Orissa High Court
Md. Naseem vs State Of Orissa on 25 September, 2002
Equivalent citations: 2003CRILJ1050, I(2003)DMC25, 2002(II)OLR476
Author: P.K. Mohanty
Bench: P.K. Mohanty
JUDGMENT P.K. Mohanty, J.
1. This is an application for grant of bail to the petitioner in terms of Section 167(2) of the Code of Criminal Procedure, the charge-sheet having not been filed within sixty days of the date of detention.
2. The petitioner earlier had moved this Court for bail under Section 439, Cr. P.C. but on his prayer, the bail application was permitted to be withdrawn. The police having failed to file charge-sheet within sixty days of the detention, the petitioner moved the learned Additional Sessions Judge for grant of bail in terms of Section 167(2), Cr. P.C., but the application having been rejected, this petition.
3. Shri B. S. Mishra, learned counsel submitted that the petitioner was arrested and produced before the Magistrate on 17-5-2002 for allegedly having committed offences punishable under Section 498-A/307/34, IPC and Section 4 of the Dowry Prohibition Act and he was remanded to custody and was continuing as such. An application was moved before the learned Additional Sessions Judge for release of the petitioner in view of Section 167, Cr. P.C., the police having failed to file charge-sheet. But the learned Additional Sessions Judge, on erroneous appreciation of fact and misinterpretation of law, has rejected the same.
4. Submission is made that the allegation against the petitioner in its entirety would call for maximum punishment of imprisonment up to ten years and fine under Section 307, IPC since the allegations are with regard to attempt of the petitioner to commit murder and no hurt is alleged to have been caused in the process. According to the learned counsel, the case is covered under the first part of Section 307, IPC and as such in view of Section 167(2), Cr. P.C. the maximum period for which the petitioner could be detained in custody is up to a period of sixty days. Since the learned Magistrate could not authorise detention of the petitioner beyond a period of sixty days, in view of the specific provision under Section 167(2)(a)(ii), Cr. P.C., the petitioner was entitled as of right to be released on bail.
5. Prosecution case as per the FIR and the statements of witnesses recorded under Section 161, Cr. P.C. is that the petitioner is the husband of the informant-wife. On 30-5-2002, Samsad Begum, the informant lodged a report in Cuttack Mahila P.S. that she had married Md. Naseem, the petitioner of Mastan Road, Buxi Bazar, Cuttack as per muslim custom. According to the demand, her father gave all articles like Bajaj (Caliber) Motor-cycle, gold and silver ornaments as dowry as per the list given by the in-law's family. Two or three months after marriage, her mother-in-law Fatima Bibi, sister-in-law Ruksana Begum, Jobeda Begum, Naseem Khan the husband of the sister-in-law, Md. Naseem, the elder brother of her husband and her husband-petitioner demanded Rs. 25,000/-, colour television and gas cooking stove. The demand having not been fulfilled, she was subjected to torture and was not given food inasmuch as she was assaulted and subjected to serious torture with threat to murder. There was some negotiation between her father and the members of her in-law's house. Ultimately, it is alleged that the in-law's house forced the informant to commit suicide by hanging in the fan but she having not succumbed to the desire, the petitioner-husband, father-in-law and other relations named above, caught hold of her and Jobeda, the sister-in-law tried to tie the rope in her neck to get her hanged in the ceiling fan but she somehow managed to escape and fell down. Her father and other relations came and rescued her after they were informed of the same. A compromise was tried, but ultimately failed. The P.S. Case was started and after investigation charge-sheet was filed on 16-8-2002. However, bail application was moved before the learned Additional Sessions Judge on 3-8-2002, out of which the present petition arises.
6. In view of the submissions made at the Bar, the question that arises for consideration is as to whether the case is covered under proviso (a)(ii) of Sub-section (2) of Section 167, Cr. P.C. and the maximum period of detention in custody would be sixty days or 120 days as contemplated under the proviso (a)(i) of Section 167, Cr. P.C. In order to appreciate the contention raised at the Bar, the provision of Section 167(2), Cr. P.C. may be looked into. The said provision is quoted hereunder :
"167(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time to authorise the detention of the accused in such custody as such Magistrate thinks fit, or a term not exceeding fifteen days in the whole, and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction :
Provided that --
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding --
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years,
(ii) sixty days, where the investigation relates to any other offence;
and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police."
