Bookmark
PDF
Share
CaseIQ

Sunil Kumar v. State Of Jharkhand And Others

Jharkhand High Court

Feb 21, 2002

Judgment

Subsequent
References

CaseIQ

Important Paras

Please sign up to view Important Paras.

Smart Summary (Beta)

Factual and Procedural Background

This writ application under Article 226 of the Constitution challenges the order dated 29-3-2001 passed by the Additional Chief Judicial Magistrate, Jamtara, in G.R. Case No. 471/2000 (arising out of Jamtara (Mihijam) R.S. Case No. 193/2000, S.T. No. 348/2001), now pending in the Court of Sessions Judge, Jamtara. The impugned order rejected the petitioner's application filed under Section 167(2) Cr.P.C.

The petitioner is an accused in a case registered for offences under Section 304-B and Section 201/34 of the Indian Penal Code. He surrendered in the trial court on 24-1-2001 and remained in custody since that date. The charge-sheet was filed on 21-4-2001, whereas the petitioner's sixty days' detention period in custody had expired on 26-3-2001. The petitioner filed an application under Section 167(2) Cr.P.C. seeking release on bail on 27-3-2001; the matter was heard on 27-3-2001 and 28-3-2001, and the application was rejected on 29-3-2001.

The learned Court below rejected the petitioner's Section 167(2) application mainly on the ground that the petitioner was accused under Section 304-B IPC, which prescribes punishment of not less than seven years and may extend to life imprisonment; the court held the case to fall under Section 167(2)(a)(i) Cr.P.C. rather than Section 167(2)(a)(ii), and relied on a decision reported at 1999 Cr LJ 2645.

Legal Issues Presented

Whether, in cases of offences under Section 304-B IPC (where the minimum punishment prescribed is not less than seven years), the investigating agency is required to submit the charge-sheet within sixty days from the date of surrender/arrest.
Whether, if the charge-sheet is not submitted within that sixty-day period, the accused becomes entitled to statutory bail under the relevant provisions of Section 167(2) Cr.P.C.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
1999 Cr LJ 2645	Relied upon by the learned Court below to support the view that the offence under Section 304-B IPC falls within Section 167(2)(a)(i) Cr.P.C. (i.e., the category attracting the longer detention period).	The opinion records that the lower court had relied on this decision when it concluded that the petitioner's case fell under Section 167(2)(a)(i). The present court analyzed that reliance in its reasoning (no further factual detail about the cited decision is given in the provided text).
2001 (1) JLJR 890 (SC)	The majority view of the Apex Court in this report was relied upon for determining when the statutory right to bail under Section 167(2) accrues upon failure to file the charge-sheet within the prescribed period.	The court expressly relied on the majority view in this Apex Court report to support its conclusion that, in cases under Section 304-B IPC falling within the described analysis, the accused is entitled to statutory bail if the charge-sheet is not submitted within sixty days and the accused fulfills the stated conditions.

Court's Reasoning and Analysis

The court’s analysis proceeded from a textual and categorical examination of Section 167(2)(a)(i) Cr.P.C. and the penal provision for dowry death, Section 304-B(2) IPC.

