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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.