitted through e-mail at around 8:53 AM and after about two hours on 13.7.2020, at around 11 AM, the bail applications were presented for physical filing in the Sessions Court and a token acknowledging the filing was issued and the applications were also numbered. 14. The ED claimed to have filed the complaint through e-mail on 11.7.2020 followed by a physical application on 13.7.2020. As per the ED, relyi....
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....h contention, Mr. Raju placed reliance on N. Sureya Reddy vs. State of Orissa 1985 Crl. LJ 939 (Ori). 17.3 The learned ASG additionally argued that the ratio in Chaganti (supra) was wrongly relied upon by the High Court to compute the period of default bail under the first proviso to Section 167 (2) of the CrPC. Since the date of arrest is the same as the date of remand, the ratio in Chaganti (supra) according to the learned ASG has no application and was therefore wrongly applied by the High Court in the present facts. 18.1 Per contra, Mr. Mukul Rohatgi, Mr. Kapil Sibal and Mr. Amit Desai, learned Senior Counsels for the respondents, argue that the period envisaged under proviso (a) of Section 167 (2) of the CrPC must be calculated from the date of remand order and exclusion of the first day of the Court's gaze upon the accused would be illogical. The counsel have based their arguments on the ratio in Chaganti (supra) which was approved in several subsequent judgements such as CBI Special Investigation Cell, New Delhi Vs Anupama Kulkarni (supra), Pragyna Singh Thakur Vs. State of Maharashtra (2011) 10 SCC 445. The counsels for the respondents also rely on the decisions in State ....
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....ding the accused to the nearest Magistrate should also transmit a copy of entries in the diary relating to the case. The entries in the diary are meant to afford to the Magistrate the necessary information upon which he can take the decision whether the accused should be detained in the custody or not. The law enjoins upon the investigating agency to carry out the investigation, in a case where a person has been arrested and detained, with utmost urgency and complete the investigation promptly in prescribed period. The proviso to sub-section (2) fixes the outer limit within which investigation must be completed and in case the same is not completed within the prescribed period, the accused would acquire a right to be released on bail and if he is prepared to and does furnish bail, the Magistrate shall release him on bail and such release shall be deemed to be grant of bail under chapter XXXIII of Cr.P.C. The proviso inserted by Act No. 45 of 1978, comes into operation where the Magistrate thinks fit that further detention beyond the period of fifteen days is necessary and it lays down that, the Magistrate may authorise the detention of the accused person otherwise than in the cus....
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....istrate to whom the accused person is forwarded and the Magistrate may then authorize the detention of the accused to further custody. In terms of sub-section (2), the Magistrate 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 appropriate 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 the 15 days period, other than in the custody of the police, if he is of the opinion that the circumstances so demand. But, the Magistrate shall not authorize the detention of an accused person in custody for a total period exceeding 90 or 60 days in clause (i) or clause (ii) of proviso (a), respectively. 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 r....
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....ion (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 have started, sub-section (2) states 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 may continue except for the default-bail right which accrues to the accused on expiry of the 60th or 90th day, in terms of the first proviso to sub-section (2) of Section 167. Thus, the legislative intent providing for the 60/90 day statutory period- 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 speedy justice to the victim and to the society in general. 25. The insertion of proviso (a) to Section 167(2) of the Code was examined and analyzed in Chaganti (supra). In writing the two-judge bench opinion in the case, S. Natarajan J. had the occasion to examin....
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....the prescribed 60/90 day remand period, the date of remand was included. 28. In the above context, let us now examine the decision in State of M.P. vs. Rustam (supra), and Ravi Prakash Singh Vs. State of Bihar (supra) which are relied upon by the learned ASG to argue that the period specified in proviso (a) to Section 167 (2) of the CrPC should exclude the date of remand. On reading Rustam (supra), it comes to light that the Court while counting the period has considered Sections 9 and 10 of the General Clauses Act. But in doing so, the Court in Rustam(supra) failed to appreciate the ratio in Chaganti (supra) where it was categorically observed, that for the purpose of computing the period under Section 167 (2), the provisions of General Clauses Act will have no application. Insofar as Ravi Prakash Singh (supra) cited by Mr. Raju, it can be seen that the Court merely follows Rustam (supra) and it does not lay down any law as such, which may have a bearing on the present consideration. 29. Considering the legislative intent behind Section 167 (2) CrPC, and the proviso (a) being a complete code in itself, as also elucidated in Chaganti (supra), the computation method laid down in R....
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....m Navlakha (supra). 33. The 3-Judge Bench in M. Ravinrdan (supra), followed Rustam (supra) viz. a viz. Ravi Prakash (Supra), wherein the date of remand is excluded. However, the computation as stipulated in Rustam (supra), being per incuriam, cannot in our opinion be considered as the correct law. Therefore, the Court in Ravindran (supra) ought to have followed the computation principle laid down in Chaganti and not Rustam. 34. The learned Single Judge in the impugned judgment was conscious of the ratio in Rustam (supra) and Ravi Prakash (supra) where the Court had taken into consideration Section 9 of the General Clauses Act, 1897 and observed that Section 9 may have some relevance where the concerned statute prescribes the period of limitation and the exclusion of first in a series of days or any other period of time, may then be in order. The Court observed that "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' indicates the beginning, i.e. the opening day which is to be excluded and, the last day is included by use of the word 'to'. The requisite 'from' for applicability of Section 9 is p....
