Latest Laws
Possession of knife is a bailable offence: a discussion by Rakesh Kumar Singh ************************************************************
Knife is an arm as per definition available in Section-2(c) of the Arms Act read with Rule3 of Arms Rules and Categor-! of Schedule-" appended to the Arms Rules#
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"t is Sec Secti tion on-$ -$ whic which h dea deals ls with with the the pos posse sess ssio ion n of of arm armss and and obli oblige gess an an pers person on to have have a
licence in this respect if he is in the area notified for the purposes of that section# Seemingl% if an pers perso on
contra ntrave vene ness
the the
prov rovisio ision n
of
Secti ectio on-$ n-
%$he
shall all
becom ecomee
punis unish hable ble
unde nder
Section-2&(')(b)# here is no other provision in the Arms Act carring an punishment for the possession simplicitor of a *nife#
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Sect Sectio ionn-2& 2&(' (') )(b (b)) prov provid ides es for for a pun punis ishm hmen entt for a term term whi which ch ma ma e+t e+ten end d to thr three ee ea ears rs
alongwith fine with a ,ualification that minimum punishment should not be less than one ear unless ade,uate special reasons are provided#
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"t is at this this .unc .unctu ture re that that the the pro probl blem em aris arises es in resp respec ectt of of the the natu nature re of the the off offen ence ce## /he /heth ther er
this offence is bailable or non-bailable0 Arms Act does not provide an direct answer to this ,uestion# "n such circumstances% we have to loo* into the general provisions contained in the Code of Criminal 1rocedure# Section-$(2) Cr#1C provides that offences under an law shall be dealt with in accordance with the same provisions sub.ect to other enactments regulating such dealings# ere we have alread seen that Arms Act is not regulating such dealings i#e# whether the offence is bailab bailable le or non-ba non-baila ilable ble## here herefor fore% e% the ,uesti ,uestion on has has to be answe answered red in accor accordan dance ce with with the provisions of Cr#1C#
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Sect Sectio ionn-2( 2(a) a) Cr#1 Cr#1C C provi provide dess that that if offe offenc ncee is show shown n as baila bailabl blee in firs firstt sche schedu dule le ther theret eto% o%
then it should be a bailable offence# "t has also provided that if other law has made the offence bailable% then it should be a bailable offence# A perusal of Arms Act shows that it does not directl answer the ,uestion# herefore% we have to rel upon first schedule of Cr#1C# Cr#1C#
$#
irs irstt sch sched edul ulee is is ena enact cted ed in two two par parts ts## ir irst st part part deal dealss wit with h the the offe offenc nces es unde underr "nd "ndia ian n 1en 1enal al
Code and the second part deals with the offences provided under other laws# Clearl% Clearl% we have to go Possession of knife is a bailable offence: a discussion by Rakesh Kumar Singh
1
Latest Laws b 1art-"" of the first fir st schedule#
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1art1art-"" "" has has thr three ee cat categ egor orie iess of off offen ence ces# s# irs irstt cate catego gor r dea deals ls with with an an offe offenc ncee of mor moree than than
4 ears imprisonment% therefore it is not applicable# Second categor deals with an offence of 3 ears or more# hird categor deals with an offence for less than 3 ears imprisonment#
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he pr prime ,u ,uestion is is as as to to wh whether th the e+ e+pression 5 extend to three years 6 is e,uivalent
to an e+pression 5 for three years 6# his ,uestion has engaged the attention of the higher courts on man occasions as there are several enactments in which punishment is provided as e+tending to three ears#
7#
Seve Severa rall igh igh Cour Courts ts and and Supr Suprem emee Cour Courtt have have alre alread ad com comee acr acros osss this this ,ues ,uesti tion on in res respe pect ct
