Rajasthan High Court - Jodhpur
Nathu Ram vs State on 19 February, 2021
Bench: Sangeet Lodha, Rameshwar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Crl. Ref. No. 1/2020
1. Nathu Ram S/o Purna Ram, Aged About 38 Years, Village
Jayal, Tehsil Jayal, District Nagaur.
2. Purna Ram S/o Narsi Ram, Aged About 64 Years, Village
Jayal, Tehsil Jayal, District Nagaur.
3. Ram Gopal S/o Purna Ram, Aged About 32 Years, Village
Jayal, Tehsil Jayal, District Nagaur.
----Petitioners
Versus
1. The State of Rajasthan.
2. Tehsildar (Revenue), Jayal, District Nagaur.
----Respondents
For Petitioner(s) : Mr. Ravindra Acharya
For Respondent(s) : Mr. Farzand Ali, AAG with
Mr. Abhishek Purohit
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE RAMESHWAR VYAS
Order
19th February, 2021
PER HON'BLE MR. SANGEET LODHA,J.
Reportable
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 of 14) [CRLRF-1/2020]
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
(3 of 14) [CRLRF-1/2020]
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 under Section 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 Section
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
(4 of 14) [CRLRF-1/2020]
though punishable with three months and fine is made cognizable
but in case of offences other law, the cognizability is determined
on the basis of maximum punishment provided and thus, adhering
to the provision incorporated, an offence for which punishment of
three years can be awarded has to be treated a cognizable
offence. Learned AAG submitted that the classification of the
offences under Part II of First Schedule has to be interpreted with
reference to the context so as to advance the object sought to be
achieved by the legislature and thus, the situation where any of
the offences may not fall in any of the classifications made has to
be avoided. In this regard, learned AAG relied upon the decision of
the Supreme Court in Balram Kumawat vs. Union of India: AIR
2003 SC 3268.
6. We have considered the rival submissions and gone through
the relevant provisions and decisions cited at the bar.
7. As per the provisions of Section 91(6)(a) of the Act of 1956,
whoever occupies any land without lawful authority or having
occupied such land before coming into force of the Rajasthan Land
Revenue (Amendment) Act, 1992, fails to remove such occupation
within fifteen days from the date of service of a notice in writing,
calling upon him to do so by Tehsildar shall on conviction, be
punished with simple imprisonment which shall not be less than
one month but which may extend to three years and with fine
which may extend to twenty thousand rupees. However, as per
first proviso to sub-section (6), in case of an offence under Clause
(a), the Court may for any adequate or special reason to be
mentioned in the judgment impose a sentence of imprisonment
for a term of less than one month.
(5 of 14) [CRLRF-1/2020]
8. As per Section 2(c) of Cr.P.C. cognizable offence is an offence
for which, a police officer may in accordance with the First
Schedule or under any law for time being in force, arrest without
warrant, whereas as per Section 2(l) of Cr.P.C., non-cognizable
offence is an offence for which a police officer has no authority to
arrest without warrant.
9. The First Schedule of Cr.P.C. deals with classification of the
offences under the Indian Penal Code ('IPC') as also under other
laws. Part I of the First Schedule deals with the offences under the
IPC, whereas, Part II thereof deals with offences against other
laws and makes provisions regarding offences being Cognizable or
Non-cognizable, Bailable or Non-bailable and by what Court
triable, which may be beneficially quoted as under :
___________________________________________________
Offence Cognizable or Bailable or By what
non-cognizable non-bailable court triable
___________________________________________________
___________________________________________________________________________________
If punishable with death, imprisonment Cognizable Non-bailable Court of Session.
for life, or imprisonment for more than
7 years.
If punishable with imprisonment Cognizable Non-bailable Magistrate of First Class.
for 3 years and upwards but not
more than 7 years.
If punishable with imprisonment Non-cognizable Bailable Any Magistrate
for less than 3 years or with fine
only.
