A short but an important point which arises for consideration, is whether an accused is entitled to bail, if investigation is not completed and charge-sheet is not filed within 60 days form the date of his arrest when he is alleged to have committed an offence punishable under Section 306 or 304B of IPC

2. Facts which gave raise to the said point, are:

The petitioner-accused No.1 was produced before the learned Magistrate on 5.4.04 in crime No.38/2004 of Shivajinagar Police Station at Bangalore, alleging that he and another accused (accused No.2) committed offences punishable under Section 498A and 306 of IPC and consequently, he was remanded to Judicial custody. That custody was extended from time to time. However, charge-sheet was not filed within 60 days from the date of his remand. So, on 25.6.2004, the petitioner/accused No.1 filed an application under Section 167 of Cr.P.C. requesting for his release on bail on that ground. Thereafter, on hearing both sides, the learned Magistrate rejected that application on 8.7.2004. So, the petitioner is before this Court. After notice to the respondent/State, heard both sides.

3. It was vehemently argued for the petitioner that investigation relating to an offence punishable either under Section 306 of IPC or under Section 304B of IPC does not come under Section 167(2)(a)(i) of Crp.P.C. and consequently, the petitioner was entitled to bail as of right when, admittedly, charge sheet was not filed within 60 days provided under Section 167(2) (a)(ii) of Cr.P.C. On the other hand, it was submitted by the learned SPP that as, after investigation, chargesheet was filed for the offence punishable under Section 304B of IPC, which is punishable with an imprisonment which may be for life, Section 167(2)(a)(i) of Cr.P.C. comes into play and not the other provision providing 60 days’ period and as such, the petitioner was not entitled to bail since the charge-sheet was admittedly filed within 90 days - period provided under Section 167(2)(a)(i) of Cr.P.C. and the trial Court has rightly rejected the petition. Perused the records carefully.

4. In the instant case, initially FIR was issued for offences U/ss 498A & 306 IPC. Admittedly, since section 498A of IPC is punishable with imprisonment which may extent to 3 years, investigation relating to that offence should be completed within 60 days, otherwise accused is entitled to bail U/s.167(a)(ii) of Cr.P.C., & for that, there is no controversy. The controversy is for the period provided u/s.167(2)(a) of Cr.P.C. for offences under sections 304B & 306 of IPC as per chargesheet filed and the other as per the FIR issued.

5. Firstly, let me consider the period applicable for investigation relating to an offence punishable under Section 306 of IPC shown in the F.I.R. The punishment provided for that offence is imprisonment for a term, which may extend to 10 years. It need not be said that to attract sec.167(2)(a)(i) of Cr.P.C., the investigation should relate to an offence punishable with death or imprisonment for life or imprisonment for a team of not less than 10 years. As noted already, punishment for the offence U/s 306 of IPC may extend to imprisonment for 10 years only, the maximum punishment, which could be awarded for that offence is imprisonment for a period of 10 years and it need not be for 10 years imprisonment since it could be less also. In other words, imprisonment could be for the period less than 10 years also as no minimum punishment is prescribed for it. But, to attract sec.167(2)(a)(i) of Cr.P.C., the imprisonment for an offence shall not be less than 10 years and as such, it doesn’t apply for the said offence. So, Sec. 167(2)(a)(ii) of Cr.P.C. comes into play & as such for the offence relating to Sec.306 of IPC, if investigation is not completed and chargesheet is not filed within 60 days, accused is entitled to be released on bail.

6. The matter does not end here. This is because, though FIR was issued for the offence u/s.306 of IPC, chargesheet came to be filed for offence U/s.304B of IPC, for which an accused could be punished with imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life. Since for said offence, punishment may extend to imprisonment for life, according to the learned SPP, Sec. 167(2)(a)(i) of Cr.P.C. comes into play providing 90 days and not 60 days provided in Sec. 167(2)(a)(ii) of Cr.P.C. So, what requires to be considered is, whether the words imprisonment for life could be taken or read or equated to the words “which may extend to imprisonment for life or not.

7. In the case of Ameer Vs. State (Crl.P.1330/2004) decided today (30.7.2004), while considering a case relating to an offence punishable u/s.376 of IPC, I have held that the words imprisonment may extend to life cannot be read or taken as imprisonment for life because, in the former case, imprisonment could be even less than that (imprisonment for life) & need not for life whereas, in the latter case, where punishment is imprisonment for life, the sentence of imprisonment cannot be less than for life & as such, in the former case, sec. 167(2)(a)(ii) of Cr.P.C. comes into play whereas, to the latter case sec.167(2)(a)(ii) of Cr.P.C. applies.

8. If for the offence u/s.304-B of IPC, the punishment had been provided with minimum imprisonment for a period of 10 years as against 7 years - minimum now found, there of course situation would have been different but not now, as an accused could be punished with an imprisonment for a period of not less than 7 years and may extend to life. So, in the present case, whether the offence shown in FIR in considered or the offence shown in the chargesheet, Sec.167(2)(a)(ii) of Cr.P.C. providing 60 days applies.

9. Consequently, the petitioner was entitled to bail on 25.6.2004, when he filed application for that under section 167(2) of Cr.P.C. on the ground that charge-sheet has not been filed within 60 days from the date of his arrest. But, the learned Magistrate has not appreciated it in right perspective even though a decision of this Court in the case of Babu besides a decision of the Supreme Court in the case of Rajeev Choudhary Vs. State (NCT) of Delhi were relied on for the petitioner.

10. So, now, having regard to the facts and circumstances of the case and the decision of the Supreme Court in the case of Uday Mohanlal Acharya Vs. State of Maharashtra (2001(2) Crimes 150(SC), the petitioner is entitled to be released on bail as he was denied bail wrongly, though applied for that.

In the result, the petition is allowed under Section 482 of Cr.P.C. and set-aside the impugned order passed by the learned Magistrate and the petitioner is held entitled to be on bail in Cr.No.38/2004 Shivajinagar P.S.(C.C.No.24683/2004), but on the terms and conditions to be imposed by the learned XI Addl. C.M.M. at Bangalore

Inform the same to the concerned Magistrate.