STATE OF MAHARASHTRA Vs. SURESH GANPATRAO KENJALE

JUDGEMENT

(1.) THE State of Maharashtra has preferred this criminal revision application under S. 397 of the Code of Criminal Procedure (for short "cr. P. C. ") and has called in question legality and propriety of the order dated 21-1-1994 passed by the Sessions Judge, Bhandara, whereby on the applica tion filed by the Deputy Superintendent of Police, Anti-Corruption Bureau, Bhandara, seeking police custody remand of the non-applicant, the Sessions Judge, Bhandara, rejected the said application and instead ordered for remand to magisterial custody vide order dated 21-1-1994.

(2.) THE contention of the learned A. P. P. in sup port of the revision application is that the punish ment prescribed for the offence under S. 7 of the Prevention of Corruption Act, 1988 (for short "the P. C. Act") is five years and the punishment prescribed for the offence under S. 13 (1) (d) r/w S. 13 (2) of the P. C. Act is seven years and, therefore the offences under Ss. 7 and 13 (1) (d) r/w S. 13 (2) of the P. C. Act with which the accused-non-applicant is charged, are non-bailable and, therefore, the application filed by the Deputy Superintendent of Police, Anti-Cor ruption Bureau, Bhandara seeking police custody remand of the accused should have been ordered. Before the contention raised by Mr. Dhote, learned A. P. P. could be examined, the relevant facts may be noted. The Deputy Superintendent of Police, Anti Corruption Bureau, Bhandara, laid a trap against the non-applicant on 20-1-1994 pursuant to the com plaint by one Ashokkumar Nashine resident of Dongargaon, District Bhandara that the non-appli cant has demanded the amount of Rs. 5000/- to wards the bribe and illegal gratification for not involving him in Crime No. 108 of 1993 registered at Police Station Salekasa. The non-applicant, it is alleged, on 21-1-1994 demanded and accepted the amount of Rs. 5000/- from the complainant Ashokkumar, but when he became suspicious about the trap he fled away with the bribe amount. It is alleged that the accused-non-applicant was arrested on the same day at about 16-00 hours, but the bribe amount could not be recovered and hence the application was filed by the Deputy Superintendent of Police, Anti-Corruption Bureau, Bhandara for po lice custody of the non-applicant on 21-1-1994.

(3.) THE Sessions Judge, Bhandara, while reject ing the application for police custody observed that for the offence under S. 7 of the P. C. Act the imprisonment prescribed is not less than six months but that may extend to five years, and for the offence under S. 13 (1) (d) r/w S. 13 (2) of the P. C. Act the minimum imprisonment is one year and it may extend to seven years, and thus concluded that the said offences are punishable with imprisonment for less than three years and, therefore, they are bailable offences and the police custody remand cannot be ordered. The reasoning given by the Sessions Judge on its face appears to be fallacious. He has not properly construed the punishment prescribed under S. 7 as well as under S. 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act and in the light of Schedule-II of the Code of Criminal Procedure, 1973 making classification of offences against other laws. For the offence under S. 7 of the P. C. Act, it is provided that the said offence shall be punishable with imprisonment, which shall not be less than six months, which may extend to five years and shall also be liable to fine. This means that the maximum punishment for an offence under S. 7 of the P. C. Act is five years. Similarly for the offence under S. 13 (1) (d) of the P. C. act, it is provided that the said offence shall be punishable under Sub-Sec. (2) of S. 13 with imprisonment upto seven years. In the Second Schedule of the Code of Criminal Proce dure, 1973 making classification of offences against other laws, it is provided that the offences which are punishable with imprisonment for three year and upwards, but not more than seven years, are non bailable. By no stretch of imagination can it be said that the offences under Ss. 7 and 13 (1) (d) r/w. S. 13 (2) of the P. C. Act are not punishable with impris onment of three years and upwards but not more than seven years. While construing whether an offence is bailable or non-bailable it is not the mini mum sentence which can be awarded under the law, is required to be seen but the maximum sentence which can be awarded under the law has to be seen and the maximum sentence awardable under S. 7 of the P. C. Act is five years and for the offence under S. 13 (1) (d) as is provided in S. 13 (2) is seven years and, therefore, both the offences are non-bailable and the Sessions Judge was not justified in holding that the said offences are bailable.