By: Pritha Lahiri
“Not only must Justice be done; it must also be seen to be done.[1]“
BACKGROUND
Recently, in February 2021, the Hon’ble Supreme Court of India referred the issue of bail in the case of DHFL promoters, Mr. Kapil Wadhawan and Mr. Dheeraj Wadhawan, to a larger bench. The issue dates back to May 2020, when the Wadhawan brothers were arrested for the alleged offence of money laundering. They were remanded on the same day. The learned Special Judge took the view that the 60 days will have to be computed by excluding the date of the first remand. However, they were granted bail by the Bombay High Court, declaring that non-filing of the charge sheet by the Enforcement Directorate within the stated period of 60 days results in mandatory default bail. To this, the central probe agency [ED] moved to the Apex Court stating that there was no procedural violation since the date of remand is usually excluded from the computation of the investigation’s allowed time frame u/s 167(2)(a) CrPC.
The view opined by the Special Judge is in sharp contrast to a catena of judgments by the Hon’ble Court on the same issue wherein it was settled that the computation of the time period under Section 167(2) CrPC has to include the day of remand.
Simply stated, the moot question here is that there has been a diverging view of opinion regarding the calculation of time u/s 167(2)(a) of the CrPC available to complete the investigation. Some rulings have favoured the omission of the date of remand, while others have taken the opposite stance. This issue has been a source of contention for a long time and requires a resolve that will allow the courts to apply the law uniformly across the country.
PROVISIONS ON REMAND AND DEFAULT BAIL: A BRIEF OVERVIEW
Any discussion on remand and default bail must necessarily include Sections 57 and 167 of CrPC. While Section 57 protects the accused by stating that any person who’s been arrested without a warrant by any police officer cannot be detained in the police custody beyond the time frame of 24 hours except where explicit permission has been sought from by the Magistrate. This special permission is generally known as “Remand”. A court’s ability to remand an accused to custody is regulated by a variety of CrPC provisions, including Sections 167(2), 209(b), and 309(2). Each provision operates independently of the others and is invoked at various phases of the criminal trial.
Section 167 CrPC deals with procedures to be followed when an investigation cannot be completed in twenty-four hours. Section 167(2) further enshrines the right to default bail according to which, if the chargesheet u/s 173 CrPC has not been filed by the investigating agency by the end of a stipulated period, the accused becomes instantly eligible to seek bail. In this regard, the proviso clause to this section states that the Magistrate has the competence to remand an accused to judicial custody for a term of not more than 60 days (for offences not punished by death, life imprisonment, or imprisonment for more than 10 years). The accused person shall be released on bail at the end of that period.
EXCLUSION VERSUS INCLUSION OF REMAND: DIFFERENT VIEWS OF THE COURT
There have been varying viewpoints expressed by courts across the country regarding the calculation of the time of 60 or 90days u/s 167(2)(a) CrPC, depending on the situation. While one position favours the inclusion of the date of remand in calculating the 60/90 days’ time period, the other position excludes the date of remand while computing the said time period and states that it should be computed from the day following the remand.
The most important case in this regard is the Chaganti Satyanarayan case which dates back to 1986. This case was a result of an appeal against the order delivered by the High Court of Andhra Pradesh wherein the learned Judge allowed the petition holding that the period of 90 days envisaged by the proviso to Section 167(2) CrPC has to be computed only from the date of remand and, therefore, cancelled the bail and directed the magistrate to issue warrants of arrest for the appellants. Further on the same lines, the Supreme Court of India in the case of State through CBI v. Mohd. Ashraft Bhat held that “if the investigation is not complete within the period of ninety days or sixty days then the accused has to be released on bail as provided under the proviso to section 167(2) CrPC. The period of ninety days or sixty 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. Consequently, the first period of fifteen days mentioned in section 167(2) CrPC has to be computed from the date of such detention.”