The court quoted Section 167(2)(a)(i) Cr.P.C., which sets out a maximum detention period of 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, and explained that on expiry of the relevant period (ninety or sixty days) the accused must be released on bail if he furnishes bail.
The court analysed the word "punishable" in Section 167(2)(a)(i), concluding that it means an offence that is capable of being punished with life imprisonment in suitable cases, not that every conviction must receive that sentence.
The court quoted Section 304-B(2) IPC which prescribes punishment: imprisonment for a term not less than seven years but which may extend to imprisonment for life.
From the textual comparison, the court observed different categories of offences encompassed by Section 167(2)(a)(i):
- Offences punishable with death (where death may be the only permissible sentence in certain statutes).
- Offences punishable with life imprisonment as a pure and simple mandatory sentence (for example, the court cites Section 311 IPC as illustrative in the opinion).
- Offences carrying a minimum sentence of ten years (for instance Section 27-A of the N.D. & P.S. Act is noted) where the minimum is ten years and the maximum may extend further.
The court considered three possible views about whether an offence like Section 304-B (minimum seven years, maximum life) falls under Section 167(2)(a)(i):
1. First view: because Section 304-B may extend to life, it is punishable with life imprisonment and thus within Section 167(2)(a)(i).
2. Second view: the disjunctive structure ("or") in Section 167(2)(a)(i) means only one of the listed conditions need be fulfilled; this leaves room for argument.
3. Third view: a more granular classification distinguishing offences that mandate life imprisonment, offences that are punishable with life (but not mandatorily so), and offences with a statutory minimum sentence of ten years; under this analytic approach, Section 304-B (minimum seven years) is not equivalent to offences with a ten-year minimum and thus should not be equated with the category in Section 167(2)(a)(i) that refers to a term of not less than ten years.
The court emphasised legislative drafting choices: had the legislature intended to treat offences with a minimum of seven years like those with minimum ten years or pure life offences for the purpose of Section 167(2)(a)(i), the drafting would have used different words (for example, replacing "ten years" with "seven years" or including the phrase "imprisonment which may extend to life" in Section 167(2)(a)(i)). The absence of such language was treated as persuasive in the court's construction.
On balance, adopting the third view, the court concluded that offences under Section 304-B IPC fall outside the mischief of Section 167(2)(a)(i) and instead fall under Section 167(2)(a)(ii) Cr.P.C. Consequently, the investigating agency must complete investigation and file the charge-sheet within sixty days from arrest/surrender in Section 304-B cases; failure to do so gives rise to a statutory right to bail under Section 167(2)(a)(ii), subject to the accused being ready and furnishing bail bonds.
The court also stated that this statutory right cannot be defeated and indicated reliance on the majority view of the Apex Court reported in 2001 (1) JLJR 890 (SC) for the conditions under which release should be directed.

Holding and Implications

Holding: The writ application is allowed with respect to the interpretation of Section 167(2)(a)(i) Cr.P.C.; the court directed that the accused-petitioner shall be released if he is ready and furnishes bail bonds, provided he fulfills the condition(s) as laid down in 2001 (1) JLJR 890 (SC). The opinion concludes: "Application allowed."

Implications:

The immediate and direct effect is that in cases under Section 304-B IPC the investigating agency is required to complete investigation and submit the charge-sheet within sixty days from the date of arrest or surrender; if it fails to do so, the accused becomes entitled to statutory bail under Section 167(2)(a)(ii) Cr.P.C., provided the accused is prepared to and does furnish bail bonds and meets the conditions referenced from 2001 (1) JLJR 890 (SC).
The court relied on the majority view of the Apex Court in 2001 (1) JLJR 890 (SC) to shape the precise conditions for release; the opinion itself does not purport to set out any additional or broader legal principle beyond the interpretation and its direct application to the petitioner.
The opinion does not state that it is laying down a novel binding precedent beyond its application to the facts and statutory interpretation presented in the case; its order is a judicial decision in that matter directing release subject to the cited Apex Court condition(s).

Show all summary ...

1. This writ application under Article 226 of the Constitution has been filed for quashing the order dated 29-3-2001 passed by the learned Addl. Chief Judicial Magistrate, Jamtara, in G.R Case No. 471/2000 arising out of Jamtara (Mihijam) RS. Case No. 193/2000 (S.T No. 348/2001), now pending in the Court of Sessions Judge, Jamtara, whereby and whereunder the application filed by the petitioner under Section 167(2) Cr. RC. has been rejected.

