WHETHER THERE CAN BE TWO FIRS IN THE SAME INCIDENT? – Some important case laws

WHETHER THERE CAN BE TWO FIRS IN THE SAME INCIDENT? – Some important case laws

1.    It is well established that a second FIR is not permissible under law on the same facts. Of course, if there is a counter case by the opposite party that can be the basis of the second FIR arising out of the same incident; but,  in  such  a  case,  there  are  two  counter  FIRs  arising  out  of  the  same  incident  or  out  of  the  same transaction, but the actual facts from the point of view of the opposite parties would be different. However, filing of the second FIR by the same party on the basis of the same facts is not permissible under law. So, there cannot be two FIRs by the same party on the same facts.

2.    In the case of T.T. Antony v. State of Kerala and Ors., 2001(6) SCC 181 the Hon’ble SC observed whereby More than one information were given to Police Officer in respect of same incident, The Police Officer need not enter everyone of them in Station House Diary. The information first entered in Station House Diary is the FIR postulated by Section 154 Criminal Procedure Code. Any other information received during investigation will fall under Section 162 Criminal Procedure Code and cannot be registered as FIR and entered in Station House Diary as it would in effect be a second FIR.

“19. An information given under sub-section (1) of Section 154 of Criminal Procedure Code is commonly known as First Information Report (FIR) though this term is not used in the Code. It is a very important document. And as its nick name suggests it is the earlier and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law into motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 of Criminal Procedure Code, as the case may be, and forwarding of a police report under Section 173 of Criminal Procedure Code It is quite possible and it happens not infrequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 of Criminal Procedure Code Apart from a vague information by a phone call or cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the First Information Report - F.I.R. postulated by Section 154 of Criminal Procedure Code All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the First Information Report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 of Criminal Procedure Code No such information/statement can properly be treated as an F.I.R. and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Criminal Procedure Code Take a case where an FIR mentions cognizable offence under Section 307 or 326 Indian Penal Code and the investigating agency learns during the investigation or receives a fresh information that the victim died, no fresh FIR under Section 302 Indian Penal Code need be registered which will be irregular, in such a case alteration of the provision of law in the first FIR is the proper course to adopt.

“Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H - the real offender - who can be arraigned in the report under Section 173(2) or 173(8) of Criminal Procedure Code as the case may be. It is of course permissible for the investigating officer to send up a report to the concerned Magistrate even earlier that investigation is being directed against the person suspected to be the accused.”

However, there are certain situations whereby the second FIR can be filed, For Instance:

1.    IN THE CASE OF NIRMAL SINGH KAHLON V. STATE OF PUNJAB, AIR 2009 SC 984, Registration of a second FIR was held to be permissible because the second FIR lodged by CBI  (as against the first FIR registered by local police) was on a wider canvas involving conspiracy of a large number of persons, and it was lodged after holding a detailed preliminary inquiry and the CBI had collected a large number of materials, recorded a large number of statements, enumerates as many as fifteen categories of irregularities involving as many as fourteen accused persons, and there were different versions and new discovery was made on factual foundations.

2.    IN THE CASE OF SURENDER KAUSHIK V. STATE OF U.P., (2013) 5 SCC 148, it was held that: “…the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter­FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused  subsequent to the registration of the  case under the Code, for an investigation in that regard would have already commenced and allowing registration of  further  complaint  would  amount  to  an  improvement  of  the  facts  mentioned  in  the  original complaint. As is further made clear by the three­Judge Bench in Upkar Singh [Upkar Singh v. Ved Prakash, (2004) 13 SCC 292], the prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIRs is permissible.”

3.    IN UPKAR SINGH V. VED PRAKASH & ORS., 2004(4) R.C.R.(CRIMINAL) 294, whereby the Hon’ble SC observed that Having carefully gone through the above judgment, we do not think that this Court in the said cases of T.T. Antony v. State of Kerala & Ors. has precluded an aggrieved person from filing a counter case as in the present case. This is clear from the observations made by this Court in the above said case of T.T. Antony v. State of Kerala & Ors. in paragraph 27 of the judgment wherein while discussing the scope of Sections 154, 156 and 173(2) Criminal Procedure Code, this is what the Court observed :-

"In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offences alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 Criminal Procedure Code or under Articles 226/227 of the Constitution." (Emphasis supplied).

18. It is clear from the words emphasised hereinabove in the above quotation, this Court in the case of T.T. Antony v. State of Kerala & Ors. has not excluded the registration of a complaint in the nature of a counter case from the purview of the Code. In our opinion, this Court in that case only held any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code because an investigation in this regard would have already started and further complaint against the same accused will amount an improvement on the facts mentioned in the original complaint, hence will be prohibited under Section 162 of the Code. This prohibition noticed by this Court, in our opinion, does not apply to counter complaint by the accused in the 1st complaint or on his behalf alleging a different version of the said incident.

