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CASE NO.: Appeal (crl.) 606  of  2001

PETITIONER: RAJEEV CHAUDHARY

       Vs.

RESPONDENT: STATE (N.C.T.) OF DELHI

DATE OF JUDGMENT:       04/05/2001

BENCH: M.B. Shah & S.N. Variava

JUDGMENT:

J U D G M  E N T Shah, J.

       Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   Short question involved in this appeal is with regard to the  interpretation  and  construction   of  the  expression offence punishable with imprisonment for a term of not less than  ten years occurring in proviso (a) to Section  167(2) of  the Criminal Procedure Code in context of the expression imprisonment  which  may extend to ten years occurring  in Section 386 of the IPC.

   Appellant  was  arrested in connection with  an  offence punishable  under Sections 386, 506 and 120-B of the  I.P.C. He was produced before the Metropolitan Magistrate, Delhi on 31.10.1998  and was released on bail by order dated 2.1.1999 by   the   Metropolitan  Magistrate  on  the   ground   that charge-sheet  was  not submitted within 60 days as  provided under  Section 167(2) of the Criminal Procedure Code,  1973. That  order  was challenged before the Sessions  Judge,  New Delhi  by  filing  Criminal  Revision  No.22  of  1999.   By judgment  and order dated 18.8.1999, the Additional Sessions Judge, New Delhi allowed the said revision application.  The learned  Additional Sessions Judge held that for an  offence under  Section 386 IPC, period of sentence could be up to 10 years  RI.  Hence, clause (i) of the proviso (a) to  Section 167  (2) would be applicable.  He, therefore, set aside  the order  passed  by the Metropolitan Magistrate releasing  the accused  on bail.  That order was challenged before the High Court  by  the  accused.   The High Court  referred  to  its earlier  decisions  and  held that  expression  an  offence punishable  with imprisonment for a term of not less than 10 years  in  clause (i) of the proviso to Section  167  would mean an offence punishable with imprisonment for a specified period  which  period would not be less than 10 years or  in other  words  would be at least ten years.  The  words  not less  than qualify the period.  These words put emphasis on the  period  of ten years and mean period must be clear  ten years.   It  was  further held that on a  plain  reading  of

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clause  (i) of proviso (a) to sub-section (2) of Section 167 Cr.   P.C.,  there  seemed  to be  no  doubt  that  offences punishable with death, imprisonment for life or imprisonment for  a term of ten years or more would fall under clause (i) and offences which are punishable with imprisonment for less than  ten  years would fall under clause (ii).   Hence,  the High  Court  set  aside the order passed by  the  Additional Sessions Judge.  That order is challenged in this appeal.

   Section   167  is  a   provision  which  authorises  the Magistrate permitting detention of an accused in custody and prescribing  the  maximum  period for which  such  detention could  be  ordered pending investigation.  We are  concerned with  the  interpretation of proviso (a) of  Section  167(2) which reads thus:-

167.  Procedure when investigation cannot be completed in twenty-four hours. (2)..

Provided that

   (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,

   (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)

   Further, Section 386 of I.P.C.  provides as under:

   386.  Extortion by putting a person in fear of death or grievous  hurt.  Whoever commits extortion by  putting  any person  in fear of death or of grievous hurt to that  person or  to  any  other, shall be punished with  imprisonment  of either description for a term which may extend to ten years, and shall also be liable to fine.

(Emphasis added) @@ IIIIIIIIIIIIIIIII

   From  the relevant part of the aforesaid sections, it is apparent  that pending investigation relating to an  offence@@           JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ punishable  with  imprisonment for a term not less than  10@@ JJJJJJJJJJJJJJJJ years,  the  Magistrate  is   empowered  to  authorise  the detention  of  the accused in custody for not more  than  90 days.   For  rest of the offences, period prescribed  is  60 days.   Hence  in  cases, where offence is  punishable  with imprisonment for 10 years or more, accused could be detained up  to a period of 90 days.  In this context, the expression not  less than would mean imprisonment should be 10  years or  more  and  would  cover only those  offences  for  which punishment  could  be imprisonment for a clear period of  10 years  or  more.  Under Section 386 punishment  provided  is imprisonment  of  either  description for a term  which  may extend  to 10 years and also fine.  That means, imprisonment

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can  be  for a clear period of 10 years or less.  Hence,  it could not be said that minimum sentence would be 10 years or more.  Further, in context also if we consider clause (i) of proviso  (a)  to Section 167(2), it would be  applicable  in case  where  investigation relates to an offence  punishable (1)  with  death;   (2)  imprisonment  for  life;   and  (3) imprisonment  for  a  term of not less than ten  years.   It would  not  cover the offence for which punishment could  be imprisonment  for less than 10 years.  Under Section 386  of the IPC, imprisonment can vary from minimum to maximum of 10 years  and it cannot be said that imprisonment prescribed is not less than 10 years.

   In the result, the appeal is dismissed.