1

Reserved on : 12.12.2024

Pronounced on : 13.12.2024

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 13

TH

DAY OF DECEMBER, 2024

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

CRIMINAL PETITION No.13459 OF 2024

C/W

WRIT PETITION No.33526 OF 2024 (GM – RES)

IN CRIMINAL PETITION No.13459 OF 2024

BETWEEN:

STATE OF KARNATAKA

BY KAVOOR POLICE STATION,

REPRESENTED BY

THE STATE PUBLIC PROSECUTOR,

HIGH COURT BUILDING,

BENGALURU – 560 001.

... PETITIONER

(BY SRI B.N.JAGADEESHA, ADDL.SPP)

AND:

1 . KALANDAR SHAFI

S/O LATE ISMMAIL,

AGED ABOUT 39 YEARS,

RESIDING AT NO. 11-29/1, NEAR GOODU,

B’MUDA VILLAGE,

BANTWAL TALUK,

R

2

D.K.DISTRICT – 574 211.

2 . MAHAMMAD MUSTHAFA @

PALKHAN MUSTHFA,

S/O LATE IDDINABBA,

AGED ABOUT 50 YEARS,

RESIDING AT NO. 7-44 B, 7

TH

BLOCK,

KRISHNAPURA, KATIPALLA,

MANGALURU - 575 030.

3 . SHOAIB,

S/O LATE UMMAR HUSSAIN,

AGED ABOUT 45 YEARS,

RESIDING AT NO. 7-216, SITE NO.298,

AYISHA IMAN, 7

TH

BLOCK,

KRISHNAPURA, KATIPALLA

MANGALURU - 575 030.

... RESPONDENTS

(BY SRI B.LETHIF, ADVOCATE FOR R-1 AND R-3;

SRI HASHMATH PASHA, SR.ADVOCATE FOR

SRI KARIAPPA N.A., ADVOCATE FOR R-2)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 528 OF

THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 PRAYIN G TO

SET ASIDE THE ORDER DATED 04.12.2024 PASSED IN

CR.NO.150/2024 ON THE FILE OF THE JMFC (III COURT)

MANGALURU AND CONSEQUENTLY ALLOW THE REQUISITION FI LED

BY THE PETITIONER AS PAYED FOR AND THEREBY GRANT PO LICE

CUSTODY OF THE ACCUSED NOS.3 TO 5 SO AS TO ENABLE T HE

POLICE TO CONDUCT FURTHER INVESTIGATION AND GRANT S UCH

OTHER AND FURTHER RELIEF’S AS THIS HON’BLE COURT DE EMS

FIT AND PROPER UNDER THE CIRCUMSTANCES OF THIS CASE .

3

IN WRIT PETITION No.33526 OF 2024

BETWEEN:

HYDER ALI

AGED ABOUT 52 YEARS

S/O B.M.AHAMMED BAVA

RESIDING AT FLAT NO.1904

ABHIMAN HILLS

LIGHTHOUSE HILL ROAD

MANGALURU – 575 003.

... PETITIONER

(BY SRI P.P.HEGDE, SR.ADVOCATE FOR

SRI VENKATESH SOMAREDDI, ADVOCATE)

AND:

1 . STATE OF KARNATAKA

BY KAVOOR POLICE STATION

REPRESENTED BY

STATE PUBLIC PROSECUTOR

HIGH COURT OF KARNATAKA AT

BENGALRUU – 560 001.

2 . MR.KALANDAR SHAFI

AGED ABOUT 39 YEARS

S/O LATE ISMAIL

11-29/1 GOODINA BALI

MOODU GRAMA

BANTWAL – 575 003.

3 . MR.MOHAMMED MUSTAFA

AGED ABOUT 50 YEARS

S/O LATE IDINABBA

7-44B, 7

TH

BLOCK

KRISHNAPURA, KATIPALYA

MANGALURU – 575 003.

4

4 . MR.SHOIB

AGED ABOUT 45 YEARS

S/O LATE UMMER HUSSAIN

RESIDING AT 298, AYISHA IMAN

7

TH

BLOCK, KATIPALYA

MANGALURU – 575 003.

... RESPONDENTS

(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;

SRI B.LETHIF, ADVOCATE FOR R-2 AND R-4;

SRI HASHMATH PASHA, SR.ADVOCATE FOR

SRI KARIAPPA, N.A., ADVOCATE FOR R-3)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND

227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 528 OF

BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 PRAYING TO

QUASH THE ORDER DTD. 04.12.2024 PASSED IN CRIME NO.

150/2024 OF KAVOOR POLICE STATION BY JMFC III COURT ,

MANGALURU VIDE ANNEXURE-D REJECTING THE APPLICATION OF

R-1 SEEKING CUSTODY OF R-2 TO 4 VIDE ANNX-C AND ETC .,

THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR

ORDERS ON 12.12.2024, COMING ON FOR PRONOUNCEMENT T HIS

DAY, THE COURT MADE THE FOLLOWING:-

CAV ORDER

Both these petitions call in question a solitary order dated

04-12-2024 passed by the Judicial Magistrate First Class (III Court)

Mangalore, by which the Court rejects the requisiti on of the

CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

5

prosecution for grant of Police custody of the accused. Writ Petition

No.33526 of 2024 is preferred by the complainant an d Criminal

Petition No.13459 of 2024 is preferred by the State.

2. Heard Sri P.P. Hegde, learned senior counsel ap pearing for

the petitioner in the writ petition No.33526 of 202 4;

Sri B N Jagadeesha, learned Additional State Public Prosecutor

appearing for petitioner in Criminal Petition No.13459 of 2024 and

for respondent No.1 in writ petition No.33526 of 2024; Sri B.Lethif,

learned counsel appearing for respondents 2 and 4 in writ petition

and respondents 1 and 3 in Criminal Petition and Sr i Hasmath

Pasha, learned senior counsel appearing for respondent No.3 in Writ

Petition and respondent No.2 in Criminal Petition.