24. Be that as it may, if the law laid down by this Court in T.T. Antony's case is to be accepted as holding a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given herein below i.e. if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question consequently he will be deprived of his legitimated right to bring the real accused to books. This cannot be the purport of the Code.

25. We have already noticed that in the T.T. Antony's case this Court did not consider the legal right of an aggrieved person to file counter claim, on the contrary from the observations found in the said judgment it clearly indicates that filing a counter complaint is permissible.

4.    IN KARI CHOUDHARY V. MST. SITA DEVI & ORS., 2002(1) SCC 714 discussing this aspect of law held :-

"Learned counsel adopted an alternative contention that once the proceedings initiated under FIR No. 135 ended in a final report the police had no authority to register a second FIR and number it as FIR No. 208. Of course the legal position is that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. Even that apart, the report submitted to the court styling it as FIR No. 208 of 1998 need be considered as an information submitted to the court regarding the new discovery made by the police during investigation that persons not named in FIR No. 135 are the real culprits. To quash the said proceedings merely on the ground that final report had been laid in FIR No. 135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offence alleged have been committed and, if so, who have committed it". (Emphasis Supplied)

5.    IN STATE OF BIHAR V. J.A.C. SALDANNA, 1980 AIR SC 326, this Court considering Section 3 of the Police Act and Section 173(8) of the Code held :-

"The power of the Magistrate under Section 156(3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power conferred upon the Magistrate under Section 156(3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. This provision does not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in Section 173(8). Therefore, the High Court was in error in holding that the State Government in exercise of the power of superintendence under Section 3 of the Act lacked the power to direct further investigation into the case. In reaching this conclusion we have kept out of consideration the provision contained in Section 156(2) that an investigation by an officer-in-charge of a police station, which expression includes police officer superior in rank to such officer, cannot be questioned on the ground that such investigating officer had no jurisdiction to carry on the investigation; otherwise that provision would have been a short answer to the contention raised on behalf of respondent 1."

This clearly shows that if concerned police refused to register a counter complaint, it is open to the Magistrate at any stage to direct the police to register the complaint brought to his notice and an investigate the same.

6.    IN THE CASE OF RAM LAL NARANG V. STATE (DELHI ADMINISTRATION), 1979(2) SCC 322 held :-

"Even in regard to a complaint arising out of a complaint on further investigation if it was found that there was a large conspiracy than the one referred to in the previous complaint then a further investigation under the court culminating in another complaint is permissible".

7.    IN ANJU CHAUDHARY VS. STATE OF U.P. (2013) 6 SCC 384 the question was whether there can be more than one FIR in relation to the same incident or different incidents arising from the same occurrence? While answering the aforesaid question, the Bench held :

“The First Information Report is a very important document, besides that it sets the machinery of criminal law in motion. It is a very material document on which the entire case of the prosecution is built. Upon registration of FIR, beginning of investigation in a case, collection of evidence during investigation and formation of the final opinion is the sequence, which results in filing of a report under Section 173 of the Code. The possibility that more than one piece of information is given to the police officer in charge of a police station, in respect of the same incident involving one or more than one cognizable offences, cannot be ruled out. Other materials and information given to or received otherwise by the investigating officer would be statements covered under Section 162 of the Code. The Court in order to examine the impact of one or more FIRs has to rationalise the facts and circumstances of each case and then apply the test of ‘sameness’ to find out whether both FIRs relate to the same incident and to the same occurrence, are in regard to incidents which are two or more parts of the same transaction or relate completely to two distinct occurrences.

If the answer falls in the first category, the second FIR may be liable to be quashed. However, in case the contrary is proved, whether the version of the second FIR is different and they are in respect of two different incidents/crimes, the second FIR is permissible, This is the view expressed by this Court in the case of Babu Babubhai v. State of Gujarat and Ors. [(2010) 12 SCC 254]. This judgment clearly spells out the distinction between two FIRs relating to the same incident and two FIRs relating to different incident or occurrences of the same incident etc. 

To illustrate such a situation, one can give an example of the same group of people committing theft in a similar manner in different localities falling under different jurisdictions. Even if the incidents were committed in close proximity of time, there could be separate FIRs and institution of even one stating that a number of thefts had been committed, would not debar the registration of another FIR. Similarly, riots may break out because of the same event but in different areas and between different people. The registration of a primary FIR which triggered the riots would not debar registration of subsequent FIRs in different areas. However, to the contra, for the same event and offences against the same people, there cannot be a second FIR. This Court has consistently taken this view and even in the case of Chirra Shivraj v. State of Andhra Pradesh[(2010) 14 SCC 444], the Court took the view that there cannot be a second FIR in respect of same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the First Information Report. 

