Chattisgarh High Court
Faruk Khan vs State Of Chhattisgarh on 26 February, 2004
Equivalent citations: 2004(4)MPHT37(CG)
ORDER K.H.N. Kuranga, J.
1. Since these two petitions namely Misc. Criminal Case No. 3084 of 2003 and Misc. Criminal Case No. 236 of 2004 filed under Section 439 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') by applicants -Faruk Khan and Shital Chandra arise out of Crime No. 334 of 2003 registered in BALCO Nagar Police Station for the offences punishable under Sections 147,323,333,342,353 and 506 read with Section 149 of the Indian Penal Code, they are disposed of by this common order.
2. The applicants are two of the accused persons in the said case. It is submitted that there are seven accused in the said case including the applicants.
3. The said case was registered on the complaint filed by Shiv Govind Choubey, a Police Constable attached to BALCO Nagar Police Station, stating that he was working in BALCO Nagar Police Station and on 15-10-2003 he along with R. Sanjeet Jha, another Constable, went to BALCO Town for night patrolling duty. At about 12.30 in the night they found Raju Karsh, Shital Chandra, Babu Sweeper, Manoj alias Salim, Javed Musalman, Farukh Musalman and four other persons near the Bus Stand. All the above persons caught hold of him and R. Sanjeet Jha, took them to Samvedana Karyalaya, situated behind the Bus Stand, which was vacant, and took them inside the Office and Raju Karsh started abusing them saying that they got transferred their Town Inspector by their influence. Thereafter they tied their hands with rope and removed their uniforms and started beating them with slippers, shoes etc. and they also fisted and kicked them and confined them from 12.30 to 5.45 a.m. in the said premises and thus prevented them from performing their duties as Constables. They also threatened him and R, Sanjeet Jha stating that they would kill them and throw their bodies in the gutter. Raju Karsh brought petrol from a vehicle and stated they would burn them with that petrol and it would not be known to any person. He received injuries on his back, checks, stomach and ribs due to the assault and sustained pain in his ear. He has stated that R. Sanjeet Jha also received injuries. After their release in the morning they went to the Police Station and filed the complaint. On the basis of the said complaint the aforesaid crime number was registered against seven accused persons for the commission of the aforesaid offences.
4. Applicants Faruk Khan and Shital Chandra had filed an application namely Misc. Criminal Case No. 2579 of 2003 under Section 439 of the Code before this Court and after taking into consideration the facts and circumstances of the case and the fact that the two Constables were injured, the application was rejected on merits on 24-11-2003.
5. Thereafter the applicants filed the applications under Section 167(2) of the Code before the Chief Judicial Magistrate, Korba and the said applications were rejected on 17-12-2003. Thereafter the applicants have filed these petitions namely Misc. Criminal Case No. 3084 of 2003 and Misc. Criminal Case No. 236 of 2004 under Section 439 of the Code.
6. After completing the investigation charge-sheet was filed by the police on 13-1-2004, i.e., 87th day after the arrest of the applicants.
7. Learned Counsel appearing for the applicants contended that the police filed the charge-sheet beyond sixty days after the arrest of the accused and therefore the applicants are entitled for bail under Section 167(2)(a)(ii) of the Code, since one of the offences alleged against the applicants is under Section 333 of the Indian Penal Code which is punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
8. The case involves interpretation of Section 167 of the Code the relevant of which reads thus :-
"167. (1)..... Provided that-
(a) the Magistrate may authorize 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 authorize 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."
9. From the relevant part of the aforesaid Section, it is apparent that pending investigation relating to an offence punishable with imprisonment for a term "not less than ten years", the Magistrate is empowered to authorize the detention of the accused in custody for not more than ninety days. For rest of the offences, period prescribed is sixty days. Hence, in case, where offence is punishable with imprisonment for ten years or more, accused could be detained up to a period of ninety days. In this context, the expression "not less than" would mean imprisonment should be ten years or more and would cover only those offences for which punishment could be imprisonment for a clear period of ten years or more.
10. One of the offences alleged against the accused in the present case is under Section 333 of the Indian Penal Code, Under Section 333 of the Indian Penal Code the punishment provided is imprisonment of either description for a term which may extend to ten years and also fine. That means, imprisonment can be for a clear period often years or less. Hence, it could not be said that minimum sentence would be ten years or more. Further, in context also if we consider clause (i) of Proviso (a) to Section 167(2) it would be applicable in case where investigation relates to an offence punishable (1) with death; (2) imprisonment for life; and (3) imprisonment for a term of not less than ten years. It would not cover the offence for which punishment could be imprisonment for less than ten years. Under Section 333 of the Indian Penal Code imprisonment can vary from minimum to maximum of ten years and it can not be said that imprisonment prescribed is not less than ten years.
