STATE OF WEST BENGAL Vs. AMIT KUMAR GUPTA

JUDGEMENT

(1.) This is an application for cancellation of bail. The case was made under section 395/397 of the Indian Penal Code and section 25(1B)(a)/ 27 of the Arms Act. From the order impugned granting bail we find that following the ratio of 2002 Cr. LJ 2507, Sunil Kumar vs. State of Jharkhand, the learned Chief Judge-in-Charge, City Sessions Court, Calcutta granted bail to the petitioner therein when found that the accused was in custody for more than 60 days. By making this application the State contended that the order is suffering from misconception of law. Both the parties made submissions on the earlier judgment reported in 2002 Cr. LJ 2507 and also other judgements cited hereunder. The Single Judge of Jharkhand High Court observed that the sentence for offence under section 304B IPC may extend to life, but it cannot be an imprisonment for life. Further though the minimum sentence may not be less than 7 years but it cannot be equated with those offences for which minimum sentence prescribed is 10 years. Basically with those observation the learned Judge was pleased to pass the appropriate order.

(2.) However, we have taken into account the position of both the sections being 395 and 397. Whether one of such sections, i.e., section 395 was added subsequently or not is immaterial particularly when section 394 was available The punishment for dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years. In such circumstances, the ratio of the two Supreme Court judgments are pertinent for the purpose of due consideration. In a judgment reported in AIR 1972 Supreme Court 2522, Jugal Kishore Prasad vs. State of Bihar, it was held that the fact that imprisonment for a period lesser term than imprisonment for life cannot make any difference in respect of entitlement of claim to the benefit of such section i.e., Probation of Offenders Act, 1958 (applicable in that case). In a recent judgment reported in 2001 Cr. LJ 2941, Rajeev Chaudhary vs. State (N. C. T. of Delhi), it was held that offences punishable with death, imprisonment for life or imprisonment for a term often years or more would fall under clause (i) of proviso (a) to sub-section (2) of section 167 of Cr. PC and offences which are punishable with imprisonment for less than ten years would fall under clause (ii). Hence, the High Court was able to set aside the order of the Additional Sessions Judge in determining such question. Supreme Court categorically held that 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 the detention of the accused in custody for not more than 90 days. The rest of the offences, period prescribed is 60 days. Hence, in case, 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. Thus, the order impugned cannot be held to be sustainable.

(3.) The learned Counsel appearing for the accused opposed the prayer on the ground that the scenario of the case has already been changed. Now, the chargesheet has been filed and more than 90 days have already elapsed. But according to us, such submission cannot enure the benefit for the purpose of subsistence of the order which is impugned before this Court. If the Court is allowed to continue, a wrong message will go to the society.