Custody begins with first day of remand, says Bombay HC; grants default bail to Wadhawans in money laundering case | Mumbai News – Times of India

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MUMBAI: The Enforcement Directorate (ED) on Wednesday said it would go before the Supreme Court next week to challenge a default bail granted by Bombay high court to DHFL promoters Kapil Wadhawan and his brother Dheeraj in a money laundering case connected with Yes Bank.
Justice Bharati Dangre of the high court on Thursday granted the Wadhawans bail on a PR bond of Rs 1 lakh each as the ED had filed its chargesheet on July 13 a day after the 60-day deadline under the law.
The HC held that custody beyond 60 days, accrues an indefeasible right in their favour, and had rejected a plea for stay, sought by additional solicitor general Anil Singh for the ED.
The HC agreed with Wadhawan’s counsel Amit Desai that no court has power to extend the custody period beyond what the law stipulates and his submission that the Supreme Court had categorically held that even closure of courts during the pandemic could not have permitted any extension of authorised period of custody.
The criminal procedure code section 167(2)(a) sets out that a court can authorise detention for 60 days for certain offences and 90 days for other kind, and release the accused on default bail if he furnishes bail, if by then a chargesheet is not filed.
The dispute before the HC was on counting the 60 days. Desai argued that the law does not permit exclusion of the first day of remand or the last day for computing the 60 days or 90 days. The ED counsel argued the first day of remand will have to be excluded, but the HC said if that was so, it would “result in a break in continuity of custody of accused which begins on his arrest…’’
The Wadhawans had challenged the sessions court order which excluded the first day of remand. The HC found the sessions order unsustainable and quashed it saying, “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.’’
The Wadhawans, however, will remain in judicial custody since they are inside also for a CBI case against them.
An ED official said, “The bail order is bad in law, as there is SC ruling related with the counting of the stipulated days. We will challenge the decision in a day or two after studying the high court order.”
Both sides citied SC judgments. The judgement cited by ED of Madhya Pradesh vs Rustam to back its argument, the HC observed was “overruled with the finding that HC had passed an erronerous order.’’
An ED officer said that they sent the chargesheet against the Wadhawan brothers via email to the special PMLA court on 58th day and submitted the chargesheet.
The HC after analyzing the law on custody said, “Production of the accused before the magistrate is a sequel of his arrest by the police…and at the same time, a right of the accused to be produced before the Magistrate within 24 hours.’’
The judgment said, “The day on which the accused is brought on remand before the magistrate, Section 167(2) empowers the magistrate to authorise 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.’’
Wadhawans’ counsel had heavily relied upon the judgment in case of Chaganti Satyanarayan by the SC and submitted that it “excludes applicability of General Clauses Act and Limitation Act’’ to provision of section 167 (2) of CrPC and is an “authoritative pronouncement on the issue that the period of 60/90 days should be computed from the date of remand and therefore, the first day of remand cannot be excluded.”

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