Punjab-Haryana High Court
Om Parkash Gabbar vs State Of Punjab on 19 November, 1996
Equivalent citations: 1997CRILJ2974
Author: H.S. Bedi
Bench: H.S. Bedi
JUDGMENT H.S. Bedi, J.
1. This petition is before us on a reference made by the learned single Judge of this Court on the following facts :
The petitioner, Om Parkash, filed an application for bail under Section 439 of the Code of Criminal Procedure (in short "the Code"), in case arising out of FIR No. 138 of 1995, dated September 1, 1995, registered at Police Station, Sadar Amritsar, under Sections 325/367/345/346/166/506/509/323/452/148/149 of the Indian Penal Code. It is the conceded case that the offence under Section 367, IPC is punishable with imprisonment, which may extend upto ten years, whereas the other sections provide for imprisonment of lesser period. The application was filed on the ground that despite the passage of 60 days from the date that the petitioner had been taken into custody, the challan had not been filed and as such the petitioner was, ipso facto entitled to be released on bail in terms of Section 167(2)(a)(ii) of the Code. Mr. Hundal, the learned counsel appearing in support of the application, has placed reliance on a decision of the Allahabad High Court in Sohan Lal v. State 1991 All Cri R 383.
2. The learned State counsel has, however, relied on a single Bench judgment of this Court in Tejinder Singh Desanj v. State of Punjab (1991) 28 Cri LT 5, wherein a contrary view had been taken and it has been held that where the sentence provided was upto ten years, the Magistrate could authorise the detention of the accused for a total period of 90 days, as envisaged by Section 167(2)(a)(i) of the Code. It is in the light of this divergence of opinion that the matter has been referred to a Division Bench, on the following reference :
Whether the words "imprisonment for a term of not less than 10 years" occurring in Section 167(2)(a)(i) of the Code of Criminal Procedure means that for the offence the minimum punishment provided should be 10 years or this term means "imprisonment upto 10 years.
3. The matter would rest on the interpretation of Section 167(2)(a)(i) and (ii) of the Code and reproduce the provision : --
(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 subsection shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
4. This provision came up for consideration before the Allahabad High Court in Sohan Lal's case (1991 All Cri R 383) (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 authorise 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 minimum punishment shall be ten years. The term 'not less than ten years' is not to be confused with the term '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.
5. To our mind, the paragraph quoted above wholly sums up the clear intent of the provision of Section 167(2) of the Code.
6. Mr. Randhawa, the learned State counsel has, however, relied upon the decision in Tejinder Singh Desanj's case (1991 (28) Cri LT 5) (supra). It is true that the decision is in favour of the State Counsel, but we find that the learned Judge did not dwell deep into the matter and after reproducing the words of the Section, straightway came to his conclusions. We are of the opinion that the two different expressions, i.e. 'upto ten years' and 'not less than ten years' used in the Statute deal with different situations and in the offences where in the sentence upto 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.
7. 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 means that the minimum punishment provided should be ten years.
8. For the reasons recorded above, we are of the opinion that the judgment of the learned single Judge in Tejinder Singh Desanj's case (1991 (28) Cri LT 5) (supra) does not lay down correct law and the same is overruled. We, accordingly, accept the interpretation given by the Allahabad High Court in Sohan Lai's case (1991 All Cri R 383) (supra).
9. Mr. Hundal states that as the petitioner has since been released on bail, and as such, no further order is required to be passed in this matter.