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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.

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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@@

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punishable with imprisonment for a term not less than 10@@

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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.