R. Basant, J.@mdashHow is the expression "excluding those offences punishable with less than one year of imprisonment" in Section 2(t)(ii) of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as ''the KAAPA'') to be understood?
(ii) Is it to be insisted that offences must be mandatorily visited with a sentence of imprisonment of one year before such offence is included within the ambit of Section 2(t)(ii)?
(iii) Are all offences, which may in the discretion of the Court, be visited after trial with the punishment of imprisonment less than one year or fine only, to be excluded from consideration u/s 2(t)(ii) of the KAAPA?
These questions of importance arise for consideration in this Writ Petition.
2. To the vital and relevant facts first. The Petitioner is the mother of Shamsudheen, S/o Khader (hereinafter referred to as ''the alleged detenu''), who is preventively detained under Ext.P-1 order dated 18-2-2010 passed by the 1st Respondent--District Magistrate, Kasaragod. In execution of Ext.P-1 order of detention, the detenu has been arrested and he continues in custody from 19-2-2010. Approval u/s 3(3) of the KAAPA and confirmation u/s 10(4) of the KAAPA have been granted vide orders dated 3-3-2010 and 22-4-2010. The detenu has been classified as a ''known rowdy'' u/s 2(p) of the KAAPA. There are 9 criminal cases to his credit which are enumerated in Ext.P-1 order of detention. The offences alleged against the detenu in these cases include offences punishable under Sections 143, 147, 148, 447, 323, 324, 302, 332, 341 and 153A read with Section 149 I.P.C. In one of these 9 cases, the allegations are raised under Sections 326 and 435 I.P.C. also. The detenu continues in custody from 19-2-2010. The Petitioner herein, the mother of the detenu, has filed this application for issue of a writ of habeas corpus to set aside the order of detention Ext.P-1 and to release the detenu from custody. Various contentions have been raised in this Writ Petition. Arguments have been heard. The learned Counsel for the Petitioner Sri Sunny Mathew raises a very interesting question and contends that all the other 8 cases must be excluded from consideration while deciding whether the detenu is a known rowdy. In short, the contention of the learned Counsel for the Petitioner is that in all the other 8 cases, the detenu faces indictment only for offences which can possibly be punished actually with a sentence of fine only or imprisonment for a period of less than one year. To be more specific, the contention is that in none of these 8 cases, is there an allegation that the detenu has committed an offence with imprisonment for a term of 5 years or more as insisted by Section 2(t)(i) of the KAAPA. There is also no allegation that the detenu is guilty of any offence which is punishable mandatorily with one year of imprisonment. In all these 8 cases, it is possible that, after trial, the criminal court may, in its discretion, impose a sentence of fine only or a sentence of imprisonment for a term less than one year. The Counsel hence contends that such offences cannot fall within the sweep of the definition "rowdy" in Section 2(t) of the KAAPA. If this contention were accepted by this Court, needless to say, there will be only one case, i.e., Crime No. 283 of 2009 registered for offences punishable, inter alia, under Sections 326 and 435 I.P.C., which can fall within the sweep of Section 2(t). One such case by itself cannot [at least 3 such cases are necessary] bring the offender within the sweep of the expression ''known rowdy'' in Section 2(p) of the KAAPA.
3. The contention did appear to us to be interesting. Detailed arguments were advanced by the learned Counsel for the Petitioner Sri Sunny Mathew and the learned Director General of Prosecutions Sri K.K. Ravindranath, As we found that an identical contention has been raised by Senior Counsel Sri K. Ramakumar in Anr. matter, we requested Sri K. Ramakumar also to advance arguments on this point alone to assist us. We also requested Sri S. Rajeev, Counsel, to assist us as amicus curiae. All these Counsel have advanced detailed arguments.
4. First of all, we think it necessary to ascertain the type of punishments that can be imposed by criminal courts on persons found guilty. The following options of punishments are available depending upon the nature of the offences. Offences, according to us, can be broadly classified into the following six classes of offences:
(i) Offences punishable with death.
(ii) Offences punishable with imprisonment for life.
(iii) Offences punishable with imprisonment of either description for a specified term or less.
(iv) Offences punishable with imprisonment of either description for a specified term or less and fine.
(v) Offences punishable with imprisonment of either description for a specified term or less or fine.
(vi) Offences punishable with fine only.
