Delhi High Court
Om Prakash vs State (Nct Of Delhi) on 22 June, 2005
Equivalent citations: 121(2005)DLT686
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed
JUDGMENT Badar Durrez Ahmed, J.
1. The petitioner is accused of having committed offences under sections 376/506/34 of The Indian Penal Code, 1860 (hereinafter referred to as the "IPC"). The petitioner claims "bail-on-default" under the provisions of proviso (a)(ii) to section 167 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "CrPC"). Therefore, some dates would be relevant. The First Information Report (FIR) was registered at Police Station Sameypur Badli on 17.2.2005. He was arrested on the same day. On 18.2.2005, he was remanded to judicial custody and continues to be in custody. According to the learned counsel for the petitioner the charge-sheet was required to be filed within 60 days from the date of the first remand i.e., 18.2.2005. Since, the charge-sheet had not been filed by 18.4.2005 (the date, when, the 60 days perod came to an end) the petitioner, on 4.5.2005 filed an application before the Magistrate claiming release on bail in terms of proviso (a)(ii) to section 167(2) of CrPC. While the application was pending, the charge-sheet was filed on 12.5.2005. When the said application came to be disposed of on 21.5.2005, two issues arose for consideration. The first issue was about the filing of the charge-sheet and as to whether it cured the alleged "defect" of non-filing of the same in time. To be fair to the Magistrate, he decided this issue straightaway and, I may add, correctly by holding that the subsequently filed charge-sheet would not cure the defect. The second issue was whether the case at hand fell under proviso (a)(ii) to section 167(2) CrPC or under proviso (a)(i) to section 167(2) CrPC. The former requires the charge-sheet to be filed within 60 days and the latter, 90 days. The Magistrate held that the 90 day period was applicable and therefore the charge-sheet was in time. The petitioner then moved an application before the Sessions Court. The learned Additional Sessions Judge, by an order dated 23.5.2005 rejected the same holding that the period applicable was 90 days and the charge-sheet had been filed within that period.
2. Being aggrieved, the petitioner has now approached this court. The questions remain the same:
(1) Whether the filing of a charge-sheet, subsequent to the period prescribed under section 167 CrPC and during the pendency of an application for bail, would "cure the defect" and dis-entitle the accused to bail under the said provision?
(2) Whether the offence under section 376 IPC would be covered under clause (a)(i) of the proviso to section 167 CrPC or under clause (a)(ii) of the proviso to section 167 CrPC?
The answers are: (1) No; (2) The offence under section 376 IPC would be covered under clause (a)(i) of the proviso to section 167) CrPC. The reasons are as follows:
Re: Question (1) 2.1.1 There is no difficulty with the well settled position that non-completion of investigation within the period prescribed under section 167 CrPC gives an accused an "indefeasible right" to be released on bail. But, how long does this right ensure to the benefit of the accused? In Sanjay Dutt v. State through CBI, Bombay (II): (1994) 5 SCC 410, the Supreme Court held that (page 442):
"The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 CrPC ceases to apply."
Considering this very passage, the Supreme Court, in the subsequent case of Bipin Shantilal Panchal (Dr) v. State of Gujarat: (1996) 1 SCC 718, observed that (page 718):
"Therefore, if an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the charge-sheet is filed. But on the other hand if he exercises the right within the time allowed by law and is released on bail under such circumstances, he cannot be rearrested on the mere filing of the charge-sheet, as pointed out in Aslam Babalal Desai v. State of Maharashtra".
2.1.2 An unhealthy practice had developed where some courts, to defeat this indefeasible right of the accused, kept their bail applications pending to enable the filing of the charge-sheets and then rejected the applications because the charge-sheets had been filed. This practice was deprecated by the Supreme Court in the case of Mohd. Iqbal Madar Sheikh v. State of Maharashtra: (1996) 1 SCC 722, in the following words (page 729):-
"12. During hearing of the appeal, it was pointed out by the counsel appearing on behalf of the appellants that some courts in order to defeat the right of the accused to be released on bail under proviso (a) to Section 167(2) after expiry of the statutory period for completion of the investigation, keep the applications for bail pending for some days so that in the meantime, charge-sheets are submitted. Any such act on the part of any court cannot be approved. If an accused charged with any kind of offence becomes entitled to be released on bail under proviso (a) to Section 167, that statutory right should not be defeated by keeping the applications pending till the charge-sheets are submitted so that the right which had accrued is extinguished and defeated."