10. Indisputably, the Act of 1956 does not make provision
regarding the offences punishable under the said Act being
cognizable or non-cognizable and bailable or non-bailable and
therefore, the same shall be governed by the provisions of Part II
of the First Schedule, quoted hereinabove.
(6 of 14) [CRLRF-1/2020]
11. A perusal of Part II of the First Schedule makes it abundantly
clear that the offences under the laws other than IPC are classified
in three categories and the offence being cognizable or non-
cognizable and bailable or non-bailable is determined on the basis
of the range of sentence imposable by the Court on conviction.
12. Apparently, the offence which is punishable with
imprisonment to the extend of three years under the laws other
than IPC, does not fall within classification I and III under Part II
of the First Schedule, which deals with the offences punishable
with death, imprisonment for life, or imprisonment for more than
seven years and the offences punishable with imprisonment for
less than three years or with fine only, respectively. Thus, the
question which requires consideration by this Court is whether the
expression 'which may extend to three years' would squarely or
necessarily fall within the expression 'imprisonment for three
years and upwards' used in classification II of Part II of First
Schedule and thus, the offence under Section 91(6)(a) of the Act
of 1956, has to be treated an offence Cognizable & Non-bailable,
triable by Magistrate of First Class.
13. In Pintu Dey's case (supra), the learned Single Judge of this
Court while dealing with the issue as to whether the offences
under Sections 63 & 68A of the Copyright Act, 1957 ('Act of
1957') , punishable with imprisonment upto three years would be
cognizable or non-cognizable, relied upon the decision of the
Hon'ble Supreme Court in the matter of Rajeev Choudhary's case
(supra) and the decision of Andhra Pradesh High Court in
Amarnath Vyas vs. State of Andhra Pradesh : 2007 Criminal Law
Journal, 2025 and held that the expression 'imprisonment for a
(7 of 14) [CRLRF-1/2020]
term which may extend upto three years' would not come within
the expression 'imprisonment for three years and upwards' and
thus, the offences under the said sections of the Act of 1957
cannot be considered as cognizable offences.
14. In Amarnath Vyas's case (supra), the Andhra Pradesh High
Court observed that the penal provisions shall have to be
construed strictly. There may be certain other class of offences
which may fall in between classification II and classification III of
Second Part of Schedule-I. Merely because, they are not coming
squarely within the domain of classification III, they cannot be
considered as coming within the purview of classification II and
therefore, the Court opined that the expression 'imprisonment for
a term which may extend upto three years' would not come
squarely within the expression 'imprisonment for three years and
upwards'.
15. In Rajeev Choudhary's case (supra), the Hon'ble Supreme
Court while dealing with the issue regarding interpretation and
construction of expression 'offence punishable with imprisonment
for term of not less than ten years' occurring in Section 167(2) of
the Cr.P.C. in context of the expression 'imprisonment which may
extend to ten years' occurring in Section 386 IPC, held that the
expression 'not less than ten years' would cover only those
offences for which punishment could be imprisonment for clear
period of ten years or more and it would not cover the offences for
which the punishment could be imprisonment for less than ten
years. The Court opined that since the imprisonment for offence
under Section 386 of the IPC can vary from minimum to
maximum of ten years, it cannot be said that the imprisonment
(8 of 14) [CRLRF-1/2020]
prescribed is less than ten years. Accordingly, the Court held that
clause (i) of proviso (a) to Section 167 (2) would be applicable in
case where investigation relates to an offence punishable with (1)
death; (2) imprisonment of life; & (3) imprisonment for a term
not less than ten years and it would not cover the offence for
which punishment could be imprisonment for less than ten years.
