IMPORTANT POINT
For offence of dowry death u/s 304 (B) IPC period for filing challan in terms of Section 16(2)(a)(ii) is 90 days and not 60 days.

Headnote:Criminal Procedure Code, 1973 — Section 167(2)(a)(ii) — Entitlement to bail if challan was not filed within stipulated period — Question whether in a case involving offence of dowry death punishable u/s 304(B) IPC was period for filing challan 90 days or 60 days — Period of 90 days was applicable to case where investigation related to three categories of offences which were punishable with (i) death, (ii) imprisonment for life, or (iii) imprisonment for a term of not less than 10 years — Word “punishable” means offence liable to be punished in the way designated — Merely because minimum sentence was provided that would not mean that sentence imposable was only minimum sentence — High Court’s view in impugned order that permissible period of filing of challan was 90 days was correct view.
       Held : A bare reading of Section 304(B) IPC shows that whoever commits “dowry death” in terms of Section 304(B) IPC shall be punished with an imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life. In other words, the minimum sentence is 7 years but in a given case sentence of imprisonment for life can be awarded. Put differently, sentence of imprisonment for life can be awarded in respect of an offence punishable under Section 304(B) IPC. Proviso to sub-section (2) of Section 167 consists of three parts. The first part relates to power of Magistrate to authorise detention of the accused person. This part consists of two sub-parts. In positive terms it prescribes that no Magistrate shall authorise detention of the accused in custody, under this paragraph (meaning sub-section (2)(a)] for a total period exceeding (i) 90 days where the investigation relates to an offence punishable under death, imprisonment for life or imprisonment for a terms of not less than 10 years (ii) 60 days where the investigation relates to any other offences. The period of 90 days is applicable to cases where the investigation relates to the three categories of offences which are punishable with (i) death, (ii) imprisonment for life; or (iii) imprisonment for a term of not less than ten years. The question is whether Section 304(B) is an offence “punishable” with imprisonment for life.(Para 11)
       In case of Section 304(B) the range varies between 7 years and imprisonment for life. What should be the adequate punishment in a given case has to be decided by the Court on the basis of the facts and circumstances involved in the particular case. The stage of imposing a sentence comes only after recording the order of conviction of the accused person. The significant word in the proviso is “punishable”. The word “punishable” as used in statutes which declare that certain offences are punishable in a certain way means liable to be punished in the way designated. It is ordinarily defined as deserving of or capable or liable to punishment, capable of being punished by law or right, may be punished or liable to be punished, and not must be punished.(Para 11)
       Where minimum and maximum sentences are prescribed both are imposable depending on the facts of the cases. It is for the Court, after recording conviction, to impose appropriate sentence. It cannot, therefore, be accepted that only the minimum sentence is imposable and not the maximum sentence. Merely because minimum sentence is provided that does not mean that the sentence imposable is only the minimum sentence. The High Court’s view in the impugned order that permissible period of filing of challan is 90 days is the correct view. Contrary view expressed by Jharkhand, Delhi and Karnataka High Courts is not correct, Himachal Pradesh, Rajasthan and Punjab and Haryana High Courts taking the view 90 days is the period have expressed the correct view. Therefore, on that ground alone the appeal fails.(Para 15)
       (ii) Criminal Procedure Code, 1973 — Section 173(2) — Incomplete challan or supplementary challan — Tara Singh and Satya Narains cases.(Paras 17 to 21)

JUDGMENT

Arijit Pasayat, J. — Leave granted.

2. Challenge in this appeal is to the order passed by a learned Single Judge of the Punjab and Haryana High Court cancelling the bail granted to the appellants.

3. Factual background in a nutshell is as under :

On 16.4.2003 appellant No. 1-Bhupinder Singh was married to Smt. Kamaljit Kaur (hereinafter referred to as the ‘deceased’). On 2.8.2004 she was found dead. On the allegation that the appellants had committed murder of the deceased, First Information Report (in short the ‘FIR’) was lodged by the Respondent Jarnail Singh and on that basis appellants 1 and 2 (Bhupinder and Balwinder) were arrested on 5.8.2004. Subsequently on 7.8.2004 appellant No. 3 (Kanwaljit Kaur) was arrested. Prayer for bail was made before learned Judicial Magistrate, 1st Class, Batala on 4.11.2004 who refused to grant bail to the appellants. Their stand before the Court in essence was that since challan was not filed in time, they were entitled to bail in terms of Section 167(2)(a)(ii) of the Code of Criminal Procedure, 1973 (in short the ‘Cr.P.C.’). Learned Magistrate rejected the application stating that the challan was presented in court prior to the completion of 90 days and therefore, it was presented within the prescribed period. The order was challenged before the learned Sessions Judge, Gurdaspur who granted bail relying on certain decisions of the Delhi High Court and Karnataka High Court (State v. B.B. Singh [2005(1) Chandigarh Law Reports 135], Amer v. State of Karnataka [2005(1) Recent Criminal 107], and Nadeem Ahmed v. State [2004 Cr.L.J. 4798] holding that in relation to Section 304(B) of the Indian Penal Code, 1860 (in short the ‘IPC’) period of 60 days of remand would be applicable and not 90 days for the purpose of Section 167(2)(a)(ii). Questioning correctness of the said decision a revision petition was filed before the High Court by the complainant-respondent No. 1. The High Court referring to the proviso to sub-section (2) of Section 167 Cr.P.C. held that the period during which the challan has to be filed is 90 days and not 60 days as held by the learned Sessions Judge. Therefore, the order granting bail to the appellants was set aside.

4. According to learned counsel for the appellant learned Sessions Judge was correct in his view and the High Court has erred in holding that the period is 90 days and not 60 days. It was further submitted that though it was the stand of the State that the challan was filed within a period of 60 days it is contrary to the materials on record. The challan which had been filed was incomplete and in fact requisite documents did not accompany it.

5. Per contra learned counsel for the complainant and State of Punjab submitted that the view taken by the High Court is correct.

6. In reply to this stand about the defective challan learned counsel for the respondents submitted that the challan was in fact filed, some documents were filed later on, and that did not make the challan, filed within 60 days, incomplete.

7. The points raised needs careful consideration.

8. Sections 304(B) IPC and Section 167(2)(a) Cr.P.C. read as follows :

“304B (IPC) : Dowry death

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

Explanation. — For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(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.]

“167 Cr.PC : Procedure when investigation can not be com

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2006 Supreme(SC) 612

IMPORTANT POINTFor offence of dowry death u/s 304 (B) IPC period for filing challan in terms of Section 16(2)(a)(ii) is 90 days and not 60 days.

Cases Referred (4)

IMPORTANT POINT
For offence of dowry death u/s 304 (B) IPC period for filing challan in terms of Section 16(2)(a)(ii) is 90 days and not 60 days.