Rajasthan High Court - Jaipur
Mohan Singh And Anr. vs State Of Rajasthan on 25 November, 1997
Equivalent citations: 1998CRILJ3258, 1998(3)WLC414
ORDER S.C. Mital, J.
1. The petitioners have filed this bail petition under Section 439, Cr.P.C. in F.I.R No. 93/97, Police Station, Molasar under Sections 166, 342, 330 & 306 read with 34, IPC. The bail application submitted to Sessions Judge, Nagaur was dismissed by him vide order dated 24th October, 1997. The petitioners have filed the application on the ground that the charge-sheet has been submitted against the petitioners after the expiry of 60 days from the date on which the petitioners were taken into custody. The petitioners' contention is that they are entitled to be released on bail under Section 167(2)(a)(ii), Cr.P.C. because the offence under Section 306, IPC is punishable with imprisonment for 10 years and other offences are punishable even less than 10 years. The charge-sheet must have been filed within 60 days under Section 167(2)(a)(ii), Cr.P.C. The petitioners cannot be kept in custody after the expiry of 60 days. This contention was rejected by the learned Sessions Judge while dismissing the bail application.
2. 1 have heard the learned counsel for the petitioners and the learned Public Prosecutor. The learned counsel for the petitioners has submitted that petitioner Mohan Singh was remanded in judicial custody on 2-8-97 and petitioner Bhagirath Ram was sent to judicial custody on 6-8-97 but charge-sheet was not filed on the completion of 60 days. It is streneously argued that Section 167(2), Cr.P.C. clearly lays down that the time limit for filing the challan for the offences punishable with imprisonment for a term not less than 10 years is 90 days. But the offence under Section 306, IPC is punishable not more than 10 years and the time limit for filing the challan for this offence is 60 days. The words "imprisonment for a term of not less than) 10 years" used in Section 167(2)(a)(i), Cr.P.C. mean that the minimum punishment provided should be ten years. Since the minimum punishment of ten years is not provided for the offence under Section 306, IPC, the time limit for submitting the charge-sheet shall be 60 days as provided under Section 167(2)(a)(ii), Cr. P.C, which is applicable to 'any other offences'. Since the charge-sheet has not been filed within 60 days from the date of remanding the petitioners to custody by the Magistrate, the petitioners must be released on bail. In support of his contention, he placed reliance on 1997 Cr L J 2974 (Punjab & Haryana) Om Prakash Gabbar v. State of Punjab.
3. The learned Public Prosecutor vehemently opposed the bail application and supported the impugned order. He contended that the offence under Section 306, IPC is punishable for 10 years, the challan can be. submitted within 90 days under Section 167(2)(a)(i), Cr.P.C. His main contention is that the words "imprisonment for a term not less than 10 years" in Section 167(2)(a)(i) do not mean that only those offences have been covered in this provision for which minimum 10 years sentence of imprisonment is provided for the offence. It is argued that the negative words used cannot be interpreted to mean that the minimum punishment shall be 10 years and only for such offences the time limit of 90 days shall apply. This provision applies to all the offences in which imprisonment provided is not less than 10 years i.e. all the offences in which the imprisonment is for 10 years or more.
4. I have given my careful consideration to the arguments advanced by both the sides. The matter rests on the interpretation of Section 167(2)(a)(i) and (ii) of Criminal Procedure Code, which is as under:-
(2) the Magistrate to whom the accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, 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 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 para 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.
5. Section 57, Cr.P.C. provides that a person arrested without a warrant shall not be detained in custody exceeding twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court, If it appears that investigation cannot be completed within a period of twenty four hours a police officer making the investigation shall produce him before the nearest Judicial Magistrate, who may authorise the detention of the person which shall not exceed fifteen days in the whole. Section 167(2)(a) lays down that the Magistrate may authorise the detention beyond the period of fifteen days on being satisfied that there are adequate grounds for doing so. But such detention shall not exceed ninety days where the inves-ligation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. In other cases the detention cannot be authorised for more than sixty days. The accused gets statutory right to be released on bail on the expiry of the said period of ninety days or sixty days provided he is prepared to furnish bail.
