Custody not a substitute for conviction: Top court

The state cannot use its might to put someone behind bars as a substitute for final conviction, the Supreme Court observed on Tuesday, expressing concern over what it termed a “growing trend”.

The observation came in the course of an interesting hearing on a point of law — when does the 60-day window for filing a charge-sheet as laid down by the Code of Criminal Procedure start, on the day the accused are remanded to custody or the day after?

A bench of justices Sanjay Kishan Kaul and Hrishikesh Roy was critical of the “new philosophy” applied by the police and the prosecution to try and keep people in jail at least for a few days as a form of punishment prior to proving their guilt.

“Putting someone behind bars cannot be a substitute for final conviction. Ultimately, the philosophy now seems to have become, “let us keep someone behind bars at least for some days even if there is no conviction in the end”. The state cannot use its might like this,” observed the bench.

It also commented on the independence of investigating agencies, regretting that those working in these agencies were not adequately assessing the kinds of cases that should really go to trial since they were also influenced by several other factors.

“In true sense, an independent agency, which is supposed to take a call on what should go to trial and what not, is also influenced by several other things... some {officers} are more interested about what after retirement for them,” remarked the bench.

It added: “If every case goes to a trial, the real time to examine most serious cases is reduced. Corruption cases and CBI {Central Bureau of Investigation} cases take the longest. And the person who is being convicted after 20 years, will tell us I am 70 now, don’t send me to jail. All this needs to be corrected.”

The bench also wondered if the government carried out any “legislative impact assessment” before making bounced cheques and traffic violations crimes to be tried by the courts.

“These are institutional issues that nobody thinks of. Our good old jurisprudence on criminal laws, bail etc have been thrown away,” rued the court.

The comments by the apex court came when the court was hearing bail pleas of Dewan Housing Finance Corporation (DHFL) promoters Kapil Wadhawan and Dheeraj Wadhwan, who have been jailed in a money laundering case registered against them by the Enforcement Directorate (ED).

According to CBI and ED, Yes Bank invested around ₹3,700 crore in short-term non-convertible debentures of DHFL between April and June 2018 as a quid pro quo between Yes Bank’s co-promoter Rana Kapoor and the Wadhawans. The Wadhawans have been in jail since March last year.

Senior advocates Abhishek Manu Singhvi and Amit Desai appeared for the Wadhawans while additional solicitor general SV Raju represented ED in the case.

In September 2020, SC stayed an order by the Bombay high court that granted bail to the Wadhawans on the grounds that ED failed to file a charge-sheet in the matter within the 60-day window as stipulated by the Code of Criminal Procedure (CrPC).

Raju, for ED, argued that there was no expiry of the time since the day on which an accused was remanded should be excluded while calculating the 60-day period. Raju showed a judgment of a three-judge bench of the SC to buttress his point.

The counsel for Wadhawans also presented two other judgments of three-judge benches of the SC to contend that the 60-day period would start from the day on which accused are remanded to custody.

Citing this “legal conundrum” arising out of contradictory judgments by the SC, the bench said: “We hear more SLPs (special leave petitions) than anything else. There is no time for laying down laws and to settle laws. If we, in the Supreme Court, are facing such a conundrum, think of high courts and magisterial courts. They will have more of a predicament and they can choose one out of many of our judgments on the same point.”

The bench then decided to refer this case to the Chief Justice of India (CJI) for setting up a bench of at least three and preferably five judges for an authoritative ruling on the point of law.

It also said the court order would request the CJI to have the Wadhawans’ plea for bail urgently listed before a three-judge bench.