5. In respect of offences, falling under Clauses (iii) to (v), a minimum mandatory term of imprisonment of either description can also be specified by the concerned law. In respect of offences falling under Clauses (iv) to (vi) a minimum mandatory sentence of fine may also be specified by the concerned law.
6. If the above are the classification of offences depending on the punishment that can possibly be imposed, we find several instances where consequences are prescribed depending upon the nature of the punishment that can be imposed. Under the Code of Criminal Procedure such classification is employed at various places to specify consequences. The nature of punishment is used by different enactments to identify and specify the consequences. It would be appropriate straightaway to take note of Section 437 Code of Criminal Procedure where consequences are specified depending on the nature of the sentence with which the offence is punishable. u/s 167(2) Code of Criminal Procedure also we find consequences stipulated depending on the question whether the offence is one punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years. In the Schedule to the Code of Criminal Procedure also we find consequences stipulated depending upon the nature of the punishment that can be imposed. Part II of the First Schedule classifies offences as cognizable/non-cognizable and bailable/nonbailable depending on the extent of the punishment. Part II also specifies the court by which the offences are triable depending upon the nature of the punishment that can possibly be imposed. In the Code of Criminal Procedure a summons offence or a warrant offence is also to be ascertained on the basis of the punishment that can be imposed.
7. We have also other enactments in which the nature of punishment that can possibly be imposed is taken into consideration for prescribing consequences. The provisions of the Probation of Offenders Act is one classic example. We also come across special enactments like the Borstal Schools Act in force in various States which also make use of the nature of the possible punishment to prescribe consequences.
8. That takes us to the important question as to how the expression "punishable" is to be understood. It appears to be well-settled that the expression "punishable" takes into account the possible punishment that can be imposed and not the punishment that will actually be imposed or that must be imposed in a criminal trial. We feel that it would be advantageous to refer to three decisions of the Supreme Court on this aspect.
9. A Three Judge Bench of the Supreme Court had occasion to consider the meaning to be assigned to the expression "punishable" while interpreting the provisions of the Punjab Borstal Act. Section 2(4) of the said Act defined an offence to mean:
an offence punishable with transportation or rigorous imprisonment under the Indian Penal Code other than--(a) an offence punishable with death.
The question that arose for consideration was whether an offence u/s 302 I.P.C. where the actual punishment imposed on the offender was only imprisonment for life would fall within Clause (a) above. The Three Judge Bench of the Supreme Court in Subhash Chand v. State of Haryana AIR 1988 S.C. 584 observed thus in paragraph 4:
One of the punishments for the offence of murder is death and therefore, the offence of murder would be covered within Section 2(4)(i)(a) of the Punjab Act and to such a conviction the Punjab Borstal Act would have no application.
Later, in paragraph 5 the Three Judge Bench of the Supreme Court proceeded to observe thus:
The Petitioner is not entitled to the benefit of the Punjab Borstal Act as he has been sentenced to imprisonment for life for the offence of murder punishable u/s 302 I.P.C. for which the sentence of death is prescribed as an alternate.
10. A Two Judge Bench of the Supreme Court later in
6. In the Webster''s Third New International Dictionary the following meaning has been given to the word ''punishable'':
Deserving of, or liable to, punishment: capable of being punished by law or right.
7. Aiyar''s The Law Lexicon (Reprint Edition 1987) gives the meaning of''punishable'' thus:
The word ''punishable'' as used in statutes which declare that certain offences are punishable in a certain way, means liable to be punished in the way designated.
8. In Bouvier''s Law Dictionary, the meaning of the word ''punishable'' has been given as ''liable to punishment''. In Words and Phrases--Permanent Edition, the following meaning has been given:
The word ''punishable'' in a statute stating that a crime is punishable by a designated penalty or term of years in the State prison limits the penalty or term of years to the amount or term of years stated in the statute.
9. The word ''punishable'' is ordinarily defined as deserving of or capable or liable to punishment, punishable within statute providing that Defendant may have ten (sic) peremptory challenges if offences charged is ''punishable'' with death or by life imprisonment; means deserving of or liable to punishment; capable of being punished by law or right, may be punished, or liable to be punished and not must be punished.
10. Corpus Juris Secundum gives the meaning as:
Deserving of, or liable to, punishment; capable of being punished by law or right; said of persons or offences. The meaning of the term is not ''must be punished'', but ''may be punished'', or ''liable to be punished''.
