Accused entitled for default bail after 60 days for offences punishable with 'imprisonment up to 10yrs', Rules SC by 2:1 majority
Rakesh Kumar Paul Vs State of Assam
SPECIAL LEAVE TO APPEAL (CRL.) NO. 2176 OF 2017
About/from the judgment:
Supreme Court held that an accused is entitled to statutory bail (default bail) under Section 167(2)(a)(2) of Code of Criminal procedure if the police failed to file the charge-sheet within 60 days of his arrest for the offence punishable with ‘imprisonment up to 10 years.
The Bench of Justices Madan Lokur, Prafulla C Pant and Deepak Gupta was hearing an appeal filed by former Chairman of Assam Public Service Commission Rakesh Kumar Paul against Gauhati High Court order upholding the Special Judge’s order denying him the statutory bail for the offence punishable under Sections 7,13(1)(b)(2) of the Prevention of Corruption Act 1988.
Justices Madan Lokur and Deepak Gupta allowed the appeal and directed to enlarge the appellant on bail, Justice PC Pant dismissed the appeal.
The main question in this case was ‘whether in a case regarding offence for which the punishment imposable may extend upto ten years, the accused is entitled to bail under Section 167(2) of the Code of Criminal Procedure 1973 due to default on the part of investigating agency in not filing the charge sheet within sixty days?
According to the State the appellant was liable for punishment for an offence, inter alia, under Section 13(1) of the PC Act, the offence being “punishable with imprisonment for a term which shall be not less than four years but which may extend to ten years” and fine. Therefore, the view of the State is that since the petitioner could face imprisonment that could extend to 10 years, the date for applying for ‘default bail’ would commence on the expiry of 90 days. However, according to the petitioner the date for obtaining ‘default bail’ would commence on the expiry of 60 days.
Justice Lokur observed that if the minimum is laid down, the sentencing judge has no option but to give a sentence “not less than” that sentence provided for. Therefore, the words “not less than” occurring in Clause (i) to proviso (a) of Section 167(2) of the Cr.P.C. (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 of the Cr.P.C. these words must relate to an offence punishable with a minimum of 10 years imprisonment.
“Offences punishable with imprisonment of not less than ten years have been kept in one compartment equating them with offences punishable with death or imprisonment for life. This category of offences undoubtedly calls for deeper investigation since the minimum punishment is pretty stiff. All other offences have been placed in a separate compartment, since they provide for a lesser minimum sentence, even though the maximum punishment could be more than ten years imprisonment”.
Justice Lokur concluded that the petitioner had satisfied all the requirements of obtaining ‘default bail’ which is that on 11th January, 2017 he had put in more than 60 days in custody pending investigations into an alleged offence not punishable with imprisonment for a minimum period of 10 years, no charge sheet had been filed against him and he was prepared to furnish bail for his release, as such, he ought to have been released by the High Court on reasonable terms and conditions of bail.
Justice Dipak Gupta has supported the view of Justice Lokur. In his concurring opinion he observed that if an offence is punishable with death then whatever the minimum punishment be, the period of investigation permissible would be 90 days. Similarly, if the offence is punishable with life imprisonment, even if the minimum sentence provided is less than 10 years, the period of detention before ‘default bail’ is available would be 90 days.
“Therefore, if a person is charged with an offence, which is punishable with death or life imprisonment, but the minimum imprisonment is less than 10 years, then also the period of 90 days will apply. However, when we look at the third category, the words used by the legislature are “not less than ten years”. This obviously means that the punishment should be 10 years or more. This cannot include offences where the maximum punishment is 10 years. It obviously means that the minimum punishment is 10 years whatever be the maximum punishment”.
Justice Gupta concluded as follows;
Section 167(2)(a)(i) of the Code is applicable only in 79 cases where the accused is charged with (i) offences punishable with death and any lower sentence; (ii) offences punishable with life imprisonment and any lower sentence and (iii) offences punishable with minimum sentence of 10 years;
In all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment then Section 167(2)(a)(ii) will apply and the accused will be entitled to grant of ‘default bail’ after 60 days in case charge-sheet is not filed.
Dissenting Opinion By Justice PC Pant
Justice PC Pant observed that the intention of the legislature was that if an offence was punishable with imprisonment upto ten years, then it falls within the provision of Section 167(2)(a)(i) of the Code, and the permissible period for investigation is ninety days. The intention of the Legislature in extending the permissible time period from sixty days to ninety days for investigation is to include the offences in which sentence awardable is at least ten years or more.
“Therefore, though the expression “not less than ten years” used in Section 167(2)(a) (i) of the Code has created some ambiguity, the real intention 49 of the legislature seems to include all such offences wherein an imprisonment which may extend to ten years is an awardable sentence. In other words, for offences wherein the punishment may extend to ten years imprisonment, the permissible period for filing charge sheet shall be ninety days, and only after the period of ninety days, the accused shall be entitled to bail on default for non filing of the charge sheet”.
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