11. The offence under Section 333 of the Indian Penal Code alleged against the applicants is punishable with imprisonment of either description for a term which may extend to ten years and also fine. Therefore, the police ought to have filed the charge-sheet within sixty days from the date of arrest of the accused. In the present case, the police have filed the charge-sheet on 87th day after the arrest of the applicants and therefore there is some substance in the contention of the learned Counsel for the applicants that the applicants are entitled for bail.
12. Learned Counsel appearing for the applicants has relied upon the judgment of the Supreme Court in Rajeev Chaudhary v. State (NCT) of Delhi, reported in 2001 AIR SCW 2210. In that case the accused was arrested in connection with the offences punishable under Sections 386,506 and 120B of the Indian Penal Code. He was produced before the Metropolitan Magistrate, Delhi on 31-10-1998 and was released on bail by order dated 2-1-1999 by the Metropolitan Magistrate on the grounds that charge-sheet was not submitted within sixty days as provided under Section 167(2) of the Code. That order was challenged, before the Additional Sessions Judge, New Delhi by filing Criminal Revision No. 22 of 1999. By judgment and order dated 18-8-1999, the Additional Sessions Judge, New Delhi allowed the said revision application. The learned Additional Sessions Judge held that for an offence under Section 386, IPC period of sentence could be up to ten years RI. Hence, clause (i) of the proviso (a) to Section 167(2) would be applicable. He, therefore, set aside the order passed by the Metropolitan Magistrate releasing the accused on bail. That order was challenged before the High Court by the accused. The High Court referred to its earlier decisions and set aside the order passed by the Additional Sessions Judge. That order was challenged before the Supreme Court.
13. In the said case the accused filed the application under Section 167(2) of the Code before the Magistrate which was allowed. However, the Sessions Judge allowed the revision petition filed by the State and set aside the order passed by the Magistrate. That order was challenged before the High Court. The High Court set aside the order passed by the Additional Sessions Judge.
14. In the present case the applicants filed the application under Section 167(2) of the Code before the Magistrate and the Magistrate has rejected the same and instead of filing revision petition before the jurisdictional Sessions Judge the applicants have filed these petitions under Section 439 of the Code which are not maintainable.
15. Learned Counsel appearing for the applicants contended that the petition filed under Section 439 of the Code by the applicants are maintainable because the Proviso to sub-section (2) of Section 167 of the Code says that every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter. Section 439 of the Code comes under Chapter XXXIII of the Code.
16. The remedy of bail provided under Section 167(2) of the Code can not be equated with the remedy of bail provided under Chapter XXXIII of the Code for an accused person in a given case. The latter remedy is very exhaustive in its nature to be exercised by the Court of law with every care and caution on the basis of the factual aspects in a given case, whereas, the remedy of bail provided for in the first instance namely under Section 167(2) is only on the happening of certain contingencies that is, the mere non filing of the final report or the charge-sheet within the time spelt out in the above section of law and nothing more. In the circumstances, I am unable to accept the contention of the learned Counsel appearing for the applicants. Even in the judgment of the Supreme Court in Rajeev Chaudhary's case (supra) the accused was arrested in connection with the offences punishable under Sections 386, 506 and 120B of the Indian Penal Code. He was produced before the Metropolitan Magistrate and he was released on bail by the Metropolitan Magistrate on the ground that the charge-sheet was not submitted within sixty days as provided under Section 167(2) of the Code. That order was challenged before the Additional Sessions Judge, New Delhi by filing a revision petition. This shows that against the order passed by the learned Magistrate rejecting the application filed by the accused under Section 167(2) of the Code, the remedy available to the applicants was to file a revision petition before the jurisdictional Sessions Judge challenging the said order of the learned Magistrate.
17. Therefore, I hold that the remedy available to the applicants in this case is to file a revision petition before the jurisdictional Sessions Judge challenging the order passed by the learned Magistrate rejecting the application filed by the applicants under Section 167(2) of the Code and the petition filed under Section 439 of the Code are not maintainable.
18. In the result, the petitions are liable to be dismissed and they stand dismissed.
19. Learned Counsel appearing for the applicants submitted that the learned Additional Sessions Judge, Korba has held trial the offence under Section 333 of the Indian Penal Code has not been made out against the applicants and sent back the case to the Chief Judicial Magistrate, Korba for trial. Hence, liberty may be reserved to the applicants to file appropriate application for bail before the Chief Judicial Magistrate, Korba. The liberty is reserved.
Parties are entitled for certified copy of this order.