The relevance of the maximum punishment in determining the cognizability and non-bailability of the offence under the laws other than IPC.

JUDGMENT :

Sangeet Lodha, J.

1. The legal question that falls for our determination in this reference made by the Division Bench of this Court reads as under:

"What would be the nature of an offence (whether cognizable or non-cognizable) for which imprisonment "may extend to three years" is provided and no stipulation is made in the statute regarding it being cognizable/non-cognizable."

2. The Background facts giving rise to the legal issue may be summarized thus: The petitioners preferred a criminal miscellaneous petition seeking quashing of an FIR No. 12/16 lodged at Police Station, Jayal, District Nagaur, for the offence under Section 91(6) of the Rajasthan Land Revenue Act, 1956 (for short "the Act of 1956"). Precisely, the quashing of the FIR was prayed for by the petitioners on the ground that the offence alleged being non-cognizable, the police had no jurisdiction or power to register the FIR. Reliance in this regard was placed on a Single Bench decision of this Court in Pintu Dey vs. State of Rajasthan, 2015 (3) Cr.L.R. (Raj.) 1291, laying down that the offences under Sections 63 & 68A of the Copyright Act being punishable by sentence of imprisonment upto three years, are non-cognizable offences. On behalf of the State, it was urged that law laid down by the learned Single Judge in Pintu Dey's case (supra), is incorrect inasmuch as, the ratio of the decision of the Supreme Court in Rajiv Choudhary vs. State (N.C.T.) of Delhi, AIR 2001 SC 2369 was wrongly applied.

3. The learned Single Judge after due consideration of the decisions cited at the bar, the provisions of Code of Criminal Procedure, 1973 ('Cr.P.C.') and Section 91(6) of the Act of 1956, being of the opinion that the law laid down in Pintu Dey's case (supra) is not correct, while expressing difference of opinion, has referred the question of law referred supra for adjudication by a Larger Bench. Hence, this reference.

4. Learned counsel appearing for the petitioner while relying upon the decision of the learned Single Judge of this Court in Pintu Dey's case (supra) and the decision of the Supreme Court in Rajiv Choudhary's case (supra), contended that the sentence of imprisonment for the offence under Section 91(6)(a) of the Act of 1956 may extend to three years, which could be less than three years as well and therefore, the same being non cognizable, the police had no power to register the FIR. Learned counsel submitted that the distinction sought to be made by the learned Single Judge while referring the matter to the Larger Bench, is not well founded and runs contrary to the decision of the Supreme Court in Rajiv Choudhary's case (supra).

5. On the other hand, learned Additional Advocate General submitted that 'to the extend of three years' includes three years and therefore, by no stretch of imagination, it could be inferred that for the offence u/Sec. 91(6)(a), the sentence prescribed is less than three years. Drawing the attention of the Court to Part II of First Schedule of Cr.P.C., learned AAG submitted that an offence against the laws other than IPC shall be categorized as 'non cognizable' if the offence is punishable with imprisonment for less than three years or with fine only and therefore, where for any offence, the punishment of three years could be awarded, the same cannot fall within the definition of 'non cognizable offence'. Learned AAG submitted that the law laid down by the learned Single Judge in Pintu Dey's case (supra) relying upon the decision of the Supreme Court in Rajiv Choudhary's case (supra), is ex facie erroneous inasmuch as, the decision of the Supreme Court relates to provisions of Sec. 167(2) Cr.P.C. which is not applicable for determination of cognizability of the offence. Learned AAG submitted that the offences under IPC such as, criminal trespass under Section 447 though punishable with three months and fine is made cognizab