[Yes Bank case] Wadhawan brothers get default bail, Bombay HC says day of remand is included in computing time to file chargesheet
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[Yes Bank case] Wadhawan brothers get default bail, Bombay HC says day of remand is included in computing time to file chargesheet

The State had argued that the first day of remand was to be excluded when calculating the statutory period within which investigation is to be completed under the CrPC.

Lydia Suzanne Thomas

The Bombay High Court today granted bail to DHFL promoters Dheeraj and Kapil Wadhawan who are accused in the Yes Bank money laundering case (Kapil Wadhawan v. Directorate of Enforcement and anr).

The Wadhawan brothers were granted default bail as the Enforcement Directorate (ED) did not file their charge sheet within the statutory period of 60 days from their date of remand, as laid out in Section 167 (2), CrPC.

The Wadhawans were arrested and remanded before a Magistrate on May 14. After this, they applied for bail on July 13. The lower court judge who heard the case on July 15 found the period within which the investigation was to be completed starting from May 15, that is, excluding the first day of remand.

In order words, the lower court had held that the two were not entitled to default bail reasoning that the day of their remand would be excluded from calculating the statutory period of 60 days within which investigation is to be completed.

The Wadhawan brothers then approached the Bombay High Court with their plea for bail.

They relied on the Bombay High Court's ruling in Deepak Satyavan Kudalkar v. State of Maharashtra, wherein it was held that the period under Section 167, CrPC would have to be calculated from the day of the first remand.

On the other hand, the State contended that the High Court's Deepak Kudalkar decision was not good law in light of earlier Supreme Court rulings including, notably, State of Madhya Pradesh v. Rustom and Ors.

However, Justice Bharati Dangre on Thursday pointed out that the Rustom case has been decided without considering certain earlier contrary Supreme Court rulings. It was observed that a coordinate Bench of the Supreme Court had also overruled the Rustom ruling in Union of India v. Nirala Yadav.

This was explained in the Deepak Kudalkar ruling of the Bombay High Court, delivered earlier this year, Justice Dangre said, remarking that "it is conclusively held that the earlier decisions including the date of remand were not placed for consideration while deciding Rustam."

The High Court proceeded to rely on the Supreme Court's recent dictum in S Kasi v. State. The Supreme Court in Kasi has declared that the period specified in Section 167 of the Criminal Procedure Code (CrPC) was inviolable and could not be extended.

As such, the Bombay High Court has now reiterated that the day of remand is to be included in calculating the permissible time period for completing an investigation and filing a final report under Section 167 (2), CrPC. If the investigation is not completed within this period (60 days for PMLA offences), then the arrested accused is entitled to default bail.

Justice Dangre added,

"if the charge-sheet is not filed and right for ‘default bail’ has ripened into a status of indefeasibility, it cannot be frustrated by prosecution nor by the Court on any pretext. It is time and again reiterated through authoritative pronouncements that no subterfuge should be resorted to defeat the indefeasible right of the accused for default bail."

In these terms, the Wadhawans' plea for default bail was allowed in the ED case.

However, the two will remain in jail in light of the case lodged against them by the Central Bureau of Investigation (CBI).

Read the Order:

Kapil Wadhawan v. Directorate of Enforcement - Order dated August 20, 2020.pdf
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