Madras High Court
Vignesh vs The State Of Tamil Nadu on 30 March, 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/03/2012 CORAM THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Crl.O.P.(MD).No.2263 of 2012 Vignesh ... Petitioner/ Accused Vs. The State of Tamil Nadu represented by the Inspector of Police, Gangaikondan Police Station, Tirunelveli District. (Crime No.254 of 2011) ... Respondent/ Complainant Prayer Petition filed under Section 439 of the Code of Criminal Procedure, praying to enlarge the petitioner on bail in connection with Crime No.254 of 2011, on the file of the respondent Police. !For petitioner ... Mr.V.Sasikumar ^For respondent ... Mr.C.Ramesh, Addl. Public Prosecutor Counsel appointed as Amicus Curiae ... Mr.R.Gandhi * * * * * :ORDER
The petitioner herein is one of the accused in Crime No.254 of 2011, on the file of the Gangaikondam Police Station, and he was arrested and remanded to custody on 12.02.2012 for the offences under Sections 147, 341, 395 IPC and under Section 3 of TNPPDL Act. According to the prosecution case, on the date of occurrence, six persons waylaid the defacto complainant, who was going in motorcycle on the main road and he was assaulted and kicked and his motorcycle was pushed down and the box in the bike was broke open and a sum of Rs.32,000/- was taken away by the accused.
2.When this matter came up for hearing, it came to the knowledge of this Court that the accused 1 & 2 by name Arockiam and Vijayapandi were granted bail by the learned Judicial Magistrate No.III, Tirunelveli, by invoking the provision under Sections 167(2) Cr.P.C. The said accused were arrested only on 26.12.2011 and Section 395 IPC is punishable with life imprisonment, but 90 days period of custody was not over. This Court called for an explanation from the learned Magistrate. Learned Magistrate sent his report as follows;
"3.I humbly submit that in AIR 2001 Supreme Court Page 2369, Rajeev Chaudhary Vs. State (NCT) of Delhi, the Honourable Apex Court was pleased to give a ruling regarding interpretation of Section 167(2) Cr.P.C. - para 6 of the ruling reads as follows;
"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."
4.I humbly submit that the offence u/s.467 IPC is punishable with life or with imprisonment of either description for a term which may extend to ten years, shall also be liable to fine. In Som Nath Vs. State of Punjab 2011 Criminal Law Journal Page 3097, the Honourable High Court of Punjab and Haryana was pleaded to hold that for the said offence the proviso (a)(ii) of the said ruling reads as follows;
"11.Undisputedly, under Section 467 of the Indian Penal Code, court can award sentence for the period less than ten years. Section 467 I.P.C. does not provide that minimum sentence would be not less than ten years.
12.In the opinion of this Court, under clause (i) of proviso of Section 167(2) of the Code, if minimum punishment for an offence is not less than 10 years, then only period of 90 days for filing the challan would be applicable, if offence is punishable for any term up to ten years then period of 60 days would be applicable to submit the challan. I find support from the judgment of the learned Single Judge of Allahabad High Court in the case of Sohan Lal Vs. State repored in 1991, Allahabad Criminal Reports, 383 as well as judgment of Division Bench of (Criminal) 193. this court in the case of Om Prakash Gabbar (Supra) in paragraph Nos.4 and 5 has observed as under:
This provision came up for construction before the Allahabad High Court in Sohan Lal's case (Supra). After a discussion of its implications, the learned Judge observed as under:
"Section 167(2)(a) of the Code of Criminal Procedure lays down that the
12.. (supra)". After a discussion of its implications, the learned Judge observed as under:
"Section 167(2)(a) of the Code of Criminal Procedure lays down that the Magistrate may authorize the detention of the accused person, otherwise than in police custody, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so. But total period of detention shall not exceed 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. If the investigation relates to any other offence, the total period of detention shall not exceed sixty days. The words "imprisonment for a term of not less than ten years" mean that the maximum punishment shall be ten years. The term " not less than ten years" is not to be confused with the terms 'upto ten years'. In a case where the maximum punishment is upto ten years, the period of detention, which is permissible under Section 167(2( Cr.P.C. is only sixty days."
To our mind, the paragraph above wholly sums up the clear intent of the provisions of Section 167(2) of the Code.
