Enforcement Directorate, Government of India vs Kapil Wadhawan & Anr. etc.

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 in Chaganti’s case where it was categorically observed, that for the purpose of computing the period under Section 167(2), the provisions of General Clauses Act will have no application. Considering the legislative intent behind Section 167 (2), and the proviso (a) being a complete code in itself, as also elucidated in Chaganti’s case the computation method laid down in Rustam’s case may not be the correct way. Further, since Rustam’s case ignored the binding precedent in Chaganti’s case on computing the prescribed 60/90 day period under proviso (a) of Section 167(2), from the date a Magistrate ordered remand, it is a per incuriam decision. Thus, the operative part in Rustam’s case with respect to the 60/90 day period of computation, arrived at after, invoking Sections 9 and 10 of the General Clauses Act, where the court excluded the date of remand and ignored the contrary opinion in Chaganti’s case, cannot be a binding judicial precedent as the same is rendered per incuriam. [Para 26, 28, 29, 31][937D-F, G-H; 938-A-C; 939-B-C]

1.3 In application Section 167, there is no starting or ending point for completion of the investigation. In the scheme of the CrPC, the provisions contained in sub–section (1) of Section 167 runs in continuation of sub–section (2). The production of the accused before the Magistrate is a sequel to his arrest by the police and at the same time, the accused too has a right to be produced before the Magistrate, within 24 hours of his arrest. The day on which the accused is brought on remand before the Magistrate, sub–section (2) of Section 167 empowers the Magistrate to authorize the detention with the police either by continuing it or remanding him to Magisterial custody. There cannot be a pause/break between the two processes. No delimitation is conceptualized in Section 167 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. [Para 34][939-H; 940-A-E]

1.4 The period of detention by the Magistrate runs from the very day of remand order. Sub–section (2) of Section 167 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 be excluded. In order to avoid long incarceration of an accused only because the investigation is being carried out in a leisurely manner, the legislature was prompted, to confer a right on the accused to be released on default bail if he is prepared to offer bail bond and the investigation may still continue. This is why the General Clauses Act cannot be made applicable to sub–section (2) of Section 167. Moreover, excluding the date of the remand order would also result in a break in the continuity of the custody of the accused which begins on his date of arrest under Section 56 and continues till the stipulated 60/90 day period, under Section 167. Additionally, it is to be noted that when the date of remand order is included as the first day of the stipulated remand period– there arises no fixed 60–day period for which the accused is remanded. Once the Magistrate authorises remand, irrespective of the time of the day, when he does so, the prosecution, in each case will have a varying period of custody which may range in a moving cursor manner from a spectrum of 59 days and 23 hours or so to

59 days and 1 hour or so for offences covered under proviso (a)(ii) of Section 167(2). The exact period of remand for an accused is subject to the first gaze of the Magesterial court and the signing of the remand order. This explains the finding in Chaganti’s case that General Clauses Act is inapplicable to Section 167 CrPC, as there is no definite ‘from’ period from which the stipulated remand, may commence. Moreover, the fact that the date of remand is included and not excluded from the stipulated period, is based on the pivotal consideration that personal liberty of the individual commands that any lacuna in the specificity of the law has to be so interpreted in the accused’s favour. [Para 34][940E-H; 941-A-C]

1.5 Section 57 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) CrPC. This would lead to an apparent legal vacuum. This can however be avoided if the remand period is considered from the very day of the remand order. Furthermore, if an accused is remanded by a Magistrate on say, 01.01.2023, then, the police, post judicial scrutiny, is empowered to investigate, starting on the same day, as per Section 167 CrPC, irrespective of whether the police actually commence investigation on the same day. So, if the police is empowered to investigate an accused person on the day of the remand order itself, the 60/90 day stipulated period, upon whose expiry, the right of default bail accrues to the accused, should logically be calculated from that day itself. Ignoring the date of remand under Section 167 CrPC 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. [Para 36][941-E-G; 942-A-C]

1.6 The 60/90 day limit is a statutory requirement which allows the State agencies to investigate serious offences beyond the 15–day police custody. In case the State fails to file chargesheet or supplementary request for remand within the stipulated 60/90 day period, a balance is to be striked between the rights of the individual and the restriction on those rights and prevent prolonged incarceration without legal support. The very instance, the statutory remand period ends, an indefeasible right to default bail accrues 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. 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. [Para 42][944-C-E]

1.7 When the day of remand order is included in 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. [Para 48][947C-D]

1.8 Since there exists vacuum in the application and details of Section 167 CrPC, an interpretation which advances the cause of personal liberty is opted. The 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, only on 13.07.2020 which was the 61st day of their custody. Therefore, the right to default bail accrued to the accused persons on 13.07.2020 at 12:00 AM, midnight, onwards. On that very day, the accused filed their default bail applications at 8:53 AM. The ED filed the chargesheet, later in the day, at 11:15 AM. Thus, the default bail applications were filed well before the chargesheet. If the accused persons avail their indefeasible right to default bail before the chargesheet/final report is filed, then such right would not stand frustrated or extinguished by any such subsequent filing. The stipulated 60/90 day remand period under Section 167 CrPC ought to be computed from the date when a Magistrate authorizes remand. If the first day of remand is excluded, the remand period, will extend beyond the permitted 60/90 days’ period resulting in unauthorized detention beyond the period envisaged under Section 167 CrPC. In cases where the chargesheet/final report is filed on or after the 61st/91st day, the accused would be entitled to default bail. The very moment the stipulated 60/90 day remand period expires, an indefeasible right to default bail accrues to the accused. [Para 50][947-G; 948A-D]

