JUDGMENT

Hon'ble R.C. Khulbe, J. (Oral)

Heard learned counsel for the parties.

2. This bail application has been filed by the applicant-Qazi Mohammed Nooruddin, who is in judicial custody, for seeking default bail in FIR No.0496 of 2018, under Sections 420, 120-B, 408 of IPC (currently in custody for offences under Sections 420, 120-B, 409 of IPC), registered at Police Station SIDCUL, District Haridwar.

3. The applicant herein was arrested on 06.03.2019. It appears that the period of 60 days in the judicial custody has already expired, but the charge-sheet was not filed by that time. Thereafter, he moved an application on 10.05.2019 under Section 167(2) Cr.P.C. and prayed for the default bail. The learned Chief Judicial Magistrate rejected such application on 10.05.2019 holding that the charge sheet is to be filed within 90 days and not within 60 days.

4. Being aggrieved with such order rejecting the default bail application, he preferred bail application no.743 of 2019 before the Sessions Judge Haridwar and that application was also rejected on 20.05.2019. Being dissatisfied with the order passed by the learned Sessions Judge, Haridwar, the applicant knocked the doors of this Court by filing the instant bail application under Section 439 Cr.P.C.

5. The legal point which arises for consideration before this Court is that, in cases wherein the accused is charged with the offences punishable under Section 409 IPC, the charge sheet should be filed within 60 days or within 90 days.

6. Mr. Aditya Singh, learned counsel appearing for the applicant submitted that for the offence punishable under Section 409 IPC, the Court can award sentence for a period of less than 10 years. Section 409 IPC does not provide that the minimum sentence would be not less than 10 years. He also argued that under Clause a(i) of Proviso of Section 167 (2) of the Code provides that if the minimum sentence for an offence is not less than 10 years, then only the period of 90 days for filing the charge sheet would be applicable. If the offence is punishable for any term upto 10 years, then the period of 60 days would be the time limit to submit the charge sheet. In support of his submission, he places reliance on the decision of the Hon'ble Supreme Court in case of Rakesh Kumar Paul Vs. State of Assam AIR 2017 SC 3948.

7. It is argued that the Court below has committed an error and it should have ordered for release of the applicant on default bail.

8. On the other hand, learned Government Advocate vehemently opposed this bail application and submitted that for the purpose of default bail, what is important to be seen is the maximum sentence that can be imposed for the offence charged. He argued that Section 409 IPC is punishable for imprisonment for life or imprisonment which may extend to 10 years and find. Once the punishment of imprisonment for life is awarded, then the period for filing charge sheet would be 90 days and not 60 days. Since, the 90 days period has not expired then there is no merit in the contention, and the same be rejected.

9. Having heard learned counsel for both the parties, the only question that arises for consideration is:-

“Whether in a case in which the accused is charged with offence punishable under Section 409 IPC, the charge sheet should be made within 60 days or 90 days?"

10. Section 409 IPC reads as under:-

“Section 409 in the Indian Penal Code

409. Criminal breach of trust by public servant, or by banker, merchant or agent.—Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

11. From a perusal of Section 409 IPC, it shows that the said offen