Chattisgarh High Court
Shyamal Kumar Biswas vs State Of Chhattisgarh on 22 September, 2021
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No. 974 of 2020
• Shyamal Kumar Biswas S/o Lt. Shri Kamal Kant Biswas Aged About 62 Years
R/o Garej Para, Ward No. 2, Kusumkasa, Dalli-Rajhara, Balod, Chhattisgarh
---- Petitioner
Versus
1. State Of Chhattisgarh Through- District Magistrate, Raipur, Chhattisgarh
2. Rajdeep Sarkar S/o Lt. Shri Ranjeet Sarkar Aged About 38 Years R/o House
No. 309, Janta Colony, Gudiyari Tahsil And Distt. Raipur, Chhattisgarh
---- Respondents
For Petitioner : Shri Akash Kumar Kundu, Advocate
For State : Smt. Fouzia Mirza, Addl. Adv. Gen. and Shri Lalit
Jangde, Dy.G.A.
For Respondent No.2 : Shri Suresh Tandon, Advocate
D.B.:- Hon'ble Shri Justice Manindra Mohan Shrivastava
Hon'ble Shri Rajendra Chandra Singh Samant
C A V Order
22/09/2021
Per Manindra Mohan Shrivastava, J.
1. The difference of opinion with regard to interpretation of provisions contained
in Section 167 (2) (a) (ii) of CrPC in the matter of grant of default bail has given rise
to reference on a stated question of law by the learned Single Judge, as below -
"What would be the period for filing charge-sheet for offence
punishable under Section 467 of IPC for the purpose of default bail
under Section 167 (2) (a) of CrPC, "whether it would fall under Section
167 (2) (a) (i) of CrPC in terms of Paragraph 84.2 of Rakesh Kumar
Paul (supra) or under Section 167 (2) (a) (ii) of CrPC as per paragraph
84.3 of Rakesh Kumar Paul (supra) ?"
2. In the case in hand, the petitioner filed petition assailing legality and validity of
the order dated 26/05/2020 by which, the accused / 2 nd respondent was admitted to
the privilege of default bail under Section 167 (ii) of CrPC.
On petitioner's report, the police registered offences punishable under Section
420, 419, 467, 468, Section 12-B read with Section 34 of IPC against the 2 nd
respondent who was, later on, arrested on 30/12/2019. Charge sheet was, however,
filed against 2nd respondent only on 06/03/2020 and in this factual backdrop, 2 nd
respondent claimed default bail taking recourse to provisions contained under
Section 167 (2) (a) (ii) of CrPC. The contention of 2 nd respondent was that as the
alleged offences are not punishable for imprisonment for more than 10 years,
therefore, charge sheet ought to have been filed within 60 days from the date of first
remand i.e. 30/12/2019 whereas it was filed after expiry of 60 days on 06/03/2020.
The application was rejected by the Magistrate which was assailed before the
Revisional Court. Learned Additional Sessions Judge, vide order dated 26/05/2020,
allowed the revision and extended period of default bail to the 2 nd respondent by
holding that none of the offences registered against the accused are punishable with
imprisonment for more than 10 years in view of judgment of this Court in the case of
Smt. Shalini Verma and anr. v. State of Chhattisgarh 1 amended by learned
Single Judge in would be applicable and consequently, the maximum period within
which the charge sheet could be filed would be 60 days and not 90 days.
3. The aforesaid order was challenged by filing petition under Section 482 CrPC
giving rise to the present case.
4. Learned Single Judge, relying upon the Supreme Court decision in the case of
Rakesh Kumar Paul v. State of Assam 2 held that the aforesaid decision and the
principles laid down therein, when applied to provision of punishment provided for
2 (2017) 15 SCC 67
commission of offence under Section 467 IPC, the period of filing charge sheet would
be 90 days and not 60 days. However, noting different view taken by another learned
Single Judge of this Court in the case of Shalini Verma (supra), question of law, as
stated above, has been referred for the opinion of this Bench.
5. We have heard learned counsel for the parties and perused the decisions cited
at the bar.
6. While learned counsel appearing for the petitioner herein would submit that
the ratio decidendi in the case of Rakesh Kumar Paul (supra), when applied to
provisions contained under Section 467 IPC, period for filing charge sheet would be
90 days for filing charge sheet, learned counsel for private respondent would submit
that as in the present case as there is no provision under Section 467 IPC providing
punishment of not less than 10 years, the principles laid down in the case of Smt.
