Himachal Pradesh High Court
State Of H.P. vs Lal Singh on 25 July, 2002
Equivalent citations: 2003CRILJ1668
Author: M.R. Verma
Bench: M.R. Verma
ORDER M.R. Verma, J.
1. This revision petition under Sections 397, 401 read with Section 482 of the Code of Criminal Procedure preferred by the State (hereafter referred to as 'the petitioner') is directed against the order dated 31-12-2001 passed by the learned Sessions Judge, Sirmaur District at Nahan directing release of the respondent/accused (hereafter referred to as 'the respondent') in a case under Sections 304-B, 494-A, 201/34 of the Indian Penal Code.
2. Brief facts leading to the presentation of this petition are that the respondent has been arrested for the commission of offences punishable under Sections 304-B, 498-A, 201/ 34 of the Indian Penal Code by Paonta Police. On 27-12-2001 the respondent filed an application under Section 439 of the Code of Criminal Procedure (hereafter referred to as 'the Code') in the Court of the learned Sessions Judge, Sirmaur at Nahan for his release on bail which was allowed on the ground that the charge-sheet against the respondent had not been presented within 60 days as provided under Section 167 of the Code. The grievance of the petitioner is that since one of the offences alleged to have been committed by the respondent is under Section 304-B of the Indian Penal Code, therefore, the respondent could have been released on bail under Section 167 of the Code only if the charge-sheet was not presented within 90 days and not on the ground that the charge-sheet had not been presented within 60 days. Hence, the present petition.
3. I have heard the learned Assistant Advocate General for the petitioner and the learned Counsel for the respondent and have also perused the record.
4. It is not in dispute that one of the offence alleged to have been committed by the respondent is under Section 304-B of the Indian Penal Code. It is also not in dispute that the period of 60 days from the date of order of remand had expired before the filing of the application by the respondent but period of 90 days from the date of remand had not expired when the application for bail was instituted or even on the date when it was decided by the learned Sessions Judge. Thus, the only question for determination in this revision petition is whether, in a case where the accused is, inter alia, alleged to have committed an offence punishable under Section 304-B of the Indian Penal Code and is in custody because of pendency of investigation, right to be enlarged on bail , will accrue to the accused if the charge-sheet is not submitted within 60 days or such right would accrue if the charge-sheet is not submitted within 90 days from the date of remand?
5. Clause (a) of proviso to Sub-section (2) of Section 167 of the Code reads as follows :--
"167. Procedure when investigation cannot be completed in twenty-four hours--
(1) and (2) *** *** *** *** [(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;]"
6. It is clear on a bare reading of the aforesaid provisions that during the pendency of investigation a right to be released on bail shall accrue to an accused person detained in custody after expiry of 90 days from the date of remand; if the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years and if the investigation relates to any other offence, such right will accrue after expiry of 60 days from the date of remand.
7. The learned Sessions Judge in the impugned judgment came to the conclusion that the period of 60 days had expired on 17-12-2001 and the charge-sheet had not been forwarded to the Court, therefore, in view of the law as laid down in Rajeev Chaudhary v. State of Delhi, (2000 (2) RCC 642), the respondent was entitled to be released on bail and accordingly released him on bail.
8. The relevant part of the judgment in Rajeev's case (supra), relied upon by the learned Sessions Judge, reads as follows :--
"Hence in cases, 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 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 10 years. It would not cover the offence for which punishment could be imprisonment for less than 10 years."
9. While applying the above ratio to the case of the respondent, the learned Sessions Judge seems to have been influenced by the fact that minimum punishment provided for an offence punishable under Section 304-B of the Indian Penal Code is seven years, therefore, this sentence being less than ten years, the charge-sheet ought to have been presented against the respondent within 60 days of the order of remand and this having not been done, the respondent was entitled to be released on bail. The learned Sessions Judge evidently has misconstrued and misconceived the ratio in Rajeev's case (supra and the proviso to Sub-section (2) of Section 167 of the Code.
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.
11. Section 304-B of the Indian Penal Code reads as follows :--
"[304-B. Dowry death :-- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation :-- For the purposes of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.]"
12. It is clear on a bare reading of the provisions of Section 304-B (supra) that the term of imprisonment provided for the commission of an offence punishable under Section 304-B of the Indian Penal Code is imprisonment for life but it should not be less than seven years. The intention of the Legislature in providing that the imprisonment under this Section shall not be less than seven years, is to award severe punishment to the guilty person, therefore, by providing the minimum period of imprisonment of seven years, the Legislature intended to prevent the Courts from passing a sentence of less than 'seven years when a case under Section 304-B of the Indian Penal Code is proved, and, thus, the discretion of the Court to pass a sentence of less than seven years has been ousted. The Court in its discretion, however, may pass a sentence of imprisonment which may extend to imprisonment for life but the imprisonment so awarded should not be less than seven years. Therefore, for the purpose of the proviso to Sub-section (2) of Section 167 of the Code supra, the expression "imprisonment for term of not less than ten years" as used therein will apply only to the cases wherein the maximum provided punishment of imprisonment is less than ten years and not to such cases where the law provides maximum punishment of imprisonment of ten or more years but also provides a minimum sentence of less than ten years' imprisonment
13. In view of the above discussion, it is clear that the impugned order is based on misreading and misconstruction of the provisions of proviso to Sub-section (2) of Section 167 of the Code and Section 304-B of the Indian Penal Code. The impugned order, therefore, being illegal, is liable to be set aside.
14. As a result, this revision petition is allowed and the impugned order is set aside. The bail granted, to the respondent is cancelled and he is directed to surrender Before the learned Chief Judicial Magistrate, Nahan within fifteen days from today.