Delhi District Court
Milind Balaso Gadave vs . State Of Nct Of Delhi on 11 April, 2023
IN THE COURT OF SH. HARJYOT SINGH BHALLA
ADDITIONAL SESSIONS JUDGE-04
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
MILIND BALASO GADAVE Vs. STATE OF NCT OF DELHI
CNR No. DLND01-002980-2023
Cr. Rev. No. : 195/2023
MILIND BALASO GADAVE
S/o Sh. Balaso
R/o Behind Bharti Vidyapeeth,
Power Plot, Sangliwadi,
Sangli, Maharastra-400016 ...Revisionist/Applicant
Versus
STATE OF NCT OF DELHI
Through Public Prosecutor ......Respondent
Date of Institution: 27.03.2023
Date of decision : 11.04.2023
JUDGMENT (ORAL)
1. This is a revision petition against the order dated 12.03.2023 passed by the Duty MM/Ld. MM-01, Patiala House Courts, New Delhi.
2. I have perused the order passed by the Ld. MM. Arguments heard.
3. Unfortunately, although, I do not want to comment on the order for transit remand passed in the present case by the Special Judge, Cr. Rev. No. 195/2023 Page 1 of 11 District Kolhapur, suffice it is to note that the transit remand was ordered, even though, the accused was not produced before the Ld. Special Judge, District Kolhapur and he was lodged in Yervada prison, Pune in some other case. The relevant portion of the order reads as follows:
(1) The Jail Superintendent, Yerawada Prison is directed to hand over the accused Milind Balashaeb Gadhave to Senior Police Inspector, Rammanohar for investigation of FIR No.379/2022 U/s. 420 r.w. Section 34 of the Indian Penal Code and U/s. 66 of the Information Technology Act, registered at Special Cell, Delhi.
(2) The transit remand of accused is granted from today till 2.30 p.m. of 13-01-2023.
(3) Special Cell, Delhi is further directed to produce before the Court on 13-01-2023.
(4) Special Court is further directed to re-lodge the accused in Yerawada Prison after interrogation and investigation in FIR No.379/2022 at police station Special Cell, Delhi.
4. It is not in dispute that pursuant to the said order of remand, the custody of the accused was obtained from Yervada Jail on 11.01.2023 and thereafter, the accused was brought to Delhi and produced before the Ld. MM/concerned judge on 13.01.2023 and thereafter, he continued to be Cr. Rev. No. 195/2023 Page 2 of 11 in custody as extended from time to time.
5. First of all, the counsel for the revisionist has stated that the custody order was illegal, inasmuch as, it was passed without the presence of the accused before the Ld. Judge. However, he submits that even if the order was illegal, it has effect of granting custody of the accused to the police and even the date of 10.01.2023 is required to be counted towards the period of 60/90 days respectively as the case may be.
6. Ld. Counsel has relied upon paragraph 99, 100 and 101 of the judgment in Gautam Navlakha Vs. National Investigation Agency, 2021 SCC OnLine SC 382 and the paragraphs are reproduced hereinbelow:
99. Now, it is necessary to make one aspect clear. An order purports to remand a person under Section 167.
It is made without complying with mandatory requirements thereunder. It results in actual custody. The period of custody will count towards default bail. Section 167(3) mandates reasons be recorded if police custody is ordered. There has to be application of mind. If there is complete non- application of mind or reasons are not recorded, while it may render the exercise illegal and liable to be interfered with, the actual detention undergone under the order, will certainly count towards default bail. Likewise, unlike the previous Code (1898), the present Code mandates the production of the accused before the Magistrate as provided in clause (b) of the proviso to Section 167 (2). Custody ordered without complying with the said Cr. Rev. No. 195/2023 Page 3 of 11 provision, may be illegal. But actual custody undergone will again count towards default bail.
100. Take another example. The Magistrate gives police custody for 15 days but after the first 15 days, (Not in a case covered by UAPA). It is not challenged. Actual custody is undergone. Will it not count? Undoubtedly, it will. The power was illegally exercised but is nonetheless purportedly under Section 167. What matters is 'detention' suffered. The view taken in the impugned judgment that sans any valid authorisation/ order of the Magistrate detaining the Appellant there cannot be custody for the purpose of Section 167 does not appear to us to be correct. The finding that if any illegality afflicts the authorisation, it will render the 'detention' not authorised is inconsistent with our conclusion as aforesaid.
