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2001 DIGILAW 286 (MAD)

Sreerajan v. State of Kerala

2001-03-02

M.KRISHNAN NAIR

body2001
ORDER: Whether a Magistrate is competent to authorise the detention of an accused in custody for a period exceeding 60 days where the investigation relates to an offence punishable with imprisonment which may extend upto 10 years as per the proviso to Sec.167(2) of the Crl.P.C.? That is the question involved in this case. 2. This application for bail is filed by the second accused in Crime No.715 of 2000 of the Kottarakkara Police Station. The said crime was registered alleging the commission of the offence punishable under Sec.8(1) and (2) of the Akbari Act. The allegation is that on 24.3.2000 at about 8.30 p.m. the Assistant Sub Inspector of Police, Kottarakkara found one Unnikrishnan engaged in the sale of illicit arrack in toddy shop No.11 of the Chengamanad Village. The Assistant Sub Inspector seized 20 litres of arrack from the toddy shop and also arrested the said Unnikrishnan. Subsequent investigation revealed that the petitioner was in charge of the toddy shop on the date of the occurrence and accordingly he was implicated as an accused in the crime. An application moved by the petitioner before the Judicial First Class Magistrate I, Punalur was dismissed. Two earlier applications for bail moved by the petitioner before this Court were also dismissed. Now the petitioner claims the benefit of the second proviso to Sec.167(2) of the Crl.P.C. 3. According to the Public Prosecutor, since the petitioner is accused of an offence punishable with imprisonment which may extend upto 10 years, the proviso (a)(i) to Sec.167 of the Crl.P.C. is attracted in this case and therefore the petitioner is not entitled to be released on bail at this stage. 4. The question arising for consideration is whether the petitioner is entitled to get bail in view of the provisions contained in the proviso to Sec.167(2) of the Crl.P.C. Admittedly, the investigation in the case has not been completed and the charge has not been laid before the Court. The petitioner is in custody since 23.12.2000. 4. The question arising for consideration is whether the petitioner is entitled to get bail in view of the provisions contained in the proviso to Sec.167(2) of the Crl.P.C. Admittedly, the investigation in the case has not been completed and the charge has not been laid before the Court. The petitioner is in custody since 23.12.2000. The proviso to Sec.167(2) lays down that no Magistrate shall authorise the detention of the accused person in custody for a period exceeding 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 and 60 days where the investigation relates to any other offences and the person concerned is to be released on bail if he is prepared to and does furnish bail. According to the Public Prosecutor, the expression “offences punishable with imprisonment which may extend upto 10 years” includes all offences where the punishment is imprisonment for a term not less than 10 years referred to in proviso (a)(i) of Sec.167, Crl.P.C. I cannot agree. To attract the proviso (a)(i) of Sec.167(2), the offence must be punishable with death, imprisonment for life or imprisonment for a term not less than 10 years. But in the case of an offence punishable with imprisonment which may extend upto 10 years, the Court is competent to pass a sentence of imprisonment less than 10 years. Therefore, an offence punishable with imprisonment which may extend upto 10 years is covered by the proviso (a)(ii) to Sec.167(2) and not covered by proviso (a)(i). In all cases where the offences are punishable with imprisonment which may extend upto 10 years, the legislature does not expect the imposition of sentence of imprisonment not less than 10 years. In a case covered by proviso to (a)(i) of Sec.167(2) the minimum punishment is imprisonment for 10 years whereas in the case of an offence punishable with imprisonment which may extend upto 10 years the maximum punishment is imprisonment for 10 years. Therefore, the two cases cannot be included in the same category. In this case, the petitioner is alleged to have committed an offence punishable with imprisonment for a term which may extend to 10 years and with fine which shall not be less than Rs. 1 lakh. As already noticed, the petitioner is in custody since 23.12.2000. Therefore, the two cases cannot be included in the same category. In this case, the petitioner is alleged to have committed an offence punishable with imprisonment for a term which may extend to 10 years and with fine which shall not be less than Rs. 1 lakh. As already noticed, the petitioner is in custody since 23.12.2000. Therefore, he has to be released on bail if he is prepared to and does furnish bail in view of the proviso (a)(ii) to Sec.167 of the Crl.P.C. In the result, the petition is allowed. The petitioner shall be released on bail on executing a bond for Rs.25,000 with two solvent sureties each for the like sum to the satisfaction of the Judicial First Class Magistrate I, Kottarakkara on condition that he shall report to the investigating officer on every Monday and Thursday between 10 a.m. and 11 a.m. until the charge is laid.