Contrastingly, in the present case and also in the recent case of M Ravindran v. The Intelligence Officer, the Hon’ble Court relied on Ravi Prakash Singh @Arvind Singh v. State of Bihar and held “that while computing the period under Section 167(2) CrPC the day on which accused was remanded to judicial custody has to be excluded and the day on which challan/chargesheet is filed in the court has to be included”.
WAY FORWARD
The Supreme Court must uphold the reasoning given in the judgments of Chaganti and Mohd. Ashraft and it should further hold the order of the Special Judge to be inconsistent due to the following reasons-
i. Earlier Settled Position Of Law Not Considered
The order of the Special Judge didn’t take proper considerations of the facts and didn’t consider the settled view on Section 167(2) CrPC as established in the case of Chaganti Satyanarayan & Ors. v. State of A.P wherein the Supreme Court was of the view that the time period under Section 167(2) should include the day of remand. It is in sharp contravention to the fundamental principle of precedent which states “the principle of binding precedent has the virtue of establishing certainty and consistency in judicial decisions, as well as allowing for organic development of the law and providing assurance to individuals about the outcome of transactions that occur in everyday life. As a result, there is a requirement for a court’s rulings to state legal principles clearly and consistently.”
ii. Shadows Right To Life As Provided Under Article 21 Of The Constitution
By detaining the accused after the completion of 60 days, the Special Judge’s order has shadowed the Fundamental Right guaranteed under Article 21 of this Constitution. The purpose of providing default bail is to protect the sanctum sanctorum of the Indian Constitution, which is the right to life and personal liberty established in Article 21. Personal liberty has been given top emphasis by legislators, and it can only be restricted with the procedures established by law and not otherwise. In the case of Bikramjit Singh v. State of Punjab, the same stance was reiterated by the Hon’ble Court. It was held that “the right of prosecution to carry on investigation and submit a charge sheet is not akin to right of liberty of a person enshrined under Article 21 and reflected in other statutes including Section 167, CrPC. Hence, the period u/s.167 is inviolable and cannot be extended by the Supreme Court even while exercising its power under Article 142.”It safeguards the fundamental rights of the citizen by providing for the restoration of his liberty at the earliest possible moment after the period of custody, i.e., after 60/90 days is over.
iii. The Legislative Intent Behind Section 167(2)(a) Has Been Ignored
The Amendment (Act 45 of 1978) has made significant changes to Section 167 CrPC and the proviso to it. Presently Section 167(2)(a) CrPC reads as “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“. If the words occurring in proviso(a) are read independent of Section 167(2), it is clearly indicated that the proviso only forbids remands to be extended beyond the total of 60/90 days. Further, if proviso (a) is interpreted as a separate paragraph, it necessarily follows that the 90-day or 60-day period will begin solely from the day of remand. Also, it is a known fact that a magistrate can authorise detention 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 the exercise of his powers u/s. 57 cannot constitute detention pursuant to an authorisation issued by a magistrate. Therefore, this clearly indicates that the legislator intended to compute the entire period of 90 days or 60 days from the date of the remand order and not otherwise. However, the present order contradicts the interpretation of this section and goes on to exclude the date of remand while computing the time period under Section 167(2)(a) CrPC.
CONCLUDING REMARKS
The referral provides an excellent opportunity for the Supreme Court to settle the ongoing tussle. The court must go beyond the Chaganti judgement to provide enhanced clarity on critical peripheral issues concerning the issue of remand and default bail. Being the highest interpreter of laws in the country, when it comes to a person’s liberty, even if he is the accused, it is the court’s solemn duty to shun technical approaches and tilt toward personal liberty.
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(Pritha is a law undergraduate at Institute of Law, Nirma University. The author may be contacted via mail at prithalahiri15@gmail.com)
Cite as: Pritha Lahiri, ‘Computing the Time Period u/s 167(2)(a) CrPC – An Ongoing Judicial Conundrum’ (The RMLNLU Law Review Blog, 17 July 2021) <https://rmlnlulawreview.com/2021/07/17/computing-the-time-period-u-s-1672a-crpc-an-ongoing-judicial-conundrum/> date of access
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