Criminal Revision No.562/2010 17/05/2010
Shri Jagat Sher Singh, Advocate for the applicant.
Heard on the question of admission.
This criminal revision has been preferred by the applicant
against the order dated 18.3.2010 passed by Judicial Magistrate
First Class, Gadarwara, in Criminal Case No.550/2009, whereby
he rejected bail to the applicant under Section 167(2) of Cr.P.C.
2. The contention of learned counsel for the applicant is that
Section 306 IPC provides punishment of 10 years and as such
the period provided under the law is 60 days. As the police had
not filed a charge sheet within 60 days of its production in the
Court, the petitioner filed bail application under Section 167(2) of
Cr.P.C. which was wrongly rejected by the Trial Court on the
ground that Section 306 of IPC provides punishment of 10 years
and as such period provided under the law is 90 days. He submits
that the learned court below committed illegality in rejecting the
application. In support of the said contention, he drew my
attention to the decision of Gwalior Bench in the case of Ram
Dayal Gupta vs State of M.P., 1999 (2) MPWN [39].
3. The object behind the enactment of Section 167 of the
Code was that the detention of an accused person should not be
permitted, in custody pending investigation for any unreasonably
longer period. Proviso to Section 167(2) of the Code prescribes
the outer limit within which the investigation must be completed.
The proviso to sub-section (2) fixes the outer limit within which the
investigation must be completed and in case the same is not
completed within the said prescribed period, the accused would
acquire a right to seek to be released on bail and if he is prepared
to and does furnish bail, the Magistrate shall release him on bail
and such release shall be deemed to be grant of bail under
Chapter XXXIII of the Code of Criminal Procedure. If the
investigation is not completed within the period of ninety days or
sixty days then the accused has to be released on bail as
provided under the proviso to Section 167(2). The petitioner was
arrested on 4.1.2010 and on 18.3.2010 he completed 71 days of
judicial custody but no charge sheet was submitted within 60 days
as provided under Section 167(2) of Cr.P.C. Proviso (a) to Section
167 (2) reads as under:-
167. Procedure when investigation
cannot be completed in twenty-four
hours.- (1) xxx xxx xxx(2) xxx xxxx xxxx
Provided that-
(a) the Magistrate may authorise the
detention of the accused person, otherwise
than in 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) xxx xxx xxx
4. Further, section 306 of IPC provides as under:
306. Abetment of suicide- 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.
5. From the relevant part of the aforesaid sections, it is
apparent 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, the period prescribed is 60 days. Hence in cases where
offence is punishable with imprisonment for 10 years or more, the
accused could be detained up to a 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 306 punishment provided is
imprisonment of either description for a term which may 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 I 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 10 years. It would not
cover the offence for which punishment could be imprisonment for
less than 10 years. Under Section 306 of IPC, imprisonment can
vary from minimum to maximum 10 years and it cannot be said
that imprisonment prescribed is not less than 10 years.
6. Punishment provided under Section 306 and 386 of IPC
are same. Under Section 386 also punishment provided is
imprisonment of either description for a term which may extend
upto 10 years and also fine. In Rajeev Chaudhary vs State
(NCT) of Delhi, (2001) 5 SCC 34 the Apex Court held that
imprisonment for a term of “not less than 10 years”, covers
offence punishable with imprisonment for a clear period of 10
years or more. In view of law laid down by the Apex Court in the
case of Rajeev Chaudhary vs State (NCT) of Delhi (supra), this
Court is of the view that the learned Trial Court has not committed
any legal error in rejecting the application for grant of bail filed by
the applicant under Section 167 (2) of Cr.P.C.
7. In view of above, it is apparent that in cases where offence
is punishable with imprisonment for 10 years or more, the
accused could be detained up to a period of 90 days.
8. For the above mentioned reasons, the criminal revision has
no merit and is accordingly dismissed.
(P.K.Jaiswal)
Judge