Mr.Randhawa, the learned State counsel has, however, relied upon the decision in Tejinder Singh Desanj's case (Supra). It is true that the decision is in favour of the State counsel, but we find that the learned Judge did not delve deep into the matter and after reproducing the words of the Section straightaway came to his conclusions. We are of the opinion that the two different situations are in the offences wherein the sentence up to ten years' imprisonment is provided, the challan has to be filed within sixty days and in cases where the sentence provided is not less than ten years (by way of illustration Sections 304, 305, 307, 313, IPC etc.,) the challan has to be filed within ninety days. We accordingly answer the reference as under:
The words "imprisonment for a term of not less than 10 years" occurring in Section 167(2)(a)(i) of the Code mean tha the minimum punishment provided should be ten years.
For the reasons recorded above, we are of the opinion that the judgment of the learned Singe Judge in Tejinder Singh Desanj's case (Supra) does not lay down correct lay and the same is over ruled. We, accordingly, accept the interpretation given by the Allahabad High Court in Sohan Lal's case (Supra)."
5.I humbly submit that the offence u/s.395 IPC is punishable for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
6.I humbly submit that as per the above ruling of the Hon'ble Apex Court Clause (i) of Proviso (a) to Section 167(2) Cr.P.C. would not cover the offence for which the punishment could be imprisonment for less than 10 years. In this case, for the offence punishable u/s.395 IPC, the punishment less than 10 years can be granted. Therefore, I sincerely believed that the offence u/s395 IPC comes within the ambit of Clause (ii) of Proviso(a) to Section 167(2) Cr.P.C.
7.I humbly submit that I acted bonafidely and sincerely believed that for offence u/s.395 IPC the bail can be granted u/s/167(2) Cr.P.C. if final report is not filed after lapse of 60 days of custody. Therefore, I granted bail u/s.167(2) Cr.P.C."
3.This Court felt that the correctness of the order of the learned Magistrate should be looked into.
4.Mr.R.Gandhi, learned counsel was appointed as amicus curiae to assist the Court in decide the issue.
5.Learned Additional Public Prosecutor submitted that the learned Magistrate had misconstrued and misconceived the decision of the Hon'ble Supreme Court reported in AIR 2001 SC 2369 (Rajeev Chaudhary Vs. State (NCT) of Delhi) and as per the ratio laid down by the Hon'ble Supreme Court in the said decision, if the offence is punishable with imprisonment for a term of not less than ten years, then the Magistrate is empowered to authorize the detention of the accused in custody for a period of 90 days and for the rest of the offences 60 days. For the offence under Section 395 IPC, a person can be sentenced for life and as such, Section 167(2)(a)(i) is applicable.
6. Learned counsel Mr.R.Gandhi submitted that as far as the decision of the Punjab and Haryana High Court reported in 2011 Crl.L.J. 3097 (Som Nath & another Vs. State of Punjab) is concerned, the same does not refer to the decision rendered by the Hon'ble Supreme Court on this aspect. He had submitted that the learned Magistrate ought to have taken note of only the maximum sentence and not the minimum sentence that is prescribed for the offences, in order to invoke the provision under Section 167(2)(a) Cr.P.C. Learned counsel also relied on the decision rendered by the Hon'ble Supreme Court in Bhupinder Singh & others Vs. Jarnail Singh and another reported in AIR 2006 SC 2622. Learned counsel further submitted that the Delhi High Court had elaborately dealt with the said aspect in the decision of Rajeev Chaudhary Vs. State reported in 2001 Cri.L.J. 2023 and the said decision only was confirmed by the Hon'ble Supreme Court, which only reported in AIR 2001 SC 2369.
7.This Court perused the decisions rendered by the Hon'ble Supreme Court and various High Courts in this aspect and considered the submissions made on either side.
8.It is observed by the Hon'ble Delhi High Court in the decision reported in 2001 Cri.L.J. 2023 as follows;
"4.... As per the provisions quoted above, whenever an accused is arrested and produced before a Judicial Magistrate under Sub-section (1) of Section 167, the Magistrate may authorise the detention of the accused in such custody as the Magistrate thinks fit, for a term not exceeding fifteen days in the whole. However, 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 such detention of the accused person in custody for a total period exceeding 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 and no Magistrate shall authorise such detention of the accused person in custody for a total period exceeding sixty days where the investigation relates to any other offence. It means that if the investigation relates to an offence punishable with imprisonment for a term of 10 years, the Magistrate can authorise detention of the accused person in custody for a total period upto ninety days. 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 f or-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(2) is not "imprisonment for a minimum term of ten years". If the Legislature intended to restrict the application of the said Clause (i) to offence 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.