In the absence of a definition of ''punishable'' we have referred to these for gathering the exact meaning of the word. In the sense given to the word, as above, there can be no doubt that the offence of murder is punishable with death even though the punishment awarded is not death but imprisonment for life.
(emphasis supplied)
That was also a case where Their Lordships had considered the question whether the offence u/s 302 I.P.C. will fall within the sweep of Section 2(4) of the Punjab Borstal Act.
11. Still later, a Two Judge Bench of the Supreme Court was called upon to consider the very same question in Bhupinder Singh v. Jarnail Singh 2006 (4) KLT 460 (S.C.). Their Lordships were called upon to decide the question whether Section 304B I.P.C would be an offence punishable with imprisonment for life. Their Lordships took note of the fact that the offence u/s 304B I.P.C. is mandatorily punishable with imprisonment of not less than 7 years; but the sentence can go upto imprisonment for life. In paragraphs 12 to 14, their Lordships considered the sweep of the expression "punishable". Their Lordships, of course, were considering the question to decide whether the offence u/s 304B would fall within Section 167(2)(a)(i) Code of Criminal Procedure.
12. The three decisions of the Supreme Court referred above clearly and unmistakably show that when an offence is classified or referred to by the extent of punishment, it is not the actual punishment that may eventually be imposed after trial which has to be taken into account; but only the maximum punishment that can possibly be imposed. In short, the question is what punishment can be imposed and not what punishment must be or may eventually be imposed. The discussion on the questions raised in paragraph 1 can commence only with such a clear understanding of the expression "punishable". We feel that we are bound by convincing authority by the three decisions referred above as to what is an offence "punishable" with the sentences specified.
13. Section 302 I.P.C. is an offence punishable either with death or with imprisonment for life. Two alternative sentences are possible. A sentence of life can be imposed for the offence u/s 302 I.P.C. But the offence u/s 302 I.P.C. will continue to be an offence punishable with death notwithstanding the fact that the lesser sentence of imprisonment for life may be imposed or has actually been imposed after a trial in a given case. Similarly, an offence u/s 326 I.P.C. is punishable with imprisonment for life. But in actual practice that offence may be tried by a Magistrate of the First Class and such Magistrate may have jurisdictional competence only to impose a sentence of imprisonment not exceeding three years. Actually, after trial for an offence u/s 326 I.P.C., ordinarily and normally only a sentence of imprisonment less than three years alone is likely to be imposed. But that does not militate against the concept that the offence u/s 326 I.P.C. is one punishable with imprisonment for life.
14. To extend the analogy further, an offence u/s 307 I.P.C. is punishable with imprisonment for a period of 10 years. Actually, the sentence imposed in a prosecution u/s 307 I.P.C. may be much lesser. Again, it is not the actual sentence that is imposed or can possibly be imposed or the minimum sentence that must mandatorily be imposed which is to be taken into consideration while ascertaining the punishability for the offence. Section 307 I.P.C. continues to be an offence punishable with imprisonment for 10 years notwithstanding the fact that the actual imprisonment imposed can and may be much lesser.
15. Having thus understood the concept of "punishability" clearly we will now go to Section 2(t) of the KAAPA. We extract the relevant provision below:
(t) ''rowdy'' means and includes a person who either by himself or as a member of a gang commits or attempts to commit, or abets the commission of any offences under Sections 153A and 153B of Chapter VIII and Chapters XV, XVI, XVII & XXII of the Indian Penal Code, 1860 (Central Act 45 of 1860), or any offences under the provision of the Arms Act, 1959 (Central Act 54 of 1959), or the Explosive Substances Act, 1908 (Central Act 6 of 1908),--
(i) punishable with five or more years of imprisonment of any type, or;
(ii) with less than five years of imprisonment of any type, except those punishable with less than one year of imprisonment; or
such offences under any other law for the time being in force, coming under item (i) or (ii), as may be notified by the Government, from time to time.