8.    The Supreme Court, in P SREEKUMAR V STATE OF KERALA AIR 2018 SC 1482, has held that there is no prohibition in law to file a second FIR in relation to the same incident, if it was not filed by the same person, who had filed the first FIR, as a counter-complaint, based on the allegations different from the allegations made in the first FIR. The bench comprising Justice RK Agrawal and Justice AM Sapre set aside judgment of Kerala High Court that quashed such a subsequent FIR and final report. The high court had observed that such an FIR/final report is a mere abuse of process of the court. The accused had approached the high court contending that two cases are pending against him in two courts alleging the same set of facts and same offence. The bench observed: “The second FIR was not filed by the same person, who had filed the first FIR. Had it been so, then the situation would have been somewhat different. Such was not the case here.” The court also said in the facts of the case, the first FIR was against five persons based on one set of allegations, whereas the second FIR was based on allegations different from the allegations made in the first FIR. The court also referred to its decision in Upkar Singh v. Ved Prakash & Ors., 2004(4) R.C.R.(Criminal) 294, wherein it had observed: “Be that as it may, if the law laid down by this Court in TT Antony case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter-complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences.”

SOME IMPORTANT JUDGMENTS UNDER SECTION 167 CRPC

SOME IMPORTANT JUDGMENTS UNDER SECTION 167 CRPC

1.    State through C. B. I v. Dawood Ibrahim Kaskar and others

AIR 1997 SUPREME COURT 2494

Accused arrested subsequently by police during further investigation - Can be detained by Court in police custody in exercise of its power under S. 167.

There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to S. 309(2) are different from detention in custody under Section 167. While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since, however, even after cognizance is taken of an offence the police has a power to investigate into it further, which can be exercised only in accordance with Chapter XII, there is no reason whatsoever why the provisions of Section 167 thereof would not apply to a person who comes to be later arrested by the police in course of such investigation. If Section 309(2) is interpreted - to mean that after the Court takes cognizance of an offence it cannot exercise its power of detention in police custody under Section 167, the Investigating Agency would be deprived of an opportunity to interrogate a person arrested during further investigation, even if it can on production of sufficient materials, convince the Court that his detention in its (police) custody was essential for that purpose. Therefore the words "accused if in custody" appearing in Section 309(2) refer and relate to an accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further investigation. So far as the accused in the first category is concerned he can be remanded to judicial custody only in view of Section 309 (2), but he who comes under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the Court which has taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfilment of the requirements and the limitation of Section 167.

2. Manubhai Ratilal Patel Tr. Ushaben v. State of Gujarat and Ors AIR 2013 SC 313

Issue: Where the Magistrate after considering the allegations in FIR had remanded the accused to custody and subsequently thereof order staying investigation comes to be passed, whether the detention pursuant thereto will become illegal and the writ of Habeas Corpus can be issued to release the person so detained?

The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner.

Where the Magistrate after considering the allegations in FIR had remanded the accused to custody and subsequently thereof order-staying investigation comes to be passed, the stay order so passed would have no impact on remand order. Stay of investigation could only have bearing on the action of the investigating agency and it is difficult to perceive that the order of remand, which is a judicial act, suffers from any infirmity. Stay of investigation would not make the order of remand and the consequential detention unsustainable necessitating issuance of writ of habeas corpus. It is well accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent Court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal.

3. Achpal @ Ramswaroop & Another v. State of Rajasthan 2019 CRI. L. J. 401

Right of Accused to be Released on Bail– In this recent case, the Supreme Court has deliberated on the law pertaining to right of bail when the investigation is pending and is not completed within the period as prescribed under Section 167(2) of the Code of Criminal Procedure (CrPC).

·       The Two-Judge Bench of the Supreme Court heavily relied on its verdict in the case of Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453, which elaborated on the law on the point as to the rights of an accused who is in custody pending investigation and where the investigation is not completed within the period prescribed under Section 167(2) of the Code.

·       In Uday Mohanlal case, the Supreme Court held that on the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.

·       Reference was also made to Law Commission’s recommendation, whereby it was observed that such remand beyond the statutory period fixed under Section 167 would lead to serious abuse and therefore some time limit was required to be placed on the power of the police to obtain remand and as such the maximum period for completion of investigation was suggested.

