The Supreme Court said on Tuesday that a larger three-judge bench will consider whether the day an accused is remanded in custody should be included in the calculation of the 60-day period for granting default bail. A two-judge bench comprising Justices SK Kaul and Hrishikesh Roy also said they would ask Chief Justice SA Bobde to constitute the larger bench as soon as possible.

The legal issue arose during the hearing of an Enforcement Branch appeal against an order from the Bombay High Court granting bail to former DHFL promoters Kapil Wadhawan and Dheeraj Wadhawan, in a Yes Bank money laundering case being investigated by the agency.

Senior lawyer AM Singhvi, appearing for the Wadhawans, told the Supreme Court his clients had been in jail for more than 11 months and called for a swift elimination of the plea.

He said that in the event of a conflict of laws, the decision should be in favor of the accused.

The Supreme Court said the issue of bail should also be decided by the bench of three judges.

“We will try to frame the problems as soon as possible,” said the bench.

In September last year, the Supreme Court suspended an order from the Bombay High Court granting bail to former DHFL promoters.

The higher court notified the accused of the Enforcement Directorate’s plea against the High Court’s bail order.

On August 20, 2020, the Bombay High Court granted the Wadhawan brothers bail, declaring that the mandatory default bond was a result of the failure to file the indictment.

The CH granted them bail because it concluded that the DE had not filed its charge sheet in the case within the stipulated 60-day time limit.

The central investigative agency then filed a request for special leave before the Supreme Court.

The federal investigative agency had said it was not violating due process and filed part of the indictment by email, a day before the end of the 60-day period.

The charge sheet was filed in physical form by the DE on July 13.

Pursuant to Article 167 (2) of the Code of Criminal Procedure, an accused may be detained for a maximum of 90 days for a crime punishable by the death penalty, life imprisonment or a sentence of more than 10 years. If the investigation concerns another offense, the accused may be detained for 60 days.

If the investigative agencies do not complete their investigation within this time frame, the arrested person is entitled to “default bond”.

The Wadhawans, former developers of the Dewan Housing Finance Corporation (DHFC), however, have not been released on bail as they are currently held by the CBI.

They were arrested by the ED on May 14 under the provisions of the Prevention of Money Laundering Act (PMLA).

The ED had slapped PMLA’s accusations against the two and in this case after investigating a CBI FIR filed in March in connection with suspected suspicious loans granted by Yes Bank and the “counterpart” between its co-promoter Rana Kapoor and the Wadhawans.

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

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