2.1.3 But, where such an indefeasible right has accrued to an accused on the non-filing of the charge-sheet during the maximum period allowable under law and the accused has promptly applied for bail on such default and the said application is pending disposal by the court, can the mere filing of the charge-sheet extinguish or defeat such a right? Clearly, no. This aspect of the matter has been dealt with at length by the Supreme Court in the the case of Uday Mohanlal Acharya v. State of Maharashtra: (2001) 5 SCC 453. The Supreme Court had this to say:
"A conspectus of the aforesaid decisions of this Court unequivocally indicates that an indefeasible right accrues to the accused on the failure of the prosecution to file the challan within the period specified under sub-section (2) of Section 167 and right can be availed of by the accused if he is prepared to offer the bail and abide by the terms and conditions of the bail, necessarily, therefore, an order of the court has to be passed. It is also further clear that that indefeasible right does not survive or remain enforceable on the challan being filed, if already not availed of, as has been held by the Constitution Bench in Sanjay Dutt case2. The crucial question that arises for consideration, therefore, is what is the true meaning of the expression "if already not availed of"? Does it mean that an accused files an application for bail and offers his willingness for being released on bail or does it mean that a bail order must be passed, the accused must furnish the bail and get him released on bail? In our considered opinion it would be more in consonance with the legislative mandate to hold that an accused must be held to have availed of his indefeasible right, the moment he files an application for being released on bail and offers to abide by the terms and conditions of bail. To interpret the expression "availed of" to mean actually being released on bail after furnishing the necessary bail required would cause great injustice to the accused and would defeat the very purpose of the proviso to Section 167(2) of the Criminal Procedure Code and further would make an illegal custody to be legal, inasmuch as after the expiry of the stipulated period the Magistrate had no further jurisdiction to remand and such custody of the accused is without any valid order of remand. That apart, when an accused files an application for bail indicating his right to be released as no challan had been filed within the specified period, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not, and whether a challan has been filed or not. If the expression "availed of" is interpreted to mean that the accused must factually be released on bail, then in a given case where the Magistrate illegally refuses to pass an order notwithstanding the maximum period stipulated in Section 167 had expired, and yet no challan had been filed then the accused could only move to the higher forum and while the matter remains pending in the higher forum for consideration, if the prosecution files a charge-sheet then also the so-called right accruing to the accused because of inaction on the part of the investigating agency would get frustrated. Since the legislature has given its mandate it would be the bounden duty of the court to enforce the same and it would not be in the interest of justice to negate the same by interpreting the expression "if not availed of" in a manner which is capable of being abused by the prosecution."
* * * * * "In interpreting the expression "if not availed of" in the manner in which we have just interpreted we are conscious of the fact that accused persons in several serious cases would get themselves released on bail, but that is what the law permits, and that is what the legislature wanted and an indefeasible right to an accused flowing from any legislative provision ought not to be defeated by a court by giving a strained interpretation of the provisions of the Act. In the aforesaid premises, we are of the considered opinion that an accused must be held to have availed of his right flowing from the legislative mandate engrafted in the proviso to sub-section (2) of Section 167 of the Code if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail that is ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the accused. In our view, such interpretation would subserve the purpose and the object for which the provision in question was brought on to the statute-book. In such a case, therefore, even if the application for consideration of an order of being released on bail is posted before the court after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting a formal order of being released on bail in enforcement of his indefeasible right, then filing of challan at that stage will not take away the right of the accused."
* * * * * "6. The expression "if not already availed of" used by this Court in Sanjay Dutt case3 must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in para (a) of the proviso to sub-section (2) of Section 167 if the accused files an application for bail and offers also to furnish the bail on being directed, then it has to be held that the accused has availed of his indefeasible right even though the court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same.
With the aforesaid interpretation of the expression "availed of" if the charge-sheet is filed subsequent to the availing of the indefeasible right by the accused then that right would not stand frustrated or extinguished, necessarily therefore, if an accused entitled to be released on bail by application of the proviso to sub-section (2) of Section 167, makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then the accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge-sheet is filed, the so-called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail."
2.1.4 In Uday Mohanlal Acharya (supra), the prescribed period under para (a) of the proviso to sub-section (2) of Section 167 CrPC expired on 16-8-2000 and the accused filed an application for being released on bail and offered to furnish bail on 17-8-2000. The Magistrate refused the bail prayer on the ground that the proviso to sub-section (2) of Section 167 CrPC had no application to cases pertaining to the Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999. The accused then moved the High Court. While the matter was pending before the High Court, the Public Prosecutor took an adjournment and the case was posted to 31-8-2000 and just the day before the charge-sheet was filed on 30-8-2000. The High Court refused to release the accused on bail on the understanding that the accused cannot be said to have "availed of" his indefeasible right, as held in Sanjay Dutt (supra) since, he had not yet been released on bail. In this factual context, the Supreme Court, in Uday Mohanlal Acharaya (supra) held:-
"But in view of our conclusion as to when an accused can be said to have availed of his right, in the case in hand, it has to be held that the accused availed of his right on 17-8-2000 by filing an application for being released on bail and offering therein to furnish the bail in question. This being the position, the High Court was in error in refusing that right of the accused for being released on bail. We, therefore, direct that the accused should be released on bail on such terms and conditions to the satisfaction of the learned Magistrate, and further the Magistrate would be entitled to deal with the accused in accordance with law and observations made by us in this judgment, since the charge-sheet has already been filed."
