Default bail u/s 167 of crpc for offence u/s 306 is to granted after expiry of sixty days

(a). The offence under section 306 is punishable with a  maximum 
term of 10 years. The punishment for lesser term can certainly be 

awarded for  the  said offence.   Therefore, in  cases  relating to the 
investigation into an offence punishable under section 306 of IPC 
sub­clause (ii) of clause (a) would be applicable; and consequently, 
the maximum period during which the detention of offender can be 
authorized, pending  investigation, would be  60 days   (and  not  90 
days).  The learned Magistrate was, therefore, right in releasing the 


petitioner on bail.  

BENCH AT AURANGABAD
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
Shakil Khan Yasin Khan 

CRIMINAL WRIT PETITION NO. 17 OF 2014

­VERSUS­ 

The State of Maharashtra 
Citation; 2014 ALL MR(CRI)929
CORAM : ABHAY M. THIPSAY, J.
   Dated: January 09, 2014


By   the   present   Writ   Petition,   the   petitioner   is 
questioning the legality and correctness of the judgment and order 
passed by the  Additional  Sessions Judge, Dhule  in  Criminal 
Application No.101/2013, whereby he cancelled the bail granted to 
the   petitioner   by   the   Judicial   Magistrate,   First   Class,   Dhule   and 
directed the petitioner to be arrested and taken in custody.  The bail 
that  was   granted   to  the   petitioner  by  the   learned  Magistrate  was 
under clause (a) of the first proviso to sub­section (2) of Section 167 
of the Code of Criminal Procedure (hereinafter referred to as “the 
The petitioner was arrested on 25.09.2013 in the course 
3.

Code”), which is popularly termed as “default bail”.  
of investigation into C.R. No. 153/2013 registered at Deopur Police 
Station with respect to the offence punishable under section 306 of 
the Indian Penal Code (IPC) read with section 34 of IPC.   He was 
produced before the Magistrate on 26.09.2013 and thereafter was 
being   remanded   into   police   custody   from   time   to   time.     On 
25.11.2013, the petitioner made an application stating that he had 
been remanded in custody for a period of 60 days already, and that, 
the investigation had not been completed; and that, therefore, he 
should be released in accordance with sub­clause (ii) of clause (a) of 
the first proviso to sub­section (2) of Section 167 of the Code. The 
Magistrate held that the petitioner was entitled to be released on 
bail   in   accordance   with   the   aforesaid   provisions   and   directed   his 

release on bail.  
Being aggrieved by the order passed by the Magistrate, 
the State filed an application before the Additional Sessions Judge, 
which as aforesaid, was allowed by him, cancelling the bail granted 
to   the   petitioner   and   directing   his   fresh   arrest   and   detention   in 

According   to   the   learned   Magistrate,   the   petitioner’s 
4.
custody.  
case was covered by sub­clause (ii) of clause (a) of the first proviso 
to   sub­section   (2)   of   section   167   of   the   Code.   According   to   the 
learned Additional Sessions Judge, the petitioner’s case was covered 
by sub­clause (i) of the said clause. 
5.
Section 306 of IPC provides that a person committing 
the offence thereunder ‘shall be punished with imprisonment of either  
description for a term which may extend to ten years, and shall also be  
liable to fine.’  Thus the offence described in section 306 of IPC is 
punishable   with   a   term   of   imprisonment   upto   10   years.   In   other 
words,   the   imprisonment,   that   can   be   awarded   to   the   offender, 
would be for a term of maximum 10 years.   

6.

The  first  proviso  to  section  167 (2) of  the  Code   puts 
restrictions on the period for which detention of an accused person 
in custody pending investigation can be authorized. It provides that 
“   ......   no   Magistrate   shall   authorise   the   detention   of   the   accused  
person in custody under this paragraph for a total period  exceeding: 
ninety   days,   where   the   investigation   relates   to   an   offence  
(i)

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 .......... .”   
7.
The question would be about the interpretation of the 
phrase “imprisonment for a term of not less than 10 years” occurring 
in   sub­clause   (i)   of   clause   (a).     In   other   words,   where   the 
investigation relates to an offence for which punishment for a term 
of   imprisonment   upto   the   period   of   10   years   can   be   awarded, 
whether sub­clause (i), or sub­clause (ii) would be applicable, is the 
question.     Whether   an   offence   for   which   a   maximum   term   of 
imprisonment   of   10   years   can   be   awarded   would   be   an   offence 

punishable with imprisonment for a ‘term of not less than
10 years’ within the meaning of the said sub-clause (i), is
8.
the question.
This   issue   no   longer  res   integra.   It   has   already   been 
answered   by   the   Apex   Court   of   India   in   the   case   of  Rajeev 
Chaudhary V/s State (N.C.T.) of Delhi reported in 2001 AIR (SC) 

