Full Judgment Text
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CASE NO.:
Appeal (crl.) 757 of 2006
PETITIONER:
Bhupinder Singh & Ors
RESPONDENT:
Jarnail Singh & Anr
DATE OF JUDGMENT: 13/07/2006
BENCH:
ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
JUDGMENT
(Arising out of S.L.P. (Crl.) No. 5850 of 2005)
ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the order passed by a
learned Single Judge of the Punjab and Haryana High Court
cancelling the bail granted to the appellants.
Factual background in a nutshell is as under:
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
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 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.
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According to learned counsel for the appellant learned
Sessions Judge was correct 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.
Per contra learned counsel for the complainant and State
of Punjab submitted 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 needs careful consideration.
Sections 304(B) IPC and Section 167(2)(a) Cr.PC read as
follows:
"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)\005\005
Provided that \026
(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\027
(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
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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;]
Two questions that essentially arise for consideration are
as follows:
(a) In a case involving offence punishable under
Section 304 (B) is the period for filing challan 90
days or 60 days?
(b) Does mere filing of challan without relevant
documents satisfy the requirement of filing the
challan within a stipulated period for the
purpose of Section 167(2)(a)?
So far as the factual position is concerned there is no
dispute that all the relevant documents were before the Court
before expiry of 90 days. In case it is held that the period is
90 days and not 60 days in relation to an offence punishable
under Section 304 (B) IPC, the second question would become
academic so far as the facts of the present case are concerned.
But this question crops up in a large number of cases.
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 sentence of imprisonment for life can be awarded.
Put differently, sentence 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 power of 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.
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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 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 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 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 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
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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 Court’s 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 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 Tara 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."
Section 173 of the Cr.P.C. deals with report of police
officer on completion of investigation. The said provision so far
as relevant reads as follows :
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"173. Report of police officer on completion of
investigation \026
(1) Every investigation under this Chapter
shall be completed without unnecessary
delay.
(2) (i) As soon as it is completed, the officer in
charge of the police station shall forward to a
Magistrate empowered to take cognizance of the
offence on a police report, a report in the form
prescribed by the State Government, stating \026
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to
be acquainted with the circumstances of
the case;
(d) whether any offence appears to have been
committeed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his
bond and, if so, whether with out without
sureties;
(g) whether he has been forwarded in
custody under section 170.
(ii) The officer shall also communicate, in such
manner as may be prescribed by the State
Government, the action taken by him, to the
person, if any whom the information relating to
the commission of the offence was first given.
(3) Where a superior officer of police has been
appointed under section 158, the report shall, in
any case in which the State Government by general
or special order so directs, be submitted through
that officer, and he may, pending the orders of the
Magistrate, direct the officer in charge of the police
station to make further investigation.
(4) Whenever it appears from a report forwarded
under this section that the accused has been
released on his bond, the Magistrate shall make
such order for the discharge of such bond or
otherwise as he thinks fit.
(5) When such report is in respect of a case to
which Section 170 applies, the police officer shall
forward to the Magistrate along with the report \026
(a) all documents or relevant extracts thereof
on which the prosecution proposes to rely
other than those already sent to the Magistrate
during investigation;
(b) the statements recorded under section
161 of all the persons whom the prosecution
proposes to examine as its witnesses.
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(6) If the police officer is of opinion that any part
of any such statement is not relevant to the subject
matter of the proceeding or that its disclosure to the
accused is not essential in the interests of justice
and is inexpedient in the public interest, he shall
indicate that part of the statement and append a
note requesting the Magistrate to exclude that part
from the copies to be granted to the accused and
stating his reasons for making such request.
(7) Where the police officer investigating the case
finds it convenient so to do, he may furnish to the
accused copies of all or any of the documents
referred to in sub-section(5)".
In the instant case undisputedly the challan was filed on
30.10.2004 and the trial court passed an order to the effect
that the Ahlmad was to check and report. The Ahlmad
examined the challan and noted as follows :
"Challan checked and found that negatives of
the three photographs are not attached with."
The negatives were filed on 1.11.2004 and it was
indicated that "Challan checked, found correct".
In Satya Narain Musadi and Ors. v. State of Bihar (AIR
1980 SC 506) dealing with the Section 11 of the Essential
Commodities Act, 1955 held as follows:
"Section 11 of the Act precludes a Court
from taking cognizance of the offence
punishable under the Act except upon a report
in writing of the facts constituting such offence
made by a person who is a public servant as
defined in Section 21 of the Indian Penal Code.
