1. Rule. By consent rule is made returnable forthwith. Heard the parties.
2. This is an application filed by the State of Maharashtra through the Dy. Superintendent of Police CID (Crime), Nagpur seeking to quash an order dated 22nd August, 2002 passed below Exh. 12 and Exh. 16, granting bail in default to the non-applicants. The present application is filed by the State under section 482 of the Criminal Procedure Code, 1973.
3. The non-applicant No. 1 came to be arrested in connection with Crime No. 101/02 registered by police station, Ganeshpeth, Nagpur on 13-6-2002. The non-applicant No. 2 was arrested in the same crime on 14-6-2002. Crime No. 101/2002 has been registered by Police Station, Ganeshpeth on 29-4-2002 for the offences punishable under sections 406, 409, 468 read with section 34 of the Indian Penal Code.
4. On 19-8-2002 the non-applicant No. 1 moved a bail application under section 437 r/w section 167(2) of the Criminal Procedure Code on the ground that the police had not filed a police report within the prescribed period of 60 days. Similar application came to be moved on behalf of the non-applicant No. 2 on 21-8-2002.
5. By the common impugned order dated 22-8-2002, the Judicial Magistrate, First Class, Court No. 1, Nagpur came to the conclusion that as charge sheet has not been filed in spite of expiry of 60 days, a right had accrued in favour of the non-applicants to be released on bail, in view of the provisions of section 167(2)(a)(ii) of the Criminal Procedure Code.
6. I have perused the impugned order. In the present case one of the offence alleged to have been committed is under section 409 of the Penal Code. The offence punishable under section 409 Indian Penal Code is punishable with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years and also with fine. For the sake of convenience, section 409 is reproduced hereinbelow:
409. Criminal breach of trust by public servant, or by banker, merchant or agent.— Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extent to ten years, and shall also be liable to fine.”
Section 167(2) provides as under:
“(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try 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.”
8. On plain reading of section 167(2)(a) Criminal Procedure Code, it is clear that the Magistrate can authorise the detention of the accused person otherwise than in the custody of the police beyond a period of 15 days if he is satisfied that grounds exist for doing so but he cannot authorise detention of the accused person in custody for a total period exceeding 90 days where the investigation relates to an offence punishable with death or imprisonment for life or imprisonment for a term not less than 10 years.
9. In the present case section 409 Indian Penal Code being punishable with imprisonment for life, would be an offence as contemplate under section 167(2)(a)(i) of Criminal Procedure Code.
10. It is argued on behalf of the non-applicants that what should be taken into account by the court in deciding whether an offence falls under section 167(2)(a)(i) is; whether a Magistrate can be said to have the power to punish with a sentence of imprisonment which could be less than 10 years. The argument is that for an offence under section 409 Indian Penal Code, the minimum sentence which could be imposed by the Magistrate for a given offence is less than 10 years and thus the said offence cannot be said to be one as contemplated under section 167(a)(i), but would fall within the ambit of offence as contemplated under section 167(2)(a)(ii). In view of this, the total period of custody that can he authorised by Magistrate for such an offence under section 409 Indian Penal Code can only be 60 days.
11. In support of their contentions, counsel for the non-applicants placed reliance on three cases. The first case cited was the case of Rajeev Choudhary v. State of Delhi, (2001) 5 SCC 34. In this case the offences in connection with which the appellant had been arrested were punishable under sections 386, 506 and 120-B of the Indian Penal Code. The most serious offence amongst these, i.e 386 was punishable “for a period which may extend to 10 years”. The sentence of life imprisonment could not have been imposed under the said section. The Apex Court in para 6 held as under.:
“…. 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 authorise 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 386 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 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 10 years. Under section 386 Indian Penal Code, imprisonment can vary from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years”.
12. The Apex Court in this case was not considering a case where a punishment exceeding 10 years could be levied by law under the section which provided for punishment. The Apex Court has in fact construed the expression, “not less than 10 years” so as to mean that 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. In my opinion this judgment does not come to the rescue of the non-applicants.
13. The next judgment cited was a judgment of this bench in the case of Pralhad Vithal Giri v. State of Maharashtra, 2002 (4) Mh.L.J 148 : 2002 All MR (Cri) 1502. In this case the offence in connection with which the accused had been arrested was an offence under section 306 of the Penal Code. For this offence also the punishment which could be imposed was one which “may extend to 10 years”. Reliance is placed on paragraphs 9, 10 and 11, which are reproduced hereinbelow:
“9. The plain reading of section 167(2)(a)(i), Civil Procedure Code, would show that the Magistrate may authorise detention of an accused person in custody for a total period which shall not exceed 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. The above referred provision clearly conveys that the punishment provided for the offence committed in any eventuality should not be less than ten years and, therefore, the contention canvassed by the Additional Public Prosecutor in this regard cannot be accepted. In the instant case, the punishment, which is provided for the offence under section 306, Indian Penal Code, is punishable with imprisonment of either description for a term which may extend to ten years, that means punishment can be awarded which can also be less than ten years, which, in fact, is not the purport of section 162(2)(a)(i), Criminal Procedure Code and, therefore, the period of ninety days contemplated in this provisions is not attracted in the present case.
