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SCR.A/920/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 920 of 2009
=======================================================
KOLI
KARABHAI EBHABHAI BARAD - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=======================================================
Appearance :
MR
SUNIL C PATEL for Applicant(s) : 1,
MS CM SHAH APP for
Respondent(s) : 1,
MR KK BRAHMBHATT for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 08/02/2010
ORAL
ORDER
The
petitioner is the original accused, who was granted default bail by
the Magistrate upon the investigating agency failing to file
chargesheet within 60 days with respect to the complaint alleging
offences punishable under Sections 498(A), 306 read with Section 114
of the Indian Penal Code. The order of the Magistrate was challenged
before the Sessions Court. The Sessions Court by impugned order
dated 29.04.2009 reversed the order on the ground that since the
offence under Section 306 of the Indian Penal Code is punishable
with imprisonment for a term, which may extend to 10 years,
investigating agency would have 90 days of period for submitting
chargesheet before the default bail can be asked for. This order was
stayed by the High Court. The petitioner, therefore, continued on
bail.
Learned
counsel for the petitioner relied on the decision of this Court in
case of Niraj Shitalkumar Mittal V/s. State of Gujarat in Criminal
Misc. Application No.6840/2003, in which, it is held that offence
under Section 306 is punishable with imprisonment which may extend
to 10 years whereas sub-section (2) of Section 167 would be
applicable in cases where the investigation relates to an offence
punishable with death or imprisonment for life or imprisonment for a
term of not less than 10 years. In the said decision, it was
observed as under :-
6. Even,
according to the investigating agency also, the period for filing of
charge sheet expired after 60 days on 22nd August, 2003 and,
therefore, a report was submitted to the learned Magistrate for
extension of time for filing of charge sheet for a period of 30
days and the learned Magistrate, exercising his judicial wisdom,
ordered that report to be kept with the record. Now, if the
position as settled in this regard is considered, the Apex Court
in the case of Rajeev Chaudhary, while considering the
punishment prescribed under Section 386 of I.P.C., has observed
that clause (i) of proviso (a) to Section 167(2) of the Code of
Criminal Procedure would cover offence for which imprisonment is
for a clear period of 10 years or more. Under Section 386 of
I.P.C., punishment prescribed can extend to 10 years, i.e. it
could also be less than 10 years. The Apex Court observed
that the said clause (i) of proviso (a) to Section 167(2) would
be applicable in cases where the investigation relates to an
offence punishable with (1) death, (2) imprisonment for life or (3)l
imprisonment for a term of not less than 10 years. The Apex Court
also observed that it would not cover the offence for which
punishment could be imprisonment for less than 10 years. Thus, in
the instant case, as can be seen from the above table, the
punishment prescribed is nowhere 10 years or more and, therefore,
the charge sheet ought to have been filed before completion of 60
days, failing which, the applicant would be entitled to default
bail as he cannot be remanded to judicial custody thereafter.
In
view of the said decision, this petition is required to be allowed.
The order of the Sessions Court is set aside. Disposed of
accordingly. Rule is made absolute.
(AKIL
KURESHI,J.)
/patil
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