of offence punishable under Section-'3&(')(ii) of the Customs Act# herefore this issue can be best dealt with having the reference of that section of Customs Act# he said section of the Customs Act is being referred onl to a limited e+tent confined to the necessit of the e+pression 5e+tend to three ears6# 8therwise% b a larger bench decision the on9ble Supreme Court has alread made all the offences in the Customs Act as bailable# (see 8m 1ra*ash vs :nion of "ndia dated 3;#;<#2;'')# owever% subse,uentl the =egislature intervened and practicall overriden the .udicial mandate# /e are presentl however not concerned with all those happenings#
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"n several decisions% on9ble igh Court of >elhi came to hold that the offences
punishable under other enactments for imprisonment upto three ears do fall under the second
Mohan Lal Thaar Thaar !" entr entr of part-2 part-2 of Schedu Schedule-" le-" Cr#1C Cr#1C and therefore therefore are non-ba non-baila ilable ble## Mohan #"P"$abara 2;;2 %nder&ee &eett 'ag 'agal al !" $irec $irector tor of Re!en Re!enue ue %ntell %ntellige igenc ncee 2;;2(' (')) ?CC $7; $7; and %nder "=R(2;;&) " >elhi 2<7 are the e+ample#
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on9ble o omba i igh Co Court ta ta*en si similar vi view in in (!inash )hosle !s nion of %ndia
CR=A ''4$2;;4 ''4$2;;4 decided on ;4#;@#2;;4 and held that offence which ma e+tend to three ears are non-bailable#
@#'#
owever% on9ble Supreme Court in (!inash )hosle !s nion of %ndia Criminal Appeal
Bo# ''3@2;;4 decided on 24#;@#2;;4 has set aside the above view ta*en b the on9ble omba igh Court in following terms
Possession of knife is a bailable offence: a discussion by Rakesh Kumar Singh
+
Latest Laws 5=eave granted# 8n the material placed on record% and the amended Section '3&( ')(ii) of the Customs Act% '<72 it appears to us that
aarently the offence ,hich is alleged to ha!e been committed is a bailable offence and thus the Dagistrate has rightl granted bail to the appellant# "n view of this% the order of the igh Court is set aside# /e ma*e it clear that if the >epartment wants to proceed with the appellant in regard to an other violation or infraction of the Customs Act or an other Act which are distinct from the offence for which the appellant was arrested% the >epartment can proceed with such matters in accordance with law# he appeal is accordingl% allowed#6
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he he abov abovee deci decisi sion on of of the on on9b 9ble le Sup Supre reme me Cou Court rt was was cited cited bef befor oree the on on9b 9ble le igh igh
Court >elhi in subse,uent matters but somehow that was not followed#
@#3#
.ommissioner ner of .entral .entral /xcise /xcise 0$elhi12 0$elhi12 ail Applicatio "n Lalit -oel !s .ommissio Application n Bo#
2';22;;4 decided on ;2#''#2;;4% it was submitted in opposition before the on9ble Court as under 5"n repl to the application% it is stated that the order of the Supreme Cour Courtt cited ited b the the appli ppliccant would ould not not appl pl to fac facts and circumstances of the present case# he order pertains to amended Sectio Section n '3&(') '3&(')(ii) (ii) of Custom Customss Act% '<72 '<72 and was passe passed d b the on9ble Supreme Court on the basis of material placed before it while case case of appli applican cantt was under under uname unamende nded d provis provision ions# s# "t is furthe furtherr submitted that order of Supreme Court in Avinash hosale9s case was per incuriam# "t was not brought to the notice of the Supreme Court# on9ble Supreme Court had alread staed the order of Dumbai igh Court holding holding that the offence offence was bailable% bailable% in Criminal Criminal Appeal Appeal Bo# '@<2;;7# "t was stated that in view of the .udgment of Supreme Court in A#R#Antule v# R#S#Baa* ('<@@) 2 SCC 7;2% if the decision is per incuriam% the Court should ignore it# Similar observation was made b Supreme Court in /est engal v# arun K# Ro (2;;$) ' SCC SCC 3$4# 3$4# he Supr Suprem emee Cour Courtt has has et et to deci decide de the the issu issuee if the the offence offence was bailable or not in Criminal Appeal Appeal Bo# '@<2;;7# '@<2;;7# %t is
