Shyamal Kumar Biswas vs State Of Chhattisgarh And Ors

Sanjay K. Agrawal, J

The complainant/petitioner herein calls in question the legality, validity and correctness of the impugned order dated 26/05/2020 (Annexure P/1), by

which the accused/respondent No. 2 herein has been admitted the privilege of default bail under Section 167(2)(a)(ii) of the CrPC by learned

Additional Sessions Judge, Raipur, on the following factual backdrop :-

2.1. On the report of the petitioner herein, offences punishable under Sections 420, 419, 467, 468, 120B read with Section 34 of IPC were registered

against respondent No. 2 herein and he was arrested on 30/12/2019. Thereafter, charge- sheet was filed against him on 06/03/2020 for the above-

stated offences.

2.2. The respondent No. 2 filed an application under Section 167(2)(a)(ii) of CrPC for grant of default bail stating inter alia that offences under

Sections 420, 419, 467, 468, 120B read with Section 34 of IPC are not punishable with imprisonment for more than ten years, therefore, the charge-

sheet ought to have been filed within sixty days from the date of first remand i.e. 30/12/2019 whereas it has been filed after the completion of sixty

days i.e. on 06/03/2020, as such, he is entitled to be released on default bail by virtue of Section 167(2)(a)(ii) of CrPC.

2.3. The said application was rejected by the trial Magistrate by order dated 06/03/2020 which was assailed by the respondent No. 2 before the

revisional Court. Learned Additional Sessions Judge, vide impugned order dated 26/05/2020, allowed the revision and extended the privilege of default

bail to the accused/respondent No. 2 holding that none of the offences registered against the accused/respondent No. 2 are punishable with

imprisonment for more than ten years and relied upon the decision rendered by this Court in Smt. Shalini Verma & Anr. v. State of Chhattisgarh

Cr.M.P. No. 2551/2018 decided on 13/03/2019 wherein it has been held that charge-sheet for offences punishable under Section 467 of IPC must be

filed within sixty days.

2.4. Calling in question the impugned order passed by learned Additional Sessions Judge, the instant petition under Section 482 of CrPC has been filed

by the complainant/petitioner in which return has been filed by the State as well as by the accused/respondent No. 1 opposing the petition.

Mr. Akash Kumar Kundu, learned counsel appearing for the petitioner, would submit that the decision of this Court rendered in Smt. Shalini Verma

(supra), to some extent, is contrary to the law laid down by the Supreme Court in the matter of Rakesh Kumar Paul v. State of Assam (2017) 15 SCC

67 as in the matter of Smt. Shalini Verma (supra), the concurring view of the Supreme Court in Rakesh Kumar Paul (supra) was not brought to the

notice of this Court, as such, for the offence under Section 467 of IPC, the punishment prescribed is life sentence as well as imprisonment for more

than ten years, therefore, the period for filing of charge-sheet would be within ninety days and not sixty days. Thus, learned Additional Sessions Judge

is absolutely unjustified in granting default bail to the accused/respondent No. 2 and the impugned order deserves to be set aside.

Mr. Hemant Kesharwani, learned counsel appearing for the accused/respondent No. 2, would support the impugned order and submit that learned

Sessions Judge has rightly granted default bail to the accused/respondent No. 2 and accordingly, the instant petition deserves to be dismissed.

I have heard learned counsel for the parties, considered their rival submissions made herein- above and perused the record with utmost

circumspection.

In order to decide the plea, it would be appropriate to notice the judgment rendered by the Supreme Court in Rakesh Kumar Paul (supra) wherein

Their Lordships considered the meaning of the term “not less than ten years†occurring in Section 167(2)(a)(i) of CrPC which provides a period

of ninety days for filing of charge-sheet when the investigation relates to offence punishable with death, imprisonment for life, or imprisonment for a

term not less than ten years.

In Rakesh Kumar Paul (supra), His Lordship Madan B. Lokur, J., authoring the main judgment, held as under :-

“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:

Offences which are punishable with death;

Offences which are punishable with imprisonment for life;

Offences which are punishable with a term not less than 10 years.

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.

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.