Shalini Verma (supra) becomes applicable where the offences registered against the
accused includes Section 467 IPC.
7. The issue arising for our consideration in this reference requires to be decided
with reference to the law laid down in the case of Rakesh Kumar Paul (supra). We
note that both in the cases of Smt. Shalini Verma (supra) as well as in the present
case, learned Single Judges have considered the Supreme Court judgment in the
case of Rakesh Kumar Paul (supra). In the ultimate conclusion, the difference of
opinion has precipitated mainly because under Section 467 IPC, punishment with life
imprisonment is the maximum sentence. The expression "not less than 10 years" as
punishment is not found in the aforesaid provision. Section 467 IPC provides as
below -
"Forgery of valuable security, will, etc. -- Whoever forges a
document which purports to be a valuable security or a will, or an
authority to adopt a son, or which purports to give authority to any
person to make or transfer any valuable security, or to receive the
principal, interest or dividends thereon, or to receive or deliver any
money, movable property, or valuable security, or any document
purporting to be an acquittance or receipt acknowledging the
payment of money, or an acquittance or receipt for the delivery of
any movable property or valuable security, 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."
From the aforesaid provision on its literal meaning, the criminal overt act of
forgery, security will etc. is punishable with imprisonment for life or with imprisonment
of either description for a term which may extend to 10 years. It has further been
provided that it shall also be liable to fine.
8. Therefore, for such offences, once an accused is held guilty and convicted, the
sentence may vary for a period of imprisonment which may extend up to 10 years
and it may go up to imprisonment for life as maximum period of sentence which may
be imposed for commission of such offence.
9. Section 167 of CrPC lays down the procedure when investigation cannot be
completed in 24 hours and proviso to Sub-Section 2 thereof provides for default bail
where investigation cannot be completed within the period prescribed therein, either
60 days or 90 days, depending upon the offence for which the accused had been
arrested.
Under Section 167 (2) (i) (a) of CrPC, the period within which charge sheet
can be filed, has been prescribed as 90 days where investigation relates to an
offence punishable with death, imprisonment for life or imprisonment for a term of not
less than 10 years.
In the following clause (ii), period of 60 days for filing of charge sheet has been
provided where investigation relates to any other offence.
Legislative scheme, therefore, is to the effect that in serious cases categorised
as those, where offence is punishable with death, imprisonment for life or
imprisonment for a term not less than 10 years, charge sheet can be filed within 90
days and if it is not done, the accused is entitled to grant of default bail. In all other
cases, which are not relating to any offence punishable with death, imprisonment for
life or imprisonment for a term of not less than 10 years, charge sheet is required to
be filed within 60 days failing which, the accused shall be released on bail on such
failure.
10. The statutory scheme of Section 167 of CrPC and provision relating to default
bail, as contained in proviso to clause (a) of Sub-Section 2 of Section 167 CrPC was
interpreted in the decision in the case of Rakesh Kumar Paul (supra), taking into
consideration legislative history and intention behind enacting provisions with regard
to grant of default bail. When would a particular offence, for the purposes of grant of
default bail, would fall under (i) of clause (a) of Sub-Section 2 and when offfence
would fall under residuary clause (ii) thereof was also closely examined by Their
Lordships. Their Lordships considered conflicting views of the Supreme Court in the
cases of Bhupinder Singh v. Jarnail Singh,3 and Rajeev Chaudhary v. State
(NCT of Delhi)4.
Having considered conflicting view, legislative history and scheme, Their
Lordships, in majority, held as below -
24. In the context of the word "punishable" occurring in Clause (i)
and the meaning attached to this word taken from several
dictionaries, this Court held in Bhupinder Singh (supra) that
where a minimum and maximum sentence is prescribed, both are
imposable depending upon the facts of the case. Therefore, if an
offence is punishable with imprisonment that may extend upto or
beyond or including 10 years, then the period available for
completing investigations would be 90 days before the provision for
3 (2006) 6 SCC 277
4 (2001) 5 SCC 34
'default bail' kicks in. It was said in paragraph 15 of the Report:
"15. 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."
