Important Point
For an offence u/s. 304B IPC accused would be entitled to bail u/s. 167(2) Cr.P.C. if prosecution failed to file charge-sheet within 60 days of arrest of accused.

JUDGMENT

O.P. Dwivedi, J.— This is a petition under Section 439(2) read with Section 482, Cr.P.C. for cancellation of bail granted to the respondents in FIR No. 118/2003, under Sections 498-A/304B/406/34, IPC, P.S. Inderpuri, Delhi.

2. Vide impugned order dated 27-8-2003, learned ASJ has granted bail to the respondents under the proviso (a)(ii) to Section 167(2), Cr.P.C. being of the view that for an offence under Section 304B, IPC the Magistrate can authorise detention during investigation only for a period of sixty days.

3. Admittedly, challan in this case was not filed within a period of sixty days from the date of arrest of the respondent. The only point canvassed before me by the learned Counsel for the State is that in case of State of Maharashtra v. Ketan Seth1 and in case of State of H.P. v. Lal Singh2, view taken by the respective High Courts is that if for the alleged offence the accused can be convicted for more than ten years the period of detention would be 90 days as provided in proviso (a)(i) to section 167(2), Cr.P.C. Earlier in the case of GPS Rana v. The State (NCT of Delhi)3, decided on 1.11.2002, I have taken the view that in cases where punishment could be for less than ten years, the period of detention during investigation could be only up to 60 days and not ninety days. This view of mine was based on the decision of the Supreme Court in the case of Rajeev Chaudhary v. State (NCT of Delhi4. This judgment has been referred to in the Bombay case as well as H.P. Case cited above. The answer, therefore, will depend upon correct understanding of judgment of the Supreme Court in the case of Rajiv Choudhury (supra). Therefore, the relevant facts of the case and the observation made by the Supreme Court on law point have to be taken note of in depth and detail.

4. In Rajiv Choudhary’s case (supra) the facts were that appellant was arrested in connection with an offence punishable under Sections 386/506/120B, IPC. He was produced before MM, Delhi on 31.10.1998 and was released on bail vide order dated 2.1.1999 on the ground that charge sheet was not submitted within sixty days as provided in the proviso a(ii) to Section 167(2), Cr.P.C. That order was challenged before Sessions Judge in revision which was accepted by the learned ASJ vide order dated 18.8.99. Learned ASJ was of the view that for offences under Section 386, IPC, the period of sentence could be up to ten years’ RI and hence the period of detention could be upto ninety days in view of Clause (1) of the proviso (a) to Section 167(2), Cr.P.C. The order of the learned ASJ was challenged before the High Court. High Court referred to some earlier decisions and held that expression “an offence punishable with imprisonment for a term of not less than ten years” in Clause a(i) of the proviso to 167(2), Cr.P.C would mean any offence punishable with imprisonment which period would not be less than ten years. High Court, therefore, set aside the order passed by the learned ASJ against which appeal was preferred before Supreme Court. After re-producing Section 167 and Section 386, Cr.P.C Hon’ble Supreme Court observed 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 case where offence is punishable with imprison-ment for 10 years or more, the. accused could be detained upto 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 for those offences for which punish-ment 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. T