IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No 1280 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- THE MEMON COOPERATIVE BANK LIMITED Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Criminal Application No. 1280 of 2004 MR ND NANAVATI FOR MR KETAN D SHAH for Petitioner MR AD OZA PP with Mr. PR ABICHANDANI, APP for Res. No. 1 MR PM THAKKAR for Mr.RR MARSHALL for Respondent No. 2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.R.VORA Date of decision: 15/12/2004 ORAL JUDGEMENT 1. This petition is filed by the petitioner The Memon Co-operative Bank Limited, to issue of writ of certiorari or a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the order dated 4th of December, 2004 passed by the learned Additional Sessions Judge, Surat, in Criminal Revision Application No. 240 of 2004 as well as the order dated 9th of November 2004, passed by the learned Judicial Magistrate, First Class, Court No.2, Surat. 2. Present petitioner preferred a private complaint in the court of learned Judicial Magistrate, First Class, at Surat against present respondent No.2 Riaz Abdul Zunzuniya for the offences punishable under Sections 384, 406,409, 420, 201, 467, 468, 470, 477 (A) and 120-B of the Indian Penal Code. Learned Judicial Magistrate, First Class, was pleased to direct an inquiry under Section 156(3) of the Code of Criminal Procedure and hence an FIR against present respondent No.2 came to be registered at Rander Police Station of Surat District as M-Case No. 4 of 2004 for the above said offences. Respondent No.2 being Branch Manager of Surat Branch of petitioner Bank alleged to have committed above said offences. CBI investigated some offences and during that investigation, CBI received certain information in respect of Surat Branch of the petitioner Bank where respondent No.2 was serving as Branch Manager. CBI brought to the notice of the Head Office of the Bank about certain irregularity committed by the Surat Branch of the petitioner Bank. On inquiry, the petitioner Bank found prima facie financial irregularity in the functioning of respondent No.2 as Branch Manager and started investigation. At the result of the said investigation, a private complaint, as above said, came to be filed by present petitioner and on 19.6.2004, direction was issued to investigate the said complaint under Section 156(3) by learned J.M.F.C., Surat. The further details about the manner in which the offence alleged to have been committed by respondent No.2 or the progress of investigation is not required to be gone into at this stage. 3. Present respondent No.2 in the said offence came to be arrested on 26th of August, 2004 and was produced before concerned Magistrate on 27th of August, 2004. Investigating Agency though preferred application for remand of the accused to police custody, but same came to be dismissed by learned JMFC, Surat. Though against the said order of dismissal, two Revision Applications, one by the State and one by the petitioner, came to be filed before the Court of Sessions, which according to submissions made, were dismissed by Additional Sessions Judge, Surat. 4. Present respondent No.2 on 26th of October, 2004 preferred an Application before Judicial Magistrate, First Class, 2nd Court, Surat, in the said Inquiry Case No. 43 of 2004 in M-Case No. 4/2004 praying that from the date of his remand order i.e. from 27th of August, 2004, no charge sheet till 26th of October, 2004 i.e. within 60 days, came to be filed by Investigating Agency and as per the provisions of Section 167(2)(a)(ii) respondent No.2 was entitled to default bail. On the same day, learned JMFC, vide an endorsement below the said application inquired from the office that whether charge sheet was submitted against respondent No.2. Ultimately, vide final endorsement on the said application, learned Judicial Magistrate, First Class, was informed by his office that the charge sheet was not submitted in the said offence till 9th of November, 2004. Therefore, the bail application filed, as aforesaid, was heard by learned JMFC, Court No.2, Surat, and he passed order below the said application on the same day i.e. 9th of November, 2004. Learned Judicial Magistrate, First Class, after relying on a decision of Uday Mohanlal Acharya vs. State of Gujarat, as reported in 2001 (2) GLR 1148 and a decision of this Court in the matter of Girishbhai Arunbhai Desai vs. State of Gujarat as reported in 2002 (3) Cri.L.J. 58, came to the conclusion that the provision under Section 167(2)(a)(ii) are mandatory and when the offence is