R.C. Khulbe, J
1. Heard learned counsel for the parties.
2. This bail application has been filed by the applicant-Qazi Mohammed Nooruddin, who is in judicial custody, for seeking default bail in FIR No.0496
of 2018, under Sections 420, 120-B, 408 of IPC (currently in custody for offences under Sections 420, 120-B, 409 of IPC), registered at Police Station
SIDCUL, District Haridwar.
3. The applicant herein was arrested on 6. 03.2019. It appears that the period of 60 days in the judicial custody has already expired, but the charge-
sheet was not filed by that time. Thereafter, he moved an application on 10.05.2019 under Section 167(2) Cr.P.C. and prayed for the default bail. The
learned Chief Judicial Magistrate rejected such application on 10. 05.2019 holding that the charge sheet is to be filed within 90 days and not within 60
days.
4. Being aggrieved with such order rejecting the default bail application, he preferred bail application no.743 of 2019 before the Sessions Judge
Haridwar and that application was also rejected on 20.05.2019. Being dissatisfied with the order passed by the learned Sessions Judge, Haridwar, the
applicant knocked the doors of this Court by filing the instant bail application under Section 439 Cr.P.C.
5. The legal point which arises for consideration before this Court is that, in cases wherein the accused is charged with the offences punishable under
Section 409 IPC, the charge sheet should be filed within 60 days or within 90 days.
6. Mr. Aditya Singh, learned counsel appearing for the applicant submitted that for the offence punishable under Section 409 IPC, the Court can
award sentence for a period of less than 10 years. Section 409 IPC does not provide that the minimum sentence would be not less than 10 years. He
also argued that under Clause a(i) of Proviso of Section 167 (2) of the Code provides that if the minimum sentence for an offence is not less than 10
years, then only the period of 90 days for filing the charge sheet would be applicable. If the offence is punishable for any term upto 10 years, then the
period of 60 days would be the time limit to submit the charge sheet. In support of his submission, he places reliance on the decision of the
Hon’ble Supreme Court in case of Rakesh Kumar Paul Vs. State of Assam AIR 2017 SC 3948.
7. It is argued that the Court below has committed an error and it should have ordered for release of the applicant on default bail.
8. On the other hand, learned Government Advocate vehemently opposed this bail application and submitted that for the purpose of default bail, what
is important to be seen is the maximum sentence that can be imposed for the offence charged. He argued that Section 409 IPC is punishable for
imprisonment for life or imprisonment which may extend to 10 years and find. Once the punishment of imprisonment for life is awarded, then the
period for filing charge sheet would be 90 days and not 60 days. Since, the 90 days period has not expired then there is no merit in the contention, and
the same be rejected.
9. Having heard learned counsel for both the parties, the only question that arises for consideration is:-
“Whether in a case in which the accused is charged with offence punishable under Section 409 IPC, the charge sheet should be made within 60
days or 90 days?â€
10. Section 409 IPC reads as under:-
“Section 409 in the Indian Penal Code 409. Criminal breach of trust by public servant, or by banker, merchant or agent.â€"Whoever, being in any
manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker,
merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with 1[imprisonment for
life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.â€
11. From a perusal of Section 409 IPC, it shows that the said offence is punishable with imprisonment for life or imprisonment for a term which may
be extended to 10 years and shall also be liable to fine. In other words, the Court may impose sentence upto 10 years, but in a given case the sentence
of imprisonment for life can be awarded. For the sake of convenience, sub-sections (i) and (ii) of Sub-section (2) of Section 167 of Cr.P.C. are
extracted hereinunder:-
“Section 167 in the Code of Criminal Procedure, 1973 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 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 Judicial
Magistrate a copy of the entries in the diary hereinafter prescribed 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, 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 thinks 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) 1 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 purposes of that Chapter;]â€
From a perusal of Section 167 Cr.P.C., it is clear that whenever an accused is arrested and produced before a Judicial Magistrate under Sub- section
(1) of Section 167 Cr.P.C., the Magistrate may authorize the detention of the accused in such custody, as the Magistrate may think fit for a term not
exceeding 15 days in the whole. However, the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the
police, beyond the period of 15 days if he is satisfied that adequate grounds exist for doing so. But no Magistrate shall authorize such detention of the
accused person in custody for a total period exceeding 90 days, where the investigation relates to an offence punishable with death, imprisonment for
life or imprisonment for a term of not less than 10 years, and no Magistrate shall authorize such detention of the accused person in custody for a total
period exceeding 60 days where the investigation relates to any other offence.
12. The proviso of sub-section (2) of Section 167 Cr.P.C. consists of three parts. The first part relates to the power of the Magistrate to authorize
detention of the accused person. This part consists of two sub-parts. In positive terms it prescribes that no Magistrate shall authorize detention of the
accused in custody, under this paragraph meaning sub-section (2) (a) for a total period exceeding:-
(i) 90 days where the investigation relates to an offence punishable under death, imprisonment for life or imprisonment for a terms of not less than 10
years;
(ii) 60 days where the investigation relates to any other offence.
