Full Judgment Text
2025 INSC 456
(REPORTABLE)
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No(s). 608/2021
STATE (NCT) OF DELHI …Appellant(s)
VERSUS
RAJEEV SHARMA …Respondent(s)
J U D G M E N T
1.
The present Appeal is directed
against the impugned judgment and
order dated 04.12.2020 passed by the
High Court of Delhi in Criminal
Revision Petition No. 363/2020
whereby, the High Court had disposed
of the said petition by granting the
respondent bail subject to the
Signature Not Verified
conditions mentioned therein.
Digitally signed by
NITIN TALREJA
Date: 2025.04.07
16:42:56 IST
Reason:
Criminal Appeal No. 608 of 2021 Page 1 of 14
2.
The broad facts leading to the
present Appeal are that,
i.
a case being FIR No.230/2020
came to be registered on
13.09.2020, at Police Station-
Special Cell, Delhi against the
Respondent - Accused for the
offence punishable under Section
3,4 and 5 of the Official
Secrets Act, 1923 (hereinafter
referred as “the Act”) and the
investigation was taken up by
the Special Cell, Delhi Police.
ii.
During the course of the
investigation, Section 120B of
the Indian Penal Code was also
added.
iii.
The Respondent - Accused was
arrested on 14.09.2020.
iv. A Bail Application was filed by
the Respondent, along with the
other accused and the same came
to be dismissed by the Chief
Criminal Appeal No. 608 of 2021 Page 2 of 14
Metropolitan Magistrate, Patiala
House Courts vide the order
dated 28.09.2020. The subsequent
application seeking regular bail
moved by the Respondent -
Accused, was also dismissed by
the learned ASJ, Patiala House
Courts vide the order dated
19.10.2020.
v.
It appears that the subsequent
bail applications filed by the
Respondent - Accused, were also
not granted by the concerned
Courts.
vi.
Ultimately, on 14.11.2020, the
Respondent - Accused moved an
application under Section 167(2)
of Code of Criminal Procedure
(for short ‘Cr.P.C.’) in the
Court of Chief Judicial
Magistrate/ Duty Magistrate,
Patiala House Courts, Delhi
seeking his release on bail on
the ground that 60 days period
Criminal Appeal No. 608 of 2021 Page 3 of 14
had expired since he was
arrested, and the charge-sheet
against him, was not filed.
vii.
The said Application filed under
Section 167(2) of Cr.P.C., also
came to be dismissed by the
Chief Judicial Magistrate/ Duty
Magistrate, Patiala House Courts
on 14.11.2020 by observing that
the 60 days period was yet to be
completed, however, it was
observed in the order that in
terms of the clause(ii) to
proviso(a) of Section 167(2) of
Cr.P.C., the statutory bail
would have to be considered, if
60 days had elapsed since the
day of the remand.
viii.
It appears that in view of the
said observations made in the
order dated 14.11.2020, the
Appellant - State (NCT) of Delhi
on 15.11.2020, filed a Revision
Petition being CR No. 57/2020
Criminal Appeal No. 608 of 2021 Page 4 of 14
before the ASJ, Patiala House
Courts.
ix.
Pending the Revision Petition
filed by the Appellant - State
(NCT) of Delhi, the Respondent -
Accused, on 15.11.2020, filed a
fresh petition under Section
167(2) of Cr.P.C. on similar
grounds as that of the earlier
one before the Chief Judicial
Magistrate/ Duty Magistrate,
Patiala House Courts, Delhi.
x. The fresh petition filed by the
Respondent also came to be
dismissed by the concerned Court
on 16.11.2020.
xi.
Being aggrieved by the said
Order, Respondent approached the
High Court of Delhi by filing
Criminal Revision Petition No.
363/2020 under Sections 397 read
with Sections - 401 and 482 of
Cr.P.C. The said Criminal
Revision Petition came to be
Criminal Appeal No. 608 of 2021 Page 5 of 14
allowed by the High Court.
xii.
