2022 (3) TMI 856 - HC - GST

Seeking grant of default bail - inclusion of day of remand in the calculation of period of 60 days - Section 167(2) Cr.P.C. - HELD THAT - The application having been moved on 28.11.2021, which was the 61st day was rightly allowed by the Ld. JMIC. All that needs to be noticed is that taking note the conflicting views on the question of the inclusion or exclusion of the day of remand for the purpose of calculating the period, Hon'ble Supreme Court in ENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA VERSUS KAPIL WADHAWAN ANR. ETC. 2021 (2) TMI 1283 - SUPREME COURT referred the matter to a Larger Bench observing that it is necessary for a Bench of appropriate strength to settle the law taking note of the earlier precedents. Unless the issue is appropriately determined, the Courts across the country may take decision depending upon which judgment is brought to the Court's notice or on the Courts own understanding of the law, covering default bail under Section 167(2)(a) II of Cr.P.C. Application disposed off.

Summary

Issues:
Challenge to order granting default bail under Section 167(2) Cr.P.C. - Calculation of 60-day period for filing complaint - Forfeiture of right to bail - Interpretation of the day of remand in calculating the period - Reference to a Larger Bench by the Hon'ble Supreme Court.

Analysis:
The petition challenged an order setting aside the default bail granted to the petitioner under Section 167(2) Cr.P.C. The petitioner was arrested for an alleged offence under the GST Act and applied for default bail as the complaint was not filed within 60 days of remand. The Ld. JMIC granted bail on the 61st day. However, the respondent argued that the day of remand should be excluded, making the complaint timely filed on the 60th day. The conflicting views led the Supreme Court to refer the matter to a Larger Bench for a definitive ruling.

The judgment highlighted the importance of resolving the conflict in views regarding the inclusion or exclusion of the day of remand in calculating the 60-day period for default bail under Section 167(2) Cr.P.C. Citing the need for uniform application of the law, the court leaned towards an interpretation favoring the accused. Consequently, the petitioner was directed to be conditionally released on bail, overturning the Additional Sessions Judge's decision setting aside the default bail.

The court clarified that if the Larger Bench decides against including the day of remand in the custody period calculation, the respondent could seek modification or recall of the order. The judgment emphasized the need for a definitive ruling to ensure consistency in the application of the law across the country.