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2002 DIGILAW 176 (HP)

STATE OF HIMACHAL PRADESH v. KAKA RAM

2002-06-27

KAMLESH SHARMA

body2002
JUDGMENT Ms. Kamlesh Sharma, J.—This revision petition at the instance of State of Himachal Pradesh is against the order dated 5.3.2002 passed by the Sessions Judge, Sirmaur District at Nahan, whereby the respondent was released on bail on his furnishing personal bond in the sum of Rs. 20,000 with one surety in the like amount to the satisfaction of the Additional Chief Judicial Magistrate, Paonta Sahib on the conditions laid down in the impugned order, on the ground that challan was not put up in the Court within a period of 60 days as provided under Section 167 Cr.P.C. While passing the impugned order the Sessions Judge has relied upon the judgment of the Supreme Court in Rajeev Chaudhary v. State (NCT) of Delhi, (2001) 5 SCC 34, to come to the conclusion that as one of the punishments under Section 304-B IPC is imprisonment for a term which shall not be less than seven years, the case of the respondent is covered under proviso (a)(ii) of sub-section 2 of Section 167 Cr.P.C. 2. After hearing learned Counsel for the parties and going through the record, this Court finds that the Sessions Judge has gravely erred in applying the judgment of the Supreme Court in Rajeev Chaudhary v. State (supra) to the present case as against the respondent, investigation for the offence under Section 304-B IPC was going on at the time of passing the impugned order and sub-section 2 of Section 304-B IPC provides that: "Whosoever 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." 3. Reference to proviso (a)(i) and (ii) of sub-section (2) of Section 167 Cr.P.C. shows that:— "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." 4. The perusal of this provision leaves no doubt that where the investigation relates to an offence punishable with (1) death, (2) imprisonment for life and (3) imprisonment for a term of not less than ten years, the accused person can be released on bail, if challan is not put up within a period of 90 days from the date of his arrest. In the case of dowry death under Section 304-B IPC, had the punishment been provided for imprisonment for a term which shall not be less than seven years only the case would have been covered under the proviso (a)(ii) of sub-section (2) of Section 167 Cr.P.C. and the accused person could be released on bail, if the challan is not put up within a period of 60 days from the date of his arrest but the imprisonment for a term not less than seven years is the minimum punishment whereas the maximum punishment is the imprisonment for life, therefore, it is covered under the proviso (a)(i) of sub-section (2) of Section 167 Cr.P.C. 5. So far the judgment in Rajeev Chaudhary v. State (supra) is concerned the learned Judges of the Supreme Court were dealing with the offence under Section 386 IPC which provides punishment of imprisonment for a period which may extend to ten years and fine only. So far the judgment in Rajeev Chaudhary v. State (supra) is concerned the learned Judges of the Supreme Court were dealing with the offence under Section 386 IPC which provides punishment of imprisonment for a period which may extend to ten years and fine only. It was in the context of Section 386 that the learned Judges have held that proviso (a)(i) of subsection (2) of Section 167 will not cover the offence for which the punishment could be imprisonment for less than ten years. The ratio of this judgment is that if the investigation relates to the offence punishable with death or imprisonment for life or imprisonment for a term not less than ten years, the accused shall be released on bail if the challan is not put up within 90 days from the date of his arrest. 6. Therefore, this revision petition is allowed and the order dated 5.3.2002 is partly set aside and it is held that the respondent could not be released on bail before the expiry of period of 90 days from the date of his arrest as1 investigation against him was going on for an offence under Section 304-B IPC, which is punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. But in view of the fact as stated by the learned Additional Advocate General that the challan was not put in before the expiry of 90 days from the date of arrest of the respondent no order can be passed for arresting the respondent, at this stage and the impugned order in respect of releasing him on bail on his furnishing a personal bond in the sum of Rs. 20,000 with one surety in the like amount to the satisfaction of the Additional Chief Judicial Magistrate, Paonta Sahib subject to the condition as mentioned in the order is not interfered with. The revision petition is disposed of.