2. Briefly stated, the petitioner is an accused in a case under Section 304-B, 201/34. I.P.C He surrendered in the Court below in the aforesaid case on 24-1-2001 and since then he is in jail. The charge-sheet in this case was filed on 21-4-2001 though his 60 days detention in jail had been completed on 26-3-2001. The petitioner had filed an application under Section 167(2), Cr. P.C for his release on bail on 27-3-2001. The matter was heard on 27-3-2001 and 28-3-2001 and on 29-3-2001 the application of the petitioner dated 27-3-2001 was rejected. The main ground for rejection was that the petitioner was an accused under section 304-B, I.P.C in which the prescribed punishment is imprisonment of not less than 7 years, but which may extend to imprisonment for life and consequently the learned Court below felt that the case of the petitioner fell under the purview of Section 167(2)(a)(i) Cr. P.C and not under section 167(2)(a)(ii), Cr. P.C and in arriving at the said decision, learned Court below has relied on the decision reported in 1999 Cr LJ 2645.

3. The main question that has arisen for consideration in this writ application is “whether, in cases of offences under section 304-B I.P.C, where minimum punishment prescribed is not less than 7 years, the chargesheet has to be submitted within a period of 60 days by the Investigating Agency from the date of surrender/arrest and whether the accused becomes entitled, to statutory bail in the event of failure in submission of the chargesheet within that period.”

4. It is in this connection, worthwhile to quote Section 167(2)(a)(i) Cr. P.C : —

“167 (2)(a):— Provided that

(a) 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;”

(ii) ………………………………

5. 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 subsection shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter.

From a simple analysis of this provision, appears that it includes the following category of offences:—

(a) Offences punishable with death

(b) Offences punishable with life imprisnment or offences punishable with imprisnment for a term not less than 10 years.

6. The word ‘punishable’ has been used in the aforesaid section for the offence punshable with life imprisonment which comes within the mischief of this section. ‘Punishable’ in my opinion, does not mean that in all cases the convict must be punished with life sentence. Plainly and simply, it means that in suitable cases the offence is punishable with life imprisonment.

7. Section 304-B(2), I.P.C, being apposite in this connection, is quoted below:—

“304-B(2). whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

8. The sentence prescribed for an offence under section 304-B, I.P.C, as stated above, is not less than 7 years, but it may extend to imprisonment for life. This means that the offence under section 304-B, I.P.C is also punishable with life imprisonment. It is not that in no case under section 304-B, I.P.C, punishment of life imprisonment cannot be awarded. Thus, the offence under section 304-B, I.P.C, notwithstanding the minimum setence prescribed becomes an offence punishable with life imprisonment. It may be one view.

9. Yet, it can be examined from the other angle. The words, ‘imprisonment for life’ or ‘imprisonment’ for a term not less than 10 years' are separated by the word ‘or’ in the aforesaid section (167 (2)(a)(i), Cr. P.C). It means that either of these two conditions is required to be fulfilled for bringing an offence under its amibt. It may be another view.

10. Yet there may be a third view. As stated in paragraph 5, the offences under section: 16.7(2)(a)(i), Cr. P.C do cover the offences punishable with death like offence of murder or offence under-section 31-A of N.D & P.S Act, 1985. In such offences, in the event of conviction the Court has no option but to avard, the, sentence of death, particularly in an offence uncder section, 31. A’ of the N.D & P.S Act, where the only sentence prescribed is of death.

11. The other offence punishable with life imprisonment are the offences like one punishable under Section 311, I.P.C, where the sentence prescribed is pure and simple life imprisonment. This means, in such offences, as a legal compulsion, the Court has to award a sentence of life imprisonment pure and simple, not less, not more. No discretion has been left on the Court.

12. Third types of offences where the punishment is not less than a term of 10 years which automatically means that in such offences, the sentence may vary from minimum of 10 years to the maximum of life imprisonment and/or the period which may be prescribed, for example an offence under section 27-A of the N.D & P.S Act, which is punishable with an imprisonment for a term which shall not be less than 10 years, but which may extend to 20 years. In such cases, while awarding the sentence the Court, under an obligation, has to grant the minimum sentence of 10 years, but for passing a sentence above the 10 years, the Court may exercise its judicial discretion. It is further to be found that offences punishable with life imprisonment and the offences punishable with imprisonment for a term not less than 10 years are separated by a word ‘or’ in this section. This means' that both types of offences, i.e punishable with life imprisonment or punishable with a minimum sentence of 10 years, have been put on equal footing. But this section does not clarify as to what will happen if the minimum sentence is not of 10 years, rather less than 10 years, in which cases, the imprisonment may extend to life.