5. Admittedly, the petitioner was accused of an offence punishable under Section 386 of the IPC which reads thus :
"386. Extortion by putting a person in fear of death or grievous hurt.-- Whoever commits extortion by putting any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
It is clear from the above provision that whoever commits extortion by putting any person in fear of death or of grievous hurt to that person or to any other, can be punished with imprisonment for a term of 10 years. Therefore, in the case of the petitioner, the Magistrate was competent to authorise his detention in custody for a total period upto ninety days and the petitioner was not entitled to be released on bail as of right on expiry of the period of sixty days on the ground that charge-sheet had not been filed in the case. The provision applicable in the petitioner's case was Clause (i) of Proviso (a) to Section 167(2) of the Cr.P.C. and not Clause (ii) of the said Proviso. Hence, the impugned order passed by the learned Additional Sessions Judge was correct and the order passed by the learned Metropolitan Magistrate was wrong.
6.....
7. A Division Bench of this Court consisting of R.N. Aggarwal, J. and G.C. Jain, J. had occasion to consider an identical question in Crl. M. (M) 396/86, Basant Kumar v. State; Crl. M. (M) 426/86, K.K. Malhotra v. State; and Crl. M.(M) 438/86, Amrik Lal v. State, which were disposed of through common orders passed on 10th October, 1986. Those three applications were filed under Section 439 of the Cr.P.C. for release of the applicants on bail. The applicants therein were arrested for offences under Sections 3, 5 and 9 of the Official Secrets Act, 1923 and Section 12013 of the Indian Penal Code. Out of these offences the highest punishment was for the offence under Section 3(1) First Part of the Official Secrets Act. It was punishable with imprisonment for a term which may extend to 14 years. When the applications came up before a learned Single Judge the applicants contended that Clause (i) of Proviso (a) to Sub- section (2) of Section 167, Cr.P.C. was applicable only to offences which were punishable with death or imprisonment for life or imprisonment for a minimum period of ten years. According to the applicants, offences for which they had been arrested were not so punishable and consequently, since the report under Section 173, Cr.P.C. had not been filed within sixty days of their arrest, they were entitled to be released on bail as of right. On behalf of the State, it was argued that an offence punishable with imprisonment which may extend to 14 years would fall under Clause (i) of Proviso (a) to Sub-section (2) of Section 167, Cr.P.C. It was also contended that the charge sheet had been filed within ninety days and therefore, the applicants were not entitled to bail as of right. The learned Single Judge prima facie found merit in the contention of the applicants and observed that "term of not less than ten years" meant minimum sentence of ten years. However, in the interest of justice and since the matter was likely to arise in many cases, the learned Single Judge referred the matter to a larger Bench. Accordingly, the applications came up for consideration before the Division Bench consisting of R.N. Aggarwal, J. and G.C. Jain, J. In his judgment dated 10th October, 1986, G.C. Jain, J. stated that the question which fell for decision was whether Clause (i) of Proviso (a) to Sub-section (2) of Section 162, Cr.P.C. applied only to an offence punishable with death, imprisonment for life or minimum imprisonment of ten years. The learned Counsel appearing for the applicants urged that Clause (i) of Proviso (a) would apply only to the offences punishable with a minimum sentence of death or a minimum sentence of imprisonment for life or a minimum sentence of imprisonment for a period of ten years or more. In other words, the contention was that the said clause would apply to offences for which the Court was bound to award sentence of death or imprisonment for life or imprisonment for ten years or more and had no discretion in the matter. It was also contended that the expression "for a term of not less than ten years" meant a minimum sentence of ten years. After discussing the relevant aspects, G.C. Jain, J. came to the conclusion that offence under Section 3(1), First Part of the Official Secrets Act, 1923, 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, Cr.P.C. and consequently, the applicants were not entitled to bail as of right since the report under Section 173, Cr.P.C. had been filed within ninety days of their arrest. Before reaching the said conclusion, the learned Judge held that Clause (i) of Proviso
(a) to Sub-section (2) of Section 167, Cr.P.C. would apply to an offence for which the maximum punishment was death or imprisonment for life or imprisonment for clear ten years or more. The relevant portion of the judgment of G.C. Jain, J. is extracted hereunder:
"Clause (i) of Proviso (a) applies to an offence 'punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years'. The key word used in this clause, in my opinion, is "punishable'. It governs all the three punishments referred to in Clause (i). According to Black's Law Dictionary Fifth Edition, "punishable' means "deserving of or capable or liable to punishment". The word 'punishable' thus, denotes maximum punishment. 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. The third category of sentence namely, imprisonment for ten years, is qualified by the words "term of not less than".