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.... was prompted, to confer a right on the accused to be released on default bail if he is prepared to offer bail bond and the investigation may still continue. This is why the General Clauses Act cannot be made applicable to sub-section (2) of Section 167. Moreover, excluding the date of the remand order would also result in a break in the continuity of the custody of the accused which begins on his date of arrest under Section 56 and continues till the stipulated 60/90 day period, under Section 167. Additionally, it is to be noted that when we include the date of remand order as the first day of the stipulated remand period- there arises no fixed 60-day period for which the accused is remanded. Once the Magistrate authorises remand, irrespective of the time of the day, when he does so, the prosecution, in each case will have a varying period of custody which may range in a moving cursor manner from a spectrum of 59 days and 23 hours or so to 59 days and 1 hour or so for offences covered under proviso a(ii) of Section 167(2). The exact period of remand for an accused is subject to the first gaze of the Magesterial court and the signing of the remand order. This explains the finding i....
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....post judicial scrutiny, is empowered to investigate, starting on the same day, as per Section 167 CrPC, irrespective of whether the police actually commence investigation on the same day. So, if the police is empowered to investigate an accused person on the day of the remand order itself, the 60/90 day stipulated period, upon whose expiry, the right of default bail accrues to the accused, should logically be calculated from that day itself. Ignoring the date of remand under Section 167 CrPC in the 60/90 day period, would in our opinion, militate against the legislative intent of providing an accused protection from being in prolonged custody, because of slothful investigation. 37. In Rakesh Kumar Paul vs. State of Assam (2017) 15 SCC 67 a three-judge Bench of this Court while examining the ratio in Union of India vs. Nirala Yadav (2014) 9 SCC 457 and Uday Mohanlal Acharya vs. State of Maharashtra (2001) 5 SCC 453, observed that on the expiry of the 60/90 day period as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in completion of the investigation within the prescribed period. T....
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....PC, the ambiguity must be resolved in favour of the accused person since liberty is at stake. This was the opinion expressed in M. Ravindran (supra) where the following was pronounced: "whenever there is any ambiguity in the construction of a penal statute, the Courts must favour the interpretation which leans towards protecting the rights of the accused, given the ubiquitous power disparity between an individual and the State." 41. Similarly, In Rakesh Paul (supra), a three-judge bench of this court, in context of, Section 167, held that where, on reading the statute, two views are possible, then the provision that curtails individual liberty should be read strictly. It was observed that since Article 21 rights are involved, the Court should lean in favour of the interpretation that upholds and protects personal liberty. [Rakesh Kumar Paul vs. State of Assam, (2017) 15 SCC (109) para 72-73, (per Lokur J.)] This interpretation is also supported by the idea that Constitutional law is logically, morally and legally superior to the statutory law. [VM Bachal, The Indian Journal of Political Science, Vol. 25, No. 3/4, Conference Number For XXVI Indian Political Science Conference 196....
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....and freedom. Any law that takes away liberty has to be just, fair and reasonable and pass muster of the collective operation of rights mentioned under Articles 14, 19 and 21. Any interpretation, given to the statutory contours of Section 167 CrPC, have to necessarily measure up to the standards of reasonableness, fairness and immutability of rights. Furthermore, this court in Kesavananda Bharti Kesavananda Bharti vs. State of Kerala (1973) 4 SCC 225. (Per CJ Sikri), speaking through the then Chief Justice Sikri, noted that, India having acceded to the Universal Declaration of Human Rights (1948), and the Constitutional mandate in Article 51, would require the Court to treat rights as inalienable, and this should guide the constitutional interpretation. 44. At this stage, we may benefit by remembering the dissenting opinion of Justice Louis D. Brandeis in Olmstead vs. US. Olmstead vs. US, 277 US 438 (1928), dissenting His words in the 1920's ruling on personal liberty, ring true even after a century. Justice Brandeis observed: "Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally....
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....1951)] Furthermore, constitutional courts around the world have endorsed that the question of human dignity and equality form the base of personal liberty [See the German Constitution (1945) and the Helsinki Accords (1975).]. The US Supreme Court in Munn Vs. Illinois Munn v. Illinois, 94 U.S. 113 (1876), explained the term liberty in context of the 14th Amendment to the US Constitution, and stated that, "by the term 'liberty', as used in the provision, something more is meant than mere freedom from physical restraint or the bounds of a prison. It means freedom to go where one may choose, and to act in such manner, not inconsistent with the equal rights of others, ..... that is, to pursue such callings and avocations as may be most suitable to develop (individual) capacities and give to them their highest enjoyment." [Munn v. Illinois, 94 U.S. 113 (1876), page 142. Munn v. Illinois- cited with approval by Supreme Court of India, in case of Kharak Singh vs. State of UP (1964) 1 SCR 332 and later in KS Puttaswamy vs. UoI (2017) 10 SCC 1.]. These words were later adopted by this Court, in the context of Article 21 to suggest that life under Article 21 does not mean, mere animal existen....