JUDGMENT :

Hrishikesh Roy, J.

1. John Locke in his work, Two Treatises of Government (1689)-stressed on personal liberty and stated that, “The end of Law is not to abolish or restrain, but to preserve and enlarge Freedom: For in all the states of created beings capable of Laws, where there is no law, there is no Freedom.”¹[John Locke, ‘The Second Treatise of Civil Government’, December 1689.]

2. In the present case, we discuss the rights of such accused, whose right to default bail, hangs in the balance by difference of a single day or even less. Ostensibly, one may presume this to be insignificant. However, the constitutional import of the matter is such, that personal liberty, which may only be taken away by a just and fair procedure established by law, needs to be analyzed and protected. The issue is simple to state but hard to answer. It is embedded in a maze of case law that this Court needs to negotiate. Simply put, the Court needs to answer whether the period of remand under the first proviso to Sec. 167 (2) of the Code of Criminal Procedure, 1973 (hereinafter ‘CrPC’) is inclusive of the day on which the Magistrate orders remand. Whatever be the outcome, this Court is conscious that none should suffer incarceration without legal authority. Although, the State is tasked to prevent crime and maintain security, personal liberty-should not be the collateral.

3. We have heard Mr. S.V. Raju, learned Additional Solicitor General of India on behalf of the appellants. Mr. Mukul Rohatgi, Mr. Kapil Sibal and Mr. Amit Desai, learned Senior Counsel appear for the respondents who were granted the benefit of default bail by the High Court.

4. These Appeals are directed against the order dated 20.08.2020 of the Bombay High Court, granting default bail to the respondents under proviso (a) (ii) of Section 167 (2) of the CrPC. The respondents were arrested on 14.05.2020 for alleged commission of offence under Section 3 of the Prevention of Money Laundering Act, 2002 (hereinafter ‘PMLA’) and were remanded on the same date. On 11.07.2020 through e-mail, the Enforcement Directorate (hereinafter ‘ED’) claimed to file a Complaint and subsequently on 13.7.2020, i.e., a Monday, a physical copy thereof was tendered before the Court. The applications for enlargement of bail were moved on 13.07.2020 at 8:53 AM, through e-mail and physical filing token being issued by 11 AM.

5. It was asserted by the respondents that the period of 60 days from the date of remand i.e., 14.5.2020, expired on 12.7.2020 (Sunday) and on the next day, the default bail applications were presented before the Court. The learned Special Judge, however, denied default bail to the respondents taking the view that the 60 day period would start from 15.5.2020, thereby excluding the date of remand (i.e. 14.5.2020). However, the High Court, under the impugned judgment felt that, excluding the date of remand while computing the 60-day period was erroneous and held that the filing of the Chargesheet by the ED on 13.7.2020, being the 61st day, would entitle the respondents to default bail. The aforesaid decision of the High Court was stayed by this Court on 3.9.2020.

ISSUES AND REFERENCE

6. The core issue that arises for consideration is whether the date of remand is to be included or excluded, for considering a claim for default bail, when computing the 60/90 day period as contemplated in proviso (a) of Section 167 (2) of the CrPC. The moot question has been considered by this Court in various cases, but there is a divergence of opinion on how the stipulated period, for the right of default bail, accruing to the accused, is to be computed. Some judgements have favoured the exclusion of date of remand, while a contrary view is taken in other cases.

7. The prosecution relies, on the line of reasoning in State of M.P. Vs. Rustam & Ors. 1995 (Supp) 3 SCC 221, which was later followed in Ravi Prakash Singh Vs. State of Bihar, (2015) 8 SCC 340 and M. Ravindran Vs. Intelligence Officer, Director of