·       The Supreme Court in the case noted that the letter of and spirit behind enactment of Section 167 of the Code as it stands thus mandates that the investigation ought to be completed within the period prescribed. Ideally, the investigation, going by the provisions of the Code, ought to be completed within first 24 hours itself.

·       That further in terms of sub-section (1) of Section 167, if “it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57” the concerned officer ought to transmit the entries in the diary relating to the case and at the same time forward the accused to such Magistrate. Thereafter, it is for the Magistrate to consider whether the accused be remanded to custody or not.

·       Object of Section 167 of CrPC– The Supreme Court noted that the purpose of the provision was that the basis of the material relating to investigation, the Magistrate ought to be in a position to proceed with the matter. It is thus clearly indicated that the stage of investigation ought to be confined to 90 or 60 days, as the case may be, and thereafter the issue relating to the custody of the accused ought to be dealt with by the Magistrate on the basis of the investigation.

·       That matters and issues relating to liberty and whether the person accused of a charge ought to be confined or not, must be decided by the Magistrate and not by the Police.

4.Uday Mohanlal Acharya v. State of Maharashtra (2001) 5 SCC 453,

1. Majority view (per Pattanaik and Banerjee, JJ. (Agrawal, J. contra) :- Where after expiry of period of 60 days for filing challan the accused filed an application for being released on bail and was prepared to offer and furnish bail, however, the Magistrate rejects application on erroneous interpretation about non-application of S. 167(2) to case pertaining to MPID Act of 1999 and accused approaches higher forum and in meanwhile charge-sheet is filed, the indefeasible right of accused of being released on bail does not get extinguished by subsequent filing of charge-sheet. The accused can be said have availed of has right to be released on bail on date he filed application for being released on bail and offers to furnish bail. Such an accused, who thus is entitled to be released on bail in enforcement of his indefeasible right will, however, have to be produced before the Magistrate on a charge-sheet being filed in accordance with S. 209 and the Magistrate must deal with him in the matter of remand to custody subject to the provisions of the Code relating to bail and subject to the provisions of cancellation of bail.

An accused must be held to have availed of his right flowing from the legislative mandate engrafted in the proviso to sub-section (2) of S. 167 of the Code if he has filed an application after the expiry of the stipulated period alleging that no challan has been filed and he is prepared to offer the bail, that is ordered, and it is found as a fact that no challan has been filed within the period prescribed from the date of the arrest of the accused. Such an interpretation would subserve the purpose and the object for which the provision in question was brought on to Statute Book. In such a case, therefore, even if the application for consideration of an order of being released on bail is posted before the Court after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting formal order of being released on bail in enforcement of his indefeasible right then filing of challan at the stage will not take away right of the accused. This is the only way how a balance can be struck between the so-called indefeasible right of the accused on failure on the part of the prosecution to file challan within the specified period and the interest of the society, at large, in lawful preventing an accused for being released on bail on account of inaction on the part of the prosecuting agency.

Personal liberty is one of the cherished object of the Indian Constitution and deprivation of the same can be only in accordance with law and in conformity with the provisions thereof, as stipulated under Art. 21 of the Constitution. When the law provides that the Magistrate could authorize the detention of the accused in custody up to a maximum period as indicated in the proviso to sub-section (2) of S. 167, any further detention beyond the period without filing of challan by the Investigating Agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Cri. P.C., and as such, could be violative of Art. 21 of the Constitution. The expression "if not already availed of" used by Court in Sanjay Dutt's case must be understood to mean when the accused files an application and is prepared to offer bail on being directed. In other words, on expiry of the period specified in paragraph (a) of proviso to sub-section (2) of S. 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right even though the Court has not considered the said application and has not indicated the terms and conditions of bail, and the accused has not furnished the same. 2001 (1) Bom CR 354, Reversed. 1995 Suppl (3) SCC 221, Overruled.(Para 8)

2. Minority view (Per B. N. Agarwal, J.): The expression 'availed of' does not mean mere filing of the application for bail expressing thereunder willingness to furnish bail bond, but the stage for actual furnishing of bail bond must reach. If challan is filed before that, then there is no question of enforcing the right, however, valuable or indefeasible it may be, after filing of the challan because thereafter the right under default clause cannot be exercised. In case the Court concerned has adopted any dilatory tactics or an attitude to defeat the right of the accused to be released on bail on the ground of default, the accused should immediately move the superior Court for appropriate direction. But if the delay is bona fide and unintentional and in the meantime challan is filed then such a petition has to be dismissed and it cannot be said that the accused has already availed of the right accruing under proviso to S. 167 of the Code. Right accruing under proviso to S. 167(2) of the Code on the expiry of the statutory period of sixty days cannot be said to have been availed of by mere making of an application for bail expressing therein willingness to furnish bail, but on furnishing bail bond as required under Cl. (a)(ii) of proviso read with Explanation 1 to S. 167(2) of the Code. If because of any bona fide view or procedure adopted by the Court concerned some delay is caused and in the meantime challan is filed, the Court has no power to direct release under proviso to S. 167(2) of the Code.

5. Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni : AIR 1992 SUPREME COURT 1768

1.    The magistrate under S.167(2) can authorise the detention of the accused in such custody as he thinks fit but it should not exceed fifteen days in the whole. Therefore the custody initially should not exceed fifteen days in the whole. The custody can be police custody or judicial custody as the magistrate thinks fit. The words "such custody" and "for a term not exceeding fifteen days in whole" are very significant.

2.    Remand of accused to police custody - It can be for fifteen days only - Thereafter further remand during periods of ninety days or sixty days - Can only be judicial.

3.    On a combined reading of S.167(2) and (2A) it emerges that the Judicial Magistrate to whom the Executive Magistrate has forwarded the arrested accused can order detention in such custody namely police custody or judicial custody under S.167(2) for the rest of the first fifteen days after deducting the period of detention order by the Executive Magistrate. The detention thereafter could only be in judicial custody

4.    S.309— Remand under - Can only be judicial custody

5.    In one occurrence it may so happen that the accused might have committed several offences and the police may arrest him in connection with one or two offences on the basis of the available information and obtain police custody. If during the investigation his complicity in more serious offences during the same occurrence is disclosed that does not authorise the police to ask for police custody for a further period after the expiry of the first fifteen days. If that is permitted then the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly, this would defeat the very object underlying S.167. However, this limitation shall not apply to a different occurrence in which complicity of the arrested accused is disclosed. That would be a different transaction and if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation he must be formally arrested in connection with other case and then obtain the order of the magistrate for detention in police custody. If best must be made in this connection explicit that such re-arrest or second arrest and seeking police custody after the expiry of the period of first fifteen days should be with regard to the investigation of a different case other than the specific one in respect of which the accused is already in custody. A literal construction of S.167(2) to the effect that a fresh remand for police custody of a person already in judicial custody during investigation of a specific case cannot under any circumstances be issued would seriously hamper the very investigation or the other case the importance of which needs no special emphasis. The procedural law is meant to further the ends of justice and not to frustrate the same.

6. Rakesh Kumar Paul v. State of Assam AIR 2017 SUPREME COURT 3948

1.    While it is true that merely because a minimum sentence is provided for in statute it does not mean only minimum sentence is imposable. Equally, there is also nothing to suggest that only maximum sentence is imposable. Either punishment can be imposed and even something in between. Where does one strike a balance?

2.    It was held that it is eventually for court to decide what sentence should be imposed given range available. Undoubtedly, the Legislature can bind sentencing court by laying down minimum sentence (not less than) and it can also lay down maximum sentence. If minimum is laid down, sentencing Judge has no option but to give a sentence 'not less than' that sentence provided for. Therefore, words 'not less than' occurring in Clause (i) to proviso (a) of S. 167(2) of the Cr. P. C. (and in other provisions) must be given their natural and obvious meaning which is to say, not below a minimum threshold and in case of S. 167 of Cr. P. C. these words must relate to an offence punishable with a minimum of 10 years imprisonment. In present case, petitioner had satisfied all requirements of obtaining 'default bail' which is that on 11th January, 2017 he had put in more than 60 days in custody pending investigations into an alleged offence not punishable with imprisonment for a minimum period of 10 years, no charge-sheet had been filed against him and he was prepared to furnish bail for his release, as such, he ought to have been released by High Court on reasonable terms and conditions of bail.

3.    A bare reading of S. 167 of Code clearly indicates that if offence is punishable with death or life imprisonment or with a minimum sentence of 10 years, then S. 167(2) (a)(i) will apply and accused can apply of 'default bail' only if investigating agency does not file charge-sheet within 90 days. However, in all cases where minimum sentence is less than 10 years but maximum sentence is not death or life imprisonment then S. 167(2)(a)(i) will apply and accused will be entitled to grant of 'default bail' after 60 days in case charge-sheet is not filed. S. 167(2)(a)(i) of Code is applicable only in cases where accused is charged with (i) offences punishable with death and any lower sentence; (ii) offences punishable with life imprisonment and any lower sentence and (iii) offences punishable with minimum sentence is less than 10 years. In all cases where minimum sentence is less than 10 years but maximum sentence is not death or life imprisonment then S. 167(2)(a)(ii) will apply and accused will be entitled to grant of 'default bail' after 60 days in case charge-sheet is not filed.