3. Facts, in brief, germane are as follows:-

On 06-10-2024 brother of the original complainant one

B.M.Mumtaz Ali dies leading to registration of crim e in Crime

No.150 of 2024 for offences punishable under Sections 190, 308(2),

308(5), 351(2) and 352 of BNS. Pursuant to registration of crime

6

accused Nos.1 and 5 are arrested and produced befor e the learned

Magistrate, after which, it appears, they were remanded to judicial

custody. Subsequently, during investigation on 10-10-2024 accused

Nos. 2, 3 and 4 were arrested and produced before t he learned

Magistrate and were also remanded to judicial custo dy. On

12-10-2024 the Investigating Officer causes arrest of accused No.6

and produced him before the learned Magistrate who has remanded

him to judicial custody. The learned Magistrate th en on a

requisition made by the Police grants police custody of accused Nos.

1 to 3. In the course of investigation, the prosecution is said to

have come across certain voice samples of accused p ersons which

were recorded and which were within the knowledge o f the Court.

The prosecution then files an application seeking police custody.

This comes to be objected to by the accused. On th e application

and the objection, the concerned Court passes the impugned order

by which police custody that is sought by the prosecution comes to

be rejected, on the ground that the period of investigation in the

case at hand was 60 days and the police custody available in terms

of Section 187 of BNSS is within 40 days. Those 40 days having

lapsed, there was no warrant to grant police custody is the reason

7

rendered by the concerned Court to reject the

application/requisition. Challenging these orders, the petitioners-

State and the complainant - are before this Court in these petitions.

4. The learned senior counsel Sri P.P.Hegde, appea ring for the

complainant and the Additional State Public Prosecutor for the State

would vehemently contend that the punishment imposa ble in the

case at hand for an offence of abetment to suicide is ten years.

Section 187 of BNSS, which is akin to Section 167 o f the earlier

regime Cr.P.C., would clearly permit investigation in an offence

punishable with ten years or more to 90 days. The period for filing

the charge sheet is 90 days and under Section 187 of the BNS if the

period of investigation is 90 days, the police custody available in

total for 15 days would be between day one to day 6 0. If it is

interpreted that the offences are punishable with l ess than ten

years, the police custody will be for 15 days between day one to

day forty. Both the learned counsel would contend that Section 108

of BNS which deals with abetment to suicide is punishable up to ten

years. Therefore, it should be construed that it is ten years or more

8

and the police custody must be extended to a period from day one

to day 60 and not restricted to day one to day forty.

5. The learned Additional State Public Prosecutor w ould

however add that many voice samples are procured du ring

investigation which had to be put to the accused for which police

custody is imperative. The prosecution has now filed an application

to add the offence of abetment for ransom as obtain ing under

Section 140(2) of BNS which is akin to Section 364 of the earlier

regime of IPC which is punishable with death or imp risonment for

life. The application is yet to be considered at the hands of the

learned Magistrate.

6. The learned senior counsel Sri P. P. Hegde appea ring for

the complainant would submit that investigation is yet to complete

despite passing of 60 days from registration of crime. However,

applications are moved before the concerned Court f or grant of

statutory bail and these people who have rendered t hemselves in

heinous and horrendous offences will walk out of th e prison on

erroneous interpretation of Section 187 by the concerned Court.

9

7. Per-contra, the learned senior counsel Sri Hasm ath Pasha

appearing for the respondents would vehemently refu te the

submissions in contending that there is no change in Section 187 of

BNSS in comparison to Section 167 of the Cr.P.C. Wh at should be

looked into is not Section 167 or 187, it is the of fence that is

alleged. The offence, in the case at hand, is the one punishable

under Section 108 of the BNS which is Section 306 of the IPC. It is

punishable up to ten years. If it is punishable up to ten years, the

period of investigation is 60 days. If the period of investigation is

60 days, the police custody runs from day one to day forty totally

for 15 days. The period is admittedly over. Therefore, the police

custody cannot be sought after forty days in terms of Section 187

of BNSS. He would contend that the order of the le arned

Magistrate does not require any interference. Lear ned counsel

Sri B. Lethif representing other accused would also toe the lines of

the learned senior counsel and seek dismissal of these petitions.

8. I have given my anxious consideration to the su bmissions

made by the respective learned counsel and have per used the

material on record.

10

9. In furtherance whereof, what requires considera tion and

interpretation is the purport of statutory provisions. At the outset, I

deem it appropriate to notice the order that has dr iven the

petitioners to this Court in these petitions. The order reads as

follows:

“…. …. ….

18. In the present case accused persons were given to

police custody as follows:

Accused no.1 Smt. Rehmath

and accused no.2 Shohaib

were given to police custody

From 4.15 PM of 09.10.2024

till 4.15 PM of 17-10-2024 (8

days)

Accused by name Abdul

Sattar, Kalandar Shafi and

Mohammed Musthafa

were given to police

custody

From 3.30 PM of 10.10.2024

till 3.30 PM of 17-10-2024 (7

days)

Accused persons by name

Smt. Rehmath, Shohaib,

Abdul Sattar, Kalandar Shafi

and Mohammed Musthafa

were given to police custody

Were produced in Home

office at 17-10-2024 at 2.45

PM

Accused persons by name

Smt. Rehmath, Abdul Sattar

and Kalandar Shafi were

given to police custody

From 3.30 PM of 22.10.2024

till 3.30 PM of 25-10-2024 (3

days)

Accused persons by name

Smt. Rehmath, Abdul Sattar

and Kalandar Shafi were

produced

in Open Court on 25-10-2024

at 1.45 PM.

11

19. In Rakesh Kumar Paul, the Supreme Court by 2:1

majority (Justices Madan B Lokur and Deepak Gupta i n

majority, Justice Prafulla C Panth in dissent).

20. In Sec. 187(3)

(i) - 90 days where investigation relates to an

offence punishable with death, imprisonment

for life or imprisonment for a term of 10 years

or more.

21. But in the present case, maximum punishment for

the alleged offences are imprisonment either description for

a term which may extend to 10 years. This court rel ied on

judgment of Hon'ble Supreme Court In Rakesh Kumar Paul

vs. State of Assam and Rajiv Choudary Vs. State (NCT)

of Delhi. As per the observation of the Hon'ble Apex Court

this case is comes under the category of 187 (3)(ii ) of

B.N.S.S. Hence, as per the provision of B.N.S.S., I.O. must

seek police custody within 40 days from the date of arrest.

But in this case, I.O. seeks police custody after the lapse of

statutory period. Hence requisition filed by the I.O. is hereby

rejected.”