16. In Bhupinder Singh & Ors. vs. Jarnail Singh & Ors.: (2006) 6
SCC 277, the Hon'ble Supreme Court while dealing with the issue
with regard to stipulated period for the purpose of filing the
challan under Section 167(2)(a) of Cr.P.C. in a case involving
offence under Section 304-B IPC punishable with imprisonment for
the term which shall be not less than 7 years but it may extend to
imprisonment for life, observed:
"15. Where minimum and maximum sentences are
prescribed, both are imposable 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. The High Court's view in
the impugned order that permissible period of filing of
challan is 90 days is the correct view. Contrary view
expressed by the Jharkhand, the Delhi and the Karnataka
High Courts is not correct. The Himachal Pradesh, the
Rajasthan and the Punjab and Haryana High Courts taking
the view that 90 days is the period, have expressed the
correct view. .....xxxxxx........"
17. Later, in Rakesh Kumar Paul vs. State of Assam: (2017) 15
SCC 67, while dealing with the issue of entitlement of the accused
to 'default bail' in terms of provisions of Section 167(2)(a) of
Cr.P.C. in a case involving offence under Section 13(1) of
Prevention of Corruption Act, 1988 punishable with imprisonment
for a term which shall be not less than four years but which may
(9 of 14) [CRLRF-1/2020]
extend to ten years and fine, the Hon'ble Supreme Court while
accepting the view expressed in Rajeev Choudhary's case (supra),
held:
"25. While it is true that merely because a minimum
sentence is provided for 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"'not less than" that sentence
provided for. Therefore, the words "not less than"
occurring to clause (i) to proviso (a) of Section 167(2)
CrPC ( 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 CrPC
these words must relate to an offence punishable with a
minimum of 10 years' imprisonment.
......xxx............
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 CrPC 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. Offence 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
(10 of 14) [CRLRF-1/2020]
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 investigation
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."
18. Adverting to the classification of the offences as prescribed
under Part II of the Schedule, it is noticed that the classification I
covers the offences which are punishable with death,
imprisonment for life or imprisonment for more than seven years
and thus, the offences punishable upto seven years are not
covered under the said classification. Further, the classification III
covers only those offences which are punishable with
imprisonment for 'less than three years or with fine only' and
thus, adopting the reasoning of the Apex Court in Rajeev
Choudhary's case and Rakesh Kumar Paul's case (supra), the
offences which are punishable with three years or more are not
covered under the said classification. In this view of the matter, if
the offences punishable with imprisonment to the extend of three
years are not covered under classification II, the same shall not
fall in any of the classifications i.e. I, II & III, as prescribed under
Part II of the First Schedule.
19. A perusal of the Part I of First Schedule reveals that while
dealing with the various offences under different sections of IPC,
many offences which are punishable with imprisonment for less
than three years, have been classified as cognizable offence and
the offences punishable with higher punishment, even
imprisonment for seven years are categorized as non-cognizable.
But so far as the classification of offences under the laws other
(11 of 14) [CRLRF-1/2020]
than IPC is concerned, the offences have been classified in three
categories on the basis of the range of punishment of
imprisonment imposable. Obviously, while providing the
classification as aforesaid, the object of the legislature was that
the entire range of offences under the laws other than IPC must
fall within one or other category as classified under Part II of the
First Schedule.