alleged against the respondent No.2, were inviting the penalty of imprisonment, which may be extended upto 10 years, the investigating agency was duty bound to submit charge sheet within 60 days from the date of remanding the accused in custody and, therefore, vide order dated 9th of November, 2004, learned Judicial Magistrate, First Class, Court No.2, allowed the application of respondent No.2 for releasing him on bail by virtue of provision of Section 167(2)(a)(ii) of the Code of Criminal Procedure and respondent No.2 was ordered to be released on bail with certain conditions. The said order of learned JMFC, Court No.2, appears to have been stayed and two Revision Applications against the said order, came to be preferred by (1) Present petitioner and (2) State being Criminal Revision Applications No. 240 of 2004 and 241 of 2004. The said Criminal Revision Applications appear to have been heard together. Learned Additional Sessions Judge, Surat, after hearing the parties in said two Revision Applications and relying upon decisions on Rajeev Chaudhary v. State (NCT) of Delhi, as reported in 2001 AIR SCW 2210 and Pralhad Vithal Giri vs. State of Maharashtra, as reported in 2002 Criminal Reported Judgments Vol. 3 page 57, came to the conclusion that from the relevant part of the aforesaid Sections, it was apparent that pending investigation relating to an offence punishable with imprisonment for a term "not less than 10 years", the Magistrate was empowered to authorize the detention of the accused in custody for not more than 90 days. For the rest of the offences, the period of detention is prescribed to be 60 days. Learned Additional Sessions Judge further observed that "not less than" would mean imprisonment should be 10 years or more and would cover only those offences for which imprisonment could be for a clear period of 10 years or more and, therefore, learned Additional Sessions Judge came to the conclusion that where in cases sentence prescribed is death sentence, life imprisonment or sentence not less than 10 years, in those cases only, the detention is authorized for 90 days, and in all other cases, the detention is for 60 days and in such 60 days, if the charge sheet is not filed, then indefeasible right is accrued in favour of an accused. Learned Additional Sessions Judge also came to the conclusion that in the present case, the accused was charged with offences punishable under Sections 409, 467 and 471 of the Indian Penal Code, which were punishable with imprisonment for life or imprisonment of either description, which may extend to 10 years. Meaning thereby, the minimum sentence having not been prescribed under Section 409 or under Section 467 or 471 of the IPC of not more than 10 years, the principle as laid down by the Hon'ble Supreme Court in the case of Rajeev Choudhary (supra) would be applicable and ultimately he dismissed both the Revision Applications. Learned Counsel Mr. Nanavati stated at this juncture that Investigating Agency at the time of producing the accused before the Magistrate on 27th of August, 2004, asked for remand, but that application came to be dismissed by learned Magistrate and petitioner as well as the State both preferred Revision Petitions before the learned Sessions Judge against the order of rejecting remand of the accused to police custody by learned Magistrate. Those Revisions were preferred on 1st of September, 2004 and was heard on 10th of September, 2004, but it was kept for the orders. According to the statement made by learned counsel for the petitioner, as per his instructions, the Revision Petitions came to be rejected by learned Additional Sessions Judge on 4.12.2004. He makes statement that the petitioner shall take further proceedings against rejecting such Revision Petitions. It is an admitted fact between the parties that charge sheet came to be filed on 18th of November, 2004. Admittedly, beyond the period of 60 days but within the period of 90 days from the date of remanding the accused to custody. 5. Being aggrieved by the above said orders passed by learned Judicial Magistrate, First Class, Court No.2, as well as learned Additional Sessions Judge at Surat, this petition is preferred by petitioner - original complainant under Section 482 of the Code of Criminal Procedure and under Articles 226 and 227 of the Constitution of India. 6. Learned Additional Sessions Judge vide his order dated 4th of December, 2004, was pleased to stay the order of releasing the accused on bail till 13th of December, 2004 before office hours. This petition came to be filed on 8th of December, 2004 and was placed on Board by the Office on 10th of December, 2004. 