SUPREME COURT OF INDIA
Bhupinder Singh & Ors – Petitioner
Jarnail Singh & Anr – Respondent
Bench – Arijit Pasayat, S.H. Kapadia
Facts of the Case
On 16.4.2003 appellant No.1-Bhupinder Singh was married to Smt. Kamaljit Kaur (hereinafter referred to as the ‘deceased’). On 2.8.2004 she was found dead. On the allegation that the appellants had committed murder of the deceased, First Information Report (in short the ‘FIR’) was lodged by the Respondent Jarnail Singh and on that basis appellants 1 and 2 (Bhupinder and Balwinder) were arrested on 5.8.2004. Subsequently on 7.8.2004 appellant No.3 (Kanwaljit Kaur) was arrested. Prayer for bail was made before the learned Judicial Magistrate, Ist Class, Batala on 4.11.2004 who refused to grant bail to the appellants. Their stand before the Court in essence was that since challan was not filed in time, they were entitled to bail in terms of Section 167(2)(a)(ii) of the Code of Criminal Procedure, 1973 (in short the ‘Cr.P.C.’). Learned Magistrate rejected the application stating that the challan was presented in court prior to the completion of 90 days and therefore, it was presented within the prescribed period. The order was challenged before the learned Sessions Judge, Gurdaspur who granted bail relying on certain decisions of the Delhi High Court and Karnataka High Court (State v. B.B. Singh [2005 (1) Chandigarh Law Reporter 135], Amer v. State of Karnataka [2005 (1) Recent Criminal 107], and Nadeem Ahmed v. State [2004 Cr.L.J. 4798] holding that in relation to Section 304(B) of the Indian Penal Code, 1860 (in short the ‘IPC’) period of 60 days of remand would be applicable and not 90 days for the purpose of Section 167(2)(a)(ii). Questioning correctness of the said decision a revision petition was filed before the High Court by the complainant-respondent No.1. The High Court referring to the proviso to sub-section (2) of Section 167 Cr.P.C held that the period during which the challan has to be filed is 90 days and not 60 days as held by the learned Sessions Judge. Therefore, the order granting bail to the appellants was set aside.
Issues Involved
The main issues involved in this case are ;
- Is the time limit for filing a challan in a case involving an infraction punishable under Section 304(B) 90 days or 60 days?
- Does simply filing a challan without any supporting documentation fulfil Section 167(2)(a)’s requirement that the challan be filed within a certain amount of time?
Contentions of petitioner
Petitioner contended that the view taken by the High Court is correct. In reply to this stand about the defective challan, learned counsel for the respondents submitted that the challan was in fact filed, some documents were filed later on, and that did not make the challan,filed within 60 days, incomplete. The points raised need careful consideration.
Contentions of respondent
The respondent contended that in his view and the High Court has erred in holding that the period is 90 days and not 60 days. It was further submitted that though it was the stand of the State that the challan was filed within a period of 60 days it is contrary to the materials on record. The challan which had been filed was incomplete and in fact requisite documents did not accompany it.
Legal Provisions
- Sections 304(B) IPC
- Section 167(2)(a) Cr.PC
Legal Reasoning
304B (IPC)
Dowry death (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation.–For the purpose of this sub- section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.]
167 Cr.PC
Procedure when investigation can not be completed in twenty four houses.-
(2) Provided that
(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, 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 to released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
A bare reading of Section 304(B) IPC shows that whoever commits “dowry death” in terms of Section 304(B) IPC shall be punished with an imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life. In other words, the minimum sentence is 7 years but in a given case a sentence of imprisonment for life can be awarded. Put differently, sentences of imprisonment for life can be awarded in respect of an offence punishable under Section 304(B) IPC. Proviso to sub-section (2) of Section 167 consists of three parts. The first part relates to the power of the Magistrate to authorise detention of the accused person. This part consists of two sub-parts. In positive terms it prescribes that no Magistrate shall authorize detention of the accused in custody, under this paragraph [meaning sub-section (2)(a)] for a total period exceeding (i) 90 days where the investigation relates to an offence punishable under death, imprisonment for life or imprisonment for a terms of not less than 10 years (ii) 60 days where the investigation relates to any other offences. The period of 90 days is applicable to cases where the investigation relates to the three categories of offences which are punishable with (i) death, (ii) imprisonment for life; or (iii) imprisonment for a term of not less than ten years. The question is whether Section 304(B) is an offence “punishable” with imprisonment for life. Strong reliance was placed by Mr. D.K. Garg, learned counsel appearing for the appellant on the decision in Rajeev Chaudhary v. State (N.C.T.) of Delhi (AIR 2001 SC 2369). A reference is also made to the decisions of the Jharkhand, Delhi and Karnataka High Court where the ratio in Rajiv Chaudhary’s case (supra) has been made applicable to cases involving offence punishable under Section 304(B) IPC. The Jharkhand High Court’s decision is Sunil Kumar v. State of Jharkhand and Ors. (2003 (2) RCR (Criminal) 135). Contrary view appears to have been taken by the Rajasthan and the Himachal Pradesh High Courts in Keshav Dev and Ors. v. State of Rajasthan (2005 Cr.LJ 3306), and State of Himachal Pradesh v. Lal Singh (2003 Cr.LJ 1668). The Punjab and Haryana High Court appears to have taken a somewhat different view in two different cases. In Kuldeep Singh v. State of Punjab RCR (Criminal) 599 it was held that the period is 90 days, as has been held in the case at hand. But a different view (though in relation to some other offences) was taken in Abdul Hamid and Another (Crl. Misc. No. 40599 M of 2005 disposed of on 21st September, 2005). A bare reading of Rajiv Chaudhary’s case (supra) shows that the same is related to an offence punishable under Section 386 IPC and the sentence in respect of the said offence is not less than 10 years. This court held that the expression “not less than” means that the imprisonment should be 10 years or more to attract a 90 days period. In that context it was said that for the purpose of clause (i) of proviso (a) of Section 167(2) Cr.PC the imprisonment should be for a clear period of 10 years or more. The position is different in respect of the offence punishable under Section 304(B) IPC. In case of Section 304(B) the range varies between 7 years and imprisonment for life. What should be the adequate punishment in a given case has to be decided by the Court on the basis of the facts and circumstances involved in the particular case. The stage of imposing a sentence comes only after recording the order of conviction of the accused person. The significant word in the proviso is “punishable”. The word “punishable” as used in statutes which declare that certain offences are punishable in a certain way means liable to be punished in the way designated. It is ordinarily defined as deserving of or capable or liable to punishment, capable of being punished by law or right, may be punished or liable to be punished, and not must be punished.