2369.   In   that   case,   the   appellant   before   the   Supreme   Court   was 
accused of having committed an offence punishable under section 
386   of   IPC  (and   other   offences   providing   for   lesser   punishment). 
Section   386   lays   down   that   the   offender   ‘shall   be   punished   with 
imprisonment of either description for a term  which may extend to  
10 years.’  In that case, the appellant before the Supreme Court was 
released by the Magistrate on bail holding that the charge­sheet had 
not been submitted within 60 days.  The learned Additional Sessions 
Judge,   when   the   matter   was   brought   before   him   by   way   of   an 
application for revision, held that since the sentence could be ‘upto 
10 years’, sub­clause (i) of clause (a) of the first proviso to section 
167(2) would be applicable. He set aside the order passed by the 
Magistrate releasing the accused on bail.  When this order passed by 
the Additional Sessions Judge was challenged before the High Court, 

the High Court held that “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.”   When the matter was brought 
before the  Supreme  Court of India, Their Lordships  held that  the 
expression   ‘not   less   than’   as   appearing   in   clause   (i)   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.  Their   Lordships   categorically 
held   that   cases   of   offences   for   which   punishment  could   be 
imprisonment for less than 10 years would be governed by clause 
(ii) of section 167.  
9.
Similar   view   was   taken   in   the   case   of  Nijamuddin 
Mohammad   Bashir   Khan   V/s  State  of   Maharashtra  reported   in 
2006 B.C.I. 160  by a Division bench of this Court by referring to 
several decisions on this aspect including the decision of the Apex 
Court in the case of Rajeev Chaudhary (supra).  
10.
A perusal of the aforesaid decisions leaves no manner of 
doubt   as   to   how   the   phrase   ‘offence   punishable   with   
imprisonment for not less than 10 years’ appearing in sub­clause (i) 
of   clause   (a)   of   the   first   proviso   to   section   167(2)   is   to   be 
interpreted.  The   different   interpretations   of   this   phrase   arise   on 
account of the fact that an offence is usually said to be ‘punishable’ 
with a certain term of imprisonment, by referring to the maximum 
term of imprisonment, that can be awarded for such offence. For 
instance,   the   offence   of   theft   is   said   to   be   ‘punishable’   with 

imprisonment for three years, which is the maximum imprisonment, 
that can be awarded for the said offence under section 379 of IPC. 
Therefore,   there   is   tendency   of   interpreting   the   phrase   ‘offence 
punishable   with   imprisonment   for   not   less   than   10   years’   in   a 
manner   so   as   to   cover   an   offence   for   which   imprisonment   for   a 
maximum term of 10 years can be awarded.  However, in view of the 
interpretation of the said term, as done by Their Lordships of the 
Apex Court in the case of Rajeev Chaudhary (supra) in the context 
of sub­clause (i) of clause (a) of first proviso to section 167 of the 
Code, it is clear that only the offences which are punishable with 
death,   or   imprisonment   for   life,   or   imprisonment   for   a   term   of 
  
‘minimum 10 years 
 ’ would be governed by sub­clause (i) of clause
  
(a). The offence under section 306 is punishable with a  maximum 
term of 10 years. The punishment for lesser term can certainly be 

awarded for  the  said offence.   Therefore, in  cases  relating to the 
investigation into an offence punishable under section 306 of IPC 
sub­clause (ii) of clause (a) would be applicable; and consequently, 
the maximum period during which the detention of offender can be 
authorized, pending  investigation, would be  60 days   (and  not  90 
days).  The learned Magistrate was, therefore, right in releasing the 

It is surprising that inspite of the clear legal position and 
11.
petitioner on bail.  
the clarity in the well reasoned order passed by the Magistrate, the 
Additional Sessions Judge set it aside and cancelled the bail granted 
to   the   petitioner.     Infact,   the   impugned   order   makes   a   curious 
reading. The learned Additional Sessions Judge had understood the 
question   needing   determination   properly   and   had   referred   to   the 
decision in the case of  Rajeev Chaudary (supra).   He reproduced 
the observations made by Their Lordships of Supreme Court of India 
in para no.6 of the said reported judgment.  The learned Additional 
Sessions Judge then observed that the decision was applicable to the 
case before him and further observed that it could not be said that 
minimum sentence would be 10 years or more.   He also observed 
that the imprisonment could vary from ‘minimum to maximum 10 

years’,   and   that,   it   could   not   be   said   that   ‘the   imprisonment 
prescribed   is  not   less   than   10   years’.     Strangely,   thereafter   he 
upto 90 days and not 60 days.  
12.
observed   that   therefore,   the   Magistrate   could   detain   the   accused 
Either   the   learned   Additional   Sessions   Judge   has 
inserted the observations made by Their Lordships of Supreme Court 

of   India   in   para   no.6   of   the   judgment   in   the   case   of  Rajeev 
Chaudhary (supra)  to be reproduced in his order without reading 
the same, or he has not understood the same inspite of reading it. 
Any way, the impugned order is clearly contrary to law. 
13.
The   same,   therefore,   needs   to   be   set   aside   by   exercising   the 
constitutional jurisdiction of this Court.
14.
The Petition is allowed. 
The  order dated 26.12.2013 passed by the Additional 
Sessions Judge, Dhule is quashed and set aside. 
Consequently, the order dated 25.11.2013 passed by the 
Judicial Magistrate, First Class, Dhule is restored. 

The Petition is allowed in the aforesaid terms. 
16. Rule made absolute accordingly.                     
15. 
Sd/­ 
            
             ( ABHAY M. THIPSAY, J. )

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