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2011 DIGILAW 351 (CHH)

Shyam Lal Fhekar v. State of Chhattisgarh

2011-11-03

SUNIL KUMAR SINHA

body2011
ORDER Hon'ble Mr. Sunil Kumar Sinha, J. 1. This revision is directed against the order dated 24th of September, 2011 passed in Criminal Revision No. 198/2011 by the Fourth Additional Session Judge, Raipur (CG). By the impugned order, the learned Session Judge has set aside the order dated 8-9-2011 passed by the Judicial Magistrate, First Class, Raipur, whereby the applicants were released on bail under Section 167 (2) of the Code of Criminal Procedure. 2. The facts, briefly stated, are as under:- The applicants are accused in Crime No. 232/2011, registered at Police Station, Kharora under Sections 420, 306 read with Section 34, IPC. They were arrested on 10-7-2011. They were produced before the Magistrate on 10-7-2011 who remanded them to judicial custody on the same day. When the charge-sheet was not filed upto 7-9-2011, on 8-9-2011, an application under Section 167 (2), Cr.PC was moved on behalf of the applicants for releasing them on bail. The learned Magistrate heard the said application and released the applicants on bail on the ground that the charge-sheet was not filed within 60 days from the date of arrest of the applicants. Admittedly, the charge-sheet was filed on 8-9-2011 after filing of the bail application in the earlier part of the day. Being aggrieved with the said order, the State preferred Criminal Revision No. 198/2011, which was allowed by the Session Court and order dated 8-9-2011 granting bail to the applicants under Section 167 (2), Cr.PC was set-aside. 3. Mr. Arvind Singh, learned Counsel appearing on behalf of the applicants, argued that the learned Session Judge erred in law in holding that 90 days time would have been granted to the State to file the charge-sheet in this matter. He prayed for setting aside the order passed by the learned Session Judge. 4. Mr. U.K.S. Chandel, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the order passed by the Session Judge. 5. I have heard learned Counsel for the parties at length and have also perused the records of the Criminal Revision as also the charge-sheet produced during the course of the arguments. 6. Section 167 (2) Proviso (a), Cr.PC reads as under :- 167. Procedure when investigation cannot be completed in twenty-four hours.-- (1). *** (2) *** Provided that -- (a). I have heard learned Counsel for the parties at length and have also perused the records of the Criminal Revision as also the charge-sheet produced during the course of the arguments. 6. Section 167 (2) Proviso (a), Cr.PC reads as under :- 167. Procedure when investigation cannot be completed in twenty-four hours.-- (1). *** (2) *** Provided that -- (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) *** 7. The above provision clearly indicates that pending investigation relating to an offence punishable with imprisonment for a term "not less than 10 years", the Magistrate is empowered to authorize the detention of the accused in custody for not more than 90 days. For rest of the offences, period prescribed is 60 days. 8. Section 420, IPC provides that whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being. converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 9. Section 306, IPC provides that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 10. 9. Section 306, IPC provides that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 10. It is, therefore, clear that under Section 306, IPC offence can be punished for a term of imprisonment which may extend to ten years which shows that the imprisonment under this Section can be for a period of less than ten years and such cases would not be covered by clear provision of Section 167, Cr.PC, which says about the offences punishable with imprisonment for a term of not less than ten years; and thus, the accused in such cases can be detained in custody to the period of 60 days and not to the period of 90 days under Section 167 (2) (a), Cr.PC. 11. The Supreme Court has taken this view in a matter under Section 386, IPC in Rajeev Chaudhary Vs State (NCT) of Delhi, 2001 (2) Crimes 303 (SC). 12. On the above discussion, the view taken by the learned Session Judge that 90 days period shall be allowed filing of the charge-sheet in such matters, therefore, cannot be sustained. 13. Admittedly, the charge-sheet was not filed within 60 days in this matter and it was filed on 61st day. Therefore, the Magistrate was right in releasing the applicants on bail under Section 167 (2), Cr.PC. 14. For the foregoing reasons, the revision is allowed. The impugned order passed by the learned Session Judge is set aside. The order passed by the learned Magistrate is restored. It is stated that the applicants have not been arrested till date after passing of the impugned order by the Session Judge. It is, therefore, directed that they shall continue on bail already granted by the learned Magistrate.