further ointed out that for the first time Mumbai 3igh .ourt in Possession of knife is a bailable offence: a discussion by Rakesh Kumar Singh
4
Latest Laws case of Subhash .haudhary !" $eeak 5yala and 6rs" +7780982 RLT 91 0)om2 had held that offence under Section 140120ii2 of .ustoms (ct ,as bailable" The matter ,as agitated in Sureme .ourt by nion of %ndia and the &udgment of Mumbai 3igh .ourt ,as stayed !ide abo!e .riminal (eal" "t is also submitted that this Court has alr ead ta*en a different view and held that offence under Section '3&(')(ii) of Customs Act was non-bailable# !iew of this Court was not brought to the notice of Dumbai igh Court in Subhash Choudhar9s case# his Court had held similar view in other two cases viE# Dohan =al hapar v# F#1#>abara 2;;2(') ?CC $7; and "nder.eet "nder.eet Bagpal Bagpal v# >irector >irector of Revenue Revenue "ntelligen "ntelligence ce "=R(2;;&) "=R(2;;&) " >elhi 2<7# "t is submitted that whether the offence under Section '3&(')(ii) of Customs Act '<72 was bailable or not is sub-.udiced and no final decision has been given b Supreme Court after considering the the .udg .udgme ment ntss of vari variou ouss igh igh Cour Courts ts## >elh >elhii igh igh Cour Courtt has has consistentl held that offence was not bailable#6
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on9 on9bl blee ig igh h Cou Court rt of of >elh >elhii in such such circ circum umst stan ance cess has has held held tha that t
5####"n view of the fact that the S=1 against the Dumbai igh Court is pending and the decision of the Dumbai igh Court holding that the offence is bailable has been staed b Supreme Court and the order relied upon b the applicant was passed solel on the facts and the circumstances of the case% " consider that this Court cannot ta*e a different view from what it has been alread ta*en#####6
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"n (run Kumar -uta ;s $R% decided on '@ ebruar 2;;@ (on9ble igh Court of
>elhi)% it was submitted in opposition before the on9ble Court as under
5'3# "n so far as the bailabilit of the said offence is concerned% the respondent pleaded that during the period of the alleged e+port% the unamended Section '3&(')(ii) of the said Act was applicable where the punishment prescribed is imprisonment for a term which ma e+tend up to three ears or fine or both# Since the said Act Act is a Special Possession of knife is a bailable offence: a discussion by Rakesh Kumar Singh
8
Latest Laws statute% able "" of the irst Schedule of the said Code would be applicable% which ma*es the offence non-bailable# "t is stated that in case the offence committed b the petitioner is considered under the amended Customs Act% Section '3&(')(i) would be applicable since the the draw drawba bac* c* clai claime med d e+ce e+ceed edss Rs# Rs# 3; la*h la*hss in whic which h case case the the puni punish shme ment nt pres prescr crib ibed ed is up to seve seven n ear earss and and with with fine fine## he he respondent9s contention of the offence under Section '3&(')(ii) of the unamen unamended ded Act being being non-ba non-baila ilable ble is furthe furtherr suppor supported ted b three three deci decisi sion onss of this this Cour Courtt in Dohan =al hapa haparr v# F#1 F#1## >abra >abra%% "nspec "nspector tor of Customs% Bew Customs ouse% Bew >elhi v# >irectorate of Revenue "ntelligence
2;;2 (') ?CC $7;% "nder.eet Bagpal
2;;& 2;;& (') ?CC $33 and =alit Goel v#
Commissioner of Central H+cise% >elhi #A# Bo#
2';22;;4 decided on ;2-
''-2;;4 '-2;;4%% it is the case of the resondent that the &udgment of