2.1.5 It is therefore clear that once an accused files an application for being released on bail and offers to furnish the bail in question he is said to have availed his indefeasible right to release on default on account of non-filing of the charge-sheet within the prescribed time-limit. Moreover, the mere filing of the charge-sheet during the pendency of his said application for bail does not "extinguish" or "defeat" his accrued right. Question No.1 above must be answered in the negative.
Re: Question (2) 2.2.1 To answer this question it would be necessary to refer to the relevant portions of Section 167 CrPC and Section 376 IPC. Section 167 CrPC, so much as is relevant, is reproduced below:
"167. Procedure when investigation cannot be completed in twenty-four hours."
(1) * * * (2) * * * 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;
Section 376 IPC, so much as is relevant, is reproduced below:
"376. Punishment for rape.--
(1) * * * (2) Whoever, --
* * *
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
* * *"
Ignoring the proviso to section 376(2) IPC, it becomes immediately clear that, pending investigation, the Magistrate could authorise detention for a period up to 90 (ninety) days. This is so because the punishment prescribed is rigorous imprisonment for a term which "shall not be less than ten years..." and, as such, proviso (a)(i) to section 167 CrPC would be applicable in as much as the offence is "punishable with ....imprisonment for a term of not less than ten years". But, the position is somewhat obfuscated when one considers the proviso to section 376 IPC. Placing reliance on the wording of this proviso, the learned counsel for the petitioner argued that it is quite possible that the ultimate punishment meted out is for a period of less than ten years. This being the case, he submits that it could not be said with certainty that the offence in question is definitely punishable with "imprisonment for a term not less than ten years". And, therefore, according to him, in the present case, it is proviso (a)(ii) to section 167(2) CrPC which would be applicable and not proviso (a)(i) to Section 167 CrPC. Consequently, the period applicable would be sixty (60) days and not ninety (90) days and, therefore, on the completion of this period ( i.e., on 18.4.2005), as the charge-sheet had not been filed, the petitioner acquired the indefeasible right to "bail-on-default" which, he duly availed of on 4.5.2005 when he approached the court for bail. There is no doubt that in view of the answer to Question (1) above, if the period applicable is sixty (60) days and not ninety (90) days, the petitioner would be entitled to be released on bail. Clearly, then, the crucial question is -- which period is applicable?
2.2.2 In support of his arguments, the learned counsel for the petitioner relied upon the following decisions:
(1) State v. B.B. Singh & Ors: 110 (2004) DLT 607 [Delhi] (2) Sunil Kumar v. State of Jharkhand: 2002 CRI.L.J 2507 [Jharkhand] (3) Bhim Singh v. State: 1995 JCC 489 [Delhi] While arguing that the period applicable in the present case would be ninety (90) days and not sixty (60) days, Mr Dudeja, the learned counsel for the State placed reliance on two decisions:
(1) Rajeev Chaudhary v. State (N.C.T.) of Delhi: 2001 CRI. L.J. 2941 [SC] (2) Rajeev Chaudhary v. State: 2001 CRI. L.J. 2023 [Delhi] 2.2.3 I shall examine each of these decisions. But, before I do so it would be appropriate to have another look at proviso (a)(i) to section 167 CrPC. The relevant phrase is as under:
"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"
Breaking up the phrase into its constituents we get:-
i) ninety days
ii) where the investigation relates to an offence
iii) punishable with
a) death,
b) imprisonment for life or
c) imprisonment for a term of not less than ten years It becomes apparent that the word "punishable" is a key-word. What exactly is meant by it? Does it mean that the offence must be punished with a), b) or c) above or does it carry the meaning of liability of punishment with a), b) or c)? It is also crucial to understand the sense in which the punishments are listed. Clearly, since death and imprisonment for life are listed, and they cannot co-exist, the expression will have to be read as "punishable with death" or "punishable with imprisonment for life" or "punishable with imprisonment for a term of not less than ten years". An offence involving any one of the three punishments would be covered under proviso (a)(i) to section 167 and the period applicable would be ninety (90) days.
