Pradeep @ Piddi vs State of Madhya Pradesh

Subhash Samvatsa, J.

This revision is filed by the applicant accused challenging order dated 5-11-2004 passed by Judicial Magistrate Class I, Pohri in Criminal Case No. 485/2004 whereby the J.M.F.C. has rejected an application filed by the present applicant u/s 167(2), Cr.PC.

Brief facts of the case are that Crime No. 212/2004 is registered against the applicant for committing offence under Sections 306, 304B and 498A of the IPC.

Present applicant was arrested in connection with the said crime on 23-8-2004. Challan was filed against him on 5-11-2004. Present applicant filed an application on 29-10-2004 alleging that as challan is not filed against him within 60 days from the date of arrest hence he is entitled to bail in terms of Section 167(2), Cr.PC. Counsel for the applicant relied upon Sub-section (i) of Sub-section (2) (a) of Section 167, Cr.PC which provides that "where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years" then the applicant is entitled to be released on bail if the challan is not filed within 90 days. According to him Sub-section (ii) of the said Sub-section deals with other cases in which period of filing challan is 60 days. According to Counsel for the applicant the case of the applicant is not covered by Sub-clause (i) as punishment for offence u/s 304B, IPC, "is not less than 7 years but which may extend to imprisonment of life". Counsel for the applicant submits that as in the said offence minimum punishment is 7 years though it may extend to imprisonment of life challan should be filed within 60 days as the punishment in case of 304-B, IPC can be less than 3 years. For this purpose he relied upon the judgment of Delhi High Court in the case of State v. B.B. Singh and Ors. 2004(2) Crimes 562. In that case, the Delhi High Court has laid down that if the punishment could extend to imprisonment for life would not make it an offence where punishment is "not less than 10 years". For offence u/s 304B, IPC, the Court has option to award sentence of less than 10 years such case did not fall in the category of case for which sentence could be imprisonment for a period not less than 10 years. In that case the Delhi High Court has laid down that the period of filing challan for committing offence u/s 304B, IPC is 60 days and if the challan is not filed within 60 days then the accused is entitled to bail.

From perusal of the judgment of the Delhi High Court it appears that Delhi High Court has relied upon the judgment of Apex Court in the case of Rajeev Chaudhary Vs. State (N.C.T.) of Delhi, . After reading the judgment in the case of Rajeev Choudhary (supra), I find that in that case the offence was u/s 386, IPC and the sentence prescribed for committing offence u/s 386, IPC is "term which may extend to 10 years". Thus, in that case the Apex Court was dealing with a case in which the maximum punishment was for a period of 10 years. Hence, that case was definitely covered by Sub-clause (ii) of Sub-section (2) (a) of Section 167, Cr.PC. Thus, the Apex Court was not dealing with a case in which the imprisonment was more than 10 years.

For proper disposal of this case it is necessary to refer to language of Sub-clauses (i) and (ii) of Sub-section (2) (a) of Section 167, Cr.PC which reads as under :-

(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.

From bare reading of Sub-section (i) it is clear that 90 days period for filing challan is applicable to an offence punishable with death, imprisonment of life or imprisonment of term not less than 10 years. It appears that Delhi High Court has lost sight of the words "imprisonment of life or imprisonment of a term not less than 10 years".

The word "or" is used as disjunctive and can not be read as "and" which is conjunctive. Hence, the judgment of the Delhi High Court which is passed by ignoring the word "or" is per incuriam. Word "or" used in Sub-section itself makes it clear that the period of 90 days will be applicable to an offence where a punishment of imprisonment of life may be passed by the Court. For commission of offence u/s 304B, IPC Court is competent to pass a sentence of life imprisonment. Hence, the period of filing challan for committing offence u/s 304B, IPC will be 90 days and not 60 days.

In the result, I do not find any infirmity in the impugned order. Petition is, therefore, dismissed.