(!inash )hosle0sura2 ,ould not be alicable since the matter is sub&udice on account of the fact that the -o!ernment has filed a re!ie, against the said order" he respondent has also made an attempt to distinguish the case of erai 8verseas (supra) and Sun "ndustries case (Supra) with the present one wherein it is stated that the facts of the present case are different from the cases mentioned aforesaid and thus% the ratio of both the cases cannot be applied to the present case#6
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on9 on9bl blee ig igh h Cou Court rt of of >elh >elhii in such such circ circum umst stan ance cess has has held held tha that t
5'4# "t is% however% not possible to accept the plea of the learned Counsel for the petitioner that the offence is bailable for the reason that that this this Cour Courtt on prev previo ious us occa occasi sion onss has has ta*e ta*en n a view view that that the the offences under the relevant provisions are not bailable# "f the offences would have been bailable% there would have been no occasion to appl for anticipator bail#6
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"t is is ne necessar to to lo loo* at at th the de decision in in Subhash .houdhary !s $eeak 5yala cited in
above referred cases# on9ble omba igh Court in Subhash Choudhar vs >eepa* ?ala decided
Possession of knife is a bailable offence: a discussion by Rakesh Kumar Singh
Latest Laws on 2; September% 2;;$ has held such offences to be bailable in the following terms
5'2# After considering the rival submissions% " have no hesitation in accept accepting ing the submi submissi ssion on canva canvasse ssed% d% on behalf behalf of the 1etitio 1etitioner ner-Applicant that the offence Iunder Section '3&(')(ii)I is a bailable offence# his is so% because firstl% the said offence has been made a non-co non-cogni gniEa Eable ble offenc offencee b virtue virtue of the non ob-sta ob-stante nte clause clause in Section ';$($) of the Act# Secondl% it is triable IsummarilI b a Dagistrate b virtue of Section '3@ of the Act# Doreover% Section '3&(')(ii) provides for punishment as imprisonment for a term which ma e+tend to three ears% or with fine% or with both# "ndeed% it is provided that imprisonment ma e+tend to three earsJ but the same provision also provides for alternative punishment of fine (onl) or impris imprisonm onmen entt and fine both# both# The
unishment of imrisonment ro!ided for is for a term ,hich may extend to three years i"e" three years= does it mean that it ,ill fall in /ntry + of Part %% of >irst Schedule of the .ode and not in /ntry 4 thereof" o appreciate this aspect% it ma be necessar to advert to the scheme of the Code% which has application to the case on hand# 8n analsing the 1art " of the irst Schedule of the Code% the Scheme of the Code is that% non-cogniEable offences have been made bailable% e+cept the non-cogniEable offences such as under Sections '<$% '<&% $77% $74% $47% $44 and $<3% which provide for punishment of more than three ears of imprisonment# he onl e+ception where punishment of imprisonment which ma e+tend to three ears and still has been made non-bailable% is Section &;& of the "ndian 1enal Code# ut that is an e+ception# /e shall now specificall advert to the noncogni cogniEa Eable ble offen offence cess where where punish punishme ment nt provid provided ed is impris imprisonm onmen entt which ma e+tend to three ears% or fine% or both% as is the case in the present enactment and in 1art " of the irst Schedule to the Code% those offences have been made bailable# hese offences are under Sections '@'% '<3 (""nd 1art)% 2;' (""nd 1art)% 2;&% 2'$ (""nd 1art)% 22&A% 3'2 ('st 1art)% $;$% $'@% $@$% $@&% $@4 and $@@ of the "ndian 1enal Code# "n other words% all these offences under the "ndian 1enal Possession of knife is a bailable offence: a discussion by Rakesh Kumar Singh
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Latest Laws Code% the punishment provided is imprisonment% which ma e+tend to three ears% or with fine% or with both% even then have been made bailable# %n that sense= the Scheme of the .ode is indicati!e of the
