RAMBABU Vs. STATE OF RAJASTHAN

LAWS(RAJ)-2011-5-186

HIGH COURT OF RAJASTHAN

Decided on May 18,2011

RAMBABU Appellant

VERSUS

STATE OF RAJASTHAN Respondents

JUDGEMENT

S.S. Kothari, J. - (1.) 12. It is clear on a bare reading of the provisions of Section 304 -B (supra) that the term of imprisonment provided for the commission of an offence punishable under Section 304 -B of the Indian Penal Code is imprisonment for life but it should not be less than seven years. The intention of the Legislature in providing that the imprisonment under this Section shall not be less than seven years, is to award severe punishment to the guilty person, therefore, by providing the minimum period of imprisonment of seven years, the Legislature intended to prevent the Courts from passing a sentence of less than seven years when a case under Section 304 -B of the Indian Penal Code is proved, and thus, the discretion of the Court to pass a sentence of less than seven years has been ousted. The Court in its discretion, however, may pass a sentence of imprisonment which may extend to imprisonment for life but the imprisonment so awarded should not be less than seven years. Therefore, for the purpose of the proviso to sub -section (2) of Section 167 of the Code supra, the expression "imprisonment for term of not less than ten years" as used therein will apply only to the cases wherein the maximum provided punishment of imprisonment is less than ten years and not to such cases where the law provides maximum punishment of imprisonment of ten or more years but also provides a minimum sentence of less than ten years imprisonment. 16. Relying on the aforesaid two Division Bench decisions of Patna High Court, I also endorse the same view that for deciding as to whether section 167(2)(a)(i) Cr.P.C. or 167(2)(a)(ii) Cr.P.C. would apply, the maximum punishment provided under the particular offence under the IPC has to be taken into consideration and not the minimum period of sentence provided thereunder. 17. As noticed above, the Supreme Court also in the case of Rajeev Chaudhary ( : AIR 2001 SC 2369: 2001 Cri LJ 2941) (supra) has held that where the offence is punishable with imprisonment for 10 years or more, the accused could be detained up to a period of 90 days. 18. Regarding the decision of the learned single Judge of this Court in the case of Sunil Kumar (2002 AIR -Jhar HCR 499: 2002 Cri LJ 2507) (supra) as it appears that the decision of the Supreme Court in the case of Rajeev Chaudhary reported in : (2001) 5 SCC 34 : ( : AIR 2001 SC 2369 : 2001 Cri LI 2941) was not brought to the notice of that Court. .....In view of the aforesaid decision, para 3 gives the facts and para 6 declares the law. Looking to para 6 of the aforesaid decision, it has been held by Hon'ble Supreme Court that if any offence is proved against the accused is 10 years or more, maximum sentence is to be seen and, therefore, in such type of cases, period of filing of charge -sheet/challan is ninety days and not sixty days. In view of the aforesaid para, this judgment is against the respondent and this view is propounded by the Hon'ble Supreme Court in the decision reported in 2006 Cri. LJ 3621. 9. From perusal of provisions of Section 167(2)(a)(i). It is clear that where punishment provided is death or up to life imprisonment, the statutory period for submission of charge -sheet from the date of detention is 90 days and not 60 days. In that view of the matter, the decisions upon which the learned counsel for the state has placed reliance which clearly show that where punishment provided is death or up to life imprisonment, then in that case statutory period for submission of charge -sheet from the date of detention will be 90 days and not 60 days. ....Under sub -section (2) of Section 304 B IPC, the punishment has been provided for a term, which is not less than seven years but which may extend to imprisonment for life. Quantum of punishment cannot be ascertained at the stage of investigation of the case because the sentence can only be determined and awarded by the Courts after conclusion of trial of each case and after recording the order of conviction. Therefore, at the stage of investigation, the maximum punishment prescribed for the offence is relevant for the purpose of proviso (a) to Section 167(2) Cr.P.C. In number of offences, in Indian Penal Code, various types of or alternative punishments have been prescribed. The punishment has been defined under Section 53 of the IPC. The minimum sentence prescribed for an offence is not relevant for the purpose of proviso (a) to Section 167(2) Cr.P.C. Under Section 396 IPC, the punishment prescribed is death or imprisonment for life or rigorous imprisonment for a term which may extend to 10 years, and shall also be liable to fine. Similarly, under Section 305 IPC, the sentence prescribed is death or imprisonment for life or imprisonment for a term not exceeding 10 years and also be liable to fine. In these offences, sentence of death or imprisonment for life may be and may not be passed and passing of sentence depends on facts and circumstances of each case. In these offences, the imprisonment can be up to ten years also. However, if other sentence prescribed, i.e. death or imprisonment for life is not taken into consideration and only imprisonment for a term not exceeding 10 years, is taken into consideration, then the accused shall have to be released on bail under Section 167(2) Cr.P.C. if charge -sheet is not filed within a period of 60 days. The word "punishable" has been used in clause (i) of proviso (a) to Section 167(2) Cr.P.C., which clearly shows that if punishment is up to life imprisonment also, then clause (i) of proviso (a) to Section 167(2) Cr.P.C. would be attracted. 38. In view of the above discussion, it is clear that the offence under Section 304B IPC is punishable for imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life, therefore, provisions of clause (i) of proviso (a) to Section 167(2) Cr.P.C. would be attracted and there is no dispute that in the present case, charge -sheet has been filed within a period of 90 days, therefore, the petitioners are not entitled for bail under Section 439 read with Section 167(2) Cr.P.C. Accordingly, the bail application of the petitioners is dismissed. 15. Where minimum and maximum sentences are prescribed both are imposable depending on the facts of the cases. It is for the Court, after recording conviction, to impose appropriate sentence. It cannot, therefore, be accepted that only the minimum sentence is imposable and not the maximum sentence. Merely because minimum sentence is provided that does not mean that the sentence imposable is only the minimum sentence. The High Courts view in the impugned order that 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 that 90 days is the period, have expressed the correct view. Therefore, on that ground alone the appeal fails... 21. A residuary plea was taken by Mr. D.K. Garg, learned counsel for the appellant that the bail was granted on 11.2.2005 and was cancelled on 10.11.2005. It is stated that these is no allegation against that the appellant had misused the liberty of bail from the date of grant of bail upto the date of cancellation or thereafter as the order of cancellation has been stayed. At the stage of consideration of the bail application in terms of Section 167(2) there was no consideration on the merits of the case. Let the appellants surrender forthwith to custody. It is, however, open to them to move for bail which shall be considered in its own perspective. We make it clear that we have not expressed any opinion on merits. The appeal is allowed.;

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