Madhya Pradesh High Court
Wahid Siddiqui vs The State Of Madhya Pradesh on 15 April, 2011
Author: G.S. Solanki
Bench: G.S. Solanki
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HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Criminal Revision No. 1814/2010
Wahid Siddiqui and another
Petitioners
Versus
State of Madhya Pradesh
Respondent
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For the petitioners: Shri Imtiaz Husain, Advocate
For the State : Shri B.P.Pandey, Government Advocate
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PRESENT :
HON'BLE SHRI JUSTICE G.S. Solanki
Date of hearing: 15-04-2011
Date of Judgment: 15/04/2011
JUDGMENT
As per G.S. Solanki,J.:
Petitioners/ accused filed this revision petition under section 397/401 of the Code of Criminal Procedure being aggrieved by the impugned order dated 29.10.2010 passed by Special Judicial Magistrate (State EOIB), Jabalpur whereby he dismissed the application of petitioners / accused filed under section 167(2) of Cr.P.C.
2. The facts, giving rise to this petition, are that the petitioners/accused are in custody since 25.08.2010 in connection with Crime No. 271/2010 registered at police- station Madan Mahal, Jabalpur under sections 420, 467, 468, 406, 409, 471 and 120-B of IPC. They completed their 60 2 days of custody on 24.10.2010. Since the petitioners/accused are neither bank employees nor Government/Civil servant, therefore, there is no question of having committed any offence under Section 409 of IPC. It is also pleaded that they did not forge any documents or use such document as genuine or valuable security and therefore they cannot be said to have committed any offence under section 467, 468 and
471. It is further pleaded that they may be alleged to commit offence under section 420 or other offence which are only punishable up to the imprisonment of 7 years, therefore, they deserve bail under section 167(2) of Cr.P.C. As no charge- sheet was filed against them within 60 days of their arrest, they moved application under section 167(2) of the Code of Criminal Procedure but the learned Magistrate dismissed their application, Hence, this revision petition.
3. Learned counsel for the petitioners submitted that learned Magistrate committed illegality in observing that Court cannot find out the facts from the case diary as to what particular offence is made out against a particular accused. He further submitted that there was no evidence on record in regard to criminal conspiracy regarding the offence under sections 409 and 467 IPC, therefore, learned Magistrate committed illegality in passing the impugned order. Therefore, he prays for setting aside the impugned order and prays for grant of bail under section 167(2) Cr.P.C.
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4. On the other hand, learned counsel for the State opposes the contentions raised on behalf of the petitioners and supported the impugned order passed by the learned Magistrate.
5. I have perused the impugned order and case-diary and the material on record. The question that arises for consideration is as to whether the case of petitioners is covered under the proviso of 167(2) of Cr.P.C. For ready reference, proviso of sub-section (2) of Section 167 of the Code of Criminal Procedure may be reproduced as under :-
167. Procedure when investigation cannot be completed in twenty-four hours.-
(1) *** *** *** (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, authorize the detention of the accused in such custody as such Magistrate thinks it, for 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 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 dong 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 4 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 released under the provisions of the Chapter XXXIII for the purposes of that Chapter;
(b) *** *** *** 6. It is undisputed that petitioners are neither bank
employees nor Government servant. Therefore, question of their having committed any offence under section 409 does not arise. It is also not alleged by the prosecution that petitioners forged any document or used same as genuine.
In these circumstances, question of committing any offence under sections 467, 468 and 471 also does not arise. In these circumstances, accusation of these petitioners was only for the offence under sections 420 read with Section 120-B and 411 of IPC and ultimately, on the basis of material on record, First Additional Sessions Judge and Special Judge (P.C.Act), Jabalpur framed charges against these petitioners under sections 420 and 120-B and 411 of IPC as demonstrated by documents (Annexure B & C).
7. Since punishment prescribed for the offence under section 420 is imprisonment for 7 years and fine. Punishment for offence under section 411 IPC is imprisonment for 3 years or fine, or both. In this case, offence of conspiracy is alleged in regard to the offence under section 420 IPC. In these circumstances, maximum punishment would be as defined in first schedule, sub-clause (1), same for the abatement of the 5 offence which is object of conspiracy. It means, it will be up to the extent of 7 years because offence under section 120-B of IPC is alleged to have been committed in relation to the offence of cheating i.e. under section 420 IPC. Admittedly, petitioners/ accused were not charge-sheeted within 60 days from the date of order of remand of petitioners to the custody and it reveals from the above discussion that alleged offence against these petitioners were under section 420 read with Section 120-B and 411 of IPC. Maximum punishment prescribed for aforesaid office is less than 10 years and none of the offences are punishable with death or imprisonment for life. As explained by the Apex Court in Rajeev Chaudhary Vs. State (NCT) of Delhi, AIR 2001 SC 2369, expression 'offence punishable with imprisonment for a term of not less than 10 years' in clause (i) of Proviso (a) to Section 167(2) connotes the offence for which imprisonment is for clear period of 10 years or more.
8. Accordingly, learned Magistrate committed a serious illegality in declining the release of petitioners under the proviso of Section 162(2) of Cr.P.C. on the ground that he was unable to find out from the case-diary that what offences were alleged against these petitioners. In the opinion of this Court, he ought to have directed the release of the petitioners in terms of mandate of the proviso.
9. Thus, revision petition succeeds and is hereby allowed. 6 The impugned order passed by the Special Judicial Magistrate is set aside and it is directed that the petitioners, Wahid Siddiqui and Smt. Firdaus Siddiqui alias Shikha be released on their furnishing a personal bond in the sum of Rs.50,000/- each with two solvent and local sureties of Rs.25,000/- each to the satisfaction of trial Court for their appearance during trial before the trial Court on the dates fixed in this behalf.
(G.S. Solanki) JUDGE 15/04/2011 skv 7