Kuldeep Singh vs State of Punjab and Others

M.M. Aggarwal, J.—Heard.

Vide order dated 10.1.2004 Judicial Magistrate 1st Class, Malerkotla granted bail to the accused (now respondent Nos.2 to 4) of case FIR No. 155 of 5.11.2003 Police Station Ahmedgarh for offence u/s 304-B of Indian Penal Code. The bail had been granted since the challan was not presented within a period of 60 days. This petition for cancellation of bail was filed by complainant Kuldeep Singh who happened to be brother of the deceased and had got the FIR registered.

The order of Judicial Magistrate 1st Class, Malerkotla dated 10.1.2004 reads as under:-

This bail application is moved by accused/applicants u/s 167(2) Cr.P.C. Arguments head. Report of Ahlmad seen. As per report of Ahlmad challan has not been presented till today. Accused were arrested on 9.11.2003 and produced in this court on 10.11.2003. Period of more than 60 days has expired. Applicants have relied upon 2003 (2) RCR (Criminal) 135 wherein Hon''ble Jharkhand High Court has held that in the matter of bail u/s 167(2)(ii) of Cr.P.C. when accused has been arrested u/s 304-B, sentence prescribed for the offender is 7 years which may extend to life imprisonment. When investigation has not been completed within 60 days, then accused is entitled to bail u/s 167(1)(ii) of Cr.P.C.

Ld.A.P. failed to controvert this proposition of law as discussed above and also failed to produce any contrary law to the one laid down by Hon''ble Jharkhand High Court. In light of 2003 (2) RCR(Criminal) 135 (supra), I am of the opinion that accused in this case are entitled to the concession of bail u/s 167(2)(a)(ii) of Cr.P.C. And accordingly accused are ordered to be released on bail on furnishing personal bail bonds in the sum of Rs.50,000/- each with one surety in the like amount each failing which accused shall remain injudicial custody. Application stands disposed of.

Proviso to Sub-Section (2) of Section 167 Cr.P.C. reads as under:

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding -

(i) ninety days, when the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that Chapter.

While granting bail, the Magistrate had relied on some judgment of Jharkhand High Court reported in Sunil Kumar v. State of Jharkhand and others. 2003 (2) RCR(Criminal) 135.Counsel for accused-respondents Nos.2 and 3 had relied on judgments reported in Rajeev Chaudhary v. State of Delhi, 2001 (1) RCR(Cri) 754 and Nadeem Ahmed v. State, 2005 (1) RCR(Criminal) 525. Whereas counsel for the petitioner had relied on a judgment of Bombay High Court reported in State of Maharashtra v. Ketan Sheth Kantibhai Sheth and another, 2003 (3) RCR(Criminal) 210.

The case before Hon''ble Supreme Court was for offence u/s 386 IPC. In that case imprisonment could extend to 10 years and Hon''ble Supreme Court held that imprisonment could be for less than 10 years and, therefore, the Magistrate cold detain the accused for 60 days and not more. In the case reported as Nadeem Ahmed case (supra) the case was for offence under Sections 498-A and 306 IPC when bail was granted. Offence u/s 306 IPC is punishable with imprisonment which may extend to 10 years.

Offence u/s 304-B IPC is punishable with imprisonment which may extend to imprisonment for life, but minimum sentence prescribed is 7 years. In this case proviso a(i) of sub-section (2) of Section 167 Cr.P.C. was applicable when the offence was punishable for imprisonment for life. Merely because minimum sentence of seven years had been prescribed for offence u/s 304-B IPC, that will not mean that the court cannot sentence a person to imprisonment for life. Sentence upto and including imprisonment for life can always be awarded. I respectfully differ with the view taken by the Single Judge of Jharkhand High Court in Sunil Kumar''s case (supra).

Under these circumstances, the Magistrate had wrongly relied on Sunil Kumar''s case (supra) while granting bail. I hold that the order made by the Magistrate granting bail to the accused is erroneous.

Counsel for accused-respondent Nos. 2 to 4 had pointed out that these accused are now on bail for 1-1/2 years and they had not misused the concession of bail and the trial is nearing completion and, therefore, they should be allowed to remain on bail.

The fact that accused-respondents have not misused the concession of bail during the last 1-1/2 years will not mean that a wrong order granting bail to them should continue to prevail.

Under these circumstances this petition is accepted and order dated 10.1.2004 is set aside. The accused-respondents shall surrender before the trial court immediately, in any case on or before the next date of hearing. They shall be taken into custody. Since the earlier bail was u/s 167(2) Cr.P.C. and no on merits, these accused-respondents shall be at liberty to file regular application for bail before the trial court after they surrender and are taken into custody.