The Court records the offences alleged. The offenc es alleged are

the ones punishable under Section 108, 308(2), 308(5), 351(2) and

352 of BNS as on the date of consideration of application for Police

custody before the learned Magistrate. The said provisions read as

follows:-

“108. Abetment of suicide .—If any person commits

suicide, whoever abets the commission of such suicide, shall

be punished with imprisonment of either description for a

term which may extend to ten years, and shall also be liable

to fine.

… … …

12

308. Extortion.—(1) …

(2) Whoever commits extortion shall be punished with

imprisonment of either description for a term which may

extend to seven years, or with fine, or with both.

… … …

(5) 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 eithe r

description for a term which may extend to ten year s, and

shall also be liable to fine.

… … …

351. Criminal intimidation.—(1) …

(2) Whoever commits the offence of criminal

intimidation shall be punished with imprisonment of either

description for a term which may extend to two year s, or

with fine, or with both.

… … …

352. Intentional insult with intent to provoke

breach of peace .—Whoever intentionally insults in any

manner, and thereby gives provocation to any person ,

intending or knowing it to be likely that such provocation will

cause him to break the public peace, or to commit any other

offence, shall be punished with imprisonment of eit her

description for a term which may extend to two year s, or

with fine, or with both.”

Section 108 of BNS punishes for abetment to suicide which is

Section 306 of the earlier regime, IPC. The maximu m term of

punishment may extend to ten years. Section 308 de als with

extortion. Section 308(2) punishes a person who commits extortion

by a term up to 7 years and Section 308(5) if it is extortion putting

the person in fear of death, the term may extend to ten years. The

13

other two provisions under Sections 351 and 352 hav e maximum

punishment of 2 years. Therefore, the offences alleged in the case

at hand, at this juncture, have their punishments to run up to a

maximum of ten years and the phrases used “may exte nd to ten

years”. Section 187 of BNSS which deals with conduct of

investigation reads as follows:

“187. Procedure when investigation cannot be

completed in twenty-four hours .—(1) Whenever any

person is arrested and detained in custody, and it appears

that the investigation cannot be completed within the period

of twenty-four hours fixed by Section 58, and there are

grounds for believing that the accusation or information is

well-founded, the officer in charge of the police station or the

police officer making the investigation, if he is not below the

rank of sub-inspector, shall forthwith transmit to the nearest

Magistrate a copy of the entries in the diary herei nafter

specified relating to the case, and shall at the same time

forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person

is forwarded under this section may, irrespective o f

whether he has or has no jurisdiction to try the ca se,

after taking into consideration whether such person

has not been released on bail or his bail has been

cancelled, authorise, from time to time, the detent ion

of the accused in such custody as such Magistrate

thinks fit, for a term not exceeding fifteen days i n the

whole, or in parts, at any time during the initial forty

days or sixty days out of detention period of sixty days

or ninety days, as the case may be, as provided in sub-

section (3), and if he has no jurisdiction to try the case

or commit it for trial, and considers further deten tion

unnecessary, he may order the accused to be

forwarded to a Magistrate having such jurisdiction.

14

(3) The Magistrate may authorise the detention

of the accused person, beyond the period of fifteen

days, if he is satisfied that adequate grounds exis t for

doing so, but no Magistrate shall authorise the

detention of the accused person in custody under th is

sub-section 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 ten years or more;

(ii) sixty days, where the investigation relates to

any other offence,

and, on the expiry of the said period of ninety day s, 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 und er

this sub-section shall be deemed to be so released

under the provisions of Chapter XXXV for the purpos es

of that Chapter.”

(Emphasis supplied)

Section 187 of BNSS deals with procedure when inves tigation

cannot be completed within 24 hours. Section 187(3 ) which is

Section 167(2) of the earlier regime forms the fulcrum of the entire

lis. The language deployed and the purport has slight ly changed

from the earlier regime. Now the period of investigation has twin

conditions. The investigation, as was earlier obta ining, has its

completion period of 90 days, where the investigation relates to an

offence punishable with death, imprisonment for lif e or

15

imprisonment for a period of ten years or more, for the remaining

offences, it is 60 days. I now deem it appropriate to juxtapose with

Section 167 of the Cr.P.C., Section 167 of the Cr. P.C., reads as

follows:

“167. Procedure when investigation cannot be

completed in twenty-four hours .—(1) Whenever any person

is arrested and detained in custody, and it appears that the

investigation cannot be completed within the period of twenty-

four hours fixed by Section 57, and there are groun ds for

believing that the accusation or information is well-founded, the

officer in charge of the police station or the police officer making

the investigation, if he is not below the rank of sub-inspector,

shall forthwith transmit to the nearest Judicial Magistrate a copy

of the entries in the diary hereinafter prescribed relating to the

case, and shall at the same time forward the accuse d to such

Magistrate.

(2) The Magistrate to whom an accused person is

forwarded under this section may, whether he has or has

not jurisdiction to try the case, from time to time ,

authorise the detention of the accused in such cust ody as

such Magistrate thinks fit, for a term not exceedin g

fifteen days in the whole; and if he has no jurisdi ction to

try the case or commit it for trial, and considers further

detention unnecessary, he may order the accused to be

forwarded to a Magistrate having such jurisdiction:

Provided that—

(a) the Magistrate may authorise the detention of th e

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,—

16

(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 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

so released under the provisions of Chapter

XXXIII for the purposes of that Chapter;

(b) no Magistrate shall authorise detention of the accused in

custody of the police under this section unless the

accused is produced before him in person for the fi rst

time and subsequently every time till the accused

remains in the custody of the police, but the Magistrate

may extend further detention in judicial custody on

production of the accused either in person or through the

medium of electronic video linkage;]

(c) no Magistrate of the second class, not specially

empowered in this behalf by the High Court, shall

authorise detention in the custody of the police.

Explanation I.—For the avoidance of doubts, it is hereby

declared that, notwithstanding the expiry of the period specified

in paragraph (a), the accused shall be detained in custody so

long as he does not furnish bail.

Explanation II.—If any question arises whether an

accused person was produced before the Magistrate a s required

under clause (b), the production of the accused person may be

proved by his signature on the order authorising detention or by

the order certified by the Magistrate as to production of the

accused person through the medium of electronic video linkage,

as the case may be:

17

Provided further that in case of a woman under eighteen

years of age, the detention shall be authorised to be in the

custody of a remand home or recognised social institution.

