The Bombay High Court on Wednesday granted default bail to Kapil and Dheeraj Wadhawan, the promoters of Dewan Housing Finance Limited (DHFL), who are accused in the Yes Bank money laundering case..Justice Milind Jadhav held, "Applicants in present case are in custody since 4 years 9 months. There is no possibility of the trial commencing in the near future. Detaining an under-trial prisoner for such an extended period further violates his fundamental right to speedy trial flowing from Article 21 of the Constitution.".Counsel for the Wadhawans argued that the prolonged detention, coupled with delays in the investigation, had already far exceeded the threshold for default bail. He emphasised that the Enforcement Directorate (ED) had not completed its investigation, which only reinforced the need to honour the constitutional right to a speedy trial.The ED's counsel contended that the Wadhawans had contributed to the delay by filing several interim applications. However, Justice Jadhav noted that the delay in trial cannot be solely attributed to the brothers. He referenced the well-established principle that "bail is the rule and refusal is the exception," particularly in cases of prolonged pre-trial detention..The Court also elaborated on the interpretation of Section 436-A of the Code of Criminal Procedure (CrPC), clarifying that the word "shall" in the statute mandates release once the accused has served more than half of the maximum sentence. It reiterated that the gravity of the offence was not a factor in deciding bail under this provision. "Once the undertrial crosses one-half of the maximum sentence, the rigours of the twin conditions under Section 45(1) of the PMLA do not apply, and the applicant is entitled to be released on bail," the Court emphasised. It concluded that the applicants were entitled to bail without entering into the merits of the case at this stage..Senior Advocate Amit Desai along with Advocates Gopalkrishna Shenoy, Kushal Mor, Pooja Kothari, Janaki Garde and Raghav Dharmadhikari, briefed by Rashmikant and Partners, appeared for the Wadhawans.Advocates Hiten Venegaonkar, Aayush Kedia and Diksha Ramnani appeared for the ED.Advocate HJ Dedhia represented the State..The brothers were granted default bail by the Bombay High Court in the cases registered by the ED in August, 2020. However, the Supreme Court subsequently cancelled the bail order..The allegation is that Kapil Wadhawan, Dheeraj Wadhwan and other accused persons entered into a criminal conspiracy to cheat a consortium of seventeen banks led by Union Bank of India.The complaint alleged that the accused induced the consortium banks to sanction loans aggregating to ₹42,871.42 crore. Much of this amount was allegedly siphoned off and misappropriated by the alleged falsification of books of DHFL. Also alleged was dishonest default in repayment of the legitimate dues of the said consortium banks.It was further alleged that a wrongful loss of ₹34,615.00 crore was caused to the consortium banks between January 2010 and December 2019..[Read order]
