Enforcement Directorate v. Kapil Wadhawan: A Principled Approach to Computation of Statutory Bail u/s 167(2)

Kartik Kalra

Last month, the Supreme Court delivered its judgement in Enforcement Directorate v. Kapil Wadhawan, interpreting whether the computation of the 60/90-day period u/s 167(2) of the Code of Criminal Procedure, 1973 (“CrPC”), whose completion causes the accrual of statutory bail, must be done in a manner that includes or excludes the day when the accused was remanded. In navigating a web of inconsistent case-law on the issue, the Court took the former route, holding that the computation must be inclusive of the day of remand.

In this piece, I propose that Wadhawan is a well-reasoned opinion that aligns with the constitutional commitment to safeguarding the accused’s rights, whose interpretive preferences can be invoked to undermine the extinguishing regime. I make this argument in the following manner – firstly, I present the inconsistent case-law on computation before Wadhawan, along with case-law on the extinguishing regime; secondly, I discuss the Court’s reasoning on two counts – its rejection of the applicability of principles of the General Clauses Act, 1897 (“GC Act”), and its principled stance towards a strict interpretation of Section 167(2); and thirdly, I propose that Wadhawan’s interpretive preferences, along with other recent case-law on the issue, can be invoked to undermine the extinguishing regime.

To Include or Not to Include?

Case-law on computing the period u/s 167(2) has taken two distinct lines, which largely corresponds to two distinct conceptions of the constitutional significance of Section 167(2). The first line, which builds primarily on State of M.P. v. Rustam, applies principles of the GC Act to exclude the date of remand in calculating 60/90 days, for that day is the “first in a series of days”. This line of cases also undertakes a weak characterization of statutory bail, considering that it extinguishes if the chargesheet is filed between the date of accrual and the date of hearing. The other line of cases finds its inception in Chaganti Satyanarayana v. State of A.P., which held that the 60/90-day duration must be calculated from the date of remand, and in doing so, principles of the GC Act would have no role. Chaganti’s line of cases, which is also the present state of the law following Wadhawan and M. Ravindran v. Directorate of Revenue Intelligence, holds the chargesheet’s delayed filing immaterial to extinguishing statutory bail, and once the accrued right has been availed of by filing an application, the chargesheet’s subsequent filing doesn’t deprive the accused of their liberty. I discuss these two lines of cases in this section.

In Rustam, the accused was alleged to have committed an offence u/s 302, carrying a possible death sentence. The investigating agency was given 90 days to file a chargesheet, failing which statutory bail would accrue. The accused was remanded to judicial custody on 3^rd September 1993, 90 days from which would have elapsed on 1^st December 1993 – only if in calculating these 90 days, the date of remand is included. The accused filed their application for statutory bail on 2^nd December (the 91^st day from remand), and the chargesheet was filed the very same day. The Supreme Court rejected statutory bail, holding that the day of remand must not be included in calculating the 90-day period, meaning that the chargesheet was filed on the 90^th day instead of the 91^st.

On this basis, the Court held that the 90^th day would be 2^nd December, and statutory bail would accrue only on the 3^rd. More importantly, the Court held that even if statutory bail was to accrue on the 2^nd, the accused’s application was considered by the Magistrate’s at a later date, by when the chargesheet had already been filed:

4. “The court is required to examine the availability of the right of compulsive bail on the date it is considering the question of bail and not barely on the date of the presentation of the petition for bail.”

The Court, therefore, laid down another proposition – even if the statutory bail application was filed earlier in time than the chargesheet, a delayed hearing of the bail application would cause the extinguishment of the right u/s 167(2). These two questions – the inclusion of the date of remand in 60/90 days, and the extinguishment of statutory bail based on a subsequent filing of the chargesheet – became intertwined, and began arising regularly. In many of the cases where these questions arose, Rustam was cited authoritatively, and the date of remand excluded in computing the period of 60/90 days. Ravi Prakash Singh v. State of Bihar followed Rustam in applying Section 9 of the GC Act, excluding the day of remand [para 12]; Narendra Kumar Amin v. CBI, held that a “clear 90 days have to expire before the right of indefeasible bail begins”, finding such clarity only in the exclusion of the day of remand [para 13]; Umesh Parkash Ghai v. State held that “it is trite that the day on which the Magistrate remanded the petitioner to judicial custody has to be excluded…” [para 5]; and Kiran Madhav Hazare v. State of Maharashtra went to the extent of remarking that Chaganti had been distinguished close to being overruled in case-law following Rustam [para 22].