The word "term', according to Black's Law Dictionary, Fifth Edition means a fixed period; period of determined or prescribed duration. The words "not less than", according to the said Dictionary "signify in the smallest or lowest degree; at the lowest estimate; at least". With these meanings the expressions "an offence punishable with imprisonment for a term of 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."
8. By a separate judgment dated 10th October, 1996, R.N. Aggarwal, J. agreed with the conclusion of G.C. Jain, J. and held that on a plain reading of Clause (i) of Proviso (a) to Sub-section (2) of Section 167, Cr.P.C. there seemed to be no doubt that offences punishable with death, imprisonment for life or imprisonment for a term of ten years or more would fall under Clause (i) and offences which are punishable with imprisonment for less than ten years would fall under Clause (ii). The learned Judge rejected the contention of the applicants that since the offence was not punishable with a minimum of ten years' imprisonment, it would fall under Clause (ii) and not under Clause (i). According to the learned Judge / a fair construction to be placed on the expression not less than in Clause(i) of Proviso(a) to Section 167(2) would be that it takes within its fold all the offences which are punishable with a sentence of death, imprisonment for life or imprisonment for a term of ten years or more. In support of his conclusion that learned Judge pointed out the following reasons also :
"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(2) 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 punishments 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, if appears, decided upon was that offence 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."
9.The above mentioned views of the Division Bench consisting of R.N. Aggarwal, J. and G.C. Jain, J. strongly support and strengthen the view taken by me in relation to the interpretation of Clause (i) of Proviso (a) to Sub-section (2) of Section 167, Cr.P.C. Moreover I am bound by the views of the Division Bench of this Court."
9.When the above said decision was challenged by the party and taken up by way of Special Leave Petition before the Supreme Court, though leave was granted, the appeal was dismissed and the judgment of the Delhi High Court cited above was upheld by the Hon'ble Supreme Court and the said decision is reported in AIR 2001 SC 2369 and the same reads as follows;
"3. The appellant was arrested in connection with an offence punishable under Sections 386, 506 and 120-B IPC. 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 ground that charge-sheet was not submitted within 60 days as provided under Section 167(2) of the Criminal Procedure Code, 1973. That order was challenged before the 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 10 years' RI. Hence, clause (i) of 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 held that the expression "an offence punishable with imprisonment for a term of not less than 10 years" in clause (i) of proviso (a) to Section 167 would mean an offence punishable with imprisonment for a specified period which period would not be less than 10 years or in other words would be at least ten years. The words "not less than" qualify the period. These words put emphasis on the period of ten years and mean that the period must be clear ten years. It was further held that on a plain reading of clause
(i) of proviso (a) to sub-section (2) of Section 167 CrPC, there seemed to be no doubt that offences punishable with death, imprisonment for life or imprisonment for a term of ten years or more would fall under clause (i) and offences which are punishable with imprisonment for less than ten years would fall under clause
(ii). Hence, the High Court confirmed the order passed by the Additional Sessions Judge. That order is challenged in this appeal.
4. Section 167 is a provision which authorises the Magistrate permitting detention of an accused in custody and prescribing the maximum period for which such detention could be ordered pending investigation. We are concerned with the interpretation of proviso (a) of Section 167(2) which reads thus:
"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) * * *"
(emphasis added)
5. Further, Section 386 IPC provides as under:
"386. Extortion by putting a person in fear of death or grievous hurt.-Whoever commits extortion by putting any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." (emphasis added)
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."