1.9 The impugned order of the High Court granting default bail to the respondents by applying the proviso (a) (ii) of Section 167(2) is found to be in order. Hence, the judgment passed by the Single Judge of the High Court is upheld. [Para 51][948-E]

State of M.P. Vs. Rustam & Ors. 1995 (Supp) 3 SCC

221 – per incuriam.

Chaganti Satyanarayan Vs. State of Andhra Pradesh (1986) 3 SCC 141 : [1986] 2 SCR 1128 – relied on.

Ravi Prakash Singh Vs. State of Bihar (2015) 8 SCC

340 : [2015] 2 SCR 241; M. Ravindran Vs. Intelligence Officer, Director of Revenue Intelligence (2021) 2 SCC 485; CBI Vs. Anupam J Kulkarni (1992) 3 SCC 141 : [1992] 3 SCR 158; State Vs. Mohd. Ashraft Bhat (1996)

1 SCC 432 : [1995] 6 Suppl. SCR 300; State of Maharashtra Vs. Bharati Chandmal Varma (2002) 2 SCC 121 : [2001] 5 Suppl. SCR 422; Gautam Navlakha Vs. National Investigation Agency 2021 SCC OnLine SC 382; Aslam Babalal Desai vs. State of M aharashtra (1992) 4 SCC 272 : [1992] 1 Suppl. SCR 545; N. Sureya Reddy vs. State of Orissa 1985 Crl. LJ 939 (Ori); Pragyna Singh Thakur Vs. State of Maharashtra (2011)

10 SCC 445 : [2011] 14 SCR 617; S.Kasi Vs. State (2020) SCC Online SC 529; Deepak Satyavan

Kudalkar vs. State of Maharashtra MANU/MH/0843/2020 LD/VC; Rajoo alias Raj Kishore Singh Vs. State of Bihar (1980) 1 SCC 108; Raj Kumar Vs. State of Punjab AIR 1979 P&H 80; Batna Ram vs. State of H.P 1980 Crl. LJ 748 (HP); Jagdish vs. State of M.P. 1984 Crl. LJ 79 (MP); A.R. Antulay vs.R.S. Nayak (1988) 2 SCC 602 : [1988] 1 Suppl. SCR 1; Shah Faesal vs. Union of India (2020) 4 SCC 1 : [2020] 3 SCR 1115; Sandeep Kumar Bafna Vs. State of Maharashtra 2014

(16) SCC 623 : [2014] 4 SCR 486; Econ Antri Ltd. vs. Rom Industries (2014) 11 SCC 769 : [2013] 14 SCR 74; Saketh India Ltd. vs. India Securities Ltd. (1999) 3 SCC 1 : [1999] 1 SCR 963; Rakesh Kumar Paul vs. State of Assam (2017) 15 SCC 67 : [2017] 8 SCR 785; Union of India vs. Nirala Yadav (2014) 9 SCC 457 : [2014] 6 SCR 148; Uday Mohanlal Acharya vs. State of Maharashtra (2001) 5 SCC 453 : [2001] 2 SCR 878; Sanjay Dutt Vs. Bombay through C.B.I. 1994 (5) SCC 410 : [1994] 3 Suppl. SCR 263; Bikramjit Singh vs. State of Punjab (2020) 10 SCC 616; AK Gopalan vs. State of Madras, AIR 1950 SC 27 : [1950] SCR 88; Rustom Cavasjee Cooper vs. Union of India (1970) 1 SCC 248 : [1970] 3 SCR 530; Maneka Gandhi vs. Union of India AIR 1978 SC 597 : [1978] 2 SCR 621; Kesavananda Bharti vs. State of Kerala (1973) 4 SCC

225 : [1973] 0 Suppl. SCR 1; Olmstead vs. US, 277 US

438 (1928); ADM Jabalpur vs. Shivkant Shukla (1976)

2 SCC 521 : [1976] 0 Suppl. SCR 172; K.S. Puttaswamy Vs. Union of India (2017) 10 SCC 1 : [2017] 10 SCR 569; Munn v. Illinois, 94 U.S. 113 (1876); Kharak Singh vs. State of UP (1964) 1 SCR 332; Francis Corallie Mullin vs. The Administrator, 1981 AIR 746 – referred to.

VM Bachal,Indian Journal of Political Science, Vol.25,No.3/4 (July-Sept. Dec,1964), pp. 231–240; Second Treatise of Government by John Locke – referred to.