6. The important question that arises before us is that what interpretation should be construed of the expression occurring in Section 167(2)(a)(i), Cr.P.C. "imprisonment for a term of not less than ten years''. We have to keep in mind the context in which the words have been used and the object sought to be achieved by the particular requirement. The negative words are ordinarily used to make a provision mandatory. But if we examine with reference to the context and the object intended to be achieved by the particular provision together with the consequences to follow, the negative words generaly taken to be mandatory are in their true meaning merely directory or appear to have been used for a different purpose rather than to lay down a mandatory provision. If we go to the historical back ground of the provision under Section 167, Cr. P.C, we find that originally when Criminal Procedure Code was enacted the period of remand was limited to sixty days. However, it was experienced that investigation into offences of serious nature might not be completed within sixty days. It was felt necessary to classify the cases into two categories viz. one which are of serious nature and the other cases to raise the time limit of sixty days to ninety days for the investigation of the first category i.e. offences of serious nature. Therefore proviso (a) of Section 167, Cr.P.C. was substituted by Act 45 of 1978 and 90 days period was prescribed as the maximum period of detention to be authorised by the Magistrate, 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 for other offences only sixty days. The object which was intended to be achieved was that for the investigation of the offences of serious nature the accused may be authorised to be detained in custody upto 90 days and thereafter on expiry of the 90 days statutory right shall accrue to him to be enlarged on bail. The purpose of the use of the words "imprisonment for a term of not less than ten years" is to classify the offences for limiting the period of detention to 90 days and 60 days and not to convey the meaning of imprisonment for minimum period of ten years. All the offences in Indian Penal Code and other statutes which are punishable by ten years or more are in the category of "punishable with imprisonment for a term not less than ten years" as the Court is empowered to award sentence in all those offfences imprisonment of ten years or more. But in the case of other offences in which the punishment provided in the Indian Penal Code or any other statute is less than ten years, the punishment cannot be awarded ten or more than ten years but only upto the term provided for the offence. Such offences can be put in the category of the offences "punishable with imprisonment for a term of less than ten years". Similarly the offences punishable for ten years or more as provided in the relevant provision can be placed in the category "punishable with imprisonment for a term of not less than ten years.
7. Therefore, I am of the opinion that in the above context and the purpose intended to be fulfilled the words "punishable with imprisonment for not less ten years" have been used for the purposes of classification of the offences into serious nature of offences and rest of the other offences to fix the time limit of 90 days and 60 days respectively. These words have not been employed here to mean to cover ony offences in which the accused is mandatorily to be punished with 'imprisonment for not less than ten years' i.e. minimum ten years, but to exclude all the offences in which the sentence of imprisonment provided in the statute is less than ten years.
8. The learned counsel for the petitioners drew my attention to Section 376, I.P.C, where the punishment provided for the offence is imprisonment of either description for a term which shall "not be less than seven years" and for 376(2)(a) to (g) rigorous imprisonment for a term which shall "not be less than ten years". It is contended that the same meaning should be attached to the words used in Section 167, Cr.P.C. and the words 'punishable with imprisonment not less than ten years' refer to only those offences in which to award ten years minimum sentence is mandatory. I am not inclined to accept this contention. As already discussed above the negative words do not always make the provision mandatory or imperative but give a different meaning in the context, the words have been used and the object sought to be achieved by the legislature. In view of the above discussion, I find myself in disagreement with respect, from the view held in Om Prakash Gabbar v. State of Punjab (supra).
9. As a result of the foregoing discussion, I hold that the expression "imprisonment for a term of not less than ten years" occurring in Section 167(2)(a)(i) means the punishment provided in the Indian Penal Code or any other statute is not less than ten years i.e. sentence provided for the offence is ten years or exceeding ten years. This expression does not mean that the minimum punishment provided should be ten years. Since the punishment provided for the offence abetment of suicide under Section 306, I.P.C. is punishable for ten years i.e. the Court is empowered to pass sentence of imprisonment of ten years also, this offence is covered within the category of the offence "punishable with imprisonment for a term of not less than ten years". Therefore, Clasue (i) of Section 167(2)(a), Cr.P.C. is applicable and the petitioners can be remanded to custody for a total period of 90 days during the investigation. The charge-sheet has been submitted against the petitioners well within 90 days. They are not entitled to be released on bail under Section 167(2), Cr.P.C.
10. Consequently, the bail petition is hereby rejected.