The other line of cases, which is substantially lower in quantum than the cases following Rustam, relies on Chaganti to mandate the inclusion of the day of remand in the 60/90-day period. In Chaganti, the state argued that in computing any duration of time, the GC Act would be applicable, which mandates the exclusion of the first day in a “series of days” [para 28-9]. There were a few High Court cases supporting this proposition, most notably, the decision of the Orrisa High Court in N. Sureya Reddy v. State of Orissa. In that case, the Court imported principles of the GC Act in a wholesale manner, holding that Section 10 equips the state to file the chargesheet on the 91^st day, if the 90^th was a holiday [para 8]. In holding this, the Court remarked that Section 167(2) of the CrPC was inserted in order to secure an expeditious investigation, and thus the 60/90-day limit can be deemed a “series of days” under the GC Act within which an investigation must be completed [para 3]. Chaganti repelled this contention, holding that the plain language of the section obviates any reliance on the GC Act [para 32]. In Powell Nwawa Ogechi v. State, the Delhi High Court furthered Chaganti, holding that Section 167(2) is silent on a “series of days” within which investigation must be complete [para 12]. The section only causes the accrual of a right in one’s favour on a failure in filing a chargesheet, but nowhere mandates that the chargesheet be filed in a particular period. The Court, therefore, distinguished between these two issues – the accrual of a right with the accused nowhere limited the investigating agency’s prerogative to file a chargesheet thereafter. In this way, the Court held that the 60/90-day limit didn’t constitute a “series of days” within which an act must be complete, precluding the GC Act’s application [para 12]. 

I now discuss case law on the second issue that has become intertwined with the first – if a chargesheet is filed on the 61^st/91^st day, but the application for statutory bail filed at a later time on that very day, or the following day (the 92^nd day onwards), does statutory bail extinguish? Rustam has been highly influential in this line of cases for a substantial period, for it interpreted the phrase “statutory bail will be extinguished at the filing of the chargesheet if already not availed of” as it appeared in Sanjay Dutt v. State through CBI (II), which in turn interpreted it as it appeared in Hitendra Vishnu Thakur v. State of Maharashtra. As discussed above, Rustam interpreted this phrase to mean that statutory bail isn’t “availed of” until the Magistrate considers the accused’s application, and if the chargesheet is filed in the meanwhile, then bad luck for the accused [para 4]. Rustam’s formulation on this issue was overruled in Uday Mohanlal Acharya v. State of Maharashtra, and Union of India v. Nirala Yadav, where the Court interpreted the phrase “if not already availed of” to signify only the filing of an application u/s 167(2), in a manner that the accused is prepared to offer bail [paras 13; 46-7].

The Decision in Wadhawan

In Wadhawan, the Court was tasked to decide “whether the date of remand is to be included for considering a claim for default bail” [para 6]. The case arose when the ED filed its chargesheet on the 61^st day of remand (in a case carrying a maximum punishment of seven years), and the accused filed their statutory bail application the same day at an earlier time. The Court laid down the position of law on this issue authoritatively, holding that the day of remand must be included in computing the completion of 60/90 days. Its reasoning lies in two fronts – its clear-cut position on the inapplicability of GC Act principles; and its strict interpretation of Section 167(2).

The Court finds principles of the GC Act wholly inapplicable to interpreting Section 167(2), for their application requires the presence of a “series of days”, accompanied by specific “from” and “to” dates, within which an act must be done. The act in question is investigation – and the CrPC, the Court holds, is absolutely silent on the time within which it must be completed. It followed the reasoning in Powell Ogechi, finding the accrual of statutory bail conceptually distinct from the period of investigation – though a failure in timely investigation may cause the accrual of statutory bail, the police retain the prerogative of continuing investigation ad-infinitum. Given the absence of a “series of days”, therefore, the GC Act would have no application [para 35]. The Court also noted that Section 167(2) is a “complete code in itself”, which doesn’t warrant the aid of the GC Act in interpretation [para 26].

Rustam, the Court held, was per incuriam. It found Chaganti’s ratio to require the inclusion of the date of remand in computing 60/90 days, which arose from its rejection of GC Act principles. Since Chaganti was an earlier decision of the same bench-strength (two judges), Rustam would have been bound by it, and its omission in taking note of the former made it per incuriam. On this basis, the long line of cases following Rustam would be incorrectly decided, and the accused in the instant case would be deemed to have “availed” statutory bail by filing their application on the 61^st day from remand.

