High Court of Delhi

Rajeev Sharma vs State (Nct) Of Delhi

MANU/DE/2182/2020

04.12.2020

Criminal

Where no minimum sentence is prescribed, accused is entitled to default bail if charge-sheet not filed in 60 days

Accused had moved a petition under Section 167(2) of Code of Criminal Procedure, 1973 (CrPC) to release him, on the ground that, 60 days period having expired, since his arrest and charge sheet has not been filed by the State by relying upon the judgment of Supreme Court, in the case of "Rakesh Kumar Paul vs. State of Assam". The said petition was dismissed by the Court saying the limit of 60 days period has not yet expired. Against the said order, accused has moved the present petition. The dispute involves interpretation of Section 167 of CrPC.

Present Court is required to see if in the present case the chargesheet is to be filed within 90 days or was required to be filed within 60 days from the date of arrest of the accused.

In case of Rakesh Kumar Paul vs State of Mysore, where the Supreme Court was concerned with interpretation of the words “imprisonment for a term of not less than 10 years” appearing in clause (i) of proviso (a) to Sub Section (2) of Section 167 of CrPC, 1973, as amended in 1978. The Supreme Court went in great detail analyzing the purpose of amendment since 1898 which contained Section 167 laying down the procedure to be followed in the event the investigation to the offence is not completed within 24 hours. The Court observed that, the legislative expectation was the investigation would ordinarily be completed within 24 hours. Section 167 of CrPC was thus enacted with the recommended time limit and again regardless of the nature of offence of the punishment.

Further, the Supreme Court went on to say that, in 1978 a need was felt to amend Section 167 of CrPC by not only extending the period for completing investigation but also relating that period to the offence. Therefore, a shift was proposed to grant an aggregate period of 90 days for completing the investigation in cases relating to offences punishable to death, imprisonment for life or imprisonment for not less than 10 years or more. The Court said that, in its opinion the use of words “or more” gives a clear indication that the period of 90 days was relatable to an offence punishable with minimum imprisonment for a period of not less than 10 years, if not more.

The offence must have the imprisonment for a clear period of 10 years or more only then Section 167(2)(a)(i) of CrPC would be applicable. This view also find favour in Rajeev Choudhary vs. State of NCT of Delhi wherein it was held that, the words “not less than” would mean that the imprisonment should be of 10 years or more and would cover only those cases for which the punishment and imprisonment would be for a clear period of 10 years or more.

Under the Official Secret Act, 1923 for which the Petitioner is being tried, though entail punishment which may extend to 14 years but the Section does not talk of minimum period of sentence and thus does not pass the test of clear period of 10 years or more, as per Rajeev Choudhary vs. State of NCT of Delhi and Rakesh Paul vs. State of Assam and as such the period of challan in present case would be 60 days and thus, the impugned order passed by the learned MM being illegal is set aside and the petition is allowed. The petitioner is thus entitled to default bail; the challan having not been filed within 60 days. The applicant is thus admitted on bail on his executing a personal bond of Rs.1,00,000 to the satisfaction of the Jail Superintendent/Duty MM. The petition stands disposed of.

Tags : Charge sheet Time period Default bail

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