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TMI Blog2023 (3) TMI 1453X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The law of binding precedent provides that the rule of per incuriam is an exception to the doctrine of judicial precedent. Quite literally, it provides that when a judgment is passed in ignorance of a relevant precedent or any other binding authority, the same is said to be postulating incorrect law. It becomes pertinent to resolve the confl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in our considered opinion would be entitled to default bail. In other words, the very moment the stipulated 60/90 day remand period expires, an indefeasible right to default bail accrues to the accused. The impugned order of the High Court granting default bail to the respondents by applying the proviso (a) (ii) of Section 167(2) CrPC is found to be in order - Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and subsequently on 13.7.2020, i.e., a Monday, a physical copy thereof was tendered before the Court. The applications for enlargement of bail were moved on 13.07.2020 at 8:53 AM, through e-mail and physical filing token being issued by 11 AM. 5. It was asserted by the respondents that the period of 60 days from the date of remand i.e., 14.5.2020, expired on 12.7.2020 (Sunday) and on the next day, the default bail applications were presented before the Court. The learned Special Judge, however, denied default bail to the respondents taking the view that the 60 day period would start from 15.5.2020, thereby excluding the date of remand (i.e. 14.5.2020). However, the High Court, under the impugned judgment felt that, excluding the date of remand while computing the 60- day period was erroneous and held that the filing of the Chargesheet by the ED on 13.7.2020, being the 61st day, would entitle the respondents to default bail. The aforesaid decision of the High Court was stayed by this Court on 3.9.2020. ISSUES AND REFERENCE 6. The core issue that arises for consideration is whether the date of remand is to be included or excluded, for considering a claim for default bail, when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivergence of opinion on how the right to default bail, which is ultimately a fundamental right, is to be protected [Gautam Navlakha Vs. National Investigation Agency, 2021 SCC OnLine SC 382]. 11. A two-judge Bench of this Court, on 23.2.2021, noticing the divergence of law on computation of the 60/90 day remand period under proviso (a) of Section 167 (2) of the CrPC, referred the issue to this three-judge Bench. The answer here will facilitate a uniform application of the law on the issue of right to default bail. The reference is being answered as under:- FACTUAL BACKDROP 12. The two respondents, while being confined in judicial custody since 10.5.2020 in RC No. 219/2020 registered by the CBI, came to be arraigned as accused in ECIR/MBZO-I/3/2020 registered by the ED for the alleged commission of offence under Section 3 of the PMLA. On 14.5.2020, the applicants were produced before the learned Special Court, Mumbai and were then remanded to police custody and on 27.5.2020 were subsequently remanded to judicial custody. The High Court while granting default bail to the applicants formulated the following question for decision: "Whether in computing the remand period of 60 or 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail. Accordingly, a direction was issued for release of the respondents by adverting to the provisions of Section 167 (2) of the CrPC, subject to the accused persons furnishing their bail bonds. This order of the High Court is challenged in the present appeals. CONTENTIONS OF THE COUNSEL 17.1 Assailing the legality of the judgment dated 20.8.2020, Mr. S.V. Raju, learned ASG, argues that for computation of the prescribed 60/90 day remand period, one of the days on either side of the remand period has to be excluded and in the present case, either the date of remand i.e. 14.5.2020 or the 60th day i.e. 12.07.2020 must be excluded for computing the eligibility for default bail. In support of the ED's contentions, Mr. Raju would place strong reliance, inter-alia, on Aslam Babalal Desai vs. State of Maharashtra (1992) 4 SCC 272., State of MP vs. Rustam (supra) and Ravi Prakash Singh alias Arvind Singh vs. State of Bihar (supra). 17.2 An alternate argument is also made to the effect that even if the period of 60 days as stipulated under the first proviso to Section 167 (2) of the CrPC expired on 12.7.2020, the same being a Sunday, the provisions of Section 10, General Clauses Act would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich, such powers should be exercised. The term of Sub- Section (1) of Section 167 have to be read in conjunction with Section 57. It is clear that Section 57 interdicts a police officer from keeping in custody a person without warrant for a longer period then Twenty Four hours without production before the Magistrate, subject to the exception that the time taken for performing the journey from the place of arrest to the Magistrate Court, can be excluded from the prescribed period of Twenty Four hours. Since, Sub-Section (1) provides that, if the investigation cannot be completed, within the period of Twenty Four hours, fixed by Section 57, the accused has to be forwarded to the Magistrate along with the entries in the diary, it follows that a police officer is entitled to keep an arrested person in custody for a maximum period of Twenty Four hours for the purposes of investigation. Hence, the initial period of custody of an arrested person, till he is produced before a Magistrate is neither referable to nor in pursuance of an order of remand passed by a Magistrate. The powers of remand given to a Magistrate, become exercisable after an accused is produced before him in terms of Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izance of an offence. It also allows for further investigation under sub-Section (8) of Section 173. Further, as per Section 173(4), upon the final report being filed, if an accused has been released on bail, his bail bond maybe cancelled by the Magistrate based on merits of the investigation. Thus, the protection extended to an accused in lieu of proviso (a) of Section 167(2) CrPC is only with respect to the prescribed 60/90 day period, beyond which an accused's custody cannot be sought, even if the investigation is incomplete. 