TaxTMI 
TaxTMI 
2020 (8) TMI 937
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....O-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 h....
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....t 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 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 ju....
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.... (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 i....
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.... 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 ....
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....sed 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. ....
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....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 ....
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....ode. 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 reman....
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....e 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 ....
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....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. ....
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....hi 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 th....
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....s Court in State of M.P. Vs. Rustom setting aside the order of grant of bail b the High Court on a conclusion 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, ....
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...., 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 decision 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, ....
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.... 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 per....
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....h 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 mad....
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.... 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 ....
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.... 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 :- ORDER (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 an....