PRADEEP ALIAS PIDDI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) 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 under Section 167 (2), Cr. PC.

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

(3.) 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 under Section 304-B, 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 under Section 304-B, 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 under Section 304-B, IPC is 60 days and if the challan is not filed within 60 days then the accused is entitled to bail.