In Bouviers Law Dictionary meaning of the word “punishable”, has been given as “liable to
punishment”. In “Words and Phrases” (Permanent Edition) following meaning is given:-
“The word “punishable” in a statute stating that a crime is punishable by a designated penalty or term of years in the State prison limits the penalty or term of years to the amount or term of years stated in the statute”.
“Corpus Juris Secundum” gives the meaning as:
“Deserving of or liable to, punishment; capable of being punished by law or right; said of persons or offences. The meaning of the term is not “must be punished” but “may be punished” or “liable to be punished”. While dealing with a case relating to Punjab Borstal Act, 1926, this Court held that a person convicted under Section 302 IPC and sentenced to life imprisonment is not entitled to benefit of Section 5 of the said Act as offence of murder is punishable with death. (See Sube Singh and Ors. v. State of Haryana and Ors. (1989 (1) SCC 235). Where minimum and maximum sentences are prescribed both are impossible depending on the facts of the cases. It is for the Court, after recording conviction, to impose appropriate sentences. It cannot, therefore, be accepted that only the minimum sentence is imposable and not the maximum sentence. Merely because a 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 the permissible period of filing of challan is 90 days is the correct view. Contrary view expressed by Jharkhand, Delhi and Karnataka High Courts is not correct. Himachal Pradesh, Rajasthan and Punjab and Haryana High Courts taking the view 90 days is the period have expressed the correct view. Therefore, on that ground alone the appeal fails. But since another point urged for consideration which as noted above arises in many cases, we are considering that matter. In Tar Singh v. The State (AIR 1951SC 441) four Judge Bench of this Court inter-alia had examined the effect of supplementary report. The contents of the report as required to be given under Section 173(1)(a) of Criminal Procedure Code, 1898 (in short the ‘old Code’) were examined. In para 14 it was noted as follows :-
“When the police drew up their challan of the 2nd October, 1949, and submitted it to the court on the 3rd, they had in fact completed their investigation except for the report of the Imperial Serologist and the drawing of a sketch map of the occurrence. It is always permissible for the Magistrate to take additional evidence not set out in the challan. Therefore the mere fact that a second challan was put in on the 5th October would not necessarily vitiate the first. All that section 173(1)(a) requires is that as soon as the police investigation under Chapter XIV of the Code is complete, there should be forwarded to the Magistrate a report in the prescribed form : “Setting forth the names of the parties, the nature of the information and the names of the person who appear to be acquainted with the circumstances of the case.” All that appears to have been done in the report of the 2nd October which the police called their incomplete challan. The witnesses named in the second challan of the 5th October were not witnesses who were “acquainted with the circumstances of the case.” They were merely formal witnesses on other matters. So also in the supplementary challan of the 19th. The witnesses named are the 1st Class Magistrate, Amritsar, who recorded the dying declaration, and the Assistant Civil Surgeon. They are not witnesses who were “acquainted with the circumstances of the case.” Accordingly, the challan which the police called an incomplete challan was in fact a completed report of the kind which section 173(1)(a) of the Code contemplates. There is no force in this argument and we hold that the Magistrate took proper cognisance of the matter.”
Judgement
The High Court referring to the proviso to sub-section (2) of S. 167, Cr. P.C. held that the period during which the challan has to be filed is 90 days and not 60 days as held by the learned Sessions Judge. Therefore, the order granting bail to the appellants was set aside.
Conclusion
In my opinion the question of challan for serious crimes have to be on 90 days as mentioned in the Code of Criminal Procedure 1973. So the decisions made by the Sessions court is wrong and that was not applicable. Therefore the High Court’s decision is right.
written by SHIBIN P intern under legal vidhiya
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