Aggrieved by the said Order, the
Appellant - State (NCT of Delhi)
has filed the present Appeal.
3.
Heard learned counsels appearing for
the parties and perused the material
on record.
4.
The short question that falls for
consideration before this Court is,
whether the term imprisonment for a
term "not less than 10 years" in
clause(i) of the proviso(a) to
Section 167(2) Cr.P.C would include
an offence where the punishment of
14 years of imprisonment is
prescribed, but no minimum period of
imprisonment is prescribed for such
offence?
5.
The relevant provision of Section
167(2) reads as under: -
“167. Procedure when
investigation cannot be
completed in twenty-four hours.
Criminal Appeal No. 608 of 2021 Page 6 of 14
—
(1) …………………………………………………….
(2) The Magistrate to whom an
accused person is forwarded
under this section may, whether
he has or has not jurisdiction
to try the case, from time to
time, authorise the detention of
the accused in such custody as
such Magistrate thinks fit, for
a term not exceeding fifteen
days in the whole; and if he has
no jurisdiction to try the case
or commit it for trial, and
considers further detention
unnecessary, he may order the
accused to be forwarded to a
Magistrate having such
jurisdiction:
Provided that —
(a) the Magistrate may authorise
the detention of the accused
person, otherwise than in
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
Criminal Appeal No. 608 of 2021 Page 7 of 14
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;
(b) to (c) ……………………………………………….
(3) to (6) ……………………………………………….”
6.
From the bare reading of the said
clause(i) of the proviso(a) to
Section 167(2), it clearly appears
that the accused would be entitled
the benefit of default bail if the
investigation has not been completed
Criminal Appeal No. 608 of 2021 Page 8 of 14
in ninety days when it relates to an
offence punishable with death,
imprisonment for life or
imprisonment for a term of not less
than ten years and in sixty days
when it relates to any other
offence.
7.
In the instant case, the FIR against
the respondent, was registered for
the offence punishable under
Sections 3,4 and 5 of the Act read
with Section 120B of IPC. Section-3
of the said Act though, prescribes
maximum punishment up to 14 years,
there is no minimum punishment
provided under the said provision.
The punishment prescribed for the
offence punishable under Section-5
of the said Act, is maximum up to
three years. Since, the
investigation was not completed in
sixty days, the Respondent had
become entitled to the default bail
under Section 167(2)(a) of Cr.P.C.
Criminal Appeal No. 608 of 2021 Page 9 of 14
8.
In our opinion, the present case is
squarely covered by the majority
decision of three Judge Bench in
Rakesh Kumar Paul vs. State of
1
Assam . T he relevant part thereof
reads as under: -
“ 24. In the context of the word
“punishable” occurring in clause
(i) and the meaning attached to
this word taken from several
dictionaries, this Court held in
Bhupinder Singh [Bhupinder Singh
v. Jarnail Singh, (2006) 6 SCC
277: (2006) 3 SCC (Cri) 101]
that where a minimum and maximum
sentence is prescribed, both are
imposable depending upon the
facts of the case. Therefore, if
an offence is punishable with
imprisonment that may extend up
to or beyond or including 10
years, then the period available
for completing investigations
would be 90 days before the
provision for “default bail”
kicks in. It was said in para 15
of the Report: (SCC p. 282)
“15. Where minimum and
maximum sentences are
prescribed, both are
imposable depending on the
facts of the cases. It is
1
(2017) 15 SCC 67
Criminal Appeal No. 608 of 2021 Page 10 of 14
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.”
25. While it is true that merely
because a minimum sentence is
provided for in the statute it
does not mean that only the
minimum sentence is imposable.
Equally, there is also nothing
to suggest that only the maximum
sentence is imposable. Either
punishment can be imposed and
even something in between. Where
does one strike a balance? It
was held that it is eventually
for the court to decide what
sentence should be imposed given
the range available.