(2-A) Notwithstanding anything contained in sub-section

(1) or sub-section (2), the officer in charge of the police station

or the police officer making the investigation, if he is not below

the rank of a sub-inspector, may, where a Judicial Magistrate is

not available, transmit to the nearest Executive Magistrate, on

whom the powers of a Judicial Magistrate, or Metrop olitan

Magistrate have been conferred, a copy of the entry in the diary

hereinafter prescribed relating to the case, and shall, at the

same time, forward the accused to such Executive Ma gistrate,

and thereupon such Executive Magistrate, may, for r easons to

be recorded in writing, authorise the detention of the accused

person in such custody as he may think fit for a te rm not

exceeding seven days in the aggregate; and, on the expiry of

the period of detention so authorised, the accused person shall

be released on bail except where an order for further detention

of the accused person has been made by a Magistrate

competent to make such order; and, where an order f or such

further detention is made, the period during which the accused

person was detained in custody under the orders mad e by an

Executive Magistrate under this sub-section, shall be taken into

account in computing the period specified in paragraph (a) of

the proviso to sub-section (2):

Provided that before the expiry of the period aforesaid,

the Executive Magistrate shall transmit to the nearest Judicial

Magistrate the records of the case together with a copy of the

entries in the diary relating to the case which was transmitted to

him by the officer in charge of the police station or the police

officer making the investigation, as the case may be.

(3) A Magistrate authorising under this section detention

in the custody of the police shall record his reasons for so doing.

(4) Any Magistrate other than the Chief Judicial

Magistrate making such order shall forward a copy of his order,

with his reasons for making it to the Chief Judicial Magistrate.

(5) If in any case triable by Magistrate as a summo ns-

case, the investigation is not concluded within a period of six

18

months from the date on which the accused was arres ted, the

Magistrate shall make an order stopping further inv estigation

into the offence unless the officer making the inve stigation

satisfies the Magistrate that for special reasons and in the

interests of justice the continuation of the investigation beyond

the period of six months is necessary.

(6) Where any order stopping further investigation into an

offence has been made under sub-section (5), the Se ssions

Judge may, if he is satisfied, on an application made to him or

otherwise, that further investigation into the offence ought to be

made, vacate the order made under sub-section (5) a nd direct

further investigation to be made into the offence subject to such

directions with regard to bail and other matters as he may

specify.”

(Emphasis supplied)

Section 167 (2) had also the same phraseology but i t read as 90

days where investigation relates to an offence with death,

imprisonment for life. These words are identical for imprisonment

for a term of not less than ten years. The marked d ifference

between Section 167 (2) of Cr.P.C., and Section 187 of BNSS is

only in these words. In Section 167(2), 90 days of

investigation is permitted, where imprisonment is f or a term

not less than ten years. In BNSS, the same 90 days is

permitted where imprisonment is for a term of ten y ears or

more. In the considered view of this Court, it is only a play of

words. Section 167(2) using the words ‘not less than ten years’

19

would be, that the imposable punishment would be at ten years.

Section 187(3) using the words ‘ten years or more’, is to the

same effect, it only depicts a threshold sentence of ten years.

10. Therefore, if the prosecution wanting 90 days to file their

final report, it will only be for an offence which has minimum

sentence of ten years. If the offence now alleged a gainst these

accused are noticed, it does not have a threshold m inimum

sentence of ten years, but it is extendable up to t en years.

Therefore, the term can be between one year to ten years. If it is

one year to ten years, Section 187(3) of BNSS canno t be pressed

into service for the purpose of police custody or any other reason

for that matter, as the investigation for offences punishable upto

ten years must get completed in 60 days. I hasten to add that it is

only in few cases where it relates to life, death or ten years or

more, the investigation can be for 90 days. In all other offences

under the IPC or BNS, investigation must complete within 60 days.

In the considered view of the Court, there can be n o other

interpretation. The purport of the word ‘up to five years or five

20

years and more or extendable up to five years, or up to ten years’,

have borne judicial interpretation from time to time.

11. The Apex Court in the case of RAJEEV CHAUDHARY v.

STATE (NCT) OF DELHI

1

interpreting Section 167(2) or the words

found therein “imprisonment for a term of not less than ten years”

has held as follows:

“…. …. ….

6. From the relevant part of the aforesaid sections, it

is apparent that pending investigation relating to an offence

punishable with imprisonment for a term “not less than 10

years”, the Magistrate is empowered to authorise th e

detention of the accused in custody for not more th an 90

days. For rest of the offences, the period prescribed is 60

days. Hence in cases where offence is punishable with

imprisonment for 10 years or more, the accused coul d

be detained up to a period of 90 days. In this cont ext,

the expression “not less than” would mean

imprisonment should be 10 years or more and would

cover only those offences for which punishment coul d

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 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 wher e

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

1

(2001) 5 SCC 34

21

imprisonment for less than 10 years. Under Section

386 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.”

(Emphasis supplied)

Later, the Apex Court in the case of RAKESH KUMAR PAUL v.

STATE OF ASSAM

2

carrying forward the interpretation afore-

quoted, has held as follows:

“…. …. ….

71. A bare reading of Section 167 of the Code

clearly indicates that if the offence is punishable with

death or life imprisonment or with a minimum

sentence of 10 years, then Section 167(2)( a)(i) will

apply and the accused can apply for “default bail” only

if the investigating agency does not file charge-sh eet

within 90 days. However, 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.

72. Even if I were to assume that two views are

possible and third category envisaged in Section

167(2)(a)(ii) is ambiguous, as suggested by learned Brother

Pant, J., then also I have no doubt in my mind that a statute

which curtails the liberty of a person must be read strictly.

When any human right; a constitutional fundamental right of

a person is curtailed, then the statute which curtails such

right must be read strictly. Section 167 of the Code lays

2

(2017) 15 SCC 67

22

down the procedure established by law by which a

person can be deprived of his personal liberty

guaranteed to him under Article 21 of the Constitut ion

of India. If two meanings could be attributed to su ch a

provision then the courts must lean towards liberty

and accept that interpretation of the statute which

upholds the liberty of the citizen and which keeps the

eternal flame of liberty alive. If words are ambigu ous

then also the court should be reluctant to accept t hat

interpretation which curtails the right of a human

being of being free.”

