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WHETHER MAXIMUM TERM OF IMPRISONMENT WILL BE CONSIDERED OR MINIMUM?
Singh Lawyers for the Respondent in the Punjab and Haryana High Court
Facts: A revision was filed against the order dated 21.07.2015 passed by Additional Sessions Judge, Bathinda who had set aside the order of the Magistrate in which bail was given to the accused under Section 167(2) Cr.P.C. A complaint was lodged by the rape victim and FIR No. 116 was registered under Sections 376, 506, 120-B IPC at Police Station, Cantt. Bathinda. The petitioner was arrested on 12.11.2013. He moved an application seeking bail under Section 167(2) Cr.P.C. The Magistrate, vide its order dated 21.01.2014 allowed bail as the period of 60 days had expired and challan had not been presented by then. A revision was filed by the State assailing the order. They raised the plea that the offence under Section 376 IPC was punishable with imprisonment which could go up to life imprisonment, therefore, the Court had passed a wrong order. The Revisional Court allowed the revision and directed the accused to surrender within 7 days. Aggrieved with the order, this petition was filed by the accused.
Law:
167. Procedure when investigation cannot be completed in twenty four hours.
(1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty- four hours fixed by section 57, and there are grounds for believing that the accusation or information is well- founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-
(a) 1 the Magistrate may authorise 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 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;
1. subs. by Act 45 of 1978, s, 13, for paragraph (a) (w, e, f, 18- 12- 1978 ).
2. Ins. by act 10 of 1990, s. 2 (w. e. f 19- 2- 1990 )
(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;]
It was urged on behalf of the petitioner that the charge-sheet should have been presented within 60 days and the petitioner was entitled to bail under Section 167(a)(ii) Cr.P.C. It was also urged that once the bail has been allowed, it cannot be cancelled subsequently and bail can be cancelled on considerations which are valid for cancellation of bail granted under Section 437(1) or Section 439(1) Cr.P.C. It was urged that even otherwise an incomplete challan had been presented and the report of FSL had not been filed.
On the other hand, it was urged that the Indian Penal Code had been amended w.e.f. 03.02.2013 and though the minimum imprisonment is 7 years but it may extend to imprisonment of life and this case would fall under Section 376(2)(n) IPC as the allegations against the petitioner were that he had repeated the act on the same woman and the imprisonment prescribed is 7 years which may extend to imprisonment for life along with fine and the period for filing the challan is 90 days and not 60 days and the petitioner was not entitled to bail and if the Court had wrongly invoked the provisions, those can be corrected and the Revisional Court had rightly allowed the revision.
The question raised by the petitioner is whether the case would be covered under Clause (a)(i) of the Proviso to Section 167 Cr.P.C. or under Clause (a)(ii).
Observations: There is no difficulty with the settled position that non-completion of investigation within the period prescribed under Section 167 CrPC gives an accused an “indefeasible right” to be released on bail. But, how long does this right ensure benefit to the accused? In Sanjay Dutt v. State through CBI, Bombay (II): (1994) 5 SCC 410, the Supreme Court held that (page 442):
“The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 CrPC ceases to apply.”
It is clear from the perusal of the section 167 that pending investigation the Magistrate can authorise detention for a period of 90 days, if the offence is punishable with death, imprisonment for life or imprisonment for a term not less than 10 years.
The counsel for the petitioner urged that there is a minimum sentence provided which is 7 years, therefore, according to him in the present case, it would be Proviso (a)(ii) to Section 167(2) Cr.P.C., which would be applicable and not Proviso (a)(i) to Section 167 Cr.P.C. and consequently the period applicable would be 60 days and not 90 days.
After the amendment in Section 376 IPC, the punishment under Section 376 IPC is for a term which is not less than 7 years but which may extend to life imprisonment along with fine. Where minimum and maximum sentences are prescribed, both are imposable depending on the facts of each case. It is for the Court after recording conviction which has to impose the sentence and it cannot be said that only minimum sentence can be imposed and not the maximum sentence.
Section 304-B IPC provides for a sentence in a term which shall not be less than 7 years but which may extend to for imprisonment for life. This Court in Kuldeep Singh Vs. State of Punjab 2005(3) RCR (Criminal) 958 had held that in a case registered under Section 304-B IPC the period for filing of challan would be 90 days.
HELD: In the present case, the allegations are under Section 376(2)(n) IPC and it would be punishable with imprisonment which shall not be less than 10 years and which may extend to imprisonment for life. Therefore, the challan could be filed within 90 days. The Illaqa Magistrate had wrongly allowed bail after 60 days.
THE COURT HAD TO SEE THE MAXIMUM AWARDABLE PUNISHMENT AND NOT THE MINIMUM AWARDABLE PUNISHMENT.
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