Undoubtedly, the legislature can
bind the sentencing court by
laying down the minimum sentence
(not less than) and it can also
lay down the maximum sentence.
If the minimum is laid down, the
sentencing Judge has no option
but to give a sentence “not less
Criminal Appeal No. 608 of 2021 Page 11 of 14
than” that sentence provided
for. Therefore, the words “not
less than” occurring in clause
(i) to proviso (a) of Section
167(2) CrPC (and in other
provisions) must be given their
natural and obvious meaning,
which is to say, not below a
minimum threshold and in the
case of Section 167 CrPC these
words must relate to an offence
punishable with a minimum of 10
years' imprisonment.”
9.
The said ratio laid down in Rakesh
Kumar Paul (supra) has been further
followed by this Court in the case
of M. Ravindran vs. The Intelligence
Officer, Directorate of Revenue
Intelligence (Criminal Appeal No.
699 of 2020) .
10.
In view of the afore-stated legal
position, which clinches the issue
raised in the present Appeal, we are
of the opinion that the High Court
has rightly followed the aforestated
decisions and released the
Respondent on bail.
11.
It may also be noted that this
Criminal Appeal No. 608 of 2021 Page 12 of 14
Appeal is pending before this Court
since last four years and the
benefit of default bail granted to
the Respondent - Accused by the High
Court has continued till this date.
12.
In view of the above, we do not find
any merit in this Appeal. However,
since the matter is pending before
the Trial Court for framing of
charge, the Trial Court is directed
to proceed further with the trial as
expeditiously as possible and in
accordance with law.
13.
The Appeal is dismissed accordingly.
14.
Pending application(s), if any,
shall stand closed.
...................J.
(BELA M. TRIVEDI)
...................J.
(PRASANNA B. VARALE)
New Delhi;
03.04.2025
Criminal Appeal No. 608 of 2021 Page 13 of 14
Criminal Appeal No. 608 of 2021 Page 14 of 14
(REPORTABLE)
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No(s). 608/2021
STATE (NCT) OF DELHI …Appellant(s)
VERSUS
RAJEEV SHARMA …Respondent(s)
J U D G M E N T
1.
The present Appeal is directed
against the impugned judgment and
order dated 04.12.2020 passed by the
High Court of Delhi in Criminal
Revision Petition No. 363/2020
whereby, the High Court had disposed
of the said petition by granting the
respondent bail subject to the
Signature Not Verified
conditions mentioned therein.
Digitally signed by
NITIN TALREJA
Date: 2025.04.07
16:42:56 IST
Reason:
Criminal Appeal No. 608 of 2021 Page 1 of 14
2.
The broad facts leading to the
present Appeal are that,
i.
a case being FIR No.230/2020
came to be registered on
13.09.2020, at Police Station-
Special Cell, Delhi against the
Respondent - Accused for the
offence punishable under Section
3,4 and 5 of the Official
Secrets Act, 1923 (hereinafter
referred as “the Act”) and the
investigation was taken up by
the Special Cell, Delhi Police.
ii.
During the course of the
investigation, Section 120B of
the Indian Penal Code was also
added.
iii.
The Respondent - Accused was
arrested on 14.09.2020.
iv. A Bail Application was filed by
the Respondent, along with the
other accused and the same came
to be dismissed by the Chief
Criminal Appeal No. 608 of 2021 Page 2 of 14
Metropolitan Magistrate, Patiala
House Courts vide the order
dated 28.09.2020. The subsequent
application seeking regular bail
moved by the Respondent -
Accused, was also dismissed by
the learned ASJ, Patiala House
Courts vide the order dated
19.10.2020.
v.
It appears that the subsequent
bail applications filed by the
Respondent - Accused, were also
not granted by the concerned
Courts.
vi.