(emphasis supplied)
16. We feel that to correctly understand Section 2(t)(i) and Section 2(t)(ii), it may be necessary to refer to the definition of the expression "known rowdy" in Section 2(p) of the KAAPA. We extract Section 2(p) of the KAAPA below:
(p) ''known rowdy'' means any person, who had been, by reason of acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act,--
(i) made guilty, by a competent Court at least once for an offence of the nature under item (i) of Clause (t) of Section 2 or any offence notified as such under the said clause; or
(ii) made guilty, by a competent Court at least twice for any offence of the nature mentioned under item (ii) of Clause (t) of Section 2 or any offence notified as such under the said clause; or
(iii) found, on investigation or enquiry by a competent police officer or other authority, on complaints initiated by persons other than police officers, in three separate instances not forming part of the same transaction to have committed any offence mentioned in Clause (t) of Section 2:
(Provisos omitted being
unnecessary and irrelevant for
the present purpose)
17. We have attempted to analyse Section 2(t) in detail. While analysing Section 2(t) and trying to understanding the concept of a rowdy u/s 2(t), we think it necessary to broadly advert to the aims, objects and purposes of the KAAPA. Organised criminal activity by rowdies, goondas, hired ruffians, immoral traffic offenders etc., are having a field day in Kerala. The Legislature felt that their activities must be curbed and controlled. The punitive provisions of the Penal Code and other Penal Statutes are very much there. But they were found to be inadequate to meet the very peculiar situation of lawlessness and rowdy/goonda activity in Kerala. It is hence that provisions for preventive detention have been introduced by enactment of the KAAPA. The Kerala statute resorts to, what we feel an earnest attempt to prevent misuse of such powers. First of all, it has to be ascertained whether a person is a rowdy. The concept of rowdy is defined u/s 2(t) of the KAAPA. We shall advert to Section 2(t) in detail later. It is not enough if a person falls within the sweep of the expression ''rowdy''; it must be further seen whether he is a known rowdy or not. The power of preventive detention u/s 3 of the KAAPA can be used only against a known rowdy. He must be a known rowdy. It must be further satisfied by the detaining authority that the detention of such a known rowdy is necessary to prevent him from committing anti-social activity within the State. Only then, can the power of preventive detention u/s 3 of the KAAPA be invoked.
18. Commission, attempt to commit or abetment of the commission of all offences will not bring a person within the sweep of the expression ''rowdy''. He must have committed or attempted/abetted to commit certain classes of offences specified u/s 2(t) of the KAAPA. Further, those classes of offences must be punishable with imprisonment. It is not enough if the specified offences are punishable with imprisonment, they must be punishable with imprisonment of specified terms. This is the scheme of the KAAPA.
19. A careful reading and analysis of Section 2(t) leads us to the conclusion that certain essential requirements or pre-conditions must be satisfied before a detenu can be said to be a rowdy.
20. The requirements can be classified under two heads. First is the requirement regarding the nature of the offence. Second is the extent of punishment of imprisonment that can be imposed for such offences.
21. We note that the following requirements must be shown to exist: I. It must be offences of the following nature-
(a) specified offences under Chapters VIII, XV, XVI, XVII, and XXII of the IPC.
(b) any offence under the Arms Act.
(c) any offence under the Explosive Substances Act.
(d) such offences under any other law as may be notified by the Government from time to time.
22. The offence must be one falling under (a), (b), (c) and (d) stipulated above.
23. It is not enough if the offences would fall under the above categories, a further requirement has also got to be satisfied and that is:
II. (a) The offence must be punishable with imprisonment.
(b) The term of imprisonment imposable must be one year or more (i.e., offences punishable with less than one year of imprisonment have to be excluded).
24. We feel that a reading of Section 2(t) of the KAAPA must necessarily lead to the above conclusions regarding the nature of the offences as also the term of imprisonment for which the offence is punishable. Requirements I and II above must be simultaneously satisfied before a particular offence can be taken into reckoning for the purpose of Section 2(t) of the KAAPA.
25. We may straightaway deal with the argument that the extent of punishment/sentence is irrelevant when the offence is one punishable under the Indian Penal Code. The argument is that the stipulation regarding the extent of punishment can apply only when the offence is one punishable under a Statute other than the I.P.C.--i.e., (b), (c) and (d) of I referred above. A careful reading of Section 2(t) shows clearly that the qualifications regarding extent of punishment would apply to offences punishable under the specified Chapters of the I.P.C. or under the Arms Act or under the Explosive Substances Act. By no known cannon of interpretation is it possible to conclude that the further restriction regarding the extent of punishment is applicable only to offences punishable under the Arms Act and Explosive Substances Act. All the three classes of offences--those punishable under specified Chapters of the I.P.C., under the Arms Act and under the Explosive Substances Act are linked with the word ''or''. The later stipulation regarding extent of punishment must hence necessarily apply to all the three classes of offences. The mere fact that while specifying the Chapters of the I.P.C., 2 offences under Chapter VIII and other Chapters are referred to is of no significance. The use of the conjunction and in that part of the Section is in no way significant, according to us, in view of the employment of the word ''or'' to link the 3 classes of offences later in Section 2(t).