13. Section 304-B(2), I.P.C reads as quoted above in para 7. This section does not exclusively provide that the offence punishable is with life imprisonment, as has been ordained in Section 311, I.P.C and therefore, the law leaves a discretion on the Court whereas no such discretion is left to the Court when dealing with the offences under Section 311, I.P.C as stated above. Thus, in a case under section 304-B, I.P.C, though the sentence may be not less than 7 years, it may not always go to the maximum limit, which may be even less than 10 years. Had the Legislature intended to include the offence in which sentence may extend to life imprisonment, then in that circumstances in the aforesaid section, i.e 167 (2)(a)(i), Cr. P.C would have been such, punishable with death. Imprisonment for life or imprisonment which may extend to life or an Imprisonment for a term of not less than 10 years. The sentence underlined has not been used by the Legislature.

14. In the aforesaid circumstances, the punishment which is to be awarded under section 304-B, I.P.C and the sentences which are to be awarded Under section 27-A of N.D 6 P.S Act are the nearest, which can be compared. Thus, in the cases under section 27-A of N.D & P.S Act, where the sentence is not less than 10 years and the sentences for an offence under section 304-B, I.P.C in which sentence shall not be less than 7 years are not exactly equal to each other. If the offences punishable with a term not less than10 years is placed on the one pan of the scale and the other offence which is punishable with sentence not less than7 years is placed on the other pan of the scale, the pan of the scale will, due to the gravity of the weight over it.i.e the offence punishable with a term not less than 10 years, tilt down and the other pan of the scale, due to lesser gravity of the minimum sentence punishable, will go up and this will distinguish the two types of offences of this category.

15. No doubt, though the offences under section 304-B, I.P.C are very serious ones. Had the Legislature intended to put this offence within the mischief of section 167(2)(a)(i), Cr. P.C, then it had two alternatives, either in place of 10 years as used in this section, it would have used 7 years or;in section 304-B, I.P.C, in place of 7 years It had used the words, 10 years but this not the case. Had the intention of the Legislature been to bring this offence under section 304-B, I.P.C and the offences like this out of the mischief of section 167(2)(a)(i), Cr. P.C, then in addition to the phrase imprisonment for life, imprisonment which may extend to life would also have been used. But all theses circumstances are wanting.

16. Thus, the result of this analysis is that though the offence under section 304-B, I.P.C may extend to life, but it cannot be an imprisonment for life as ordained for the offence under Section 311, I.P.C Though the minimum sentence may not be less thin 7 years, but it cannot be equated with those offended for which minimum sentence prescribed is 10 years.

17. Now considering three views, it appears to mean that the preceding view i.e the third view, in the circumstances of the situation, brings the offences under section 304-B I.P.C out of michief of section 167(2)(a)(1), Cr. P.C and lands it under section 167(2)(a)(ii), Cr. P.C

18. Thus, the result in this case is that in the cases under section 304-B, I.P.C, investigation has to be completed within 60 days from the date of arrest/surrender of the accused and if the chargesheet is not submitted then the accused becomes entitled to statutory bail under section 167(2)(a)(ii), Cr. P.C if he was ready and furnishes bail bonds. This statutory right that had accrued to him cannot be defeated. The majority view of the Apex Court in the judgment reported in 2001 (1) JLJR 890 (SC) is relied upon for this purpose.

19. The writ application is allowed with regard to interpretation of S. 167(2)(a)(i) with a direction to the Court concerned to release the accused-petitioner, if he is ready and furnishes the bail bonds only if he fulfilled the condition as laid down in 2001 (1) J.L.J.R 890 (SC).

20. Application allowed.