CASE COMMENTS/CRIMINAL LAW

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A Comment on Rajeev Chaudhary v. State
by Ramesh Vaghela*

Cite as : (2002) 5 SCC (Jour) 11

Section 167(2) of the Criminal Procedure Code1 empowers the Judicial Magistrate to authorise custody of an accused person in cases wherein investigation cannot be completed in twenty-four hours. It provides for the maximum period of custody which can be authorised by the Magistrate. Depending on the punishment provided for the particular offence, the custody is not to exceed ninety days or sixty days. On the expiry of the applicable statutory period, if investigation is not completed during the prescribed period, the accused is entitled to be released on bail "if he is prepared to and does furnish bail".2 Section 167(2)(a)(i) provides that 90 days would be maximum permissible custody where the investigation relates to "an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years". For offences not covered under Section 167(2)(a)(i), maximum period of custody is sixty days. With regard to the first two categories of offences (punishable with death or imprisonment for life) there can arise no difficulty. However, with regard to the third category viz. offences punishable with imprisonment for a term of "not less than ten years", question arose in Rajeev Chaudhary case3 as to whether this expression would cover the offences wherein the punishment provided is imprisonment "for a term which may extend to ten years". The accused Rajeev Chaudhary was arrested in connection with offence punishable under Section 386 of the Penal Code which provides for imprisonment "for a term which may extend to ten years". He was produced before the Metropolitan Magistrate, New Delhi on 31-10-1998 and was remanded initially to police custody up to 1st November and thereafter to judicial custody. On an application made by the accused under Section 167(2) of the Criminal Procedure Code, the Magistrate released him on bail on the ground that the applicable maximum period of detention for the offence was sixty days and that that period was over. The Magistrate held that clause (ii) of Section 167(2)(a) of the Code applied when the investigation related to an offence punishable with imprisonment "for a term which may extend to 10 years". The State filed a revision petition which was allowed by the Additional Sessions Judge who set aside the order of bail and directed the accused to surrender before the trial court. That order was challenged by the accused in the Delhi High Court. The High Court upheld the order passed by the Additional Sessions Judge. In these circumstances, it was the accused who moved the Supreme Court. Despite this position, the Supreme Court in Rajeev Chaudhary3 apparently due to oversight proceeded on the footing that the High Court had held that maximum permissible custody would be sixty days in case of offences which are punishable with imprisonment "for a term which may extend to ten years". This is evident from its observations which run as follows:

"The High Court referred to its earlier decisions and held that the expression 'an offence punishable with imprisonment for a term of not less than ten years' in clause (i) of proviso (a) to Section 167 would mean an offence punishable with imprisonment for a specified period which period would not be less than ten years or in other words would be at least ten years. The words 'not less than' qualify the period. These words put emphasis on the period of ten years and mean that the period must be clear ten years. It was further held that on a plain reading of clause (i) of proviso (a) to sub-section (2) of Section 167 CrPC, there seemed to be no doubt that offences punishable with death, imprisonment for life or imprisonment for a term of ten years or more would fall under clause (i) and offences which are punishable with imprisonment for less than ten years would fall under clause (ii). Hence, the High Court set aside the order passed by the Additional Sessions Judge. That order is challenged in this appeal."4

This is not what the High Court held. Further, the observation by the Apex Court that the High Court "set aside the order passed by the Additional Sessions Judge" is factually incorrect. The judgment of the Delhi High Court is reported.5 To recapitulate the facts, the Metropolitan Magistrate had released the accused on bail under Section 167(2) of the Code on the premise that the custody beyond sixty days could not be authorised. The Additional Sessions Judge set aside the order holding that maximum permissible custody for offence under Section 386 of the Penal Code was ninety days and not sixty days. The accused who was taken back in custody approached the High Court. Analysing the provisions of Section 167(2) of the Code, the High Court held:

"The crucial test is whether the offence is one for which the punishment of imprisonment for a term of ten years or more can be awarded. It is immaterial that the court may have also the discretion to award the punishment of imprisonment for a term of less than ten years. In the case of a particular offence, even though the court may have discretion to award punishment of imprisonment for a term of less than ten years, the abovementioned clause (i) will apply if the accused can be punished with imprisonment for a term of ten years. Where the offence is punishable with 'imprisonment for a term which may extend to ten years', the court has the discretion to sentence the accused to undergo imprisonment for a term of ten years or for a term of less than ten years. Hence, the abovementioned clause (i) will be applicable where the investigation relates to an offence punishable with 'imprisonment for a term which may extend to ten years'. It should be borne in mind that the expression used by the legislature in clause (i) of proviso (a) to Section 167(2) is not 'imprisonment for a minimum term of ten years'. If the legislature intended to restrict the application of the said clause (i) to offences punishable with imprisonment for a minimum term of ten years, the legislature could have used the expression 'offence punishable with death, imprisonment for life or imprisonment for a minimum term of ten years'. Significantly the legislature did not use such an expression."6