(Emphasis supplied)

The Apex Court holds that even an assumption of two views

emerging possible it should be in favour of the liberty under Article

21 of the Constitution of India. Later, the Apex Court in the case of

M. RAVINDRAN v. INTELLIGENCE OFFICER, DIRECTORATE O F

REVENUE INTELLIGENCE

3

has held as follows:

“…. …. ….

II. Section 167(2) and the Fundamental Right to Lif e and

Personal Liberty

17. Before we proceed to expand upon the parameters

of the right to default bail under Section 167(2) a s

interpreted by various decisions of this Court, we find it

pertinent to note the observations made by this Cou rt

in Uday Mohanlal Acharya [Uday Mohanlal Acharya v. State

of Maharashtra, (2001) 5 SCC 453 : 2001 SCC (Cri) 760] on

the fundamental right to personal liberty of the person and

the effect of deprivation of the same as follows : (SCC p.

472, para 13)

3

(2021) 2 SCC 485

23

“13. … Personal liberty is one of the cherished

objects of the Indian Constitution and deprivation of the

same can only be in accordance with law and in

conformity with the provisions thereof, as stipulated

under Article 21 of the Constitution. When the law

provides that the Magistrate could authorise the

detention of the accused in custody up to a maximum

period as indicated in the proviso to sub-section (2) of

Section 167, any further detention beyond the period

without filing of a challan by the investigating agency

would be a subterfuge and would not be in accordance

with law and in conformity with the provisions of the

Criminal Procedure Code, and as such, could be violative

of Article 21 of the Constitution.”

17.1. Article 21 of the Constitution of India provides

that “no person shall be deprived of his life or personal

liberty except according to procedure established by law”. It

has been settled by a Constitution Bench of this Co urt

in Maneka Gandhi v. Union of India [Maneka Gandhi v. Union

of India, (1978) 1 SCC 248] , that such a procedure cannot

be arbitrary, unfair or unreasonable. The history o f the

enactment of Section 167(2) CrPC and the safeguard of

“default bail” contained in the proviso thereto is intrinsically

linked to Article 21 and is nothing but a legislative exposition

of the constitutional safeguard that no person shal l be

detained except in accordance with rule of law.

17.2. Under Section 167 of the Code of Criminal

Procedure, 1898 (“the 1898 Code”) which was in forc e prior

to the enactment of the CrPC, the maximum period for which

an accused could be remanded to custody, either pol ice or

judicial, was 15 days. However, since it was often

unworkable to conclude complicated investigations within 15

days, a practice arose wherein investigating officers would

file “preliminary charge-sheets” after the expiry o f the

remand period. The State would then request the Mag istrate

to postpone commencement of the trial and authorise further

remand of the accused under Section 344 of the 1898 Code

till the time the investigation was completed and the final

charge-sheet was filed. The Law Commission of India in

Report No. 14 on Reforms of the Judicial Administration (Vol.

II, 1948, pp. 758-760) pointed out that in many cas es the

accused were languishing for several months in cust ody

24

without any final report being filed before the courts. It was

also pointed out that there was conflict in judicial opinion as

to whether the Magistrate was bound to release the accused

if the police report was not filed within 15 days.

17.3. Hence the Law Commission in Report No. 14

recommended the need for an appropriate provision

specifically providing for continued remand after the expiry

of 15 days, in a manner that “while meeting the needs of a

full and proper investigation in cases of serious crime, will

still safeguard the liberty of the person of the individual”.

Further, that the legislature should prescribe a ma ximum

time period beyond which no accused could be detain ed

without filing of the police report before the Magistrate. It

was pointed out that in England, even a person accu sed of

grave offences such as treason could not be indefin itely

detained in prison till commencement of the trial.

17.4. The suggestion made in Report No. 14 was

reiterated by the Law Commission in Report No. 41

on The Code of Criminal Procedure, 1898 (Vol. I, 1969,

pp. 76-77). The Law Commission re-emphasised the

need to guard against the misuse of Section 344 of the

1898 Code by filing “preliminary reports” for

remanding the accused beyond the statutory period

prescribed under Section 167. It was pointed out th at

this could lead to serious abuse wherein “ the arrested

person can in this manner be kept in custody

indefinitely while the investigation can go on in a

leisurely manner ”. Hence the Commission

recommended fixing of a maximum time-limit of 60

days for remand. The Commission considered the

reservation expressed earlier in Report No. 37 that

such an extension may result in the 60-day period

becoming a matter of routine. However, faith was

expressed that proper supervision by the superior

courts would help circumvent the same.

17.5. The suggestions made in Report No. 41 were

taken note of and incorporated by the Central Gover nment

while drafting the Code of Criminal Procedure Bill in 1970.

Ultimately, the 1898 Code was replaced by the present CrPC.

The Statement of Objects and Reasons of the CrPC pr ovides

25

that the Government took the following important

considerations into account while evaluating the

recommendations of the Law Commission:

“3. The recommendations of the Commission

were examined carefully by the Government, keeping in

view, among others, the following basic considerations:

(i) an accused person should get a fair trial in

accordance with the accepted principles of

natural justice;

(ii) every effort should be made to avoid delay in

investigation and trial which is harmful not only

to the individuals involved but also to society;

and

(iii) the procedure should not be complicated and

should, to the utmost extent possible, ensure fair

deal to the poorer sections of the community.”

17.6. It was in this backdrop that Section 167(2) was

enacted within the present day CrPC, providing for time-

limits on the period of remand of the accused, proportionate

to the seriousness of the offence committed, failing which

the accused acquires the indefeasible right to bail. As is

evident from the recommendations of the Law Commiss ion

mentioned supra, the intent of the legislature was to balance

the need for sufficient time-limits to complete the

investigation with the need to protect the civil liberties of the

accused. Section 167(2) provides for a clear mandate

that the investigative agency must collect the requ ired

evidence within the prescribed time period, failing

which the accused can no longer be detained. This

ensures that the investigating officers are compell ed

to act swiftly and efficiently without misusing the

prospect of further remand. This also ensures that the

court takes cognizance of the case without any undu e

delay from the date of giving information of the

offence, so that society at large does not lose faith and

develop cynicism towards the criminal justice syste m.