2.2.4 So, what does the word "punishable" mean? The Supreme Court had occasion to consider this word in the case of Sube Singh v. State of Haryana: (1989) 1 SCC 235. Various dictionaries were referred to as under:
"6. In the Webster" Third New International Dictionary the following meaning has been given to the word "punishable":
"Deserving of, or liable to, punishment : capable of being punished by law or right."
7. Aiyar" The Law Lexicon (Reprint Edition 1987) gives the meaning of "punishable" thus :
"The word "punishable" as used in statutes which declare that certain offences are punishable in a certain way, means liable to be punished in the way designated."
8. In Bouvier" Law Dictionary, the meaning of the word "punishable"(tm) has been given as "liable to punishment"(tm). In Words and Phrases " Permanent Edition, the following meaning has been given :
"The word "punishable" in a statute stating that a crime is punishable by a designated penalty or term of years in the State prison limits the penalty or term of years to the amount or term of years stated in the statute."
9. The word "punishable" is ordinarily defined as deserving of or capable or liable to punishment, punishable within statute providing that defendant may have ten (sic) peremptory challenges if offences charged is "punishable" with death or by life imprisonment; means deserving of or liable to punishment; capable of being punished by law or right, may be punished, or liable to be punished, and not must be punished.
10. Corpus Jurisdiction Secundum gives the meaning as :
"Deserving of, or liable to, punishment; capable of being punished by law or right; said of persons or offences. The meaning of the term is not "must be punished"(tm), but "may be punished" or "liable to be punished"
In the absence of a definition of "punishable" we have referred to these for gathering the exact meaning of the word. In the sense given to the word, as above, there can be no doubt that the offence of murder is punishable with death even though the punishment awarded is not death but imprisonment for life."
Ultimately, the Supreme Court, after reference to its earlier decisions including that of a larger bench of three hon'ble judges in Subbhash Chand v. State of Haryana: (1988) 1 SCC 717, was of the view that "punishable" carries the meaning "liable to be punished". In Sube Singh (supra), the Supreme Court was required to determine whether the offence of murder [section 302 IPC] could be classified as an offence "punishable" with death. The wording of section 302 IPC is -- "Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine" In Sube Singh (supra) it was held that the offence of murder was one which was "punishable" with death although the actual sentence awarded may be life imprisonment. It is clear that the word "punishable" means "liable to be punished".
2.2.5 Viewed in the light of this meaning of the word "punishable", it is clear that proviso (a)(i) to section 167 refers to any offence which carries with it the liability (or, shall I say, possibility) of punishment with: (i) death or (ii) life imprisonment or (iii) imprisonment for a term of not less than ten years. If the possibility of any one or more of these eventualities attaches to an offence then it would be an offence referred to in proviso (a)(i) to section 167 CrPC. So, the crucial questions to ask in the context of the case at hand are:-
(a) Is the offence under section 376 IPC liable to be punished with death?
(b) Is the offence under section 376(2)(g) IPC liable to be punished with imprisonment for life?
(c) Is the offence under section 376 IPC liable to be punished with imprisonment for a term of not less than ten years?
If the answer to any one of the three questions is "yes", then, the offence under section 376) IPC would be one which is referred to in proviso (a)(i) to section 167 CrPC. Leaving aside the proviso to section 376(2) IPC for the time being, the punishment prescribed for an offence under section 376(2)(g) IPC is "rigorous imprisonment for a term which shall not be less than ten years but which may be for life". In other words, the offence cannot be punished with death. But, it can be punished with life imprisonment or imprisonment for a term not less than ten years. Clearly, the answers to the three questions would be "" (a) No, (b) Yes and (c) Yes. Therefore, proviso (a)(i) to section 167 CrPC would be applicable. Does the situation alter if we bring in the proviso to section 376(2) IPC into play? Not at all. All that the proviso does is to enable the awarding of a sentence of imprisonment of less than ten years under special circumstances. The liability or possibility of life imprisonment or imprisonment for a term not less than ten years still exists under normal circumstances. The normal sentence is "rigorous imprisonment for a term which shall not be less than ten years but which may be for life". This is the legislative mandate with regard to sentence. And, the proviso would come into play only under special circumstances. The Supreme Court in the case of State of Karnataka v. Krishnappa: (2000) 4 SCC 75, considering this proviso in respect of the offence under section 376(2)(e) IPC, had this to say:
"12. A perusal of the above provision shows that the legislative mandate is to impose a sentence, for the offence of rape on a girl under 12 years of age, for a term which shall not be less than 10 years, but it may extend to life and also to fine. The proviso to Section 376(2) IPC, of course, lays down that the court may, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term of less than 10 years. Thus, the normal sentence in a case where rape is committed on a child below 12 years of age, is not less than 10 years"(tm) RI though in exceptional cases "for special and adequate reasons" sentence of less than 10 years" RI can also be awarded. It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso particularly in such like penal provisions. The courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. Recourse to the proviso can be had only for "special and adequate reasons" and not in a casual manner. Whether there exist any "special and adequate reasons" would depend upon a variety of factors and the peculiar facts and circumstances of each case. No hard and fast rule can be laid down in that behalf of universal application."