20. As laid down by the Hon'ble Supreme Court in Balram
Kumawat's (supra), contextual reading is a well known proposition
of interpretation of statute. The clauses of a statute should be
construed with reference to the context vis-a-vis other provisions
so as to make a consistent enactment of the whole statute
relating to the subject matter. The rule of 'ex visceribus actus'
should be resorted to in a situation of this nature. The Court
categorically laid down that:
"22. Furthermore, even in relation to a penal statute any
narrow and pedantic, literal and lexical construction may not
always be given effect to. The law would have to be
interpreted having regard to the subject matter of the
offence and the object of the law it seeks to achieve. The
purpose of the law is not to allow the offender to sneak out
of the mesches of law. Criminal Jurisprudence does not say
so." (emphasis supplied)
21. In the background of law laid down by the Hon'ble Supreme
Court as aforesaid, if we examine the classification of the offences
under the laws other than IPC as prescribed under Part II of First
Schedule in context of the classification of the offences under IPC
specified under Part I of the First Schedule, it is noticed that for
offences under the various sections of IPC, which are punishable
with imprisonment to the extend of three years, seven years or
ten years, as the case may be, for the purpose of determination
(12 of 14) [CRLRF-1/2020]
as to whether the offence shall be cognizable or non-cognizable
and bailable or non-bailable, the punishment provided has been
mentioned as 'for three years', 'for seven years' and so on. To put
in other words, the punishment of imprisonment for the period
specified as mentioned in Column 3 of Part I of First Schedule,
includes the description of the imprisonment for a term which may
extend to the period specified. For example, the offences under
Sections 418, 419, 456 IPC are punishable with imprisonment for
a term which may extend to three years, but while classifying the
said offences as cognizable/non-cognizable and bailable/non-
bailable in Column No.3 of Part I of First Schedule, the description
of the term of sentence is mentioned as 'for three years'. Similar is
the position with regard to other offences under IPC, which are
punishable by imprisonment of either description for a term which
may extend to maximum period specified. Thus, if the
classification of the offences in Part II of First Schedule is
construed with reference to the context vis-a-vis the classification
under Part I of the First Schedule, the expression 'for three years'
occurring in classification II under Part II of First Schedule has to
be construed to include the offences punishable with
imprisonment for a term to the extend of three years. Thus, the
classification made as aforesaid, for determination of nature of
offence whether it is cognizable or non-cognizable, the maximum
punishment that may be awarded for particular offence, is
relevant and not the minimum sentence.
22. The view taken by the Andhra Pradesh High Court in
Amarnath Vyas's case (supra), relied upon by the learned Single
Judge of this Court in Pintu Dey's case (supra) that there may be
(13 of 14) [CRLRF-1/2020]
certain other class of offences which may fall between
classification II and classification III, but by default, they cannot
be considered as coming within the purview of classification II, in
our considered opinion, is not correct. As a matter of fact, Part II
of First Schedule covers every offence under any other statute,
other than IPC, where there is no stipulation regarding it being
cognizable or non-cognizable in the statute itself.
23. Coming to the decisions of Hon'ble Supreme Court in Rajeev
Choudhary and Rakesh Kumar Paul's cases (supra), it is noticed
that in sub-section 2(a)(i) of Section 167 Cr.P.C., the expression
used is 'an offence punishable with death, imprisonment for life or
imprisonment for a term of not less than ten years' and thus,
obviously, unless the minimum sentence prescribed is less than
ten years, the offence shall not fall within the said clause for the
purpose of default bail. As discussed above, the expression
'imprisonment for 3 years and upward' used in classification II of
Part II is totally different, which has to be interpreted in context of
similar expression used in Part I of First Schedule. In this view of
the matter, in our considered opinion, the law laid down by the
Hon'ble Supreme Court in Rajeev Choudhary's case and Rakesh
Kumar Paul's case (supra) while interpreting the provisions of sub-
section 2(a)(i) of Section 167 Cr.P.C. in different context, is not
attracted in the instant case.
24. In view of the discussion above, we are firmly of the view
that the decision of the learned Single Judge of this Court in Pintu
Dey's case (supra) does not lay down the correct law.
25. Accordingly, the reference is answered in terms that unless
otherwise provided under the relevant statute, the offences under
(14 of 14) [CRLRF-1/2020]
the laws other than IPC punishable with imprisonment to the
extend of three years, shall fall within the classification II of
offences classified under Part II of First Schedule and thus, shall
be cognizable and non-bailable. Consequently, the offence under
Section 91(6) (a) of the Act of 1956 shall be cognizable and non-
bailable.
Let the criminal miscellaneous petition be listed before the
learned Single Judge for disposal.
(RAMESHWAR VYAS),J (SANGEET LODHA),J
Aditya/-
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