The Author, Gaurav Thote is a Advocate practising in Bombay High Court.
The Supreme Court on 03rd September 2020 stayed the order of the Bombay High Court granting default bail to DHFL promoters Kapil and Dheeraj Wadhawan - prime accused in the Yes Bank fraud case charged under provisions of PMLA.
The Accused were undisputedly arrested on 14th May 2020 and remanded to custody pursuant to an order passed by a Magistrate on the same day i.e. 14th May 2020. On 13th July 2020 i.e. on the 61st day, the Accused moved an Application seeking enlargement on bail under Section 167(2)(a)(ii) of the CrPC (the Code) on account of default in investigation. However, the Trial Court was pleased to reject the Bail Application observing that the first day of remand was to be excluded while computing the period under Section 167(2)(a)(ii) of the Code (as is held by the Supreme Court in State of MP v. Rustam and Ravi Prakash Singh v. State of Bihar).
The Bombay High Court while overturning the order of the Trial Court observed that the view taken in Rustam (supra) was not good law in view of the exposition of law laid down previously by a co-ordinate bench in Chaganti Satyanaraya v. State of AP followed by Central Bureau of Investigation v. Anupam J. Kulkarni. Furthermore, the High Court observed that a larger bench of the Apex Court (in Uday Mohanlal Acharya’s case) had overruled the judgment of Rustam (supra) albeit on a different point of law.
This Article is a preliminary analysis on the subject issue which answers a crucial question - whether the ratio rendered in Rustam’s case and subsequently followed in Ravi Prakash Singh (supra) can be termed as good law/having status of a precedent?
In Chaganti (supra)[delivered on 8th May, 1986) the Supreme Court while laying down the law for the first time on the issue observed-
“(a) either in conjunction with sub-section (2) of Section 167 or as an independent paragraph, we find that the total period of 90 days under clause (i) and the total period of 60 days under clause (ii) has to be calculated only from the date of remand and not from the date of arrest.
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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.”
Subsequently, a co-ordinate bench of the Apex Court in Anupam Kulkarni (supra)[delivered on 8th May 1992] concurred with and reiterated the view taken in Chaganti (supra) observing-
“In Chaganti Satyanarayan's case it was held that "It, therefore, stands to reason that the total period of 90 days or 60 days can begin to run from the date of order or remand." Therefore the first period of detention should be computed from the date of order or remand.”
Thereafter in Rustam (supra)[delivered on 1st February, 1995], a Division Bench of the Supreme Court opined that the first day of remand was to be excluded while computing the period under Section 167(2) of the Code as Sections 9 and 10 of the General Clauses Act warranted such an interpretation in computing the prescribed period. It would be pertinent to note that the decisions rendered previously (in Chaganti’s case and Anupam Kulkarni’s case) were not put forward before the Court during this decision.
In Sadhwi Pragyna Singh Thakur v. State of Maharashtra (delivered on 23rd September 2011) and Union of India v. Nirala Yadav (delivered on 30th June 2014), the law laid down in Chaganti was followed. However, in Ravi Prakash Singh (supra) [delivered on 20th February 2015], a Division Bench of the Supreme Court referred to both the cases of Chaganti and Rustam and tried to strike a balance between the two observing that although the period prescribed under Section 167(2) of the Code was to be calculated from the date of first remand, the first day would have to be excluded for the purposes.
Undoubtedly, the decisions rendered in Chaganti and Anupam Kulkarni (both supra) are delivered prior to rulings rendered in Rustam and Ravi Prakash (both supra). Though Ravi Prakash Singh (supra) refers to both rulings (Chaganti and Rustam), it principally observes that the first day of remand is to be excluded for the purpose of calculating the period prescribed under Section 167(2) of the Code as is held in Rustam’s case.
In State of Assam v. Ripa Sarma, the Apex Court has held that if a judgment has been rendered in ignorance of the earlier judgments of the Benches of coequal strength, the same is per incuriam and not good law. It was observed-
“…it is an inescapable fact that the judgment rendered in Eastern Coalfields Limited has been rendered in ignorance of the earlier judgments of the Benches of coequal strength, rendering the same per incuriam. Therefore, it cannot be elevated to the status of precedent. In view of the above, we accept the preliminary objection raised by Mr. Jayant Bhushan, learned senior counsel.”
This essentially means that the judgment rendered in Rustam is per incuriam and therefore cannot be termed as “precedent” as it was decided in ignorance of the earlier judgments (rendered in Chaganti and Anupam Kulkarni) on the point.
To conclude, although the subsequent judgment of the Apex Court in Ravi Prakash Singh considers both the judgments i.e. Chaganti and Rustam, the view taken as regards exclusion of the first day of remand is based on the Rustam’s judgment which is per incuriam and hence the High Court, in my opinion, correctly calibrated the issue by enlarging the Accused on default bail as the charge-sheet/complaint was not filed within the prescribed period of sixty days from the date of first remand of the accused.
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