26. An interesting question arises as to why there has been sub-division of Section 2(t) into Section 2(t)(i) and Section 2(t)(ii). Would it not have been sufficient for the Legislature to have stated that the offences must be punishable with one year or more of imprisonment of any type? Why did the Legislature sub-divide the offences into two categories of offences punishable with 5 or more years of imprisonment and offences punishable with less than 5 years of imprisonment of any type u/s 2(t)(i) and Section 2(t)(ii) of the KAAPA? Even without sub-division into Clauses (i) and (ii) of Section 2(t), all offences punishable with imprisonment of one year or more could have been brought u/s 2(t). This must be borne in mind while considering the latter part of Clause (ii) of Section 2(t) which stipulates exclusion of offences "punishable with less than one year of imprisonment", argues Sri Sunny Mathew, the learned Counsel for the Petitioner.
27. The argument is found to be interesting; but cannot be accepted straightaway. We have to understand the scheme of the KAAPA and in particular the definition of ''known rowdy'' in Section 2(p). Depending upon the gravity of the offence, the law insists that one conviction by court as in Section 2(p)(i) or two convictions by court as in Section 2(p)(ii) or finding of guilt in three cases on investigation by a police officer u/s 2(p)(iii) must be mere against the detenu. It is in this context that we have to understand that the more serious offences are classified u/s 2(t)(i) and in respect of such offences one conviction can bring the detenu within the sweep of ''known rowdy'' u/s 2(p)(i). If the offence be the less grave offence u/s 2(t)(ii) two convictions are necessary to bring him within the sweep of the expression ''known rowdy'' in Section 2(p)(ii) of the KAAPA. If there is no conviction at all and there is only finding by the competent police officer on investigation of commission of offences, three offences must be shown to exist u/s 2(p)(ii)--whether of Section 2(t)(i) or Section 2(t)(ii).
28. An understanding of the need of sub-division into Section 2(t)(i) and Section 2(t)(ii) cannot possibly be made without and before understanding the concept of a ''known rowdy'' u/s 2(p) of the KAAPA. It is here that the anxiety of the Kerala Legislature to effectively rule out misuse of the provisions of the KAAPA is reflected clearly and transparently. More serious the offence u/s 2(t), one conviction is sufficient The less serious the offence, two convictions are necessary. In respect of a finding of commission of offence on investigation by a police officer which stands on a lesser persuasive effect, it is insisted that there must be three such findings. The analysis/understanding of Section 2(t) cannot be taken up without and before understanding the concept of known rowdy u/s 2(p) of the KAAPA.
29. The learned Counsel for the Petitioner Sri Sunny Mathew argues that the real scheme of the Act is that if the offence is punishable with 5 or more years of imprisonment of any type, the possible sentence that may actually be imposed after trial need not be looked into at all. If, on the contrary, the offence is a lesser offence falling u/s 2(t)(ii) where the offence is punishable with imprisonment for less than 5 years, a mandatory imprisonment of one year must be insisted before such offence can be included within the definition of rowdy u/s 2(t)(ii). This is the argument ably and forcefully advanced by the learned Counsel for the Petitioner.
30. The learned Director General of Prosecutions submits that such an understanding of the concept of offences "punishable with less than one year of imprisonment" would be artificial and improper. That would mean that quite a sizable chunk of the offences specified in I (a) to (d) above will go out of the sweep of the expression ''rowdy'' in Section 2(t) of the KAAPA. The traditional role of a rowdy/goonda of committing offences punishable u/s 323/324 IPC along with Section 506 Part-I/506 Part-II IPC will even go out of the expression ''rowdy'' as all the said four offences are alternatively punishable with a sentence of fine only.
