Chattisgarh High Court
Shyamal Kumar Biswas vs State Of Chhattisgarh on 22 September, 2021
Author: Rajendra Chandra Singh Samant
Bench: Rajendra Chandra Singh Samant
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No. 974 of 2020
• Shyamal Kumar Biswas S/o Lt. Shri Kamal Kant Biswas Aged About 62 Years
R/o Garej Para, Ward No. 2, Kusumkasa, Dalli-Rajhara, Balod, Chhattisgarh
---- Petitioner
Versus
1. State Of Chhattisgarh Through- District Magistrate, Raipur, Chhattisgarh
2. Rajdeep Sarkar S/o Lt. Shri Ranjeet Sarkar Aged About 38 Years R/o House
No. 309, Janta Colony, Gudiyari Tahsil And Distt. Raipur, Chhattisgarh
---- Respondents
For Petitioner : Shri Akash Kumar Kundu, Advocate
For State : Smt. Fouzia Mirza, Addl. Adv. Gen. and Shri Lalit
Jangde, Dy.G.A.
For Respondent No.2 : Shri Suresh Tandon, Advocate
D.B.:- Hon'ble Shri Justice Manindra Mohan Shrivastava
Hon'ble Shri Rajendra Chandra Singh Samant
C A V Order
22/09/2021
Per Manindra Mohan Shrivastava, J.
1. The difference of opinion with regard to interpretation of provisions contained in Section 167 (2) (a) (ii) of CrPC in the matter of grant of default bail has given rise to reference on a stated question of law by the learned Single Judge, as below -
"What would be the period for filing charge-sheet for offence punishable under Section 467 of IPC for the purpose of default bail under Section 167 (2) (a) of CrPC, "whether it would fall under Section 167 (2) (a) (i) of CrPC in terms of Paragraph 84.2 of Rakesh Kumar Paul (supra) or under Section 167 (2) (a) (ii) of CrPC as per paragraph 84.3 of Rakesh Kumar Paul (supra) ?"2
2. In the case in hand, the petitioner filed petition assailing legality and validity of the order dated 26/05/2020 by which, the accused / 2 nd respondent was admitted to the privilege of default bail under Section 167 (ii) of CrPC.
On petitioner's report, the police registered offences punishable under Section 420, 419, 467, 468, Section 12-B read with Section 34 of IPC against the 2 nd respondent who was, later on, arrested on 30/12/2019. Charge sheet was, however, filed against 2nd respondent only on 06/03/2020 and in this factual backdrop, 2 nd respondent claimed default bail taking recourse to provisions contained under Section 167 (2) (a) (ii) of CrPC. The contention of 2 nd respondent was that as the alleged offences are not punishable for imprisonment for more than 10 years, therefore, charge sheet ought to have been filed within 60 days from the date of first remand i.e. 30/12/2019 whereas it was filed after expiry of 60 days on 06/03/2020.
The application was rejected by the Magistrate which was assailed before the Revisional Court. Learned Additional Sessions Judge, vide order dated 26/05/2020, allowed the revision and extended period of default bail to the 2 nd respondent by holding that none of the offences registered against the accused are punishable with imprisonment for more than 10 years in view of judgment of this Court in the case of Smt. Shalini Verma and anr. v. State of Chhattisgarh 1 amended by learned Single Judge in would be applicable and consequently, the maximum period within which the charge sheet could be filed would be 60 days and not 90 days.
3. The aforesaid order was challenged by filing petition under Section 482 CrPC giving rise to the present case.
4. Learned Single Judge, relying upon the Supreme Court decision in the case of Rakesh Kumar Paul v. State of Assam 2 held that the aforesaid decision and the principles laid down therein, when applied to provision of punishment provided for 1 CrMP No.2551/2018 2 (2017) 15 SCC 67 3 commission of offence under Section 467 IPC, the period of filing charge sheet would be 90 days and not 60 days. However, noting different view taken by another learned Single Judge of this Court in the case of Shalini Verma (supra), question of law, as stated above, has been referred for the opinion of this Bench.