101. Therefore, if the Court purports to invoke and act under Section 167, the detention will qualify even if there is illegality in the passing of the order. What matter in such cases is the actual custody.
7. Although, in principle, the view expressed by the Hon'ble Supreme Court of India is binding, it cannot be read out of context.
8. As far as facts in the Gautam Navlakha (Supra) case is concerned, the accused was not in any custody when the said order was Cr. Rev. No. 195/2023 Page 4 of 11 passed, whereas in the present case, the accused was already running in custody in some other case and it is only on 11.01.2023 that actual custody was taken by the police in the present case.
9. Therefore, even if the order of transit remand was taken as illegal, considering that it was impossible for the police to arrest the accused physically unless they went to the Yervada Jail and that the accused was already running in custody in some other case, the benefit of that one day i.e. 10.01.2023 cannot be granted to the accused in the present case.
10. In any event, the said difference becomes otiose and the court need not delve into this issue any deeper, inasmuch as, the date of deciding the application corresponds with the date of filing of chargesheet i.e. 12.03.2023 when 60 days had elapsed and the 61st day had started.
11. I fail to understand how the Ld. MM has observed that "admittedly, 60 days period ended on 12.03.2023" in the concluding paragraph of the impugned order.
12. The Ld. MM did not decide as to which judgment, out of the decisions noted in the preceding paragraph was he going to follow. Fortunately, for the applicant/accused, the conflicting position has been resolved vide order of the Hon'ble Supreme Court of India in Enforcement Directorate, Government of India Vs. Kapil Wadhawan & Anr etc., Criminal Appeal Nos. 701-702 of 2020 pronounced on 27.03.2023 by a 3 Judges Bench of the Hon'ble Supreme Court of India and before the filing of the present revision petition. The Hon'ble Supreme Court of India has noted the conflicting position and settled law and the relevant portion is reproduced hereinbelow for ease of reference:
29. Considering the legislative intent behind Section Cr. Rev. No. 195/2023 Page 5 of 11 167 (2) CrPC, and the proviso (a) being a complete code in itself, as also elucidated in Chaganti (supra), the computation method laid down in Rustam (supra), may not be the correct way . Further, since Rustam (supra) ignored the binding precedent in Chaganti (supra) 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.
30. 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. In this context MN Venkatachaliah J., in the 7-judge Bench decision of A.R. Antulay vs. R.S. Nayak [(1988) 2 SCC 602] opined that:
"...the point is that the circumstance that a decision is reached per incuriam merely serves to denude the decision of its precedent value.Such a decision would not be binding as a judicial precedent. A coordinate Bench Cr. Rev. No. 195/2023 Page 6 of 11 can disagree with it and decline to follow it. A larger Bench can overrule such a decision..."
Likewise, a Constitution Bench in Shah Faesal vs. Union of India 20 taking note of this Court's decision in Sandeep Kumar Bafna Vs. State of Maharashtra21 pertinently observed:
"...a decision or judgement can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgement of a co-equal or larger bench or if the decision of the High Court is not in consonance with the views of this court..."
31. It logically flows from the above that the operative part in Rustam (Supra) with respect to the 60/90 day period of computation, arrived at after, invoking Sections 9 and 10 of the General Clauses Act, 1897, where the court excluded the date of remand and ignored the contrary opinion in Chaganti (supra), cannot be a binding judicial precedent as the same is rendered per incuriam.
32. Significantly the principle of computing the 60/90 day period by including the date of remand, as laid down in Chaganti (supra), has been followed in State Cr. Rev. No. 195/2023 Page 7 of 11 vs. Mohd. Ashraft Bhat (supra), Pragnya Singh Thakur (supra), and in Gautam Navlakha (supra).