Most importantly, the Court’s reasoning is highly principled, finding its roots in the fundamental interpretive rule of resolving textual ambiguities in the accused’s favour. The Court acknowledges the interpretive possibilities accompanying Section 167(2), but holds that the possibility of two interpretations – one where the date of remand is included, and the other where it is excluded – must make the Court lean towards the former. This interpretive exercise was backed by locating the constitutional significance of Section 167(2), where the Court noted its elevation to the status of a fundamental right. On this basis, therefore, it held that even if the exclusion of the date of remand is an interpretive possibility, rules of constructing criminal statutes require its rejection.

The judgement is also well-founded on logical grounds. Remand u/s 167 exists on a continuum from police detention u/s 56 – and if the day of remand was excluded in calculating 60/90 days, then on that day, the accused would neither be a police detainee, nor under Magisterial custody [para 34]. Avoiding this logical problem required deeming the day of remand something, which can’t be police detention since it ended the moment the Magistrate authorized custody u/s 167. The state came up with its own set of logical problems – it proposed that if the accused is remanded at 11:50 PM on a day and GC Act principles aren’t applied, then the police is effectively left with 59 days for investigation instead of the ordinary 60. The Court remarked that such delayed production of the accused would be caused by the police’s obligation u/s 57, and that the pursuit of one obligation mustn’t undermine the fulfilment of another [para 48]. It also stated that even if custody is authorized at 11:50 PM, the police still retain ten minutes on that day to undertake interrogation. The judgement, therefore, stands well-founded on logical grounds, and the Court amply reasons the inclusion of the date of remand. 

Should Statutory Bail Extinguish in the First Place?

At this stage, we must consider the root cause of every single case discussed in this piece – the police, for various reasons, delays filing its chargesheet towards the very last day of the period u/s 167(2), and enters into a filing race with the accused. If the accused’s application is filed at an earlier time, bail accrues; and if the state is quicker, pre-trial detention continues. This was the exact factual situation in Wadhawan – the ED claimed to have filed its chargesheet at 11 AM on the 60^th day, while the accused claimed to have applied at 8:53 AM on the 61^st day [para 13]. The Court held that the ED’s chargesheet was, in fact, filed on the 61^st day, and the accused’s application earlier that morning meant that statutory bail had been availed [para 51]. But what if we alter the timeline – in case the chargesheet was filed earlier in time than the accused’s application, why must statutory bail extinguish?

In M. Ravindran, the Court has further built on Uday Mohanlal, holding that it is the Magistrate’s duty to inform the accused of the availability of statutory bail on the 61^st/91^st day [para 18.10]. If the state of the law now extends to providing the accused with information of the accrual of statutory bail, mustn’t the next step concern eliminating the concept of extinguishing altogether? Why must the accused and the state enter into a filing race on the 61^st/91^st day, and the difference of a mere few minutes in completing an activity as mundane as filing be consequential enough to deny one their liberty? 

The purpose of Section 167(2), holds Wadhawan, concerns securing an expeditious investigation, avoiding undertrial detention, and realizing the accused’s personal liberty, none of which are accomplished by engaging in the 61^st/91^st-day filing battle. The purpose of expeditious investigation is already substantially stretched if the chargesheet reaches the outer limits of Section 167(2); undertrial detention is furthered by any interpretation that approves extinguishing; and a filing delay constitutes too trivial a ground to warrant the disproportionate penalty of an absolute erasure of statutory bail. Following M. Ravindran, the Magistrate is already duty-bound to disclose the accrual of statutory bail [para 18.10] – if the Magisterial duty encompasses this degree of disclosure, denying statutory bail based on a filing-delay constitutes an obvious incongruity. 

Conclusion

In this piece, I have evaluated the state of case-law on computation and extinguishing, and proposed Wadhawan’s role in pursuing a progressive interpretation of Section 167(2). Wadhawan offers much more than a mere mathematical formula for computing statutory bail, serving as an important judgement whose interpretive preferences are capable of being invoked to undermine the extinguishing regime. In rejecting the application of GC Act principles, straightforwardly identifying the per incuriam character of Rustam, and preferring an interpretation that furthers the accused’s rights, the Court offers valuable infrastructure for strengthening the statutory bail regime. 

 Kartik Kalra is a student at the National Law School of India University, Bengaluru.