5. We have heard learned counsel for the parties and perused the decisions cited at the bar.
6. While learned counsel appearing for the petitioner herein would submit that the ratio decidendi in the case of Rakesh Kumar Paul (supra), when applied to provisions contained under Section 467 IPC, period for filing charge sheet would be 90 days for filing charge sheet, learned counsel for private respondent would submit that as in the present case as there is no provision under Section 467 IPC providing punishment of not less than 10 years, the principles laid down in the case of Smt. Shalini Verma (supra) becomes applicable where the offences registered against the accused includes Section 467 IPC.
7. The issue arising for our consideration in this reference requires to be decided with reference to the law laid down in the case of Rakesh Kumar Paul (supra). We note that both in the cases of Smt. Shalini Verma (supra) as well as in the present case, learned Single Judges have considered the Supreme Court judgment in the case of Rakesh Kumar Paul (supra). In the ultimate conclusion, the difference of opinion has precipitated mainly because under Section 467 IPC, punishment with life imprisonment is the maximum sentence. The expression "not less than 10 years" as punishment is not found in the aforesaid provision. Section 467 IPC provides as below -
"Forgery of valuable security, will, etc. -- Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the 4 principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
From the aforesaid provision on its literal meaning, the criminal overt act of forgery, security will etc. is punishable with imprisonment for life or with imprisonment of either description for a term which may extend to 10 years. It has further been provided that it shall also be liable to fine.
8. Therefore, for such offences, once an accused is held guilty and convicted, the sentence may vary for a period of imprisonment which may extend up to 10 years and it may go up to imprisonment for life as maximum period of sentence which may be imposed for commission of such offence.
9. Section 167 of CrPC lays down the procedure when investigation cannot be completed in 24 hours and proviso to Sub-Section 2 thereof provides for default bail where investigation cannot be completed within the period prescribed therein, either 60 days or 90 days, depending upon the offence for which the accused had been arrested.
Under Section 167 (2) (i) (a) of CrPC, the period within which charge sheet can be filed, has been prescribed as 90 days where investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years.
In the following clause (ii), period of 60 days for filing of charge sheet has been provided where investigation relates to any other offence. 5
Legislative scheme, therefore, is to the effect that in serious cases categorised as those, where offence is punishable with death, imprisonment for life or imprisonment for a term not less than 10 years, charge sheet can be filed within 90 days and if it is not done, the accused is entitled to grant of default bail. In all other cases, which are not relating to any offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, charge sheet is required to be filed within 60 days failing which, the accused shall be released on bail on such failure.
10. The statutory scheme of Section 167 of CrPC and provision relating to default bail, as contained in proviso to clause (a) of Sub-Section 2 of Section 167 CrPC was interpreted in the decision in the case of Rakesh Kumar Paul (supra), taking into consideration legislative history and intention behind enacting provisions with regard to grant of default bail. When would a particular offence, for the purposes of grant of default bail, would fall under (i) of clause (a) of Sub-Section 2 and when offfence would fall under residuary clause (ii) thereof was also closely examined by Their Lordships. Their Lordships considered conflicting views of the Supreme Court in the cases of Bhupinder Singh v. Jarnail Singh,3 and Rajeev Chaudhary v. State (NCT of Delhi)4.
Having considered conflicting view, legislative history and scheme, Their Lordships, in majority, held as below -
24. In the context of the word "punishable" occurring in Clause (i) and the meaning attached to this word taken from several dictionaries, this Court held in Bhupinder Singh (supra) that where a minimum and maximum sentence is prescribed, both are imposable depending upon the facts of the case. Therefore, if an offence is punishable with imprisonment that may extend upto or beyond or including 10 years, then the period available for completing investigations would be 90 days before the provision for 3 (2006) 6 SCC 277 4 (2001) 5 SCC 34 6 'default bail' kicks in. It was said in paragraph 15 of the Report:
"15. 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."