The Magistrate is thus empowered to authorise detention in custody of the police of an accused for a term not exceeding fifteen days initially. In view of the proviso to Sub-section (2) of this section, the Magistrate may authorise detention of the accused person otherwise than in the custody of the police beyond the period of fifteen days, if he is satisfied that adequate grounds exist for detention. But the Magistrate shall not authorise the detention for a total period exceeding 120 days where the investigation relates to an offence punishable with death/ imprisonment for life or imprisonment for a term of not less than ten years. But where the investigation relates to any other offence, 60 days and the accused shall be released on bail, if he is prepared to and thus furnish bail on expiry of the said period of either 120 days or 60 days, as the case may be. The persons released on bail under this Sub-section shall be deemed to be so released under Chapter 33 of the Code.
7. Thus, it is amply clear that the power of a Magistrate to authorise detention of an accused in the two types of offences is different and distinct.
In a case of investigation into a case punishable with death/imprisonment for life or imprisonment for a term of not less than ten years, the maximum period of detention is of 120 days, whereas if the investigation relates to any other offence, the maximum period for which a Magistrate may authorise for detention is 60 days. The contention of the learned counsel is that he comes within clause (ii) of proviso (a) to Sub-section (2) of Section 167, Cr. P.C., since according to him, the allegation against the ' petitioner comes within the first part of Section 307, IPC.
Section 307, IPC may be quoted hereunder :
"307. Attempt to murder -- whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned."
In view of the aforesaid provision, there cannot be any manner of doubt that if no hurt is caused in or during attempt to murder the maximum prescribed imprisonment may extend to ten years whereas under the second part if the attempt is coupled with hurt caused to the person then the maximum punishment may extend to imprisonment for life; or the imprisonment which may extend to ten years and fine.
In Ashok Kumar Sharma alias Lala v. State (1997) 13 OCR 327, while considering a similar case, I have held, where the investigation in progress is in respect of allegation for an offence coming within the first part of Section 307, IPC, the proviso (a)(ii) of Sub-section (2) of Section 167, Cr. P.C. is applicable and maximum period of detention that a Magistrate is competent to authorise would be 60 days. In such a case, the final form is required to be filed within 60 days, otherwise detention becomes illegal and the accused is entitled to bail as of right, provided he is prepared to execute bond etc. as prescribed.
In a recent decision in Rajeev Chaudhary v. State (NCT) of Delhi, AIR 2001 SC 2369 : (2001 Cri LJ 2941) the Apex Court has laid down that pending investigation relates to an offence punishable with imprisonment for a term not less than ten years, a Magistrate is empowered to authorise detention of the accused in custody for not more than 90 days (now as per amendment 120 days). But for the rest of the offences punishable with imprisonment up to ten years, the prescribed period is 60 days and not beyond.
In the case of Bijay Kumar Rout v. State of Orissa (1993) 6 OCR 714, this Court while interpreting the punishment prescribed under the first part of Section 392, IPC held that when the punishment prescribed may extend ten years, the proviso (a)(ii) to subsection (2) of Section 167, Cr. P.C. would be applicable and the maximum period of detention prescribed in such cases is 60 days.
8. In the case at hand, the FIR lodged by the informant, the victim wife of the petitioner and the statements of witnesses disclose no hurt is caused to the informant while attempt to murder by hanging was made and, therefore, the case is covered by the first part of Section 307, IPC since maximum imprisonment prescribed under first part of Section 307, IPC is up to a maximum period often years. The provision prescribing the period of detention in custody during investigation of a case punishable with imprisonment for a term of not less than ten years and the investigation for an offence for which the punishment is for imprisonment for a term which may extend to ten years is distinct and different.
9. In such view of the matter, the petitioner could be authorised to be detained in custody for a maximum period of 60 days in view of the proviso (a)(ii) to Sub-section (2) of Section 167, Cr. P.C. The bail application in terms of Section 167, Cr. P.C. was filed on 3-8-2002 and admittedly the charge-sheet was not filed by them. The petitioner was arrested and produced before the Magistrate on 17-5-2002 and on 3-8-2002 more than 60 days has elapsed and, therefore, the learned Additional Sessions Judge ought to have directed release of the petitioner in terms of the aforesaid provision of Section 167(2), Cr. P.C.
10. In the result, I allow this application and direct release of the petitioner on bail under Section 167(2), Cr. P.C. on furnishing bond and subject to such conditions as the learned Magistrate may fix, including a condition that the petitioner shall attend the trial on each date fixed for the purpose and failure to attend the trial on a single date without sufficient cause, the petitioner shall be liable to be taken to custody.