7. Learned Advocate Mr. Marshall on calling out the matter submitted that learned Senior Counsel Mr. P.M. Thakker appears in the matter on behal of respondent No.2 while on behalf of the petitioner learned Senior Counsel Mr. N.D. Nanavati appears along with Mr. K.T.Shah. Having regard to the urgency of the matter and having regard to the nature of the matter, it was necessary to hear the matter finally, and accordingly learned counsels addressed this Court and the matter was heard finally. On behalf of respondent No.1 State, learned PP Mr.A.D. Oza along with learned APP Mr. P.R. Abichandani was heard. The order passed by learned Additional Sessions Judge on 4.12.2004 staying the release of the accused was extended by this Court till 14th of December, 2004 vide order dated 10th of December, 2004 and further extended till today i.e. 15th of December, 2004, vide order dated 14th of December, 2004. 8. Learned Senior Counsel Mr. Nanavati for the petitioner after giving the facts of the case stated that the question which this court is required to decide is whether, when respondent No.2 is charged for the offence punishable under Sections 409 and 471 of the Indian Penal Code, authorized detention under Section 167(2) of the Cr.P.C. would be of 90 days or of 60 days. Learned Counsel Mr. Nanavati took this court to the provisions of Section 167 of Cr.P.C. and pressed on the phraseology employed that what is to be seen is the punishment prescribed for an offence and not the punishment which a court should award to the accused on his guilt being proved, and that is clear from the scheme of Section 167 of the Cr.P.C. The simple question is required to be asked that what punishment is prescribed for certain offences. In that context, according to learned counsel word "punishable: is employed by legislature. It was contended that at this juncture when charge sheet is to be led before the court, the question that what punishment a court should award, would be premature and irrelevant factor. Learned Counsel contended that Rajeev Chaudhary case (supra) relied upon by learned Sessions Judge is misapplication of the ratio of the decision. It was contended that the said case dealt with an offence punishable under Section 386 of the IPC where punishment prescribed is imprisonment of a term which may extend to 10 years. In the said offence of Section 386, punishment for life is not prescribed for. The offence of Section 386, therefore, according to learned counsel, is punishable with imprisonment which may extend to 10 years but not more than 10 years. In that context, the Supreme Court observed that the court could award the punishment of 10 years or less than that but not more than 10 years. Learned Counsel therefore contended that the ratio as laid down in the case of Rajeev Chaudhary (supra) would not be helpful to decide this case because admittedly the accused in this case is charged with the offences punishable under Sections 409 and 471 of the Indian Penal Code as well, and for both the offences, the punishment is prescribed for a term which may extend to 10 years or imprisonment for life. It was therefore contended that when punishment prescribed is imprisonment for life, obviously, the case would be covered under Section 167(2)(a)(i) of the Cr.P.C. where the detention is authorized for 90 days and not 60 days. It was contended that admittedly the charge sheet came to be filed by the Police within 90 days as the accused was arrested on 26.8.2004 and was remanded to the custody on 26.8.2004. Learned Counsel relied upon a decision of the Supreme Court in the matter of STATE OF MAHARASHTRA vs. BHARATI CHANDMAL VARMA, as reported in (2002) 2 SCC 121, wherein for the offences punishable under Sections 489-A, 389-B and 489-C, the Supreme Court treated the case where the charge sheet was required to be filed within 90 days. The learned Counsel stated that for the offences punishable under Sections 489-A, 489-B and 489-C of the IPC, same punishment i.e. imprisonment, which may extend upto 10 years or imprisonment for life, is provided for and for offences punishable under Sections 409 and 471 of the IPC, the same punishment is prescribed for. Learned Counsel stated that, therefore, both the courts below, misapplied the ratio laid down in Rajeev Chaudhary's case and directed to release the accused on default bail, considering the authorized detention by the Magistrate in custody of 60 days. If the orders in question are allowed to stand, would result into miscarriage of justice in view of the clear position of law, as contended by him. Ultimately, it was urged that the petition be allowed and the orders in question be quashed under extraordinary powers of this Court. 