25. While it is true that merely because a minimum sentence is
provided for in the statute it does not mean that only the minimum
sentence is imposable. Equally, there is also nothing to suggest
that only the maximum sentence is imposable. Either punishment
can be imposed and even something in between. Where does
one strike a balance? It was held that it is eventually for the court
to decide what sentence should be imposed given the range
available. Undoubtedly, the legislature can bind the sentencing
court by laying down the minimum sentence (not less than) and it
can also lay down the maximum sentence. If the minimum is laid
down, the sentencing Judge has no option but to give a sentence
"not less than" that sentence provided for. Therefore, the words
"not less than" occurring in clause (i) to proviso (a) of Section
167(2) of the Cr.P.C. (and in other provisions) must be given their
natural and obvious meaning which is to say, not below a
minimum threshold and in the case of Section 167 of the Cr.P.C.
these words must relate to an offence punishable with a minimum
of 10 years' imprisonment.
26. Of the two views expressed by this Court, we accept the view
in Rajeev Chaudhary.
27. It is true that an offence punishable with a sentence of death
or imprisonment for life or imprisonment for a term that may
extend to 10 years is a serious offence entailing intensive and
perhaps extensive investigation. It would therefore appear that
given the seriousness of the offence, the extended period of 90
days should be available to the investigating officer in such cases.
In other words, the period of investigation should be relatable to
the gravity of the offence - understandably so. This could be
contrasted with an offence where the maximum punishment under
IPC or any other penal statute is (say) 7 years, the offence being
not serious or grave enough to warrant an extended period of 90
days of investigation. This is certainly a possible view and indeed
Cr.P.C. makes a distinction in the period of investigation for the
purposes of 'default bail' depending on the gravity of the offence.
Nevertheless, to avoid any uncertainty or ambiguity in
interpretation, the law was enacted with two compartments.
Offences punishable with imprisonment of not less than ten years
have been kept in one compartment equating them with offences
punishable with death or imprisonment for life. This category of
offences undoubtedly calls for deeper investigation since the
minimum punishment is pretty stiff. All other offences have been
placed in a separate compartment, since they provide for a lesser
minimum sentence, even though the maximum punishment could
be more than ten years imprisonment. While such offences might
also require deeper investigation (since the maximum is quite
high) they have been kept in a different compartment because of
the lower minimum imposable by the sentencing court, and
thereby reducing the period of incarceration during investigations
which must be concluded expeditiously. The cut-off, whether one
likes it or not, is based on the wisdom of the Legislature and must
be respected.
11. In concurring view, the statutory scheme and applicability of default bail under
167 (2)(a)(i) CrPC was further explained as below -
"62. We are only concerned with interpretation of the phrase "for
a term of not less than ten years" occurring in Section 167(2)(a)(i),
which provides a period of 90 days where the investigation relates
to an offence punishable with death, imprisonment for life or
imprisonment for a term not less than 10 years.
63. In my considered view, without indulging in any semantic
gymnastics, the meaning of this provision is absolutely clear. It
envisages three types of offences:
(I) Offences which are punishable with death;
(ii) Offences which are punishable with imprisonment for life;
(iii) Offences which are punishable with a term not less than 10
years.
64. In my view the language of the statute is clear and
unambiguous. Out of the three categories of offences, we need to
deal only with that category of offences where the punishment
prescribed is not less than 10 years. If an offence is punishable
with death then whatever be the minimum punishment, the period
of investigation permissible would be 90 days. Similarly, if the
offence is punishable with life imprisonment, even if the minimum
sentence provided is less than 10 years, the period of detention
before 'default bail' is available would be 90 days.
65. Keeping in view the legislative history of Section 167, it is
clear that the legislature was carving out the more serious
offences and giving the investigating agency another 30 days to
complete the investigation before the accused became entitled to
grant of 'default bail'. It categorises these offences in the three
classes:
I First category comprises of those offences where the
maximum punishment was death;
II Second category comprises of those offences where the
maximum punishment is life imprisonment.
III The third category comprises of those offences which are
punishable with a term not less than 10 years.
66. In the first two categories, the legislature made reference only
to the maximum punishment imposable, regardless of the
minimum punishment, which may be imposed. Therefore, if a
person is charged with an offence, which is punishable with death
or life imprisonment, but the minimum imprisonment is less than
10 years, then also the period of 90 days will apply. However,
when we look at the third category, the words used by the
legislature are "not less than ten years". This obviously means
that the punishment should be 10 years or more. This cannot
include offences where the maximum punishment is 10 years. It
obviously means that the minimum punishment is 10 years
whatever be the maximum punishment.