33. The 3-Judge Bench in M. Ravinrdan (supra), followed Rustam (supra) viz. a viz. Ravi Prakash (Supra), wherein the date of remand is excluded. However, the computation as stipulated in Rustam (supra), being per incuriam, cannot in our opinion be considered as the correct law. Therefore, the Court in Ravindran (supra) ought to have followed the computation 19 AR Antulay vs. RS Nayak (1988) 2 SCC 602, para 183 (per MN Venkatchaliah J.) 20 Shah Faesal vs. Union of India, (2020) 4 SCC 1 (para 33) 21 2014 (16) SCC 623 principle laid down in Chaganti and not Rustam.
34... 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 (supra) 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.
Cr. Rev. No. 195/2023 Page 8 of 1135. The learned ASG placing reliance on Econ22 and Saketh23 to contend 22 Econ Antri Ltd. vs. Rom Industries [(2014) 11 SCC 769] 23 Saketh India Ltd. vs. India Securities Ltd. (1999) 3 SCC 1 that Section 9 of the General Clauses Act would be applicable to Section 167 CrPC, as there is a particular time period fixed, irrespective of a 'from' and 'to' stipulation, within which investigation is to be done. This we find to be fallacious as there is no fixed time period under which the investigation is to be completed. As explained above, when we include the date of remand in the stipulated 60/90 day period under Section 167, then it would result in a varying remand period not exactly amounting to a neat 60/90 days time. Thereby, making the General Clauses Act, inapplicable.
36... Ignoring the date of remand under Section 167 CrPC in the 60/90 day period, would in our opinion, militate against the legislative intent of providing an accused protection from being in prolonged custody, because of slothful investigation....
42... Further, 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.
50... We therefore declare that the stipulated 60/90 day remand period under Section 167 CrPC ought to be Cr. Rev. No. 195/2023 Page 9 of 11 computed from the date when a Magistrate authorizes remand. If the first day of remand is excluded, the remand period, as we notice 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 61 st/91st day, the accused in our considered opinion would be entitled to default bail. In other words, the very moment the stipulated 60/90 day remand period expires, an indefeasible right to default bail accrues to the accused.
13. Therefore, the Hon'ble Supreme Court of India has concluded that the date when the remand was granted has to be included. However, due to peculiar facts and circumstances of the present case, I am of the view that the 60 days period in the present case has to be counted from the day when the custody of the accused was actually obtained by the police pursuant to the orders passed by the Ld. Special Judge, District Kolhapur. Even from that day i.e. 11.01.2023, the period of 60 days is over on 11.03.2023. It does not matter if the bail application was moved on the 60 th day, inasmuch as, the Ld. MM was deciding the same on 61 st day and the filing of the chargesheet on the 61 st day i.e. 12.03.2023 directly in the court would not come to the aid of the Department/prosecution. Therefore, the order passed by the Ld. MM is clearly erroneous and contrary to the provisions of 167 of Cr.PC as interpreted by the Hon'ble Supreme Court of India from time to time.
14. Ld. Addl. PP has gone through the judgment and fairly Cr. Rev. No. 195/2023 Page 10 of 11 conceded the legal position as it emerges from the pen of the Hon'ble 3 Judge Bench of the Supreme Court of India.
15. The impugned order dismissing the bail is set aside with observation that the period of 60 days in the present case expired on 11.03.2023 and the Ld. MM could not have excluded any period from the date of arrest till the date of remand by the court in Delhi i.e. 11.01.2023, 12.01.2023 and 13.01.2023.
16. In view therefore, revision petition is allowed.
17. Although, I am exercising revsional jurisdiction but it needs to be noticed that the provisions under Section 167 (2) of Cr.PC is special provision which has been given the status of fundamental right by the decision of the Hon'ble Supreme Court of India in Kapil Wadhawan (supra). Once this court has noted that the order challenged before it in revision is illegal and against the mandate of law and and indefeasible right accrued in favour of the accused, any further detention of the accused would be unconstitutional and travesty of justice.
18. Therefore, while setting aside the order of the Ld. MM, the accused is admitted to bail on furnishing of bail bonds/surety bonds in the sum of Rs.25,000/- with one surety of like amount to the satisfaction of the concerned Ld. MM/Duty MM.
19. Ordered accordingly.
20. TCR be sent back.
21. Revision file be consigned to Record Room.
Dictated in the open court (Harjyot Singh Bhalla)
on 11.04.2023 ASJ-04, New Delhi
Cr. Rev. No. 195/2023 Page 11 of 11