21. Unless a special order from a Magistrate is obtained under Section 167 of the CrPC, a person arrested cannot be detained for more than 24 hours as stipulated under Section 57 of the CrPC. The time necessary for the journey from the place of arrest to the Magistrate's Court can however be excluded, for computing the 24 hours permitted to the Police to keep an accused in their custody prior to a Magistrate's authorization, as mandated under Section 167 CrPC. 22. After the accused is arrested and police is unable to complete the investigation within the mandated 24 hours period, the police officer making the investigation is duty bound to transmit the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he limited time, particularly for complex crimes, the Law Commission of India recommended to increase the time limit for completion of investigation. On the basis of the recommendation in the 41st Law Commission Report (September, 1969), CrPC was amended through the Act 45 of 1978. The Proviso (a) containing clauses (i) and (ii) were inserted to Section 167 of the CrPC. With such inclusion, while investigation is still expected to be completed with promptitude, it was additionally provided that only with a Magistrate's authorization, further detention is permitted, for the period specified in clauses (i) and (ii) under proviso (a). A Magistrate authorizing detention must however record his reasons for extending detention of an accused under sub-section (3) of Section 167. The purpose of the first proviso to Section 167(2) is to impress upon the police officers to expeditiously complete investigation within the prescribed period and prevent laxity. In default, the Magistrate shall release the accused on bail. This is subject to the restriction imposed in Section 436-A, providing for the maximum period for which, an under-trial prisoner may be detained. Chapter XXXVI provides for lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to Amendment Act 45 of 1978 and subsequent to it does not have much of significance. 32. 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." 26. However, noticing that some of the aforenoted decisions were prior to the insertion of proviso (a) by the amending Act 45 of 1978, it was opined in Chaganti (supra) that those earlier case laws have no relevance. The Court then went on to state that the 90/60 days prescribed in proviso (a) to Section 167 (2) can be reckoned only from the date of remand and it is made clear through the amendment that the legislature had intended to provide a 90/60 day remand period, for the purpose of investigation. It was also expressly opined that the proviso (a) in reference to the total period of detention can be interpreted on the plain language of the proviso itself, being a complete code on its own and it being wholly unnecessary to invoke provisions of the General Clauses Act or Limitation Act. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent. A coordinate Bench can disagree with it and decline to follow it. A larger Bench can overrule such a decision…" [AR Antulay vs. RS Nayak (1988) 2 SCC 602, para 183 (per MN Venkatchaliah J.)] Likewise, a Constitution Bench in Shah Faesal vs. Union of India Shah Faesal vs. Union of India, (2020) 4 SCC 1 (para 33) taking note of this Court's decision in Sandeep Kumar Bafna Vs. State of Maharashtra 2014 (16) SCC 623 pertinently observed: "…a decision or judgement can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgement of a co-equal or larger bench or if the decision of the High Court is not in consonance with the views of this court…" 31. It logically flows from the above that the operative part in Rustam (Supra) with respect to the 60/90 day period of computation, arrived at after, invoking Sections 9 and 10 of the General Clauses Act, 1897, where the court excluded the date of remand and ignored the contrary opinion in Chaganti (supra), cannot be a binding judicial precedent as the same is rendered per incuriam. 32. Significantly the principle of computing the 60/90 day period by including th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor can it be fitted into a period of limitation 'from' and 'to' since there is no limitation for completion of investigation and filing of the chargesheet. The production before the Magistrate is a process in continuation of arrest by the police and the Magistrate will authorize detention for not more than 15 days in the whole but if he is satisfied that sufficient grounds exist, he may authorize an accused's detention beyond 15 days otherwise than in the custody of police. Pertinently, there is no fixed end point within which, the police or investigation authorities are required to complete the investigation. However, if the investigation is not completed and chargesheet is not filed within 60 or 90 days, a right of default bail accrues to the accused. The anterior period of custody with the police prior to the remand is not detention. It is only so, pursuant to an authorization issued from the Magistrate. The period of detention by the Magistrate runs from the very day of remand order. Sub-section (2) of Section 167 of the CrPC pertains to the power of the Magistrate to remand an accused and there is no reason why the date of the Magesterial Court's gaze on the accused, should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period under Section 167, then it would result in a varying remand period not exactly amounting to a neat 60/90 days time. Thereby, making the General Clauses Act, inapplicable. 