12. In order to make the legal position clear, the principles of interpretation
applicable to penal laws was also taken into consideration. Furthermore, conflicting
view taken in the case of Rajeev Chaudhary (supra) and Bhupinder Singh (supra)
were examined to clearly hold that only if maximum sentence is less than life
imprisonment that the minimum sentence must be 10 years to fall under third
category of cases. It was held as below -
74. Two judgments have been cited before us which dealt with
the interpretation of the words "not less than ten years". In Rajeev
Chaudhary (supra), the accused was charged with having
committed offence punishable under Section 386 of the Indian
Penal Code. The punishment whereof is a term of imprisonment
which may extend to 10 years. This Court held that in a case
where an offence is punishable with imprisonment for 10 years or
more, the accused could be detained up to 90 days. The Court
further held that the expression "not less than ten years" obviously
means 10 years or more and would cover only those offences for
which punishment could be imprisonment for a clear period of 10
years or more.
75. On the other hand, in Bhupinder Singh (supra), the Court
had distinguished Rajeev Chaudhary's case (supra) and held that
the word "punishable" is significant and if the offence is
punishable with imprisonment for 10 years, whether that be the
maximum punishment or minimum punishment, the accused was
not entitled to 'default bail' prior to 90 days. With due respect, I am
unable to agree with the view expressed in this case. Strictly
speaking, this question did not arise in Bhupinder Singh's case
(supra). In that case, the accused was charged for an offence
under Section 304B of the Indian Penal Code and this offence is
punishable with imprisonment for a term which shall not be less
than 7 years but which may extend to imprisonment for life. Since
the offence is punishable with imprisonment for life, then the fact
that the minimum sentence provided is 7 years would make no
difference, as explained by me above. It is only when the
maximum sentence is less than life imprisonment that the
minimum sentence must be 10 years to fall in the third category of
cases. Certain examples of such cases are offences punishable
under Section 21(c) and 22(c) of the Narcotic Drugs and
Psychotropic Substances Act, 1985, which provide a minimum
sentence of 10 years and a maximum sentence of 20 years."
13. The principles enunciated, as above, when applied to provisions contained in
Section 467 IPC, leads to irresistible conclusion that even though no minimum
sentence of 10 years prescribed, nevertheless, maximum sentence is imprisonment
for life, which means that in a given case, after convicting the accused, he may be
imposed sentence which is more than 10 years, which means he may be imposed
sentence of life imprisonment. If the offence is not punishable for life imprisonment
or death sentence but the offence is punishable with sentence upto 10 years,
certainly, in such a case, period of filing challenge would be 60 days. However,
where offence is punishable with imprisonment for life or 10 years of sentence,
whether or not, such sentence is for a period less than 10 years, such offence would
fall under first category of offence as specified in Section 167 (2) (a) (i) of CrPC and
not under residuary clause of (ii).
14 In the case of Smt. Shalini Verma (supra), the basis for the view that for
offence under Section 467 IPC, the period for filing of charge sheet would be 60 days
and not 90 days, is that there is no prescription of minimum sentence of 10 years,
which in our opinion is not in accord with the decision of the Supreme Court in the
case of Rakesh Kumar Paul (supra) because in the aforesaid decision, it has been
held that where the offence is punishable with imprisonment for life which is more
than 10 years or with a sentence which may extend upto 10 years, period of filing of
charge sheet would be 90 days and not 60 days. In taking this view, we find support
from the decision of the Gujarat High Court in the case of Manish @ Raju
Devshibhai Chovadiya v. State of Gujarat, 5 and that of Delhi High Court in the
case of Lalita Saini v. State & anr.6.
15. We accordingly answer the question of law as below -
The period of filing charge sheet for offences under Section 467 IPC for the
purpose of default bail under Section 167 (2) (a) of CrPC would fall under Section
167 (2)(a)(i) of CrPC in terms of paragraph 84.2 of Rakesh Kumar Paul, (2017) 15
SCC 67 and not under Section 167 (2) (a) (ii) of CrPC as per paragraph 84.3 of
Rakesh Kumar Paul, (2017) 15 SCC 67.
16. Reference is accordingly answered as above. The matter be now placed
before learned Single Judge with this order.
Sd/- Sd/-
(Manindra Mohan Shrivastava) (R C S Samant)
Judge Judge
Deepti
5 CrLJ 2018 2959
6 2019 SCC Online Del 9651