9. Learned Counsel Mr. P.M. Thakkar raised first and foremost submission in respect of maintainability of the petition. His contention was, learned Additional Sessions Judge, decided the matter in revisional powers conferred upon him vide Section 397 of Cr.P.C. It was contended that second revision application by virtue of Section 397(3) of the Code of Criminal Procedure is barred. His contention was, when there is a statutory bar, and when express provision of law forbids further proceedings, the High Court cannot ignore such express provision of law even while exercising powers under Articles 226 and 227 of the Constitution of India or exercising inherent powers under Section 482 of the Code of Criminal Procedure. He relied upon certain decisions to fortify his contention. He relied upon a decision of the Hon'ble Supreme Court in the matter of PALLAV SHETH vs. CUSTODIAN AND OTHERS, as reported in (2001) 7 SCC 549, wherein in para-30 onwards, the Apex Court observed that limitation prescribed for taking action for contempt as per the Contempt of Courts Act, 1971, cannot be diluted while exercising inherent powers even though High Court and Supreme Court being court of record are empowered to take action by virtue of Articles 129 and 215 of the Constitution of India where no limitation for taking action for the contempt is prescribed for. Unless such provision as prescribing limitation for taking action for the contempt is not validly enacted law. The Supreme Court observed that if there by any provision of law which abrogates or stultifies the power under Articles 129 or 215, there can be little doubt that such law would not be regarded as having been validly enacted. It was contended that bar placed by Section 397(3) of Code of Criminal Procedure is validly enacted law and while exercising inherent power or powers under the Constitution, court cannot ignore and allow to maintain a second revision application. 9.1 Learned Counsel Mr. Thakkar also relied on a decision of the Apex Court in the matter of RAJAN KUMAR MACHANANDA vs. STATE OF KARNATAKA, as reported in 1990 SCC (Cri) 537 wherein the Apex Court held that where a revision petition is dismissed by the Sessions Court, a second revision would not lie to the High Court. Merely by saying that the jurisdiction of the High Court for exercise of its inherent power was being invoked the statutory bar could not have been overcome. If that was to be permitted every revision application facing the bar of Section 397(3) of the Code would be labelled as one under Section 482. 9.2 Learned counsel relied upon a decision of Supreme Court in the matter of JITENDER KUMAR JAIN vs. STATE OF DELHI as reported (1998) 8 SCC 770 wherein the Supreme Court observed that on dismissal of revision application by court of sessions and when a petition is filed under Section 482 of the Code of Criminal Procedure, the High Court should not have dismissed merely because in such case, second revision would not lie because it was otherwise open to the High Court not to interfere in the matter when examining the case under Section 482. 9.3 Learned Counsel also relied upon a decision of the Apex Court in the matter of DEEPTI vs.AKHIL RAI as reported in (1995) 5 SCC 751, where the Supreme Court observed that the second revision was barred by virtue of Section 397 (3) of the Code of Criminal Procedure. Therefore, on the strength of the above rulings, it was contended that the petition at the first place was not maintainable. 9.4 Learned Counsel also relied upon a decision in the matter of SADHANA LODH vs. NATIONAL INSURANCE CO. LTD. as reported in (2003) 3 SCC 524, wherein with reference to the powers of High Court under Article 227 of the Constitution of India, Supreme Court observed that those powers are confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of record, much less of an error of law. It was further observed that in exercising such powers, High Court does not act as an appellate court or a tribunal and it is also not permissible to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision. Learned counsel contended that even if the decision of both the courts below are passed even in error of law, could not be corrected while exercising powers under Article 227 of the Constitution unless the subordinate