Thus, the offence under section 376(2)(g) IPC continues to be an offence "punishable" with life imrisonment or imprisonment for a term of not less than ten years (i.e., term of ten years or more). At this stage the proviso does not come into play at all. Consequently, the charge-sheet is required to be filed within ninety (90) days and not sixty (60) days as claimed by the petitioner. It must be noted that this conclusion has been arrived at without considering the question of a sentence of less than ten years under the proviso and as to what impact that would have on the expression "imprisonment for a term of not less than ten years". The interpretation of this expression has become quite complicated as will become apparent from what is stated hereinbelow and is not being conclusively dealt with by me as it is not necessary for a decision in this case.
2.2.6 I shall now take up the cases cited by the learned counsel for the parties. In B.B. Singh (supra) a learned single judge of this court was called upon to interpret the expression "imprisonment for a term of not less than ten years" in the context of the offence under section 304B IPC. He held as under:-
"The period of detention of ninety days is available only in cases where the punishment prescribed is not less than ten years. It could be 'life imprisonment' or death but there should be a minimum term prescribed and that minimum term should not be less than ten years."
This view of the learned single judge is a reiteration of his view taken in an earlier decision of his in the case of GPS Rana v. The State (NCT of Delhi): 98 (2002) DLT 718 to the effect that in cases where punishment could be for less than ten years, the period of detention during investigation could be only up to sixty (60) days and not ninety (90) days. Apparently, this view of the learned single judge is based upon the decision of the Supreme Court in Rajeev Chaudhary (SC)(supra), a decision, in fact, relied upon by the learned counsel for the State 2.2.7 Let me trace the genesis of the Supreme Court decision in Rajeev Chaudhary (SC)(Supra). The offence in question was one under section 386 IPC where the punishment prescribed is "imprisonment of either description for a term which may extend to ten years..". The charge-sheet was admittedly not filed within 60 days but, it was filed within 90 days. The Metropolitan Magistrate, upon an application being moved under section 167 CrPC, held that the offence under section 386 fell for consideration under proviso (a)(ii) to section 167(2) CrPC and, therefore, he concluded that the accused could not be detained beyond 60 days. Consequently, he released him on bail. The State filed a revision petition (Cr. Rev. No.22/99) which was allowed by the learned Additional Sessions Judge setting aside the order of the Metropolitan Magistrate and directing the accused to surrender. While allowing the revision petition, the learned Additional Sessions Judge relied on a Division Bench decision of this court in Amrik Lal v. State: (Crl. M (M) 438/86) and held that the offence under section 386 IPC was punishable with imprisonment for a term of ten years, proviso (a)(ii) to section 167(2) CrPC did not apply and consequently the accused was not entitled to be released on bail on the expiry of the period of 60 days. Being aggrieved by the order of the Additional Sessions Judge, the accused (Rajeev Chaudhary) challenged the same before this court. By the decision in Rajeev Chaudhary (Del)(supra), a learned single judge of this court upheld the order passed by the Additional Sessions Judge. In other words, this court in Rajeev Chaudhary (Del)(supra) clearly held that the provision applicable was clause (i) [and, not clause (ii)] of proviso (a) to sub-section (2) of section 167 CrPC. This judgment and/or order was challenged by the accused before the Supreme Court which, by its decision in Rajeev Chaudhary (SC)(supra), after granting special leave to appeal, dismissed the appeal as under:-.
"6. From the relevant part of the aforesaid sections, it is apparent that pending investigation relating to an offence punishable with imprisonment for a term "not less than 10 years", the Magistrate is empowered to authorise the detention of the accused in custody for not more than 90 days. For rest of the offences, the period prescribed is 60 days. Hence in cases where offence is punishable with imprisonment for 10 years or more, the accused could be detained up to a period of 90 days. In this context, the expression "not less than" would mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more. Under Section 386 punishment provided is imprisonment of either description for a term which may extend to 10 years and also fine. That means, imprisonment can be for a clear period of 10 years or less. Hence, it could not be said that minimum sentence would be 10 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 10 years. Under Section 386 IPC, imprisonment can vary from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years.
