Full Judgment
Majage, J.
1. The only short point that arises for consideration in this matter is, 'whether the period of 90 days provided under Section 167(2)(a)(i) of Cr.P.C. applies when investigation relates to an offence punishable under Section 376 of I.P.C.?'.
2. In the case on hand, at first instance, F.I.R. came to be issued for an offence punishable under Section 366A against the petitioner -accused. However, later on, Sections 342 and 376 of I.P.C. also came to be added on the request made. The petitioner was arrested on 14.12.2003. However, charge-sheet was not filed within 60 days from that date. So, an application under Section 437 read with Section 167(2)(a)(ii) of Cr.P.C. was filed by the petitioner-accused before the learned Magistrate to release him on bail on the ground that charge-sheet has not been filed within a period of 60 days provided under Section 167(2)(a)(ii) of Cr.P.C. But, the learned Magistrate rejected that application holding that since one of the offences alleged against the petitioner-accused is punishable under Section 376 of I.P.C., the prosecution gets 90 day's period to file charge - sheet. Challenging that order, the petitioner approached the Court of Session in Crl.R.P.No. 21/2004, but he was unsuccessful in that. Hence, he is before this Court now under Section 482 of Cr.P.C. Heard the learned Counsel for petitioner - accused and also the learned State Public Prosecutor, and perused the records carefully.
3. It was vehemently argued for the petitioner that in view of the fact that Section 376 of I.P.C. is punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a terra which may extend to ten years, Section 167(2)(a)(i) of Cr.P.C. is not attracted and as such, within the period of 60 days only, charge-sheet was required to be filed, and since the same was hot filed within that period, the petitioner - accused was entitled to be released on bail, but the learned Magistrate has wrongly rejected his request, which has been wrongly confirmed by the Sessions Court. On the other hand, it was submitted by the learned S.P.P. that for the said offence, since the punishment may extend to imprisonment for life also, which is certainly a period for more than 10 years, Section 167(2)(a)(i) of Cr.P.C. applies and not Section 167(2)(a)(ii) of Cr.P.C. and consequently, he supported the impugned orders.
4. To appreciate the rival contentions, it is but necessary to extract the provision contained in Section 167(2) of Cr.P.C.. It is as under:
'167. Procedure when investigation cannot be completed in twenty-four hours - (1).............................
(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 custody as such Magistrate think fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction 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 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) 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 purpose of that Chapter; (b) xxx xxx xxx '
5. At that stage, it may be noted that both sides agree that the words ' shall not be less than 7 years' and 'may extend to 10 years' can not be equated or read as imprisonment for a term of 'not less than 10 years'. But, the dispute is, whether the words 'imprisonment may be for life' employed in Section 376 of I.P.C. can be read as imprisonment for life found in Section 167(2)(a)(i) of Cr.P.C. or not.
6. When the words 'imprisonment for a term which may extend to 10 years' cannot be taken or read as 'imprisonment for a term of not less than 10 years', on the same analogy, the words 'imprisonment for a term which may be for life' cannot be read or taken as 'imprisonment for life' also. In this connection, reference can be had to the decision of the Supreme Court in the case of RAJIV CHOUDHARI v. STATE (NOT) DELHI, 2001 SAR (Cri) 487 relied on for the petitioner - accused in support of his arguments, besides a decision of this Court in the case of BABU v. STATE OF KARNATAKA, 1997(4) Crimes 464, and a decision of Jarkhand High Court in the case of SUNIL KUMAR v. STATE OF JHARKHAND, 2002 Cri.L.J. 2507 relied on for the petitioner.
7. However, the learned S.P.P. has relied on a decision of Bombay High Court in the case of MOHAMMED ARIF DIN MOHD. SHAIKHl v. STATE OF MAHARASHTRA, 1999 Cri.L.J. 3258, and a decision of Patna High Court in the case of DILIP OJHA v. STATE OF BIHAR, 2001 Cri.L.J. 1352 in support of his argument that, where the punishment may extend to imprisonment for life, Section 167(2)(a)(i) of Cr.P.C. applies and not Section 167(2)(a)(ii) of Cr.P.C.
8. But, on careful consideration of the provisions and on going through the decisions relied on for and against, what could be culled out is when an offence is punishable with imprisonment for a period of not less than 10 years, i.e., if the punishment provided for the offence is imprisonment for 10 years or more i.e. if the minimum period of imprisonment is 10 years, then Section 167(2)(a)(i) of Cr.P.C. applies. On the other hand, if the punishment is for a period of less than 10 years or when it may extend to 10 years, then Section 167(2)(a)(ii) of Cr.P.C. applies. Similarly, if the punishment is imprisonment for life, Section 167(2)(a)(i) of Cr.P.C. applies, but when the imprisonment may extend to life, Section 167(2)(a)(ii) of Cr.P.C. applies.
9. This is because, in such a case, where the imprisonment may extend to life, the Court may impose imprisonment for life or even lesser than that also, as the punishment need not be imprisonment for life only. This is the difference between Section 167(2)(a)(i) and Section 167(2)(a)(ii) of Cr.P.C.
10. In the case on hand, the punishment provided for the offence under Section 376 of I.P.C. may be for life i.e., may extend to life, but it may be less than that though not less than 7 years' imprisonment. In other words, the punishment of imprisonment could be 7 years or more, and may extend to life but it need not be 10 years or more than 10 years' imprisonment. So, Section 167(2)(a)(ii) of Cr.P.C. comes into play and not Section 167(2)(a)(ii) of Cr.P.C. In the above view, the conclusion arrived at by the learned Magistrate that the prosecution had 90 days' period to file charge - sheet in such a case, cannot be said to be correct and so also, the view taken by the learned Sessions Judge, confirming the order of the learned Magistrate.
11. It need not be said, when the period of 60 days provided to file charge-sheet against accused expires, an indefeasible right accrues to an accused to get himself released on bail but, of course, on the terms and conditions to be imposed by the Trial Court and such a right cannot be scuttled down in any manner by the Court. However, in the case on hand, though the petitioner - accused had rightly applied for his release on bail after expiry of 60 day's period from the date of his arrest when charge-sheet was not filed, it was the bounden duty of the learned Magistrate to release him on bail on terms and conditions to be imposed, and not to reject the request made. Since that was not done by the learned Magistrate, his order requires to be quashed. So also the order, upholding such an order, passed by the learned Sessions Judge.
12, In the result, the petition is allowed under Section 482 Cr.P.C. and the impugned orders are set aside and a direction is given to the learned Magistrate at Devanahalli to release the petitioner - accused from custody in Crime No. 180/2003 of Vijayapura Police Station (C.C.No. 107/2004) on such terms and conditions to be imposed by her.
Inform the same to the concerned Court.