17.7. Therefore, as mentioned supra, Section

167(2) is integrally linked to the constitutional

26

commitment under Article 21 promising protection of

life and personal liberty against unlawful and arbi trary

detention, and must be interpreted in a manner whic h

serves this purpose. In this regard we find it usef ul to

refer to the decision of the three-Judge Bench of t his

Court in Rakesh Kumar Paul v. State of Assam [Rakesh

Kumar Paul v. State of Assam , (2017) 15 SCC 67 :

(2018) 1 SCC (Cri) 401] , which laid down certain

seminal principles as to the interpretation of Sect ion

167(2) CrPC though the questions of law involved

were somewhat different from the present case. The

questions before the three-Judge Bench in Rakesh

Kumar Paul [Rakesh Kumar Paul v. State of Assam ,

(2017) 15 SCC 67 : (2018) 1 SCC (Cri) 401] were

whether, firstly, the 90-day remand extension under

Section 167(2)(a)(i) would be applicable in respect of

offences where the maximum period of imprisonment

was 10 years, though the minimum period was less

than 10 years. Secondly, whether the application fo r

bail filed by the accused could be construed as an

application for default bail, even though the expir y of

the statutory period under Section 167(2) had not

been specifically pleaded as a ground for bail. The

majority opinion held that the 90-day limit is only

available in respect of offences where a minimum ten

year' imprisonment period is stipulated, and that t he

oral arguments for default bail made by the counsel

for the accused before the High Court would suffice in

lieu of a written application. This was based on the

reasoning that the court should not be too technica l in

matters of personal liberty. Madan B. Lokur, J. in his

majority opinion, pertinently observed as follows : (SCC pp.

95-96 & 99, paras 29, 32 & 41)

“29. Notwithstanding this, the basic legislative

intent of completing investigations within twenty-four

hours and also within an otherwise time-bound period

remains unchanged, even though that period has been

extended over the years. This is an indication that in

addition to giving adequate time to complete

investigations, the legislature has also and always put a

premium on personal liberty and has always felt that it

would be unfair to an accused to remain in custody for a

27

prolonged or indefinite period. It is for this reason and

also to hold the investigating agency accountable that

time-limits have been laid down by the legislature. …

***

32. … Such views and opinions over a prolonged

period have prompted the legislature for more than a

century to ensure expeditious conclusion of

investigations so that an accused person is not

unnecessarily deprived of his or her personal liberty by

remaining in prolonged custody for an offence that he or

she might not even have committed. In our opinion, the

entire debate before us must also be looked at from the

point of view of expeditious conclusion of investigations

and from the angle of personal liberty and not from a

purely dictionary or textual perspective as canvassed by

the learned counsel for the State.

***

41. We take this view keeping in mind that in

matters of personal liberty and Article 21 of the

Constitution, it is not always advisable to be formalistic

or technical. The history of the personal liberty

jurisprudence of this Court and other constitutional

courts includes petitions for a writ of habeas corpus and

for other writs being entertained even on the basis of a

letter addressed to the Chief Justice or the Court.”

(emphasis supplied)

Therefore, the courts cannot adopt a rigid or forma listic

approach whilst considering any issue that touches upon the

rights contained in Article 21.

17.8. We may also refer with benefit to the recent

judgment of this Court in S. Kasi v. State [S. Kasi v. State,

(2021) 12 SCC 1 : 2020 SCC OnLine SC 529] , wherein it

was observed that the indefeasible right to default bail under

Section 167(2) is an integral part of the right to personal

liberty under Article 21, and the said right to bail cannot be

suspended even during a pandemic situation as is prevailing

currently. It was emphasised that the right of the accused to

be set at liberty takes precedence over the right of the State

to carry on the investigation and submit a charge-sheet.

28

17.9. Additionally, it is well-settled that in case

of any ambiguity in the construction of a penal sta tute,

the courts must favour the interpretation which lea ns

towards protecting the rights of the accused, given the

ubiquitous power disparity between the individual

accused and the State machinery. This is applicable

not only in the case of substantive penal statutes but

also in the case of procedures providing for the

curtailment of the liberty of the accused.

17.10. With respect to the CrPC particularly, the

Statement of Objects and Reasons (supra) is an

important aid of construction. Section 167(2) has t o be

interpreted keeping in mind the threefold objective s

expressed by the legislature, namely, ensuring a fa ir

trial, expeditious investigation and trial, and set ting

down a rationalised procedure that protects the

interests of indigent sections of society. These ob jects

are nothing but subsets of the overarching

fundamental right guaranteed under Article 21.

17.11. Hence, it is from the perspective of

upholding the fundamental right to life and persona l

liberty under Article 21 that we shall clarify and

reconcile the various judicial interpretations of S ection

167(2) for the purpose of resolving the dilemma tha t

has arisen in the present case.

… … …

V. Rights of the Prosecutor under Section 167(2) CrPC

read with Section 36-A(4), NDPS Act

20. There also appears to be some controversy on

account of the opinion expressed in Hitendra Vishnu

Thakur [Hitendra Vishnu Thakur v. State of Maharashtra,

(1994) 4 SCC 602 : 1994 SCC (Cri) 1087] that the Pu blic

Prosecutor may resist grant of default bail by filing a report

seeking extension of time for investigation. The Court held

that : (SCC p. 635, para 30)

29

“30. … It is, however, permissible for the Public

Prosecutor to resist the grant of bail by seeking an

extension under clause (bb) by filing a reportfor the

purpose before the court. However, no extension shall

be granted by the court without notice to an accused to

have his say regarding the prayer for grant of extension

under clause (bb). In this view of the matter, it is

immaterial whether the application for bail on ground of

“default” under Section 20(4) is filed first or the report

as envisaged by clause (bb) is filed by the Public

Prosecutor first so long as both are considered while

granting or refusing bail. If the period prescribed by

clause (b) of Section 20(4) has expired and the court

does not grant an extension on the report of the Public

Prosecutor made under clause ( bb), the

court shall release the accused on bail as it would be an

indefeasible right of the accused to be so released. Even

where the court grants an extension under clause ( bb)

but the charge-sheet is not filed within

the extended period, the court shall have no option but

to release the accused on bail if he seeks it and is

prepared to furnish the bail as directed by the court.”