7. In the result, the appeal is dismissed."
The dismissal of the appeal by the Supreme Court would imply the confirmation of the decision of this court in Rajeev Chaudhary (Del)(supra). But, upon a reading of paragraph number 6 extracted above one gets the impression that the Supreme Court was on a different line of thinking from the conclusion it arrived at of dismissing the appeal. Considering what is stated in the said paragraph number 6, it appears that it is also not in line with the earlier decisions of the supreme court in Sube Singh (supra) and Subbhash Chand (supra) wherein the word "punishable" has been ascribed the meaning "liability to be punished". While the reasoning in Rajeev Chaudhary (SC)(supra) requires us to look at the minimum period of imprisonment, Sube Singh (supra) entails that we look at all the possible terms of imrisonment. There appears to be a conflict between these two decisions of the supreme court. To explain the degree of conflict let us take an example. Section 304B IPC deals with dowry death. The punishment prescribed is "imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life". In terms of the reasoning in Rajeev Chaudhary (SC)(supra), since the minimum sentence is seven years imprisonment, it would not be covered under the expression "imprisonment for a term of not less than ten years". But, if the ratio in Sube Singh (supra) were to be applied, since there is a liability or capability or possibility of imprisonment for a term in excess of ten years and more, it would clearly fall within the expression "imprisonment for a term of not less than ten years". Thus, following the reasoning in Rajeev Chaudhary (SC)(supra), the offence under section 304B IPC would fall under clause (a)(ii) of the proviso to section 167 CrPC and hence the applicable period would be sixty (60) days. This is what has been held by a learned single judge of this court in the case of B.B. Singh (supra). But, if one were to follow the ratio of Sube Singh (supra), the offence under section 304B IPC would fall under clause (a)(i) of the proviso to section 167(2) CrPC and hence the applicable period would be ninety (90) days. Both Rajeev Chaudhary (SC)(supra) and Sube Singh (supra) are decisions of the supreme court where the bench strength is the same (two hon'ble judges). However, Sube Singh (supra) does rely on Subbhash Chand (supra) (a decision rendered by a bench of three hon'ble judges of the Supreme Court).
2.2.8 There is another problem with the decision in B.B. Singh (supra). It is in direct conflict with the Division Bench decision of this Court in the common judgment delivered on 10.10.1986 in the cases of Basant Kumar v. State: (Crl. M. (M) 396/86), K.K. Malhotra v. State: (Crl.M. (M) 426/86), Amrik Lal v. State: (Crl.M. (M) 438/86) and Rama Swaroop v. State: (Crl.M. (M) 634/86). Just as in Rajeev Chaudhary (SC) (supra) there is no mention of Sube Singh (supra) or Subbhash Chand (supra), there is no reference to the Division Bench decision [viz. Basant Kumar et al (supra)] in B.B. Singh (supra). The question before the Division Bench pertained to the offence under section 3(1) of the Official Secrets Act, 1923 where the punishment prescribed was "imprisonment for a term which may extend to 14 years". The question arose as to whether this would be an offence which fell under clause (i) or clause (ii) of proviso (a) to section 167 CrPC. The expression which was directly in issue was "imprisonment for a term of not less than ten years". The matters came up before the Division Bench upon a reference by the learned single judge who was hearing these matters. Though the learned single judge had, prima facie, found that "the term of not less than ten years" meant a minimum sentence of ten years, since this issue was of significance and likely to arise in many matters, he referred the matters to a larger bench. These matters were heard together and disposed of by the said common judgment. Though two separate opinions were delivered by G.C. Jain J. and R.N. Aggarwal J., both of which were illuminating and erudite, they were concurrent opinions. They concluded that the offence in question, being punishable with imprisonment which may extend to 14 years, was covered by clause (i) of proviso (a) to sub section (2) of section 167 CrPC . G.C. Jain J., after examining the meaning of "punishable" and "not less than", concluded :
"With these meanings the expressions 'an offence punishable with ------ imprisonment for aterm not less than ten years' would mean an offence capable or liable to punishment with imprisonment for a specified period which period would not be smaller than ten years or in other words would be at least ten years. The words 'not less than' only qualify the period. These words put emphasis on the period of ten years and mean period must be clear ten years. These words do not signify or indicate determinate sentence "" a sentence which the court was bound to award. Such an interpretation is ruled out by the use of word 'punishable' which signifies indeterminate punishment "" a punishment which the court in its discretion may award subject to a maximum. Clause (i) therefore would apply to an offence for which the maximum punishment is death or imprisonment for life or imprisonment for clear ten years or more."