10.The above decision of the Hon'ble Supreme Court makes it clear that to attract Section 167(2)(a)(i) Cr.P.C., the offence punishable with imprisonment of ten years or more, i.e., the maximum sentence punishable, the custody of 90 days is authorized. If the maximum sentence is not punishable with 10 years, but less than ten years, then Section 167(2)(a)(ii) only is attracted and custody of 60 days only is authorized. In the said case, originally the accused was remanded for an offence under Section 386 IPC for which the maximum sentence is only 10 years. When the Metropolitan Magistrate released him on bail for the reason that the final report was not submitted within 60 days invoking the provision under Section 167(2) Cr.P.C., the said order was set aside by the Sessions Court in the revision petition and the order of the Sessions Court was confirmed by the Delhi High Court and subsequently it was again confirmed by the Hon'ble Supreme Court. While so, as per the decision of the Hon'ble Supreme Court, no doubt arises with regard to the aspect that if the offence punishable with imprisonment for 10 years or more, the authorized period of detention is 90 days and if the offence punishable less than 10 years, then the authorized period of detention is only 60 days.
11.It has been explicitly held by the Hon'ble Supreme Court in the decision reported in AIR 2006 SC 2622 (Bhupinder Singh & others Vs. Jarnail Singh and another) as follows:
"9. Two questions that essentially arise for consideration are as follows:
(a) In a case involving offence punishable under Section 304-B, is the period for filing challan 90 days or 60 days?
(b) Does mere filing of challan without relevant documents satisfy the requirement of filing the challan within a stipulated period for the purpose of Section 167(2)(a)?
10. So far as the factual position is concerned there is no dispute that all the relevant documents were before the court before expiry of 90 days. In case it is held that the period is 90 days and not 60 days in relation to an offence punishable under Section 304-B IPC, the second question would become academic so far as the facts of the present case are concerned. But this question crops up in a large number of cases.
11. A bare reading of Section 304-B IPC shows that whoever commits "dowry death" in terms of Section 304-B IPC shall be punished with imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life. In other words, the minimum sentence is 7 years but in a given case sentence of imprisonment for life can be awarded. Put differently, sentence of imprisonment for life can be awarded in respect of an offence punishable under Section 304-B IPC. The proviso to sub-section (2) of Section 167 consists of three parts. The first part relates to power of the Magistrate to authorise detention of the accused person. This part consists of two sub-parts. In positive terms it prescribes that no Magistrate shall authorise detention of the accused in custody, under this paragraph [meaning sub-section (2)(a)] for a total period exceeding (i) 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and (ii) 60 days where the investigation relates to any other offences. The period of 90 days is applicable to cases where the investigation relates to the three categories of offences which are punishable with (i) death, (ii) imprisonment for life, or (iii) imprisonment for a term of not less than ten years. The question is whether Section 304-B is an offence "punishable" with imprisonment for life. Strong reliance was placed by Mr D.K. Garg, learned counsel appearing for the appellant on Rajeev Chaudhary v. State (NCT) of Delhi (AIR 2001 SC 2369). A reference is also made to the decisions of the Jharkhand, the Delhi and the Karnataka High Courts where the ratio in Rajeev Chaudhary case (supra) has been made applicable to cases involving offence punishable under Section 304-B IPC. The Jharkhand High Court's decision is Sunil Kumar v. State of Jharkhand (2003(2) RCR (Criminal) 135). Contrary views appear to have been taken by the Rajasthan and the Himachal Pradesh High Courts in Keshav Dev v. State of Rajasthan (2005 Cr.L.J. 3306) and State of H.P. v. Lal Singh (2003 Cri.L.J. 1668). The Punjab and Haryana High Court appears to have taken a somewhat different view in two different cases. In Kuldeep Singh v. State of Punjab (RCR (Criminal) 599) it was held that the period is 90 days, as has been held in the case at hand. But a different view (though in relation to some other offences) was taken in Abdul Hamid (Crl. Misc. No. 40599 M of 2005 disposed of on 21-9-2005). A bare reading of Rajeev Chaudhary case shows that the same related to an offence punishable under Section 386 IPC and the sentence in respect of the said offence is not less than 10 years. This Court held that the expression "not less than" means that the imprisonment should be 10 years or more to attract 90 days' period. In that context it was said that for the purpose of clause (i) of proviso (a) of Section 167(2) CrPC the imprisonment should be for a clear period of 10 years or more. The position is different in respect of the offence punishable under Section 304-B IPC. In the case of Section 304-B the range varies between 7 years and imprisonment for life. What should be the adequate punishment in a given case has to be decided by the court on the basis of the facts and circumstances involved in the particular case. The stage of imposing a sentence comes only after recording the order of conviction of the accused person. The significant word in the proviso is "punishable". 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. It is ordinarily defined as deserving of or capable 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.