court has passed order, which had no jurisdiction at all or in lack of jurisdiction. It was therefore contended that the petition styled as a petitioner under Section 482 of the Cr.P.C. or under Articles 226/227 of the Constitution of India, is not maintainable. Coming to the merits of the matter, learned Counsel Mr. Thakkar, emphasized on a decision of Rajeev Chaudhary's case (supra) and contended that case is covered fully by the said decision. Relying on para-6 of Rajeev Chaudhary's decision, learned counsel stated that in express term at 3 places in para-6 the Supreme Court observed that the cases covered by provision of Section 167 (2)(a)(i) are the cases where punishment of imprisonment is prescribed not less than 10 years. When punishment is prescribed for 10 years or more, the accused could be detained in custody upto a period of 90 days. He referred to the observation of the Supreme Court in para-6 wherein it is observed that 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. Learned counsel contended that the simple question which would arise is whether accused in this case could be punished for the imprisonment for less than 10 years? The answer, according to learned counsel, must be in affirmative. It is therefore contended that if that be so, the present case would necessarily be covered by the provisions of Section 167 (2)(a)(ii) of the Code of Criminal Procedure. Learned Counsel contended that therefore subordinate courts rightly applied the ratio of Rajeev Chaudhari case and came to the conclusion that the detention in the present case of the accused could be of 60 days and when admittedly the charge sheet was not filed within 60 days, it was indefeasible right of the accused to obtain bail. It was contended by learned Counsel that when the court has option to award punishment of imprisonment for less than 10 years, the case would obviously cover by Cl. (ii) and not by Cl. (i) and the detention would be of 60 days. The test, according to learned counsel is not what maximum punishment the court can award, but the test is according to Rajeev Choudhari's case, what minimum punishment the court can award and, therefore, in last three/four lines of para-6 in Rajeev Chaudhary's case, the Apex Court has observed that it would not cover the offence for which punishment could be imprisonment for less than 10 years. With reference to proviso (i) of Section 167 (2)(a) of the Code of Criminal Procedure, learned Counsel Mr. Thakkar also relied upon a decision of this Court in the matter of GIRISHBHAI ARUNBHAI DESAI vs. STATE OF GUJARAT, as reported in 2002 (4) GLR 3344, wherein charge sheet came to be filed against the accused under Section 304 of the Indian Penal code. Learned Counsel submitted that there are no parts of Section 304, which for the practical purposes, are referred as Part-I and Part-II. Learned Counsel submitted that when the charge sheet is submitted, it would be Section 304 of IPC and it could not be under Section 304 Part-I or 304 Part-II. Learned Counsel submitted that in Girishbhai Arunbhai Desai's case, the Court made it clear in para 9 that the charge sheet came to be filed under Section 304 of the Indian Penal Code, for which like Sections 409 and 471 of the Indian Penal Code, punishment is prescribed to be imprisonment which may extend upto 10 years or imprisonment of life. In the said circumstances, this Court held that the charge sheet was required to be submitted within 60 days and there also reliance was placed on a decision of the Apex Court in Rajeev Chaudhari's case. Therefore, when in the said case, charge sheet was not filed within 60 days, the accused was released on bail. Learned counsel also placed reliance on a decision of Jharkhand High Court, in the matter of SUNIL KUMAR vs. STATE OF JHARKHAND, as reported in 2002 (2) Crimes, 473, wherein the subject matter before the Jharkhand High Court was Section 304-B IPC, for which the punishment is provided for the imprisonment not less than 7 years or imprisonment of life. With respect to the said offence after considering provision of Section 167(2)(a) of the Code of Criminal Procedure, the Jharkhand High Court observed in para 6 that the word "punishable" used in the section, does not mean that in all cases the convict must be punished with life sentence. Plainly and simply, it means that in suitable cases the offence is punishable with life imprisonment. One view, according to Jharkhand High Court, in respect of sentence for 304-B IPC is, the offence, is also punishable with life imprisonment and thus