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2010 DIGILAW 895 (MP)

Lalmen Gupta v. State of Chhattisgarh

2010-09-03

MANINDRA MOHAN SHRIVASTAVA

body2010
ORDER Manindra Mohan Shrivastava, J. 1. This petition under Section 482 of the Cr.P.C. is directed against the order dated 16-08-2010 passed by the 3rd Additional Sessions Judge, F.T.C., Surguja (Ambikapur) in Criminal Revision No. 92/2010 whereby order dated 15-07-2010 passed by the Judicial Magistrate First Class, Ambikapur in Crime No. 123/2010 has been upheld. 2. Brief and necessary facts of the case for decision of the present case are that the applicants were arrested for alleged commission of offence under Section 306 read with Section 34 of the IPC by Police Station Darima under Crime No. 123/2010 and were produced before the Judicial Magistrate First Class, Ambikapur on 16-05-2010. Upon expiry of 60 days from the date of such arrest, an application under Section 167(2)(a)(ii) of the Cr.P.C. was filed by the applicants before the learned Magistrate for their release on the ground that the offence is punishable with imprisonment which may extend up to 10 years, challan ought to be filed within a period of 60 days and that having not been done, the applicants are entitled to be released. The said application was rejected vide impugned order dated 16-08-2010 by the learned Magistrate holding that as offence under Section 306 of I.P.C. is punishable with imprisonment which may extend up to 10 years, benefit of 167(2) of the Cr.P.C. could be availed only if, in case, charge sheet is not filed within 90 days. 3. The said order was challenged by filing revision before the Sessions Judge, Surguja, which has been dismissed vide impugned order dated 16-08-2010, wherein the Sessions Judge also held that as for commission of offence under Section 306 of the I.P.C., punishment of imprisonment may be imposed which may extend up to 10 years, benefit of Section 167(2) of the Cr.P.C. would be applicable only after expiry of period of 90 days and not 60 days. 4. Learned Counsel for the applicants argued that commission of offence under Section 306 of the I.P.C. is punishable with imprisonment which may extend up to 10 years whereas proviso (a)(i) of Sub Section (2) of Section 167 of the Cr.P.C. provides that no Magistrate shall authorize the detention of the accused person in the custody for a total period exceeding 90 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. Learned Counsel therefore urges that as the offence under Section 306 of the IPC is punishable with imprisonment of either prescription for a term which may extend up to 10 years and fine, and it is not a case of an offence for a term of not less than 10 years, detention could not be authorized beyond 60 days, if no charge sheet has been filed within that period. In support of his contention, learned Counsel for the applicants placed reliance upon the judgment of the Supreme Court in the case of Rajeev Chaudhary v. State (N.C.T.) of Delhi AIR 2001 SC 2369 as also the judgment of this Court in the case of Faruk Khan v. State of Chhattisgarh 2005 (1) B.L.J. 167. Learned Counsel for the applicants also relies upon the judgment of High Court of Madhya Pradesh in the case of Ram Dayal Gupta v. State of M.P. 1999 (II) M.P. Weekly Note 39 and Sundar v. State of M.P. 2010 (1) M.P.H.T. 426 . 5. On the other hand, learned State counsel submits that as in the case of commission of offence under Section 306 of IPC, punishment could be extended up to 10 years, provision under Section 167(2)(a)(i) of Cr.P.C. will apply, and therefore, the applicants is not entitled to release on the ground that charge sheet could not be filed within 60 days of his arrest. 6. A bare reading of relevant provision contained under Section 167(2)(a) would show that no Magistrate shall authorize the detention of the accused person in the custody of the police for a period exceeding 90 days, in cases of offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. In other cases, where investigation relates to any other offence, said limitation of 90 days is not applicable and in such cases, detention could not be authorized for a period exceeding 60 days, where no charge sheet has been filed under Section 167(2)(a)(ii) of the Cr.P.C., therefore, offence referred to is one which is punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. In case of other offence including those which are punishable with imprisonment for a term which may extend up to ten years, imprisonment for such offence could be even less than ten years, provision of 90 days is not applicable but the provision of 60 days would be applicable. 7. In the case of Rajeev Chaudhary (supra), the Supreme Court examined the legal position with reference to provision contained in Section 167 of the Cr.P.C. and held thus: 6.... Hence in case, where offence is punishable with imprisonment for ten years or more, accused could be detained up to a period of 90 days. In this context, the expression "not less than" would mean imprisonment should be ten years or more and would cover only those offences for which punishment could be imprisonment for a clear period of ten years or more. Under Section 386 punishment provided is imprisonment of either description for a term which may extend to ten years and also fine. That means, imprisonment can be for a clear period of ten years or less. Hence, it could not be said that minimum sentence would be ten 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; and (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 ten years. Under Section 386 of the I.P.C. imprisonment can vary from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than ten years. 8. Following the aforesaid ratio of the Supreme Court in the case of Rajeev Chaudhary (supra), this Court in the case of Faruk Khan (supra) also held that the prescription of 90 days would be applicable in respect of those offences which are punishable with imprisonment for a term "not less than 10 years" and in case of other offences, where the punishment is one which may extend up to 10 years, meaning thereby that it could be for a period of 10 years or less, Section 167(2)(a)(i) will not apply. Similar is the view of the High Court of Madhya Pradesh in the case of Ram Dayal Gupta (supra), which is a case relating to offence under Section 306 IPC, followed by judgment in the case of Sundar (supra). 9. In view of the above discussion, I am of the considered opinion that in the present case, as the applicants have been accused of committing offence under Section 306 of IPC, provisions contained in Section 167(2)(a)(i) of the Cr.P.C. is not applicable but Clause (ii) of proviso (a) to Section 167(2) of the Cr.P.C. is applicable. The impugned orders passed by the Court below are unsustainable in law, and therefore, the same are hereby set aside. Consequently, the application filed by the applicants under Section 167(2) of the Cr.P.C. for grant of bail deserves to be allowed and the same is hereby allowed. The applicants shall be released on bail on furnishing a personal bond of Rs. 5,000/ - along with local solvent surety for the like amount to the satisfaction of the concerned Judicial Magistrate First Class, Ambikapur. 10. Accordingly, the petition is allowed.