(emphasis in original and supplied)

This was affirmed by the Constitution Bench in Sanjay

Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC

(Cri) 1433] , wherein it was held that the grant of default

bail is subject to refusal of the prayer for extension of time, if

such a prayer is made. This seems to have given rise to the

misconception that Sanjay Dutt [Sanjay Dutt v. State,

(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] endorses th e view

that the prosecution may seek extension of time (as

provided for under the relevant special statute) fo r

completing the investigation or file a final report at any time

before the accused is released on bail, notwithstanding the

fact that a bail application on ground of default has already

been filed.

20.1. The observations made in Hitendra Vishnu

Thakur [Hitendra Vishnu Thakur v. State of Maharashtra,

(1994) 4 SCC 602 : 1994 SCC (Cri) 1087] and Sanjay

Dutt [Sanjay Dutt v. State, (1994) 5 SCC 410 : 1994 SCC

(Cri) 1433] to the effect that the application for default bail

and any application for extension of time made by the Public

30

Prosecutor must be considered together are, in our opinion,

only applicable in situations where the Public Prosecutor files

a report seeking extension of time prior to the filing of the

application for default bail by the accused. In suc h a

situation, notwithstanding the fact that the period for

completion of investigation has expired, both applications

would have to be considered together. However, wher e the

accused has already applied for default bail, the Prosecutor

cannot defeat the enforcement of his indefeasible right by

subsequently filing a final report, additional complaint or

report seeking extension of time.

20.2. It must also be added and it is well settled

that issuance of notice to the State on the applica tion

for default bail filed under the proviso to Section

167(2) is only so that the Public Prosecutor can sa tisfy

the court that the prosecution has already obtained an

order of extension of time from the court; or that the

challan has been filed in the designated court befo re

the expiry of the prescribed period; or that the

prescribed period has actually not expired. The

prosecution can accordingly urge the court to refus e

granting bail on the alleged ground of default. Suc h

issuance of notice would avoid the possibility of t he

accused obtaining default bail by deliberate or

inadvertent suppression of certain facts and also

guard against multiplicity of proceedings.

20.3. However, Public Prosecutors cannot be

permitted to misuse the limited notice issued to th em

by the court on bail applications filed under Secti on

167(2) by dragging on proceedings and filing

subsequent applications/reports for the purpose of

“buying extra time” and facilitating filling up of

lacunae in the investigation by the investigating

agency.”

(Emphasis supplied)

The Apex Court, in the afore-quoted judgment, dealt with interplay

of Section 167(2), the fundamental right to life and personal liberty.

31

The Apex Court holds that resolution of the dilemma of

interpretation of Section 167(2) should always be leaning towards

the purport of Article 21 of the Constitution of In dia. The

unmistakable inference of afore-quoted elucidation by the Apex

Court is that when the punishment is up to ten year s, the

investigation is 60 days and in those cases, the accused were held

entitled to statutory bail, if the investigation is not completed within

60 days. In Section 187 of BNSS the phraseology is offence

punishable for ten years or more. As observed here inabove, ten

years or more would unequivocally mean that the thr eshold

punishment is ten years, and not a punishment up to ten years.

12. Three decades ago, a learned single Judge of this Court in

the case of DHARMASINGH v. STATE OF KARNATAKA

4

, while

interpreting the provisions of Narcotic Drugs and P sychotropic

Substances Act has held as follows:

“…. …. ….

5. The learned Government Pleader relied on 1991

Criminal Law Journal, 654 [ Narcotics Control

Bureau v. Kishan Lal.] wherein the Supreme Court has laid

down as follows:—

4

ILR 1992 KAR 3137

32

“Section 37 as amended starts with a non-

obstante clause stating that notwithstanding anythi ng

contained in the Code of Criminal Procedure, 1973 no

person accused of an offence prescribed therein shall be

released on bail unless the conditions contained therein

were satisfied. The N.D.P.S. Act is a special enactment

and it was enacted with a view to make stringent

provisions for the control and regulation of operations

relating to narcotic drugs and psychotropic substances.

That being the underlying object and particularly when

the provisions of Section 37 of NDPS Act are in negative

terms limiting the scope of the applicability of the

provisions of Cr. P.C. regarding bail, it cannot be said

that the High Court's powers to grant bail under Section

439, Cr. P.C. are not subject to the limitation mentioned

under Section 37 of the NDPS Act. The non-obstante

clause with which the section starts should be given its

due meaning and clearly it is intended to restrict the

powers to grant bail. In case of inconsistency between

Section 439, Cr. P.C. and Section 37 of the NDPS Act,

Section 37 prevails. The provisions of Section 4, Cr. P.C.

also make it clear that when there is a special

enactment in force relating to the manner of

investigation, enquiry or otherwise dealing with such

offences, the other powers under Cr. P.C. should be

subject to such special enactment. In interpreting the

scope of such a statute the dominant purpose underlying

the statute has to be borne in mind. Consequently the

power to grant bail under any of the provisions of Cr .

P.C. should necessarily be subject to the conditions

mentioned in Section 37 of the NDPS Act.”

In view of the interpretation of Section 37 by the Supreme

Court in the said Ruling, the provisions of Cr. P.C. regarding

bail are subject to the conditions mentioned in Section 37 of

the Act. The learned Counsel for the petitioners have argued

that Section 37 will be applicable only to a person who is

accused of an offence which is punishable for a ter m of

minimum 5 years or more. According to them if the o ffence

is punishable for a term less than 5 years, Section 37 of the

Act will not be attracted. The relevant provision of Section 37

of the Act lays down that no person accused of an o ffence

punishable for the term of imprisonment for a period 5 years

or more shall be released on bail unless the conditions laid

down in sub-section (b)(1)(2) are satisfied. Now it will have

33

to seen whether the expression “an offence punishable for a

term of imprisonment of 5 years or more under this Act”

means that it refers to an offence for which the mi nimum

punishment is 5 years or more. In A.I.R. 1988 SC 1875 [Dr.

