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2005 (4) Crimes 228
Delhi High Court
Badar Durrez Ahmed, J.
Om Prakash —Applicant
versus
State (NCT of Delhi) —Respondent
Bail Application No. 1372 of 2005
Decided on 22-6-2005
Held: Where such an indefeasible right has accrued to an accused on the non-filing of the charge-sheet during the maximum period allowable under law and the accused has promptly applied for bail on such default and the said application is pending disposal by the Court, can the mere filing of the charge-sheet extinguish or defeat such a right? Clearly, no. This aspect of the matter has been dealt with at length by the Supreme Court in the case of Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453. (Para 5)
It is therefore clear that once an accused files an application for being released on bail and offers to furnish the bail in question he is said to have availed his indefeasible right to release on default on account of non-filing of the charge-sheet within the prescribed time-limit. Moreover, the mere filing of the charge-sheet during the pendency of his said application for bail does not ‘extinguish’ or ‘defeat’ his accrued right. (Para 7)
The word ‘punishable’ is a key-word. What exactly is meant by it? Does it mean that the offence must be punished with (a), (b) or (c) above or does it carry the meaning of liability of punishment with (a), (b) or (c)? It is also crucial to understand the sense in which the punishments are listed. Clearly, since death and imprisonment for life are listed, and they cannot coexist, the expression will have to be read as ‘punishable with death’ or ‘punishable with imprisonment for life’ or ‘punishable with imprisonment for a term of not less than ten years’. An offence involving anyone of the three punishments would be covered under Proviso (a)(i) to Section 167(2) and the period applicable would be ninety (90) days. (Para 11)
Ultimately, the Supreme Court, after reference to its earlier decisions including that of a Larger Bench of three Hon’ble Judges in Subbhash Chand v. State of Haryana, (1988) 1 SCC 717, was of the view that ‘punishable’ carries the meaning ‘liable to be punished’. In Sube Singh (supra), the Supreme Court was required to determine whether the offence of murder [Section 302, IPC] could be classified as an offence ‘punishable’ with death. The wording of Section 302, IPC is, ‘Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine’. In Sube Singh (supra) it was held that the offence of murder was one which was ‘punishable’ with death although the actual sentence awarded may be life imprisonment. It is clear that the word ‘punishable’ means ‘liable to be punished’. (Para 13)
Viewed in the light of this meaning of the word ‘punishable’, it is clear that Proviso (a)(i) to Section 167(2) refers to any offence which carries with it the liability (or, shall I say, possibility) of punishment with: (i) death or (ii) life imprisonment or (iii) imprisonment for a term of not less than ten years. If the possibility of anyone or more of these eventualities attaches to an offence then it would be an offence referred to in Proviso (a)(i) to Section 167(2), CrPC. So, the crucial questions to ask in the context of the case at hand are:
(a) Is the offence under Section 376(2)(g), IPC liable to be punished with death?
(b) Is the offence under Section 376(2)(g), IPC liable to be punished with imprisonment for life?
(c) Is the offence under Section 376(2)(g), IPC liable to be punished with imprisonment for a term of not less than ten years?
If the answer to anyone of the three questions is ‘yes’, then, the offence under Section 376(2)(g), IPC would be one which is referred to in Proviso (a)(i) to Section 167(2), CrPC. Leaving aside the Proviso to Section 376(2), IPC for the time being, the punishment prescribed for an offence under Section 376(2)(g), IPC is ‘rigorous imprisonment for a term which shall not be less than ten years but which may be for life’. In other words, the offence cannot be punished with death. But, it can be punished with life imprisonment or imprisonment for a term not less than ten years. Clearly, the answers to the three questions would be — (a) No, (b) Yes, and (c) Yes. Therefore, Proviso (a)(i) to Section 167(2), CrPC would be applicable. Does the situation alter if we bring in the proviso to Section 376(2), IPC into play? Not at all. All that the proviso does is to enable the awarding of a sentence of imprisonment of less than ten years under special circumstances. The liability or possibility of life imprisonment or imprisonment for a term not less than ten years still exists under normal circumstances. The normal sentence is ‘rigorous imprisonment for a term which shall not be less than ten years but which may be for life’. This is the legislative mandate with regard to sentence. And, the proviso would come into play only under special circumstances. (Para 14)
Thus, the offence under Section 376(2)(g), IPC continues to be an offence 'punishable’ with life imprisonment or imprisonment for a term of not less than ten years (i.e., term of ten years or more). At this stage the proviso does not come into play at all. Consequently, the charge-sheet is required to be filed within ninety (90) days and not sixty (60) days as claimed by the petitioner. It must be noted that this conclusion has been arrived at without considering the question of a sentence of less than ten years under the proviso and as to what impact that would have on the expression ‘imprisonment for a term of not less than ten years’. (Para 14)
Result : Petition dismissed.
JUDGMENT
Badar Durrez Ahmed, J. — The petitioner is accused of having committed offences under Sections 376(2)(g)/506/34 of the Indian Penal Code, 1860 (hereinafter referred to as the IPC’). The petitioner claims ‘bail-on-default’ under the provisions of Proviso (a) (ii) to Section 167(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘CrPC’). Therefore, some dates would be relevant. The First Information Report (FIR) was registered at Police Station Sameypur Badli on 17.2.2005. He was arrested on the same day. On 18.2.2005, he was remanded to judicial custody and continues to be in custody. According to the learned Counsel for the petitioner the charge-sheet was required to be filed within 60 days from the date of the first remand i.e., 18.2.2005. Since, the charge-sheet had not been filed by 18.4.2005 (the date, when, the 60 days period came to an end) the petitioner, on 4.5.2005 filed an application before the Magistrate claiming release on bail in terms of Proviso (a)(ii) to Section 167(2) of CrPC. While the application was pending, the charge-sheet was filed on 12.5.2005. When the said application came to be disposed of on 21.5.2005, two issues arose for consideration. The first issue was about the filing of the charge-sheet and as to whether it cured the alleged ‘defect’ of non-filing of the same in time. To be fair to the Magistrate, he decided this issue straightaway and, I may add, correctly by holding that the subsequently filed charge-sheet would not cure the defect. The second issue was whether the case at hand fell under Proviso (a)(ii) to Section 167(2), CrPC or under Proviso (a)(i) to Section 167(2), CrPC. The former requires the charge-sheet to be filed within 60 days and the latter, 90 days. The Magistrate held that the 90 days period was applicable and therefore the charge-sheet was in time. The petitioner then moved an application before the Sessions Court. The Learned Additional Sessions Judge, by an order dated 23.5.2005 rejected the same holding that the period applicable was 90 days and the charge-sheet had been filed within that period.
2. Being aggrieved, the petitioner has now approached this Court. The questions remain the same:
(1) Whether the filing of a charge-sheet, subsequent to the period prescribed under Section 167(2), CrPC and during the pendency of an application for bail, would ‘cure the defect’ and disentitle the accused to bail under the said provision?
(2) Whether the offence under Section 376(2)(g), IPC would be covered under Clause (a)(i) of the proviso to Section 167(2), CrPC or under Clause (a)(ii) of the proviso to Section 167(2), CrPC?
The answers are: (1) No; (2) The offence under Section 376(2)(g), IPC would be covered under Clause (a)(i) of the proviso to Section 167(2), CrPC. The reasons are as follows:
Re: Question (1)
3. There is no difficulty with the well 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 to the benefit of the accused? In Sanjay Dutt v. State through CBl, Bombay1 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 extinguish
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