LexENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA versus KAPIL WADHAWAN & ANR. ETC
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A B C D E F G H 918 SUPREME COURT REPORTS [2023] 5 S.C.R. ENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA v. KAPIL WADHAWAN & ANR. ETC. (Criminal Appeal Nos. 701–702 of 2020) MARCH 27, 2023 [K. M. JOSEPH, HRISHIKESH ROY AND B.V. NAGARATHNA, JJ.] Code of Criminal Procedure, 1973 : s. 167(2) proviso (a) (ii) – Default Bail – Claim for – 60/90 day period of remand under proviso (a) to s. 167(2) – Computation of – Day on which the Magistrate orders remand to be included or excluded – Held: s. 167(2) 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 be excluded – Ignoring the date of remand u/s. 167 in the 60/90 day period would militate against the legislative intent of providing an accused protection from being in prolonged custody, because of slothful investigation – Stipulated 60/90 day remand period u/s. 167 ought to be computed from the date when a Magistrate authorizes remand – Thus, the very moment the stipulated 60/90 day remand period expires, an indefeasible right to default bail accrues to the accused – On facts, accused were remanded on 14.05.2020 and as such, the chargesheet ought to have been filed on or before 12.07.2020 (i.e. the sixtieth day) – But the same was filed, on the 61st day of their custody – Therefore, the right to default bail accrued to the accused persons on 61st day at 12:00 AM, midnight, onwards – On that very day, the accused filed their default bail applications – ED filed the chargesheet, later in the day – Thus, the default bail applications were filed well before the chargesheet – In cases where the chargesheet/final report is filed on or after the 61st/91st day, the accused would be entitled to default bail – Thus, the High Court justified in granting default bail to the respondents by applying the proviso (a) (ii) of s.167(2) – Prevention of Money Laundering Act, 2002 – s. 3. s. 167(2) – Conflicting opinions as to computation of the 60/ 90 day remand period by including/ excluding day of remand – Rustam’s case ignored the binding precedent in Chaganti’s case on [2023] 5 S.C.R. 918 918 A B C D E F G H 919 computing the prescribed 60/90 day period under proviso (a) of s. 167(2) – Thus, the decision in Rustam’s case held to be per incuriam. Doctrine of judicial precedent: Per incuriam – Rule of – Held: Is an exception to the doctrine of judicial precedent – 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 conflict arising from diverging opinions by taking recourse to the ratio decidendi of the earliest opinion. General Clauses Act, 1897: Applicability of, while computing period of 60/90 days given under proviso (a) of s.167(2) – Held: General Clauses Act is not applicable to s. 167, as there is no definite ‘from’ period from which the stipulated remand, may commence. Answering the Reference, the Court HELD: 1.1 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 conflict arising from diverging opinions by taking recourse to the ratio decidendi of the earliest opinion. [Para 30][938-D-E] 1.2 In Chaganti’s case, it was held that the 90/60 days precribed 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. In State of M.P. vs. Rustam’s case, it was held that the period specified in proviso (a) to Section 167 (2) should exclude the date of remand. On reading Rustam’s case, it comes to light that the Court while counting the period has considered Sections 9 and 10 of the General Clauses Act. But in doing so, the Court in Rustam’s case failed to appreciate the ratio ENFORCEMENT DIRECTORATE, GOVERNMENT
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