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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.