Pano Devi and Another vs State of Bihar

Mandhata Singh, J.—Heard learned Counsel for the petitioners and learned Counsel for the State.

Elaboration of the allegation is not needed as matter in controversy is quite a legal matter. Gravity of the allegation is only needed that the petitioners'' mother-in-law and brother-in-law (Nandosi) of the deceased accused for the offence of dowry death. After non-filing of the charge-sheet on completion of 60 days, a petition was filed on behalf of the learned Counsel for the petitioners for their release u/s 167(2) of the Code of Criminal Procedure, which is refused by passing the impugned order.

Legality, correctness and propriety of the same has been questioned through filing of this revision application. The only point to be determined in the case is whether the offence u/s 304B falls under the category u/s 167(2)(a)(i) or Section 167(2) runs as follows:

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that:

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

(i) ninety days, where 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 so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

Thus, it is clear that cases falling u/s 167(2)(a)(i) if charge-sheet is not submitted within 90 days, accused is entitled for bail without considering the merit of the case and if that falls u/s 167(2)(a)(ii) then after expiry of 60 days. Really, Magistrate is bound to release its he has no authority to keep the accused under detention.

Submission of the learned Counsel for the petitioners is that in offence u/s 304B minimum punishment which clan be awarded is 7 years less than 10 years. So, after lapse of 60 days, petitioners were entitled for their release. Learned Counsel relied upon a judgment of single Bench of the Jharkhand High Court reported in Sunil Kumar Vs. State of Jharkhand and Others,

Similar matter appeared before a Division Bench of this Court in Cr. W.J.C. No. 23 of 2007 (Upendra Singh alias Papu Singh v. The State of Bihar). Accused of that case was accusationed for the offence u/s 396 of the IPC in which punishment is death or imprisonment for life or rigorous imprisonment for 10 years and fine.

So, the gravity of the offence for submitting of the charge-sheet is observed from the side of maximum punishment. One of the punishments u/s 304B of the IPC is for life can also be awarded which never can be minimized in years and that is one of the three categories in which 90 days are allowed for filing of the charge-sheet. Thus, it appears that the learned Magistrate has rightly refused to release the petitioner on bail under the provisions of Section 167, Code of Criminal Procedure

Accordingly, the revision application is dismissed at the stage of admission itself.