25. While it is true that merely because a minimum sentence is provided for in the statute it does not mean that only the minimum sentence is imposable. Equally, there is also nothing to suggest that only the maximum sentence is imposable. Either punishment can be imposed and even something in between. Where does one strike a balance? It was held that it is eventually for the court to decide what sentence should be imposed given the range available. Undoubtedly, the legislature can bind the sentencing court by laying down the minimum sentence (not less than) and it can also lay down the maximum sentence. If the minimum is laid down, the sentencing Judge has no option but to give a sentence "not less than" that sentence provided for. Therefore, the words "not less than" occurring in clause (i) to proviso (a) of Section 167(2) of the Cr.P.C. (and in other provisions) must be given their natural and obvious meaning which is to say, not below a minimum threshold and in the case of Section 167 of the Cr.P.C. these words must relate to an offence punishable with a minimum of 10 years' imprisonment.
26. Of the two views expressed by this Court, we accept the view in Rajeev Chaudhary.
27. It is true that an offence punishable with a sentence of death or imprisonment for life or imprisonment for a term that may extend to 10 years is a serious offence entailing intensive and perhaps extensive investigation. It would therefore appear that 7 given the seriousness of the offence, the extended period of 90 days should be available to the investigating officer in such cases. In other words, the period of investigation should be relatable to the gravity of the offence - understandably so. This could be contrasted with an offence where the maximum punishment under IPC or any other penal statute is (say) 7 years, the offence being not serious or grave enough to warrant an extended period of 90 days of investigation. This is certainly a possible view and indeed Cr.P.C. makes a distinction in the period of investigation for the purposes of 'default bail' depending on the gravity of the offence. Nevertheless, to avoid any uncertainty or ambiguity in interpretation, the law was enacted with two compartments. Offences punishable with imprisonment of not less than ten years have been kept in one compartment equating them with offences punishable with death or imprisonment for life. This category of offences undoubtedly calls for deeper investigation since the minimum punishment is pretty stiff. All other offences have been placed in a separate compartment, since they provide for a lesser minimum sentence, even though the maximum punishment could be more than ten years imprisonment. While such offences might also require deeper investigation (since the maximum is quite high) they have been kept in a different compartment because of the lower minimum imposable by the sentencing court, and thereby reducing the period of incarceration during investigations which must be concluded expeditiously. The cut-off, whether one likes it or not, is based on the wisdom of the Legislature and must be respected.
11. In concurring view, the statutory scheme and applicability of default bail under 167 (2)(a)(i) CrPC was further explained as below -
"62. We are only concerned with interpretation of the phrase "for a term of not less than ten years" occurring in Section 167(2)(a)(i), which provides a period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than 10 years.8
63. In my considered view, without indulging in any semantic gymnastics, the meaning of this provision is absolutely clear. It envisages three types of offences:
(I) Offences which are punishable with death;
(ii) Offences which are punishable with imprisonment for life;
(iii) Offences which are punishable with a term not less than 10
years.
64. In my view the language of the statute is clear and unambiguous. Out of the three categories of offences, we need to deal only with that category of offences where the punishment prescribed is not less than 10 years. If an offence is punishable with death then whatever be the minimum punishment, the period of investigation permissible would be 90 days. Similarly, if the offence is punishable with life imprisonment, even if the minimum sentence provided is less than 10 years, the period of detention before 'default bail' is available would be 90 days.
65. Keeping in view the legislative history of Section 167, it is clear that the legislature was carving out the more serious offences and giving the investigating agency another 30 days to complete the investigation before the accused became entitled to grant of 'default bail'. It categorises these offences in the three classes:
I First category comprises of those offences where the maximum punishment was death;
II Second category comprises of those offences where the maximum punishment is life imprisonment.
III The third category comprises of those offences which are punishable with a term not less than 10 years.
66. In the first two categories, the legislature made reference only to the maximum punishment imposable, regardless of the minimum punishment, which may be imposed. Therefore, if a person is charged with an offence, which is punishable with death or life imprisonment, but the minimum imprisonment is less than 9 10 years, then also the period of 90 days will apply. However, when we look at the third category, the words used by the legislature are "not less than ten years". This obviously means that the punishment should be 10 years or more. This cannot include offences where the maximum punishment is 10 years. It obviously means that the minimum punishment is 10 years whatever be the maximum punishment.