This conclusion is in line with the decision of the supreme court in the case of Sube Singh (supra). Of course, it is in apparent conflict with the reasoning in paragraph 6 of the supreme court decision in Rajeev Chaudhary (SC) (supra). Insofar as the decision of the learned single judge in the case of B.B. Singh (supra) is concerned, it is clearly contrary to that of the Division Bench. For the sake of completeness and to examine the problem from another angle, I would also like to refer to the opinion of R.N. Aggarwal J. The learned judge, after tracing the legislative history of section 167 CrPC and the classification of offences based on gravity which in turn was determinative of the quantum of punishment, observed as under:-
"I find that there are a number of sections in the Indian Penal Code (such as 121A, 122, 128, 130, 131, 132, 194, 238, 255, 304, 313, 314, 326, 329, 364, 371, 372, 376, 377, 394, 395, 400, 409, 412, 413, 436, 438, 449, 459, 460, 467, 489A, 489B, 489D) which provide punishment with imprisonment for life or with imprisonment which may extend to ten years. A question arises at once "" which clause would be applicable. Obviously, the answer of the petitioners would be that since the minimum sentence of imprisonment provided is not less than ten years clause (ii) shall be attracted. To put this interpretation, to my mind, would be totally against the intention and object of the amendment in section 167 brought about by the amending At 45 of 1978. The classification has been brought about on the gravity of the offence and the gravity fixed or determined by the quantum of the punishment provided for the offence. The offences punishable with death, life imprisonment or with imprisonment for aterm of ten years or more have been classified 'grave offences' and the offences punishable with imprisonment of less than ten years as less grave or less serious; the first category would fall in clause (i) and the second category in clause (ii). This, to my mind, would be the only reasonable and proper interpretation to be placed on section 167 Cr.P.C. as it now stands on the statute. On a reading of the various sections of the Indian Penal Code I find that various expressions, such as, 'not less than', 'extend to', 'not exceeding' have been employed in the punishing sections of the Indian Penal Code. Further, there are some sections which provide minimum sentence and some sections which give a leverage or discretion to the court. To my mind, a fair construction to be placed on the expression 'not less than' in clause (i) to proviso (a) to section 167 would be that it takes within its fold all offences which are punishable with a sentence of death, imprisonment for life or imprisonment for a term of ten years or more.
There is another reason which supports my above conclusion. On the date when the amendment in Section 167 was brought about (Act No. 45 of 1978) there was no offence in the Indian Penal Code which was punishable with imprisonment for a minimum term of ten years. Clause (i) of Proviso (a) to Section 167 has to be interpreted keeping in mind the above fact. We know for certainty the object behind the amendment of Section 167, Cr.P.C. in 1978. The object was to remove difficulties which had been actually experienced in the investigations of the offences of serious nature. The legislature also must be assumed to be in full know of the various offences and the punishment provided for them in the Indian Penal Code and other Special Acts. The difficulty faced must be where the line should be drawn. The touchstone hit upon was the severity of the sentence. The dividing line, it appears, decided upon was that offences punishable with death, imprisonment for life, or with imprisonment for a term of ten years or more should be regarded as serious, and placed in clause (i). Looked from this angle it is obvious that while using the expression 'not less than ten years' the legislature only thought of offences which were punishable with imprisonment for ten years or more. One could think of placing the interpretation asked for by the petitioners if there was any offence in the Indian Penal Code which was punishable with imprisonment for a minimum period of ten years. There are, of course, now some Special Acts, for instance, Sections 15, 16, 17, 18 and 19 of the Narcotic Drugs and Psychotropic Substances Act, 1985 which provide a sentence of not less than ten years and extending to twenty years. There are some other sections also in the said Act which provide a minimum punishment of ten years extending to twenty years. Section 31A of the same Act, provides a sentence of imprisonment of not less than fifteen years and which may extend to thirty years. Section 4 of the Anti-Hijacking Act, 1982 provides a minimum term of imprisonment for life. The important fact to notice is that in 1978 when the amendment in question was introduced there was no offence in the Indian Penal Code or in any other special Acts which provided a minimum sentence of ten years and this circumstance is strongly suggestive that the legislature in using the words 'not less than ten years' had not intended to mean a minimum sentence of ten years' imprisonment but it intended that the offence should be punishable with imprisonment of ten years or more. Mr. Lekhi contended that the amendment was introduced keeping in mind the laws that the legislature intended to enact in future. I do not agree in this contention. The amendments in the procedural laws are usually made to meet lacunae and the difficulties which are being faced and the legislature wants to overcome. The expression 'not less than ten years' has raised a doubt and the best course for the legislature would be to clear its intention by use of appropriate words."