Meaning thereby, the period of 90 days is applicable to cases where the investigation relates to the three categories of offences which are punishable
with:-
(a) death,
(b) imprisonment for life; or
(c) imprisonment for a term of not less than 10 years.
13. The question is whether Section 409 IPC is an offence “punishable†with imprisonment for life. What should be the adequate punishment in a
given case has to be decided by the Trial Court on the basis of the facts and circumstances involved in the particular case.
14. Where in any offence, minimum and maximum offences are prescribed, both are imposable depending upon the facts and circumstances of each
case. It depends on the Court, after recording conviction, to impose the appropriate sentence.
15. The Hon’ble Apex Court in Rakesh Kumar Paul’s case (Supra) in para nos.84.2, 84.3 and 85, has very exhaustively explained the law
which is extracted hereinunder:-
“84.2. Section 167(2)(a)(i) of the Code is applicable only in cases where the accused is charged with (i) offences punishable with death and any
lower sentence; (b) offences punishable with life imprisonment and any lower sentence and (c) offences punishable with minimum sentence of 10
years;
84.3. 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.
85. On issues 2 to 4, I agree and concur with my learned brother Lokur J. and with due respect I am unable to agree with learned brother Pant J.â€
16. The majority view taken in the said matter is that Section 167 (2) (a) (i) of the Code is applicable only in the case where the accused is charged
with:-
(a) offences punishable with death and any lower sentence;
(b) offences punishable with life imprisonment and any lower sentence and;
(c) offence punishable with minimum sentence of 10 years.
In all other 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 the charge sheet is not filed within than period.
17. The Hon’ble Supreme Court, in the majority view, clarified that use of words ‘imprisonment for not less than 10 years or more in Section
167(2) Cr.P.C. gives a clear indication that the period of 90 days was relatable to an offence punishable with a minimum imprisonment for a period of
not less than 10 years if not more’. Thus, if the investigation is relatable to an offence punishable with death, imprisonment for life or imprisonment
for a term not less than 10 years, the period for filing the charge sheet is extended to 90 days, otherwise in respect of all other offences, the period of
60 days remains unchanged.
18. The learned counsel appearing on behalf of the applicant argued that co-accused Pradeep Agrawal and Sanjay Bansal have already been bailed
out by the Co-ordinate of this Court on the same ground on 21.05.2019 in BA1 No.912 of 2019 (Sanjay Bansal v. State of Uttarakhand) and the
present accused is also entitled to default bail.
19. Although, co-accused Pradeep Agrawal and Sanjay Bansal have been released on ground of default bail under Section 167 (2) Cr.P.C. but from
the perusal of paragraph 29 of the order dated 21.05.2019 passed by a Co-ordinate Bench of this Court, it is clear that the proper law and facts were
not placed before that Court. The Court was of the view that the applicants were not in custody for the offences which are punishable with
imprisonment for a clear period of 10 years or more. While the present accused Qazi Mohammed Nooruddin is in judicial custody under Section 420,
409, 120-B IPC in which one of the punishments is prescribed as imprisonment for life
20. I am afraid I cannot accept the conclusion drawn by the Co-ordinate Bench in the aforesaid case, as that would be in teeth of the judgment of the
Hon’ble Supreme Court in Rakesh Kumar’s case (Supra). I am also aware that normally, the decisions of the Co-ordinate Bench are binding
on another Co-ordinate Bench, however, in case, where the decision of the Co-ordinate Bench is against the law laid down by the Hon’ble Apex
court under Article 141 of the Constitution of India, then the Court has no option but to follow the law as laid down by the Apex Court, which in the
present case, is of Rakesh Kumar case (Supra).
21. From a perusal of Section 409 IPC, it is clear that if the offence is proved, the Court can punish the accused with imprisonment for life according
to the nature of case.
22. The case of Rakesh Kumar Paul has elaborately been discussed by the Gujarat High Court in Special Criminal Appeal No.829 of 2018,
“Manish @ Raju Vs. State of Gujarat†and by the Delhi High Court in the case of “Devesh Kumar Vs. Stateâ€, application no. 2760 of 2018.
23. Consequently, this Court is of the considered opinion that the present case falls within the ambit of Section 167(2)(a)(i) of the Code of Criminal
Procedure, and the statutory time period, for filing the charge sheet, would be 90 days. Considering the fact that the accused is charged with for the
offence punishable under Section 409 IPC, the present bail application fails and the same is hereby rejected.
24. Before parting, it also needs to be discussed that since I have not touched the facts of the case, the accused/applicant will be at liberty to file a
regular bail application on the merits of the case.
