DHFL case: SC dismisses ED appeal, says default bail duration to include remand period

The Supreme Court (SC) dismissed an appeal made by the Enforcement Directorate on Monday (March 27) and ruled that the 60/90-day duration for the grant of default bail in a criminal case will include the remand period.

A bench of Justices KM Joseph, Hrishikesh Roy and BV Nagarathna dismissed the appeal filed by the ED challenging the Bombay high court order granting bail to former DHFL promoters Kapil Wadhawan and Dheeraj Wadhawan in a Yes Bank money laundering case being probed by the agency.

“The remand period will be calculated from the date the magistrate remand the accused. An accused becomes entitled to default bail, if the chargesheet is not filed by 61st or 91st day of the remand period”, the bench said.

The three-judge bench answered the larger issue referred to it by a two-judge bench in 2021. It directed the pending petitions pertaining to the case be placed before a two-judge bench. The top court had on February 9, reserved its verdict on the appeal of ED.

Also read: CBI slaps fresh charges against DHFL’s Wadhawans in ₹34,000 crore cheating case

On February 23, 2021, the top court had referred to larger bench the legal question that whether the day on which an accused is remanded to custody should be included while calculating the 60-day period for the grant of default bail.

The legal issue had arisen during the hearing of an ED’s appeal against a Bombay high court order granting bail to the former promoters of the Dewan Housing Finance Limited (DHFL).

In September 2020, the top court had stayed a Bombay high court order granting bail to the promoters. The top court had issued a notice to the accused on the ED’s plea against the high court order of bail.

The Bombay high court had on August 20, 2020 granted bail to the Wadhawan brothers stating that mandatory default bail is the sequel to non-filing of the chargesheet. The HC had granted them bail, as it held that the ED failed to file its chargesheet in the case within the stipulated 60-day period.

The central probe agency had then filed a special leave petition before the apex court.
The federal probe agency had said that it was not in violation of the procedure and had filed a part of the chargesheet through e-mail, a day before the 60-day period ended.
The chargesheet was filed in physical form by the ED on July 13, 2020.

As per Section 167(2) of the Code of Criminal Procedure, an accused can be detained for a maximum of 90 days for a crime punishable with death, life imprisonment or a sentence of over 10 years. If the investigation relates to any other offence, the accused can be detained for 60 days.

Also read: ED arrests DHFL promoter Kapil Wadhawan in money laundering case 

If the investigative agencies do not complete their investigation within these time limits, the arrested person is entitled to default bail. The Wadhawans, however, were not released on bail as they are in CBI custody at present. They were arrested by the ED on May 14, 2020 under the provisions of the Prevention of Money Laundering Act (PMLA).

The ED had slapped PMLA charges against the two and in this case after studying a CBI FIR filed in March in connection with alleged suspicious loans granted by Yes Bank and the quid pro quo between its co-promoter Rana Kapoor and the Wadhawans.

According to the CBI and ED, Yes Bank invested around ₹3,700 crore in short term non-convertible debentures of DHFL between April and June 2018.