31. The learned D.GP. strenuously argues that the scheme of Section 2(t) must eloquently convince the court that the mandatory minimum imprisonment of one year is not to be insisted to bring an offence within the sweep of Section 2(t)(ii) of the KAAPA.
32. We find the submission of the learned D.GP. to be acceptable. We wanted the learned Counsel to research and inform the Court whether of the specified offences under I (a) to (d) above there are any offences which are mandatorily punishable with imprisonment for a period of one year. None of the offences under the specified Chapters of the I.P.C. punishable with imprisonment for a period less than 5 years has the stipulation of minimum mandatory sentence of imprisonment of one year. It is, of course, pointed out by the learned amicus curiae Sri S. Rajeev that, at least, in so far as the offences u/s 25 of the Arms Act is concerned, there are certain offences which shall be punishable with imprisonment for a term which shall not be less than one year. The Counsel hence submit that at least some such offences can possibly exist which are punishable with less than 5 years of imprisonment which may carry a minimum mandatory sentence of imprisonment for one year.
33. Learned Counsel for the Petitioner Sri Sunny Mathew argues that the expression "excluding those punishable with less than one year of imprisonment" means and implies that all offences which can possibly be punished with the sentence of less than one year of imprisonment must be excluded from the sweep of Section 2(t) of the KAAPA. The learned Counsel argues that this is the only way to understand the expression "excluding those punishable with less than one year of imprisonment".
34. In support of this contention, the learned Counsel for the Petitioner relies on the decision of a learned Single Judge of this Court in Sreerajan v. State of Kerala 2001 (1) KLT 827. The dictum/principle propounded in that decision, the Counsel argues, is laid down by a later two Judge Bench of the Supreme Court in
35. In that case, the Supreme Court was called upon to consider the play of the expression "punishable with imprisonment for a term of not less than 10 years", which appears in Section 167(2)(a)(i) of the Code of Criminal Procedure. The learned Counsel Sri Sunny Mathew argues that the dispute here is not about the play of the expression "punishable with" but the dispute is on the interpretation of the expression "punishable with less than one year of imprisonment".
36. We have been taken through the decision in Rajeev Chaudhary''s case (supra) in detail. Rajeev Chaudhary''s case (supra) was a decision where the expression that fell for consideration is not exactly identical with the relevant expression in Section 2(t)(ii). Section 2(t) of the KAAPA employs the expression "excluding those punishable with less than one year imprisonment" whereas in Section to 167(1)(a)(i) Code of Criminal Procedure the expression used is "punishable with imprisonment for a term of not less than 10 years". Semantics employed by the legislature is different. u/s 167(2)(a)(i) Code of Criminal Procedure, 90 days is the time prescribed for filing final report by the police, failing which default bail can be granted to persons facing allegations of having committed certain offences. The offences specified in Section 167(2)(a)(i) Cr.RC.are offences punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years. All other offences come u/s 167(2)(a)(ii) Code of Criminal Procedure which prescribes 60 days as the period during which final report is to be filed to avoid the grant of bail by default. We deem it necessary to extract Section 167(2)(a)(i) in this context to crisply and precisely understand the question.
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 thinks fit, 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 purposes of that Chapter.
(emphasis supplied)
37. Relevant discussion in Rajeev Chaudhary''s case (supra) appears in paragraph 6 which we extracted below in extenso.
From the relevant part of the aforesaid sections, 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. For rest of the offences, the period prescribed is 60 days. Hence in cases where offence is punishable with imprisonment for 10 years or more, the 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. u/s 386 punishment provided is imprisonment of either description for a term which may extend to 10 years and also fine. That means, imprisonment can be for a clear period of 10 years or less. Hence, it could not be said that minimum sentence would be 10 years or more. Further, in context also if we consider Clause (i) of proviso (a) to Section 167(2), it would be applicable in case where investigation relates to an offence punishable (1) with death; (2) imprisonment for life; and (3) imprisonment for a term of not less than ten years. It would not cover the offence for which punishment could be imprisonment for less than 10 years. u/s 386 IPC, imprisonment can vary from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years.