12. In order to make the legal position clear, the principles of interpretation applicable to penal laws was also taken into consideration. Furthermore, conflicting view taken in the case of Rajeev Chaudhary (supra) and Bhupinder Singh (supra) were examined to clearly hold that only if maximum sentence is less than life imprisonment that the minimum sentence must be 10 years to fall under third category of cases. It was held as below -
74. Two judgments have been cited before us which dealt with the interpretation of the words "not less than ten years". In Rajeev Chaudhary (supra), the accused was charged with having committed offence punishable under Section 386 of the Indian Penal Code. The punishment whereof is a term of imprisonment which may extend to 10 years. This Court held that in a case where an offence is punishable with imprisonment for 10 years or more, the accused could be detained up to 90 days. The Court further held that the expression "not less than ten years" obviously means 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.
75. On the other hand, in Bhupinder Singh (supra), the Court had distinguished Rajeev Chaudhary's case (supra) and held that the word "punishable" is significant and if the offence is punishable with imprisonment for 10 years, whether that be the maximum punishment or minimum punishment, the accused was not entitled to 'default bail' prior to 90 days. With due respect, I am unable to agree with the view expressed in this case. Strictly speaking, this question did not arise in Bhupinder Singh's case 10 (supra). In that case, the accused was charged for an offence under Section 304B of the Indian Penal Code and this offence is punishable with imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life. Since the offence is punishable with imprisonment for life, then the fact that the minimum sentence provided is 7 years would make no difference, as explained by me above. It is only when the maximum sentence is less than life imprisonment that the minimum sentence must be 10 years to fall in the third category of cases. Certain examples of such cases are offences punishable under Section 21(c) and 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, which provide a minimum sentence of 10 years and a maximum sentence of 20 years."
13. The principles enunciated, as above, when applied to provisions contained in Section 467 IPC, leads to irresistible conclusion that even though no minimum sentence of 10 years prescribed, nevertheless, maximum sentence is imprisonment for life, which means that in a given case, after convicting the accused, he may be imposed sentence which is more than 10 years, which means he may be imposed sentence of life imprisonment. If the offence is not punishable for life imprisonment or death sentence but the offence is punishable with sentence upto 10 years, certainly, in such a case, period of filing challenge would be 60 days. However, where offence is punishable with imprisonment for life or 10 years of sentence, whether or not, such sentence is for a period less than 10 years, such offence would fall under first category of offence as specified in Section 167 (2) (a) (i) of CrPC and not under residuary clause of (ii).
14 In the case of Smt. Shalini Verma (supra), the basis for the view that for offence under Section 467 IPC, the period for filing of charge sheet would be 60 days and not 90 days, is that there is no prescription of minimum sentence of 10 years, which in our opinion is not in accord with the decision of the Supreme Court in the case of Rakesh Kumar Paul (supra) because in the aforesaid decision, it has been 11 held that where the offence is punishable with imprisonment for life which is more than 10 years or with a sentence which may extend upto 10 years, period of filing of charge sheet would be 90 days and not 60 days. In taking this view, we find support from the decision of the Gujarat High Court in the case of Manish @ Raju Devshibhai Chovadiya v. State of Gujarat, 5 and that of Delhi High Court in the case of Lalita Saini v. State & anr.6.
15. We accordingly answer the question of law as below -
The period of filing charge sheet for offences under Section 467 IPC for the purpose of default bail under Section 167 (2) (a) of CrPC would fall under Section 167 (2)(a)(i) of CrPC in terms of paragraph 84.2 of Rakesh Kumar Paul, (2017) 15 SCC 67 and not under Section 167 (2) (a) (ii) of CrPC as per paragraph 84.3 of Rakesh Kumar Paul, (2017) 15 SCC 67.
16. Reference is accordingly answered as above. The matter be now placed before learned Single Judge with this order.
Sd/- Sd/-
(Manindra Mohan Shrivastava) (R C S Samant)
Judge Judge
Deepti
5 CrLJ 2018 2959
6 2019 SCC Online Del 9651