36. Section 57 of the CrPC mandates that the accused be produced before a Magistrate within 24 hours of arrest and under Section 167(2) the Judicial Magistrate is required to scrutinize the executive action and determine whether the rights of the accused are not subjugated by police action. The separation of the Executive and the Judicial exercise of power, ultimately protects an individual's personal liberty which is also constitutionally protected under Articles 21 and 22(2). If the date of remand ordered by a Magistrate is ignored, then an accused even though in custody, the same will not be counted within the 60/90 day period. The custody on the date of remand is distinct from the arrest of an accused under Section 56 CrPC as that is considered as a period prior to production before the Magistrate. By this logic, even if the accused is under custody it would neither be under Section 56, nor under 167(2) of the CrPC. This will lead to an apparent legal vacuum. This can however be avoided if the remand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challan had expired and whether the accused is prepared to and does furnish bail. In other words, to claim default bail under Section 167 (2) first proviso CrPC, the accused does not have to make out any substantive grounds for securing bail nor does he have to file a detailed bail application. All he has to aver in the application is that since the stipulated 60/90 day period has expired and the chargesheet has not been filed, he is entitled to bail and such indefeasible right cannot be defeated by filing the chargesheet after the accused has offered to furnish bail. 39. In S.Kasi vs. State (supra), the court discussed the applicability of the Limitation Act to Section 167 (2) CrPC, the right to personal liberty, and the prosecution's right to file a chargesheet. The court safeguarding individual freedom then held that Supreme Court's earlier direction to relax limitation requirements, in light of Covid-19 pandemic, [Suo Motu Writ Petition (Civil) No. 3/2020] would not allow the State or the investigation agencies, any relaxation in terms of computing the investigation period and thereby allowing additional incarceration of the accused- curtailing their personal liberty. 40. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues to the accused and same needs to be guarded. The liberty of the individual is surely relative and regulated. Absolute liberty is something that cannot be conceived in a societal setting. The law therefore allows authorities to detain accused persons and facilitate investigation. However, it is the duty of this court to discourage prolonged incarceration. Further, the right to default bail is not extinguished by the subsequent filing of the chargesheet, and the accused continues to have the right to default bail. 43. The Constitutional foundation, touching upon the liberty of an individual was first explained in the dissenting opinion of Justice Fazl Ali in AK Gopalan [AK Gopalan vs. State of Madras, AIR 1950 SC 27, 1950 SCR 88; page 297, para 131. Justice Fazl Ali notes that Natural Justice is not a conception unknown, to the Indian Constitution.]- where he described the doctrine of interoperability of rights. This minority view became the majority ruling in the later case of RC Cooper [Rustom Cavasjee Cooper vs. Union of India (1970) 1 SCC 248, para-1,4 and 5] and Maneka Gandhi Maneka Gandhi vs. Union of India AIR 1978 SC 597 paras 216, 218 to 227 (per H. Beg J.), paras 47 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia (2017) 10 SCC 1, cites John Locke's Second Treatise (1690), stating that liberties are a matter of fundamental natural law]. It logically follows therefrom that life and personal liberty are inalienable and are rights that are inseparable from a dignified human existence. 46. Writing on 'natural liberty', William Blackstone in his commentaries on Laws of England, in 1965 described those as absolute rights which were vested in the individual by the immutable laws of nature. In other words, the right to personal liberty came to be recognized as an unalienable and immutable right. 47. The right to personal liberty is directly related to the inalienable right towards human dignity and personhood. The concept of dignity is central to our Constitutional law discourse. In fact, the Preamble itself, provides the guarantee of upholding 'the dignity of the individual'. The Constitution scheme provides that all human rights, including the right to personal liberty, are specifications of one special fundamental right- that is the right to have one's personal dignity respected. The same proposition is also supported by the scholar Hannah Arendt. According to Arendt, dignity consists of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stipulated period under Section 167(2), the same would encourage the prosecution to promptly comply with Section 57 CrPC. The leaning towards the accused's right to personal liberty by reducing the 60 day period to something more than 59 days, and a few hours, is based on the constitutional protection afforded to an accused under Article 22(2) and Article 21. In this way, the Code's application in dealing with an accused would be consistent with the inviolable right of personal liberty and dignity, as explained above. 49. Returning now to the English philosopher John Locke, with whose words this judgment commenced, [Locke's, in The Second Treatise of Government, argues that sovereignty resides in the people and explains the nature of legitimate government in terms of natural rights and the social contract.] we have elected to answer this reference by endorsing that interpretation of law which advances the cause of justice and freedom. The relevant provisions of the CrPC are the laws, that are essential to protect an individual's liberty. It regulates the societal need for limited detention of persons charged with serious offences. We have therefore adopted the interpretation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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