Ajay Pradhan v. State of Madhya Pradesh.] , the Supreme

Court while dealing as to how the words in statutes are to be

interpreted has laid down guidelines in the followi ng

words:—

“A rule must be interpreted by the written text. If

the precise words used are plain and unambiguous, t he

Court is bound to construe them in their ordinary sense

and give them full effect. The plea of inconvenience and

hardship is a dangerous one and is only admissible in

construction where the meaning of the statute is

obscure and there are alternative methods of

construction. Where the language is explicit its

consequences are for Parliament, and not for the Courts,

to consider.”

In A.I.R. 1954 SC 496 [Tolaram v. State of Bombay.] , the

Supreme Court has given guidance as to how the pena l

provisions in an Act are to be interpreted in the following

words:—

“If two possible and reasonable constructions can

be put upon a penal provision, the court must lean

towards that construction which exempts the subject

from penalty rather than the one which imposes penalty.

It is not competent to the Court to stretch the meaning

of an expression used by the Legislature in order to

carry out the intention of the Legislature.”

Interpreting the expression “punishable for a term of

imprisonment of 5 years or more” in the light of th e

Supreme Court Ruling quoted above, I am of the

opinion that the expression means that the offence

should be punishable with minimum of 5 years or mor e

because the words “or more” are added only to

emphasise that the offences punishable with minimum

5 years or more are to be offence for which the

provision of Section 37 of the Act is made applicab le.

The said expression means that the offence should be

punishable with minimum of 5 years or more. The

34

words “or more” are to be read with reference to “5

years” in their grammatical meaning. “5 years or

more” mean that the basis is 5 years and “or more” is

the period that has to be considered with reference to

the basis of “5 years”. If the intention of the

Legislature was to make Section 37 of the Act

applicable to the offences which are punishable eve n

upto 5 years or less, then the Legislature would no t

have used the expression “5 years or more”. It coul d

have simply said for any offences. It could not hav e

qualified the words offence in Section 37 with the

expression “punishable for a term of imprisonment f or

5 years or more.” Therefore the expression means th at

the offence must be punishable with the punishment

which shall be not less than 5 years, but it can be

more. The Ruling of the Supreme Court reported in

1991 Criminal Law Journal 654 [ Narcotics Control

Bureau v. Kishan Lal.] can be distinguished on the

ground that the Supreme Court has not considered th is

aspect of Section 37 in that Ruling.

6. The offence alleged against the petitioner is

punishable under Section 20 of the Act with a term

which may extend to 5 years and shall also be liabl e to

fine, which may extend to Rs. 50,000/-. The offence

alleged against the petitioner is punishable in

maximum upto 5 years and not for a term of

imprisonment for 5 years or more. The maximum

punishment provided is 5 years and Section 37 of th e

Act applies to the offences punishable with

imprisonment which cannot be less than 5 years but it

can be more. Therefore, the provisions of Section 37 of

the Act will not be attracted to the offence under

Section 20 of the Act as the maximum punishment

provided for the offence is 5 years. If the punishm ent

for the offence under Section 20 were to be not les s

than 5 years but 5 years or more, then Section 37

would have been attracted.”

(Emphasis supplied)

35

A learned single Judge holds that five years and mo re would be,

that the minimum sentence should be five years. Un der Section

187(3) of BNSS the phrase used is ten years or more . It is

axiomatic that the threshold punishment is ten years.

13. The petitioners have placed reliance upon cert ain

judgments of this Court and that of Apex Court. In the case of

KNIT PRO INTERNATIONAL v. STATE OF NCT OF DELHI

reported in (2022) 10 SCC 221 the Apex Court holds that when the

punishment can go up to three years, the maximum pu nishment

imposable becomes three years. Therefore, those off ences are

cognizable. The same was the interpretation of thi s Court in the

case of ANI TECHNOLOGIES PRIVATE LIMITED v. STATE OF

KARNATAKA – W.P.No.32942 of 2017 decided on 20-12-2021.

The language deployed of the statute i.e., BNSS pro jects no

ambiguity. Therefore, the order rendered in terms o f Section 187

does not also brood any ambiguity. There is no error, much less an

error apparent on the face of the record. Therefore, it becomes a

clear case where if the offence is punishable where term can be

extended up to ten years, it could vary from one to ten. The police

36

custody in such cases would be available for 15 days within the first

40 days of investigation. 15 days could vary from day one to day

forty, but the total would be 15 days. If the offence is punishable

with ten years or more with the minimum sentence be ing ten years,

the police custody would range from day one to day sixty, 15 days

in total.

14. If the offences now alleged are taken note of a gainst

these accused, the maximum punishment is that can b e extended

up to ten years. It is not ten years or more. Therefore, the police

custody should be within forty days of investigation and final report

is filed within 60 days of investigation. It is brought to the notice of

the Court that the prosecution filed the application invoking Section

140 of BNS. If that has been invoked, it is for the concerned Court

to pass orders by regulating its procedure. The interpretation that

fell to the hands of the Court is interpreted as aforesaid.

37

SUMMARY OF FINDINGS :

(i) A slight tweak in the new regime qua 187(3) of BNSS in

juxtaposition to Section 167(2) of the earlier regime –

the Cr.P.C. has not changed the purpose of the

provision.

(ii) The phraseology of the words ‘ten years or more’ found

in sub-clause (i) of Section 187(3) of the BNSS wou ld

mean, the minimum threshold punishment imposable

on an offence under the BNS should be ten years.

(iii) The offence in the case at hand, does not bear a

minimum threshold sentence of ten years, but is

extendable or to an extent of ten years, which woul d

mean, discretion available to the concerned Court t o

impose punishment up to ten years. Therefore, the

minimum threshold is not ten years.

(iv) Completion of investigation in a punishment which is up

to ten years is undoubtedly 60 days. Rest of the other

offences, be it death, life imprisonment of ten years and

more, would be 90 days.

(v) If the investigation is to complete within 60 days, the

period of police custody would run from day one day

forty of registration of the crime. If it is 90 days, it

38

would run from day one to day 60, maximum period in

both the cases is 15 days of police custody.

(vi) In the case at hand, the offence is punishable up to ten

years, Therefore, the police custody is only from day

one to day forty.

15. For the aforesaid reasons, finding no warrant to interfere

with the order passed by the concerned Court, the petitions deserve

to be rejected and are accordingly, rejected.

Pending application if any, also stand disposed.

Sd/-

(M.

NAGAPRASANNA )

J

UDGE

Bkp

CT:MJ