(emphasis supplied)
38. Two reasons appear to have weighed with the court. The first appears to be that the true intention of the said Sub-clause (1) is to cover only offences, which are punishable with imprisonment for a clear period of 10 years or more. Section 386 I.P.C. was punishable with a maximum sentence of 10 years only and not more. The latter reason is that the expression punishable with imprisonment for a term of not less than 10 years would exclude all offences which can possibly be punished with imprisonment for less than 10 years. There was no minimum sentence of 10 years u/s 386 I.P.C. In this context we must note that the language used in Section 2(t)(ii) is significantly different and the expression used is "excluding those punishable with less than one year of imprisonment". We have already referred to earlier, while discussing the ingredients of Section 2(t) of the KAAPA, that the legislature wanted all offences for which the punishment is one year or more to be taken into reckoning for the purpose of Section 2(t) and wanted to exclude offences which are punishable with less than one year of imprisonment. Even going by the literal understanding of the dictum in Rajeev Chaudhary''s case (supra), in view of the significant difference in the language used in the two statutory provisions, the dictum therein cannot be blindly imported for understanding the relevant expression in Section 2(t) of the KAAPA. It would be incorrect and myopic not to appreciate the significant difference in the semantics employed by the legislature in the two statutory provisions.
39. The learned Director General of Prosecutions argues that the later decision of the Supreme Court in Bhupinder Singh''s case (supra) has taken the view that the expression punishable with imprisonment for life in Section 167(2)(a)(i) does not necessarily mandate or imply that a punishment less than imprisonment for life cannot possibly be imposed. In this view of the matter how much of the dictum in Rajeev Chaudhary''s case (supra) survives after the decision in Bhupinder Singh''s case (supra) is open to doubt it is contended. It is further argued that Rajeev Chaudhary''s case (supra)significantly had not referred to the earlier decisions of the three Judge Bench in Subhash Chand''s case (supra) and two Judge Bench in Sube Singh''s case (supra).
40. We are not in this case called upon to consider whether the dictum in Rajeev Chaudhary''s case (supra) is in any way detracted from in the light of the subsequent decision in Bhupinder Singh''s case (supra) or in the light of the earlier larger Bench decision in Subhash Chand''s case (supra). We take note of the submission of the learned Counsel Sri Sunny Mathew that Bhupinder Singh''s case (supra) can be held as authority only to decide the true scope and meaning of the expression "punishable with imprisonment for life". Counsel points out that it has been so specified in paragraph 11 of Bhupinder Singh''s case (supra) where the question for decision is specifically stated in the following words.
The question is whether Section 304B is an offence ''punishable'' with imprisonment for life.
As stated earlier, we are not going into the question whether the dictum in Rajeev Chaudhary''s case (supra) is any way detracted from by the decision in Bhupinder Singh''s case (supra) or the earlier decisions. In an appropriate case that question may have to be considered in greater detail. Suffice it to say that in view of the significant difference in the language employed in Section 167(2)(a)(i) of Code of Criminal Procedure and Section 2(f)(ii) of the KAAPA and considering the different purposes which the relevant statutory stipulations have to achieve, we are satisfied that the dictum in Rajeev Chaudhary''s case (supra) cannot help this Court to understand the meaning of the expression "excluding offences punishable with less than one year of imprisonment" in Section 2(t) of the KAAPA.
41. We have already indicated that in the light of the broad purpose which Section 2(t) of the KAAPA has to serve in the light of Section 2(p) and Section 3 of the KAAPA also, the insistence that offences which are not mandatorily punishable with the period of imprisonment not less than one year should be excluded from the operation of Section 2(t)(ii) of the KAAPA cannot be accepted.
42. The above discussions lead us to the conclusion that for the purpose of Section 2(f) of the KAAPA, all offences which are punishable with imprisonment for one year or more can be taken into account. All offences which are not mandatorily punishable with imprisonment for a period of one year need not be excluded from the sweep of Section 2(t)(ii).
43. In this view of the matter, even though the offences alleged against the detenu include offences in which punishment of imprisonment for a period of less than one year or fine only may be imposed in the discretion of the court after completion of the trial, they can also be certainly reckoned for the purpose of deciding whether the detenu is a rowdy u/s 2(f) of the KAAPA and consequently a known rowdy u/s 2(p). The challenge raised, though interesting, cannot be accepted. The challenge raised on this ground must fail.
44. No other grounds are raised. We are satisfied that this writ petition does not deserve to be allowed and the impugned order of detention and the continued detention of the detenu does not warrant interference.
45. This writ petition is accordingly dismissed.
