Bombay High Court
Pralhad Vithal Giri And Anr. vs State Of Maharashtra on 16 January, 2002
Equivalent citations: 2002BOMCR(CRI)~, 2002CRILJ3162, 2002(4)MHLJ148
Author: D.D. Sinha
Bench: D.D. Sinha
JUDGMENT D.D. Sinha, J.
1. Rule returnable forthwith. Heard finally by consent of the parties.
2. Criminal Application No. 1600 of 2001 under Section 482, read with Section 167(2), Criminal Procedure Code, is directed against the Order, dated 18-9-2001, passed by the Judicial Magistrate First Class, Risod, as well as the Order, dated 17-10-2001, passed by the Additional Sessions Judge, Washim, whereby the application moved by the applicants for grant of bail under Section 167(2) of the Criminal Procedure Code came to be dismissed by the Judicial Magistrate First Class and the Order of rejection came to be confirmed by the Additional Sessions Judge.
3. Mr. Mardikar, learned counsel for the applicants, contended that the present applicants are father-in-law and mother-in-law of deceased Pooja, who was alleged to have committed suicide by jumping into a well. The applicants came to be arrested on 16-7-2001. Offence under Section 306, Indian Penal Code, i.e., abetment of suicide, punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable for fine. The learned counsel contended that in view of Section 167(2)(a)(ii), Criminal Procedure Code, the Magistrate is only authorized to detain the applicants in the custody of police only till expiry of sixty days, and not beyond sixty days as contemplated under the above referred provisions. Mr. Mardikar states that in the instant case, the applicants came to be arrested on 16-7-2001 and sixty days from the date of arrest were over on 14-9-2001 and, therefore, on 15-9-2001, the applicants moved an application for grant of bail in view of Section 167(2), Criminal Procedure Code.
4. As far as the offence under Section 498-A, Indian Penal Code, is concerned, it is not relevant for the purposes of deciding the controversy in issue, since the punishment, which is provided for the offence punishable under Section 498-A, Indian Penal Code, is only upto three years.
5. Mr. Mardikar contended that the controversy is concluded by the Judgment of the Apex Court in the case of Rajeev Chaudhary v. State of Delhi . It is contended that though this authority was referred by the applicants before the courts below, the same has not been properly considered by the respective courts, which has resulted in miscarriage of justice to the applicants. The learned counsel contended that the applicants, for the reasons stated hereinabove and in view of the ratio laid down by the Apex Court in the above referred Judgment, are entitled to be released on bail under Section 167(2), Criminal Procedure Code.
6. Mr. Patel, learned Additional Public Prosecutor appearing for the State, opposed the request for grant of bail on the ground that the offence, in question, i.e., under Section 306, Indian Penal Code, is punishable with either description of term which may extend to ten years. It is, therefore, contended that in a given set of circumstances if the prosecution succeeds in proving the offence under Section 306, Indian Penal Code, the applicants may be punished with an imprisonment which may be upto ten years and, therefore, the controversy, in question, would fall within Section 167(2)(a)(i) of the Criminal Procedure Code, and the time to file charge-sheet in such a situation is of ninety days from the date of arrest and the same is filed within ninety days in the present case. The learned counsel, therefore, contended that the interpretation arrived at by the courts below is just and proper and sustainable in law.
7. I have considered the contentions canvassed by the respective counsel, perused the orders passed by the courts below and the Judgment of the Apex Court referred to hereinabove as well as provisions of Section 167(2), Criminal Procedure Code.
8. In the present case, it is not in dispute that the offences, which are registered against the present applicants, are under Sections 306 and 498-A, read with Section 34, Indian Penal Code. The applicants-accused are arrested on 16-7-2001 and a charge-sheet in the crime in question was filed by the prosecution in the Court on 18-9-2001, i.e. admittedly after sixty days are over. Now, the question in issue is "whether in a case where punishment prescribed for the offence upto ten years falls within the ambit of Section 167(2)(a)(i), Criminal Procedure Code, or it is only in the case of punishment prescribed for the offence not less than ten years, would fall within this provision."
9. The plain reading of Section 167(2)(a)(i), Criminal Procedure Code, would show that the Magistrate may authorise detention of an accused person in custody for a total period which 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. The above referred provision clearly conveys that the punishment provided for the offence committed in any eventuality should not be less than ten years and, therefore, the contention canvassed by the Additional Public Prosecutor in this regard cannot be accepted. In the instant case, the punishment, which is provided for the offence under Section 306, Indian Penal Code, is punishable with imprisonment of either description for a term which may extend to ten years, that means punishment can be awarded which can also be less than ten years, which, in fact, is not the purport of Section 162(2)(a)(i), Criminal Procedure Code and, therefore, the period of ninety days contemplated in this provision is not attracted in the present case.
10. Provision of Section 167(2)(a)(ii), Criminal Procedure Code, contemplates that where the punishment provided for the offence is less than ten years, then a Magistrate is authorized to detain the accused person in the custody of police only till the expiry of sixty days from the date of arrest and not beyond. The investigation, which relates to the offence punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years, is covered by Section 167(2)(a)(i) of the Criminal Procedure Code, and a Magistrate is authorized to detain the accused not beyond the period of ninety days. In the instant case, the offence under Section 306, Indian Penal Code, is punishable with an imprisonment of either description for a term which may extend to ten years and, therefore, on a plain reading of these provisions, it is amply clear that for the offence under Section 306, Indian Penal Code, the punishment provided is upto ten years, and also it can be less than ten years and if it is less than ten years, the Sub-clause (i) of Clause (a) of Sub-section (2) of Section 167 is not attracted, which only deals with the offences punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and, hence, a Magistrate is not authorized to detain the accused person in the custody of police beyond the period of sixty days as contemplated under Sub-clause (ii) of Clause (a) of Subsection (2) of Section 167 of the Criminal Procedure Code. If a charge-sheet is not filed within a period of sixty days from the date of arrest, the accused is entitled to avail the benefit of Sub-clause (ii) of Clause (a) of Sub-section (2) of Section 167 of the Code of Criminal Procedure Code.
11. The issue, in question, is also squarely concluded and is no more res integra in view of the ratio laid down by the Apex Court in the case of Rajeev Chaudhary referred to hereinabove. The relevant observations in this regard are quoted thus :--
"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, period prescribed is 60 days. Hence in case, where offence is punishable with imprisonment for 10 years or more, 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 of the Indian Penal Code, imprisonment can vary from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years."
12. On the basis of the well settled position in law, the impugned orders passed by the Judicial Magistrate First Class as well as Additional Sessions Judge cannot be sustained and are hereby quashed and set aside. The accused are entitled to be released on bail. Hence the applicant No. 1 be released on bail subject to furnishing a P.R. Bond of Rs. 5,000-00 (Rupees five thousand only) with one surety in the like manner, and the ad interim bail granted to the applicant No. 2 by this Court vide Order, dated 16-11-2001, is hereby confirmed.
Criminal Application is allowed. Rule is made absolute.