P&H HC grants conditional bail to accused who sought inclusion of date of remand while calculating sixty days period for grant of default bail u/s 167(2) of CrPC

Read Order: Rohit Mehta v. Superintendent (Preventive), Central Goods & Services Tax, GST Bhawan, F-, Rishi Nagar, Ludhiana, Punjab

Monika Rahar

Chandigarh, March 10,2022: In a case involving the question whether the day of remand is to be included or excluded for the purpose of calculating the period for default bail, the Punjab and Haryana High Court has leaned in favour of the accused-petitioner who argued that the date of the remand should also be included while calculating the sixty days period. 

The Bench of Justice Harinder Singh Sidhu said in this regard, “In view of the aforesaid, leaning in favour of an interpretation to the benefit of the accused, it is deemed appropriate that the petitioner be directed to be conditionally released on bail. Accordingly, this petition is allowed.”

However, considering the fact that the same question was referred to a larger bench of the Supreme Court and the decision of the same is awaited, High Court also clarified, “It is clarified that in case the decision of the Larger Bench of the Hon’ble Supreme Court is against the inclusion of the day of remand in calculating the period of custody, it would be open to the respondent to seek modification/ recalling of this order.”

The petitioner in this case was arrested on September 28, 2021, for the alleged commission of an offence under Section 132 of the Goods & Services Tax Act, 2017 (the GST Act). On the next day, he was produced before the Trial Court and was remanded to judicial custody. The maximum punishment prescribed for the offence under the GST Act is five years, hence the complaint/ charge sheet was to be filed within 60 days.

As the respondent failed to file the complaint within 60 days of his first remand/detention, the petitioner filed an application for default bail under Section 167(2) of Cr.P.C. on November 28, 2021. The trial court, taking note of the fact that 60 days elapsed without the complaint being filed ordered the release of the petitioner via an order passed on the same day, subject to certain conditions, including of furnishing bail bonds in the sum of Rs.1 Crore along with two local sureties in the like amount. However, the petitioner could not furnish requisite bail bonds/surety bonds as one of the two sureties was not accepted. Meanwhile, the complaint was also filed. 

Therefore, on the same day, the Trial Court passed the order that the right to bail which accrued to the petitioner stood forfeited. Aggrieved, the petitioner filed a revision petition with a prayer for modification of the stringent conditions imposed in the order granting default bail. The respondent- Department also filed a revision assailing the order granting default bail. It was their contention that the complaint was filed within a period of 60 days and thus, the petitioner was not entitled to default bail. By the impugned order, the revision petition of the respondent- Department was allowed and the default bail granted to the petitioner was set aside. The petitioner’s revision petition was dismissed. Hence, the present petition. 

The Court below held that since the complaint was filed on November 28, 2021, which was the 60th day, so no indefeasible right accrued in favour of the petitioner to get default bail. 

At the outset, the Court reiterated the factual scenario of this case in order to bring the important dates of the case to light. On September 28, 2021, the petitioner was arrested and on September 29, he was produced before the Trial Court and was remanded to judicial custody on that date. On November 28, 2021, the petitioner filed an application for default bail which was allowed on the same date. After the application of the petitioner was allowed, but before he had furnished the sureties and been released, the complaint was also filed by the Department the same day (September 28). 

According to the petitioner, the date of the remand should also be included while calculating the sixty days period. On the contrary, the respondent- Department argued that the day of remand is to be excluded while calculating the sixty days period. In view, thereof  November 28 would be the Sixtieth day, the same day the complaint was filed. Thus, it was argued that the petitioner’s application for default bail filed on  November 28 could not have been allowed. 

On the question of the inclusion or exclusion of the day of remand for the purpose of calculating the period for default bail, the observed that owing to conflicting views, the Supreme Court referred the matter to a Larger Bench in Enforcement Directorate Vs. Kapil Wadhawan & Another (Criminal Appeal No.701-702 of 2020). 

In view of the aforesaid, leaning in favour of an interpretation to the benefit of the accused, the Court deemed it appropriate to direct conditional release of the petitioner on bail. Accordingly, this petition was allowed and the petitioner was directed to be conditionally released on bail to the satisfaction of the Trial Court.