35 Second category comprises of those offences where the maximum punishment is life imprisonment.

The third category comprises of those offences which are punishable with a term not less than 10 years.

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 yearsâ€. 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.â€​

Similarly, in Rakesh Kumar Paul (supra) His Lordship Deepak Gupta, J. in his concurring view, held as under :-

“84.2. Section 167(2)(a)(i) of the Code is applicable only in cases where the accused is charged with (a) offences punishable with death and any

lower sentence; (b) offences punishable with life imprisonment and any lower sentence and (c) offences punishable with minimum sentence of 10

years.

84.3. In all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment then Section 167(2)

(a)(ii) will apply and the accused will be entitled to grant of ‘default bail’ after 60 days in case charge-sheet is not filed.

84.4. The right to get this bail is an indefeasible right and this right must be exercised by the accused by offering to furnish bail. â€​

In Rakesh Kumar Paul (supra), His Lordship Prafulla C. Pant, J. in his minority view, observed as under :-

“107. From the above analogy, I am of the opinion that the intention of the legislature was that if an offence was punishable with imprisonment

upto ten years, then it falls within the provision of Section 167(2)(a)(i) of the Code, and the permissible period for investigation is ninety days. The

intention of the Legislature in extending the permissible time period from sixty days to ninety days for investigation is to include the offences in which

sentence awardable is at least ten years or more. Therefore, as discussed above, though the expression “not less than ten years†used in Section

167(2)(a) (i) of the Code has created some ambiguity, the real intention of the legislature seems to include all such offences wherein an imprisonment

which may extend to ten years is an awardable sentence. In other words, for offences wherein the punishment may extend to ten years imprisonment,

the permissible period for filing charge sheet shall be ninety days, and only after the period of ninety days, the accused shall be entitled to bail on

default for non filing of the charge sheet. (In the present case, admittedly the charge sheet is filed within ninety days). I may further add that, since

the expression “not less than ten years†has caused ambiguity in interpretation, the best course for the legislature would be to clear its intention by

using the appropriate words.â€​

(ix) Thus, in Rakesh Kumar Paul (supra), the majority and even in the minority view, it has clearly been held that Section 167(2)(a)(i) would be

applicable only in cases where the accused is charged with :-

offences which are punishable with death;

offences which are punishable with imprisonment for life;

offences which are punishable with a term not less than 10 years.

As such, the period of filing charge-sheet would days.

13.10. The Gujarat High Court, in the matter of Manish @ Raju Devshibhai Chovadiya v. State of Gujarat 2018 CrLJ 2959 and the Delhi High Court,

in the matter of Lalita Saini v. State & Anr. 2019 SCC Online Del 9651 have also taken the similar view.

13.11. However, the Coordinate Bench in the matter of Smt. Shalini Verma (supra) has taken a view that for offence under Section 467 of IPC,

Section 167(2)(a)(ii) would apply and the period of filing charge-sheet would be sixty days. It has been held as under :-

“15. Reverting to the facts of the case in hand, assuming offence punishable u/S 467 of IPC is prima-facie made out against the petitioners which

reads thus:

Section 467 - 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 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 bare perusal of above section, it is clear that the punishment provided therein is 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, which shows that minimum sentence of imprisonment of 'not less than 10

years' is not there. And therefore, as held by Hon'ble the Supreme Court in the case of 'Rajeev Chaudhary (Supra)' and 'Rakesh Kumar Paul

(Supra)', since Section 467 of IPC is not an offence punishable with a minimum of 10 years imprisonment, the period of detention of the accused

person in custody would be sixty days instead of ninety (90) days. â€​

In my considered opinion, this appears to be in conflict with the concurring view in the decision rendered by the Supreme Court in Rakesh Kumar

Paul (supra) (in paragraph 84.2), therefore, the matter of Smt. Shalini Verma (supra) requires to be reconsidered. As such, in exercise of the power

conferred under Section 37(2)(ii) of the High Court of Chhattisgarh Rules, 2007, the matter is referred to the Hon'ble the Chief Justice for constituting

a larger Bench for consideration of the following stated question :-

“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, and 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) ?â€​

Let the matter be placed before Hon'ble the Chief Justice for constituting a larger Bench to decide the aforesaid question.