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Allahabad High Court · body

2004 DIGILAW 2567 (ALL)

PRADEEP CHAUBEY v. STATE OF U P

2004-12-17

M.P.SINGH

body2004
M. P. SINGH, J. This application for cancellation of bail of Vivek Sharma has been filed by the complainant-applicant against the order dated 22-2-2003 passed by learned C. J. M. , Hathras granting bail to the opposite party No. 2 Vivek Sharma, in Case Crime No. 509 of 2002, under Sections 498-A, 304-B IPC and Section 3/4 D. P. Act, Police Station, Hathras Gate, District- Hathras under Section 167 (2) (a) (ii) Cr. P. C. 2. The facts of the case are that the accused Vivek Sharma who was involved in the above crime number surrendered in the Court on 16-12-2002 and he was sent in judicial custody. Co-accused Mor Mukut, father-in-law of the deceased was granted bail by the High Court. Co-accused Smt. Santosh Devi, mother-in-law of the deceased was released on bail by the Sessions Judge on the ground of parity. The Magistrate rejected the bail application of accused husband Vivek Sharma. His bail application was pending at the relevant time before Sessions Judge. 3. The accused Vivek Sharma moved an application on 20-2-2003 before C. J. M. , Hathras, under Section 167 (2) (a) (ii) Cr. P. C. for releasing him on bail on the ground that charge-sheet has not been filed against him within sixty days. Charge-sheet was filed on 21-2-2003. The learned C. J. M. after hearing, allowed the application and released him on bail. Application for cancellation of bail was moved which was rejected by the learned Sessions Judge. Hence, the application for cancellation. 4. Heard Sri Manish Tewary, learned Counsel for the complainant- applicant and G. S. Hajela, learned Counsel for the opposite party No. 2 Vivek Sharma as well as learned A. G. A. for the State. 5. Learned Counsel for the applicant submitted that in cases of Dowry Death under Section 304-B IPC, the accused is punishable with imprisonment for a term which shall not be less than 7 years but which may extend to life imprisonment. The case or the accused is covered by Section 167 (2) (a) (i) Cr. P. C. which provides for detention for a period of ninety days. The case or the accused is covered by Section 167 (2) (a) (i) Cr. P. C. which provides for detention for a period of ninety days. Section 304-B IPC, 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. " Section 167 (2) (a) (i) and (ii) Cr. P. C. reads as under: "167. Procedure when investigation cannot be completed in twenty four hours.- (1) and (2 ). . . . . . . . (a) the Magistrate may authorize 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 authorize 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. Learned Judge placed reliance upon a case Rajeev Chaudhary v. State of Delhi, 2001 SCC (Crl.) 819. " 6. Learned Judge placed reliance upon a case Rajeev Chaudhary v. State of Delhi, 2001 SCC (Crl.) 819. In this case it was held that for the purpose of proviso to sub-section (2) of Section 167 Cr. P. C. 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. 7. In Rajeev Chaudhary v. State of Delhi, 2001 SCC (Crl.) 819, while dealing with the offence punishable under Section 386 IPC, the Apex Court has held that in cases where the offence is punishable with imprisonment for 10 years or more the accused could be detained up to period of 90 days. In this context the expression "not less than" would mean imprisonment should be 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. Under Section 386 punishment provided is imprisonment of either description for a term which 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; (3) imprisonment for a term of not less than ten years. It would not cover the offence for which punishment could be imprisonment for less than 10 years. Under Section 386 IPC imprisonment can vary from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years. 8. Reliance was placed upon a case of Sunil Kumar v. State of Jharkhand & Ors. Under Section 386 IPC imprisonment can vary from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years. 8. Reliance was placed upon a case of Sunil Kumar v. State of Jharkhand & Ors. , 2002 AAR 90 (SC), it was held by the Apex Court that in cases of offences under Section 304-B IPC, where minimum punishment prescribed is not less than 7 years, the charge-sheet has to be submitted within a period of 60 days by the Investigating Agency from the date of surrender/arrest and whether the accused becomes entitled to statutory bail in the event of failure in submission of the charge-sheet within that period. 9. I have carefully considered the arguments advanced by the learned Counsel for the applicant and perused the case laws cited by him. This fact is not disputed in this case that charge-sheet was filed on 67th day from the date of arrest and application was moved under Section 167 (2) Cr. P. C. after the expiry of the period of 60 days from the date of arrest. 10. In State of H. P. v. Lal Singh (supra) it was held that 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 and this interpretation is based upon Rajeev Chaudhary case (supra ). In Sunil Kumar case (supra), it was held that the minimum punishment prescribed is not less than 7 years under Section 304- B, IPC and investigation should be completed within 60 days from the date of arrest/surrender. 11. In my opinion, the period of 90 days is provided for category of (a) offence punishable with death, (b) offence punishable with life imprisonment, and (c) or offence punishable with imprisonment for a term not less than 10 years. This means that offence under Section 304-B IPC is punishable with life imprisonment and the restriction imposed upon the Court that in any case it shall not award punishment for less than 7 years under Section 304-B, IPC. Minimum sentence of 7 years prescribed shall not make Section 167 (2) (a) (ii) Cr. P. C. applicable. This means that offence under Section 304-B IPC is punishable with life imprisonment and the restriction imposed upon the Court that in any case it shall not award punishment for less than 7 years under Section 304-B, IPC. Minimum sentence of 7 years prescribed shall not make Section 167 (2) (a) (ii) Cr. P. C. applicable. The word or after the offence punishable with life imprisonment for a term of offence not less than 10 years deals with another category of offence and not the offence under Section 304-B IPC. 12. The ratio laid down in Sunil Kumar v. State of Jharkhand (supra) is not good law in view of Rajeev Chaudhary case (supra ). 13. The application is allowed. The order of learned C. J. M. , Hathras dated 22-2-2003 releasing the accused-opposite party No. Vivek Sharma on bail in the aforesaid case crime is set aside. The learned C. J. M. , Hathras is directed to take the accused in custody at once. Application allowed. .