Ultimately, on 14.11.2020, the
Respondent - Accused moved an
application under Section 167(2)
of Code of Criminal Procedure
(for short ‘Cr.P.C.’) in the
Court of Chief Judicial
Magistrate/ Duty Magistrate,
Patiala House Courts, Delhi
seeking his release on bail on
the ground that 60 days period
Criminal Appeal No. 608 of 2021 Page 3 of 14
had expired since he was
arrested, and the charge-sheet
against him, was not filed.
vii.
The said Application filed under
Section 167(2) of Cr.P.C., also
came to be dismissed by the
Chief Judicial Magistrate/ Duty
Magistrate, Patiala House Courts
on 14.11.2020 by observing that
the 60 days period was yet to be
completed, however, it was
observed in the order that in
terms of the clause(ii) to
proviso(a) of Section 167(2) of
Cr.P.C., the statutory bail
would have to be considered, if
60 days had elapsed since the
day of the remand.
viii.
It appears that in view of the
said observations made in the
order dated 14.11.2020, the
Appellant - State (NCT) of Delhi
on 15.11.2020, filed a Revision
Petition being CR No. 57/2020
Criminal Appeal No. 608 of 2021 Page 4 of 14
before the ASJ, Patiala House
Courts.
ix.
Pending the Revision Petition
filed by the Appellant - State
(NCT) of Delhi, the Respondent -
Accused, on 15.11.2020, filed a
fresh petition under Section
167(2) of Cr.P.C. on similar
grounds as that of the earlier
one before the Chief Judicial
Magistrate/ Duty Magistrate,
Patiala House Courts, Delhi.
x. The fresh petition filed by the
Respondent also came to be
dismissed by the concerned Court
on 16.11.2020.
xi.
Being aggrieved by the said
Order, Respondent approached the
High Court of Delhi by filing
Criminal Revision Petition No.
363/2020 under Sections 397 read
with Sections - 401 and 482 of
Cr.P.C. The said Criminal
Revision Petition came to be
Criminal Appeal No. 608 of 2021 Page 5 of 14
allowed by the High Court.
xii.
Aggrieved by the said Order, the
Appellant - State (NCT of Delhi)
has filed the present Appeal.
3.
Heard learned counsels appearing for
the parties and perused the material
on record.
4.
The short question that falls for
consideration before this Court is,
whether the term imprisonment for a
term "not less than 10 years" in
clause(i) of the proviso(a) to
Section 167(2) Cr.P.C would include
an offence where the punishment of
14 years of imprisonment is
prescribed, but no minimum period of
imprisonment is prescribed for such
offence?
5.
The relevant provision of Section
167(2) reads as under: -
“167. Procedure when
investigation cannot be
completed in twenty-four hours.
Criminal Appeal No. 608 of 2021 Page 6 of 14
—
(1) …………………………………………………….
(2) The Magistrate to whom an
accused person is forwarded
under this section may, whether
he has or has not jurisdiction
to try the case, from time to
time, authorise the detention of
the accused in such custody as
such Magistrate thinks fit, for
a term not exceeding fifteen
days in the whole; and if he has
no jurisdiction to try the case
or commit it for trial, and
considers further detention
unnecessary, he may order the
accused to be forwarded to a
Magistrate having such
jurisdiction:
Provided that —
(a) the Magistrate may authorise
the detention of the accused
person, otherwise than in
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
Criminal Appeal No. 608 of 2021 Page 7 of 14
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;
(b) to (c) ……………………………………………….
(3) to (6) ……………………………………………….”
6.
From the bare reading of the said
clause(i) of the proviso(a) to
Section 167(2), it clearly appears
that the accused would be entitled
the benefit of default bail if the
investigation has not been completed
Criminal Appeal No. 608 of 2021 Page 8 of 14
in ninety days when it relates to an
offence punishable with death,
imprisonment for life or
imprisonment for a term of not less
than ten years and in sixty days
when it relates to any other
offence.
7.