The question is, if such police officer
investigating into an offence which the Act has
declared as cognizable submits a report in
writing under Section 173(2) disclosing an
offence under the Act and requesting for
proceeding further into the matter, would it
satisfy the requirements of Section 11 for
taking cognizance of the offence so disclosed?
Undoubtedly the police officer submitting the
report would be a public servant within the
meaning of S.21 and his report has to be in
writing as required by Section 173(2). It must
disclose an offence of which cognizance can be
taken by the Magistrate.
Section 173(2) thus provides what the
report in the prescribed form should contain.
In this case the report did contain the name of
the accused and the nature of the offence. In
fact Section 170 provides that if upon an
investigation under Chapter XII it appears to
the officer in charge of the police station that
there is sufficient evidence or reasonable
ground to proceed against the accused such
officer shall forward the accused under custody
to a Magistrate empowered to take cognizance
of the offence upon a police report, etc. If the
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accused is on bail that fact will be notified in
the final report submitted under Section 173(2)
would be complied with if the various details
therein prescribed are included in the report.
This report is an intimation to the Magistrate
that upon investigation into a cognizable
offence the investigating officer has been able to
procure sufficient evidence for the Court to
inquire into the offence and the necessary
information is being sent to the Court. In fact,
the report under Section 173(2) purports to be
an opinion of the investigating officer that as
far as he is concerned he has been able to
procure sufficient evidence for the trial of the
accused by the Court and when he states in the
report not only the names of the accused, but
names of the witnesses, the nature of the
offence and a request that the case be tried,
there is compliance with Section 173(2). The
report as envisaged by Section 173(2) has to be
accompanied as required by sub-Section (5) by
all the documents and statements of the
witnesses therein mentioned. One cannot
divorce the details which the report must
contain as required by sub-Section (2) from its
accompaniments which are required to be
submitted under sub-section 5. The whole of it
is submitted as a report to the Court. But even
if a narrow construction is adopted that the
police report can only be what is prescribed in
Section 173(2) there would be sufficient
compliance if what is required to be mentioned
by the statute has been set down in the report.
To say that all the details of the offence must
be set out in the report under Section 173(2)
submitted by the police officer would be
expecting him to do something more than what
the Parliament has expected him to set out
therein. If the report with sufficient
particularity and clarity specifies the
contravention of the law which is the alleged
offence, it would be sufficient compliance with
Section 11. The details which would be
necessary to be proved to bring home the guilt
to the accused would emerged at a later stage,
when after notice to the accused a charge is
framed against him and further in the course of
the trial. They would all be matters of evidence
and Section 11 does not require the report to
be or to contain the evidence in support of the
charge, its function being merely to afford a
basis for enabling the Magistrate to take
cognizance of the case (see Bhagwati Saran v.
State of Uttar Pradesh, 1961 (3) SCR 563).
In this connection Mr. Nag referred to
Rachpal Singh v. Rex. (AIR 1949 Oudh 66)
wherein after observing that the failure to
mention facts constituting the contravention of
a rule means the absence in the report of the
very first of the numerous steps in the course
of the trial of something which is vital and goes
to the very root of the case, a further contention
on behalf of the State that the Court may at
that stage look into the first information report
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filed in the case was negatived. This very
narrow view of the matter does not commend to
us. In fact, on the introduction of Section 173
in its form in the Code of Criminal Procedure,
1973, the police officer investigating into a
cognizable offence is under a statutory
obligation to submit alongwith his report under
Section 173(2) documents purporting to furnish
evidence collected in the course of investigation
and the statements of the witnesses and the
court before proceeding into the case under a
duty to inquire whether the accused has been
furnished with copies of all relevant documents
received under Section 173 by the Court, and
the entire complexion of what should normally
be styled as report submitted under Section
173(2) of the Code has undergone a change.
Court can look at the report in prescribed form
along with its accompaniments for taking
cognizance of the offence."
Stand of learned counsel for the appellant was that the
mere filing of the defective challan was really of no
consequence. This aspect has been dealt with in Tara Singh’s
and Satya Narain’s cases (supra) in detail. Since all the
relevant documents were before the Court before expiry of 90
days period, grievance of the appellant is sans merit.
It would be appropriate if original photographs relied
upon are filed along with the report under Section 173(2) of
Cr.P.C., and can be taken back with permission of the Court
to be produced as and when required. Alternatively, the zerox
copies can be filed along with a certificate that they can be
compared with the originals, as and when so directed by the
Court.
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
there 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.