12. In Bouvier's Law Dictionary meaning of the word "punishable" has been given as "liable to punishment". In Words and Phrases (Permanent Edn.) the following meaning is 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."
Corpus Juris 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', but 'may be punished', or 'liable to be punished'."
13. While dealing with a case relating to the Punjab Borstal Act, 1926, this Court held that a person convicted under Section 302 IPC and sentenced to life imprisonment is not entitled to the benefit of Section 5 of the said Act as the offence of murder is punishable with death. (See Sube Singh v. State of Haryana and others (1989 (1) SCC 235)
14. Where minimum and maximum sentences are prescribed, both are imposable depending on the facts of the cases. It is for the court, after recording conviction, to impose appropriate sentence. It cannot, therefore, be accepted that only the minimum sentence is imposable and not the maximum sentence. Merely because minimum sentence is provided that does not mean that the sentence imposable is only the minimum sentence. The High Court's view in the impugned order that permissible period of filing of challan is 90 days is the correct view."
12.It is held by the Punjab and Haryana High Court in the decision reported in 2011 Cri.L.J. 3097 that the words 'imprisonment for a term of not less than 10 years' occurring in Section 167(2)(a)(i) of the Code mean that the minimum punishment provided should be ten years. But, the decision of the Punjab and Haryana High Court is quite contrary to the decision rendered by the Hon'ble Supreme Court reported in AIR 2006 SC 2622. The Hon'ble Punjab and Haryana High Court had failed to take note of the decision of the Hon'ble Supreme Court and had rendered the decision, which could not be followed.
13.Following the ratio laid down by the Hon'ble Supreme Court in Rajeev Chaudhary case, the Hon'ble Himachal Pradesh High Court held as follows in the decision reported in 2003 Cri.L.J. 1668 (State of H.P. Vs. Lal Singh):
"10.It is clear on a bare reading of the aforesaid proviso that for the purpose of counting the period of 60 or 90 days, as the case may be, the expression 'term' of imprisonment as used therein is the maximum term of imprisonment as provided under the law and not the minimum term of imprisonment which is necessarily to be awarded to the accused if found guilty of the commission of the offence."
14. In view of the above, this Court finds that the order passed by the learned Judicial Magistrate No.III, Tirunelveli granting bail to the accused 1 & 2 by name Arockiam and Vijayapandi invoking the provision under Section 167(2) Cr.P.C. is erroneous and untenable. Hence, the order passed by the learned Magistrate in Crl.M.P.No.700 of 2012, dated 24.02.2012, is set aside. The bail granted to those accused is cancelled. The respondent police is directed to take into custody those accused and produce them before the learned Magistrate for remanding them to judicial custody.
15.This Court places it on record its appreciation on the assistance rendered by Mr.R.Gandhi, learned counsel appointed as Amicus Curiae.
16.As far as the bail petition in respect of the accused, Vignesh, petitioner herein is concerned, learned Additional Public Prosecutor submits that a sum of Rs.1000/- was recovered from the petitioner and there are materials available to show the involvement of the petitioner in the offences and one of the accused i.e., the sixth accused is still absconding.
17.Learned counsel appearing for the petitioner submits that the petitioner/accused Vignesh is a student and he is in custody more than 45 days.
18. Though the petitioner has been in custody more than 45 days, as he had indulged in serious offence of committing decoity, for which prima facie materials are available and as investigation is pending, this Court is not inclined to grant bail.
19. Hence, this criminal original petition is dismissed.
gcg To
1.The Judicial Magistrate No.III, Tirunelveli.
2.The Inspector of Police, Gangaikondan Police Station, Tirunelveli District.
3.The Additional Public Prosecutor, 2Madurai Bench of the Madras High Court, 3Madurai.