2.2.9 So, where does all this lead to? Rajeev Chaudhary (Del) (supra) following the aforesaid Division Bench decision held:-
"The expression 'imprisonment for a term of not less than ten years' used in clause (i) of proviso (a) to sub-section 2 of Section 167 includes imprisonment for a term of ten years as well as imprisonment for a term of more than ten years. In other words, clause (i) of proviso (a) to sub-section (2) of Section 167 will be applicable where the investigation relates to an offence punishable with imprisonment for a term of ten years or more. The crucial test is whether the offence is one for which the punishment of imprisonment for a term of ten years or more can be awarded. It is immaterial that the Court may have also the discretion to award the punishment of imprisonment for a term of less than ten years. In the case of a particular offence, even though the Court may have discretion to award punishment of imprisonment for a term of less than ten years, the above mentioned clause (i) will apply if the accused can be punished with imprisonment for a term of ten years. Where the offence is punishable with "imprisonment for a term which may extend to ten years", the Court has the discretion to sentence the accused to undergo imprisonment for a term of ten years or for a term of less than ten years. Hence the above mentioned clause (i) will be applicable where the investigation relates to an offence punishable with imprisonment for a term which may extend to ten years". It should be borne in mind that the expression used by the Legislature in clause (i) of proviso (a) to Section 167 is not "imprisonment for a minimum term of ten years". If the Legislature intended to restrict the application of the said clause (i) to offences punishable with imprisonment for a minimum term of ten years, the Legislature could have used the expression "offence punishable with death, imprisonment for life or imprisonment for a minimum term of ten years". Significantly the legislature did not use such an expression."
The appeal preferred from this decision was dismissed by the supreme court by its decision in Rajeev Chaudhary (SC)(supra). But, the reasoning contained therein, particularly in paragraph 6 thereof, did not appear to be synchronous with the end result of dismissal of the appeal. Moreover, the decision is also apparently at variance with the earlier decision in Sube Singh (supra). The decision of the learned single judge in B.B. Singh (supra) following an earlier decision in GPS Rana (supra) and the reasoning in Rajeev Chaudhary (SC)(supra) has not taken note of the said Division Bench decision in Basant Kumar et al (supra). A couple of questions arise. Whether the reasoning in Rajeev Chaudhary (SC) (supra) would apply or the ratio of Sube Singh (supra)? Was the decision in B.B. Singh (supra) not per incuriam inasmuch as it did not even notice the Division Bench decision in Basant Kumar et al (supra)? Happily, for me, I don't have to answer these vexed questions in view of the reasoning adopted by me in paragraph 2.2.5 above. However, I have dealt with the issues underlying these questions as the decisions in the two Rajeev Chaudhary cases (one before this court and the other before the supreme court) and the decision in B.B. Singh (supra) were strongly relied upon by the counsel at the time of hearing. The decision in Sunil Kumar (supra) of a learned single judge of the Jharkhand High Court while dealing with section 304B IPC came to the same conclusion as in B.B. Singh (supra), though without reference to the Supreme Court decision in Rajeev Chaudhary (SC)(supra). In the view taken by me in paragraph 2.2.5 above, this decision would also not be relevant. As regards Bhim Singh (supra), the same was referred to by the learned counsel for the petitioner to point out the well settled principle that if two views are possible, then the courts may lean in favor of the view or construction which is in favor of the accused. No such situation arises in the present case hence, this decision is also not applicable.
2.2.10 Now, only one last aspect of the matter requires to be taken care of. In B.B. Singh (supra), the learned single judge observed as under:-
"6. In this context, the distinction between the cases where the sentence prescribed is 'Life imprisonment' and the cases where sentence could extend up to life imprisonment should be taken note of. For offences under section 302, IPC or Section 121, IPC the punishment prescribed is 'Death' or 'Imprisonment for life'. In such cases the Court while awarding sentence has to award either the sentence of death or sentence of Life Imprisonment. The Court has no option to award a sentence of lesser severity. But in cases where the sentence prescribed is for a term which may extend to life imprisonment, the Courts have the option to award less severe sentence, even less than 10 years. Former type of cases will fall within the ambit of Proviso (a)(i) to section 167, CrPC whereas the latter type of cases will be covered by Proviso (a)(ii) to section 167 CrPC."
This aspect was not in issue before the Supreme Court in Rajeev Chaudhary (SC) (supra). However, the Division Bench in Basant Kumar et al (supra) clearly held as follows (per G.C. Jain J.):
"The expression "an offence punishable with death or imprisonment for life", without any doubt, means an offence for which sentence of death or imprisonment for life can be imposed and not must be imposed."
Therefore, the distinction sought to be drawn by the learned single judge in the case of B.B. Singh (supra), in the wake of the Division Bench decision, could not have been drawn. The decision of the Division Bench is binding and must be followed, B.B. Singh (supra), on this aspect, being per incuriam.
3. In view of the answers to the two questions mentioned in paragraph 2 above and the reasons therefore as indicated above, the petition is liable to be dismissed and is hereby dismissed.