RAJIV CHAUDHARY Vs. STATE

JUDGEMENT

(1.) An important question regarding interpretation of Clause (i) of Proviso (a) to sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 arises in this case.

(2.) The petitioner was arrested in connection with a case registered at Police Station, Malviya Nagar in pursuance of an FIR No. 1069 dated 30th October, 1998 under Sections 386, 506 and 120B of the Indian Penal Code, 1860. He was produced before the Court of Metropolitan Magistrate. New Delhi on 31st October, 1998 and was remanded to police custody upto 1st November, 1998. He was remanded to judicial custody on 1st November, 1998. Later, he was released on bail pursuant to an order dated 2nd January, 1999 passed by the learned Metropolitan Magistrate, New Delhi. The said order dated 2nd January, 1999 was passed by the learned Metropolitan Magistrate on an application filed by the petitioner under Section 167(2) of the Code of Criminal Procedure for grant of bail on the ground that the police had not filed any report under Section 173 of the Criminal Procedure Code ., and that since he had already remained in custody for a period of 60 days he was entitled to bail as of right in view of clause (ii) of Proviso (a) to Sub- Section 2 of Section 167. The application was opposed by the Additional Public Prosecutor pointing out that the petitioner was accused of an of fence punishable under Section 386 Indian Penal Code with imprisonment of either description for a term which may extend to ten years and fine. The Additional Public Prosecutor contended that the investigation in the case of the petitioner related to an offence punishable with imprisonment for a term of not less than ten years and hence a period of 90 days was available to the police for completing the investigation as per clause (i) of proviso (a) to Section 167(2) of the Criminal Procedure Code . However, counsel for the petitioner contended that since the investigation did not relate to an offence punishable with imprisonment for a minimum term of ten years and since the petitioner had already remained in custody for a period of 60 days he was entitled to be released on bail in view of clause (ii) of proviso (a) to Section 167(2). The learned Metropolitan Magistrate accepted the contention of the counsel for the petitioner and held that clause (i) of proviso (a) to Section 167(2) would apply only when the investigation related to an offence punishable with death or imprisonment for life or imprisonment for a minimum term of ten years. For taking such a view the learned Metropolitan Magistrate relied on a judgment of the Allahabad High Court in Sohan Lal v. State 1991 All Cri-R 383 and a judgment of the Punjab & Haryana High Court in Om Prakash Gabbar v. State of Punjab 1997 Cri.L.J. 2974. Thus by an order dated 2nd January, 1999, the learned Metropolitan Magistrate granted bail to the petitioner under the proviso to sub-section (2) of Section 167 of the Criminal Procedure Code .

(3.) Against the order dated 2nd January, 1999 of the learned Metropolitan Magistrate the State filed a Revision Petition (Crl. Rev. No. 22/99) which was allowed by the learned Additional Session Judge setting aside the impugned order and directing the petitioner to surrender before the trial Court. The learned Additional Session Judge relied on the judgment of a Division Bench of this Court in Amrik Lal v. State (Crl. M.(M) 438/86) and accepted the contention of the Additional Public Prosecutor that since the offence under Section 386 Indian Penal Code was punishable with imprisonment for a term of ten years, clause (ii) of proviso (a) to Section 167(2) did not apply and consequently the petitioner was not entitled to be released on bail on expiry of a period of 60 days in custody. Aggrieved by the said order dated 18th August, 1999 of the learned Additional Sessions Judge, New Delhi, the petitioner has filed this petition.