Thus, the High Court upheld the order passed by the Additional Sessions Judge and held that provisions of Section 167(2)(a)(i) of the Code providing for custody up to ninety days would be applicable in case of accused arrested for offence punishable with imprisonment "for a term which may extend to ten years". The judgment of the Supreme Court proceeds on the incorrect premise that the High Court had set aside the order passed by the Additional Sessions Judge. Had that been so, the accused would have been released on bail and there would have been no reason for him to approach the Supreme Court as the appellant. In paragraph 6 of the Supreme Court judgment, it has been observed:

"[I]n 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. Under Section 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."7

The Court thus held that Section 167(2)(a)(i) would apply only in case of offence where "minimum sentence would be ten years or more" and the said proviso "would not cover the offence for which punishment could be imprisonment for less than 10 years".8 The Supreme Court thought, on the erroneous assumption that this was the view taken by the High Court. However, the High Court had taken just the contrary view. Had the Supreme Court considered the reasoning of the High Court, it is possible that the question would have been examined in a different perspective. This is so because the High Court has given cogent reasons for holding that Section 167(2)(a)(i) providing for ninety days' custody would apply in case of offence punishable with imprisonment "for a term which may extend to ten years". Since the Supreme Court proceeded on an erroneous impression, we have this decision wherein the Supreme Court while sticking on sixty days' period upheld an order of the Delhi High Court which had said ninety days' period was applicable. Thus the accused remained in custody even though as per the interpretation by the Supreme Court, he ought to have been released on bail as the charge-sheet was admittedly not filed within sixty days.

The Supreme Court held that the expression "not less than" in Section 167(2)(a)(i) would mean "imprisonment for ten years or more". At this juncture, it is interesting to examine whether there were any such offences which provided for imprisonment for a clear period of ten years or more when the section in its present form was introduced. In this regard, the Delhi High Court in Rajeev Chaudhary55 has referred to an earlier decision of a Division Bench of the same High Court wherein it was held that for the offences under Section 3 of the Official Secrets Act, 1923 providing for "imprisonment for a term which may extend to fourteen years", the applicable statutory period for custody would be ninety days. The two learned Judges delivered separate judgments. In one of the judgments, Justice R.N. Aggarwal observed as under:

"There is another reason which supports my above conclusion. On the date when the amendment in Section 167 was brought about (Act 45 of 1978) there was no offence in the Indian Penal Code which was punishable with imprisonment for a minimum term of ten years. Clause (i) of proviso (a) to Section 167(2) has to be interpreted keeping in mind the above fact. ... The important fact to notice is that in 1978 when the amendment in question was introduced there was no offence in the Indian Penal Code or in any other special Act which provided a minimum sentence of ten years and this circumstance is strongly suggestive that the legislature in using the words 'not less than ten years' had not intended to mean a minimum sentence of ten years' imprisonment but it intended that the offence should be punishable with imprisonment of ten years or more."9

In this view of things also the conclusion by the Apex Court that Section 167(2)(a)(i) would apply only in case of offence where "minimum sentence would be ten years or more" and that the said proviso "would not cover the offence for which punishment could be imprisonment for less than ten years" appears to be erroneous.

Thus the judgment in Rajeev Chaudhary3 requires clarification if not reconsideration.

*   Joint District Judge, District Court, Rajkot 360 001, Gujarat Return to Text

1. Section 167(2) lays down:

   "167. (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) 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;" Return to Text

2. For an elaborate discussion on the "indefeasible right" of an accused to be released on bail, see Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 Return to Text
3. Rajeev Chaudhary v. State (NCT of Delhi), (2001) 5 SCC 34 Return to Text
4. Ibid., at p. 35, para 3 Return to Text
5. Rajeev Chaudhary v. State, 2001 Cri LJ 2023 (Del) Return to Text
6. Ibid., at p. 2025, para 4 Return to Text
7. Supra fn. 3, at p. 36, para 6 Return to Text
8. Ibid., at p. 36, para 6 Return to Text
9. Supra fn. 5, at pp. 2027-28, para 8