In the instant case, the FIR against
the respondent, was registered for
the offence punishable under
Sections 3,4 and 5 of the Act read
with Section 120B of IPC. Section-3
of the said Act though, prescribes
maximum punishment up to 14 years,
there is no minimum punishment
provided under the said provision.
The punishment prescribed for the
offence punishable under Section-5
of the said Act, is maximum up to
three years. Since, the
investigation was not completed in
sixty days, the Respondent had
become entitled to the default bail
under Section 167(2)(a) of Cr.P.C.
Criminal Appeal No. 608 of 2021 Page 9 of 14
8.
In our opinion, the present case is
squarely covered by the majority
decision of three Judge Bench in
Rakesh Kumar Paul vs. State of
1
Assam . T he relevant part thereof
reads as under: -
“ 24. In the context of the word
“punishable” occurring in clause
(i) and the meaning attached to
this word taken from several
dictionaries, this Court held in
Bhupinder Singh [Bhupinder Singh
v. Jarnail Singh, (2006) 6 SCC
277: (2006) 3 SCC (Cri) 101]
that where a minimum and maximum
sentence is prescribed, both are
imposable depending upon the
facts of the case. Therefore, if
an offence is punishable with
imprisonment that may extend up
to or beyond or including 10
years, then the period available
for completing investigations
would be 90 days before the
provision for “default bail”
kicks in. It was said in para 15
of the Report: (SCC p. 282)
“15. Where minimum and
maximum sentences are
prescribed, both are
imposable depending on the
facts of the cases. It is
1
(2017) 15 SCC 67
Criminal Appeal No. 608 of 2021 Page 10 of 14
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.”
25. While it is true that merely
because a minimum sentence is
provided for in the statute it
does not mean that only the
minimum sentence is imposable.
Equally, there is also nothing
to suggest that only the maximum
sentence is imposable. Either
punishment can be imposed and
even something in between. Where
does one strike a balance? It
was held that it is eventually
for the court to decide what
sentence should be imposed given
the range available.
Undoubtedly, the legislature can
bind the sentencing court by
laying down the minimum sentence
(not less than) and it can also
lay down the maximum sentence.
If the minimum is laid down, the
sentencing Judge has no option
but to give a sentence “not less
Criminal Appeal No. 608 of 2021 Page 11 of 14
than” that sentence provided
for. Therefore, the words “not
less than” occurring in clause
(i) to proviso (a) of Section
167(2) CrPC (and in other
provisions) must be given their
natural and obvious meaning,
which is to say, not below a
minimum threshold and in the
case of Section 167 CrPC these
words must relate to an offence
punishable with a minimum of 10
years' imprisonment.”
9.
The said ratio laid down in Rakesh
Kumar Paul (supra) has been further
followed by this Court in the case
of M. Ravindran vs. The Intelligence
Officer, Directorate of Revenue
Intelligence (Criminal Appeal No.
699 of 2020) .
10.
In view of the afore-stated legal
position, which clinches the issue
raised in the present Appeal, we are
of the opinion that the High Court
has rightly followed the aforestated
decisions and released the
Respondent on bail.
11.
It may also be noted that this
Criminal Appeal No. 608 of 2021 Page 12 of 14
Appeal is pending before this Court
since last four years and the
benefit of default bail granted to
the Respondent - Accused by the High
Court has continued till this date.
12.
In view of the above, we do not find
any merit in this Appeal. However,
since the matter is pending before
the Trial Court for framing of
charge, the Trial Court is directed
to proceed further with the trial as
expeditiously as possible and in
accordance with law.
13.
The Appeal is dismissed accordingly.
14.
Pending application(s), if any,
shall stand closed.
...................J.
(BELA M. TRIVEDI)
...................J.
(PRASANNA B. VARALE)
New Delhi;
03.04.2025
Criminal Appeal No. 608 of 2021 Page 13 of 14
Criminal Appeal No. 608 of 2021 Page 14 of 14