10. Provision of section 167(2)(a)(ii), Criminal Procedure Code, contemplates that where the punishment provided for the offence is less than ten years, then Magistrate is authorised to detain the accused person in the custody of police only till the expiry of sixty days from the date of arrest and not beyond. The investigation, which relates to the offence punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years, is covered by section 167(2)(a)(i) of the Criminal Procedure Code, and a Magistrate is authorized to detain the accused not beyond the period of ninety days. In the instant case, the offence under section 306, Indian Penal Code is punishable with an imprisonment of either description for a term which may extend to ten years and, therefore, on a plain reading of these provisions, it is amply clear that for the offence under section 306, Indian Penal Code, the punishment provided is upto ten years, and also it can be less than ten years and if it is less than ten years, the sub-clause (i) of Clause (a) of sub-section (2) of section 167 is not attracted, which only deals with the offences punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and, hence, a Magistrate is not authorized to detain the accused person in the custody of police beyond the period of sixty days as contemplated under subclause (ii) of Clause (a) of sub-section (2) of section 167 of the Criminal Procedure Code. If a charge-sheet is not filed within a period of sixty days from the date of arrest, the accused is entitled to avail the benefit of sub-clause (ii) of Clause (a) of sub-section (2) of section 167 of the Code of Criminal Procedure.
11. The issue, in question, is also squarely concluded and is no more res integra in view of the ratio laid down by the Apex Court in the case of Rajeev Choudhary referred to hereinabove…..”
14. In this case also this Court was not considering an offence which could be punishable for a period exceeding 10 years and hence, the question in issue before this Court in the present case was not directly in issue in the said case.
15. Reliance is also placed on a judgment of this Court in the case of Santosh Singh Govardhan Singh Kashyap…Applicant; v. State Of Maharashtra…Non-Applicant., 1999 (2) Mh.L.J 641. In that case also the offence in question was under section 366 of the Penal Code in which the punishment was one which “may extend upto 10 years”. The said judgment also does not lay down a proposition that an offence which could be punished with sentence of imprisonment more than 10 years is one that falls outside the ambit of section 167(2)(a)(i) of the Criminal Procedure Code.
16. Coming to first principles, it can be seen that a longer maximum permissible custody of 90 days was provided for by the Legislature in section 167(2)(a)(i) in the case of more serious offences punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years. The meaning of the words, “term not less than 10 years” as already been construed by the Apex Court so as to mean “10 years or more”. If an offence is punishable with imprisonment for life, it necessarily means that the offence is punishable for a period which is 10 years or more. The fact that there is an alternate provision of punishment for a term which may extend to 10 years, does not make the offence one in which a punishment of 10 years or more cannot be granted, when punishment of imprisonment of life contemplated is one of the mode of the punishment by the section itself. The argument that it is not the maximum punishment which must be taken into consideration but it is the minimum term of punishment which can be imposed, which needs to be taken into consideration for deciding as to whether the offence is one contemplated under section 167(a)(i) has no merits. Once the offence is one in which a sentence of imprisonment for 10 years or more can be imposed, then the fact that in a given case the power of the Magistrate extends to imposing punishment less than 10 years, looses its significance.
17. In the circumstance, I find that the impugned judgment and order has been passed by misconstruing the ratio of the judgments of this Court and the Apex Court. The same, therefore is erroneous in law and will be required to be quashed. In the result, the impugned judgment and order passed by the Judicial Magistrate First Class, Nagpur dated 22nd August, 2002 passed below Exhs. 12 and 16 in Crime No. 101/2002, registered by police station, Ganeshpeth, Nagpur is quashed and set aside.
18. I am informed that as far as non-applicant No. 1 is concerned, he has secured bail in default after the period of 90 days expired and he was granted bail since the investigating agency could not filed charge sheet even within the period of 90 days. However, as far as Non-applicant No. 2 is concerned, in view of this judgment and order, he will be liable to be taken back in the custody.
19. The rule is made absolute in the aforesaid terms.
20. It goes without saying that the non-applicant No. 2 is at liberty in law to file an application for bail on merits.
Order accordingly.