Legislati!e intention that noncogni?able offences unishable ,ith imrisonment ,hich may extend to three years= ha!e bean treated on ar ,ith offences ,here imrisonment is for @less than three years@= so as to make them bailable" Appling the same analog to the case on hand% Section '3&(')(ii) of the Act% which provides for punishment similar to several provisions in the "ndian 1enal Code% as referred to above% " have no hesitation in holding that the sub.ect offence is bailableJ and more so% when the offence in ,uestion is re,uired to be tried summaril b the Dagistrate b virtue of Section '3@ of the Act#6
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he abo above ,uot ,uoteed .ud .udgment ment of the the on9bl n9blee omba omba igh igh Cour Courtt was sta staed b the the
on9ble Supreme Court in :nion of "ndia vs Subhash Choudhar .riminal (eal 'o" 1ABC+779# And And on the the basi basiss of the the sta sta orde orderr% the the doct doctrin rinee of perper-in incu curri rrium um was was rais raised ed in resp respec ectt of applicabilit of ratio of Avinash Avinash hosle (Supreme Court)# he said contention appears to have been accepted b the on9ble igh Court of >elhi in =alit Goel(supra)# Applicabilit of ratio of Avinash hosle (Supreme Court) was also opposed on the ground that a review petition against the said .udgment was filed before the on9ble Supreme Court# his opposition also appears to have been accepted b the on9ble igh Court of >elhi in Arun Kumar Gupta(supra)#
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"t app appea ears rs tha thatt both both the the con conte tent ntio ions ns rai raise sed d befo before re the the on on9b 9ble le ig igh h Cour Courtt of >elh >elhii have have
lost lost its signif significa icance nce in view view of the subse, subse,uen uentt devel developm opment ents# s# he review review petitio petition n in Avinas vinash h hosle(supra) came to be dismissed in the ear 2;;@# on9ble Supreme Court of "ndia in :nion of "ndia vs Avinash hosle% Re! Pet"0.ri"2 147C+77A decided on ;4#;;@ has held that
5>ela condoned# /e have carefull gone through the review petition and the connected papers# /e do not find an merit in the same# Accordingl% Accordingl% the review petition is dismissed#6
Possession of knife is a bailable offence: a discussion by Rakesh Kumar Singh
D
Latest Laws ';#'# ';#'# Case Case of Subhash Subhash Choudh Choudhar ar has been been dispo disposed sed of without without comment commenting ing upon upon merit# merit# Since Since matter has been disposed of% there is no ,uestion of sta# on9ble Supreme Court of "ndia has disposed of the appeal in :nion of "ndia vs Subhash Choudhar .riminal (eal 'o" 1ABC+779 decided on '7#;3#2;'' in following terms
5/e 5/e are told b the learned counsel for the :nion of "ndia that despite the passage of five ears no prosecution has been launched against the respondents so far# "n this view of the matter we feel that there is no need to consider the issues that have been raised in these appeals which are left open for decision in some other matter# All the appeals are disposed of#6
';#2# ';#2# 8nce 8nce the sta goes% goes% the doctrin doctrinee of per incurri incurrium um in respect respect of Avinash vinash hos hosle le (Suprem (Supremee Court) raised before the on9ble igh Court of >elhi can no longer hold the field# urther% b dismissal of review petition% law has been reiterated b the on9ble Supreme Court that the offences falling under Section-'3&(')(ii) Custom Act is bailable# "n such circumstances% circumstances% .udgment of on9ble igh Court of >elhi in Dohan =al hapar% "nder.eet Bagpal% =alit Goel and Arun Kumar Gupta (supra)% can no longer hold the field# Avinash Avinash hosle (Supreme Court) has to be followed in its true spirit#
(licability of (!inash )hosle 0Sureme .ourt2 to other enactments
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Abov Abovee .udg .udgme ment ntss were were rende rendere red d in respe respect ct of offe offenc nces es punis punisha habl blee unde underr Cust Custom omss Act# Act#
owever% the fact remains the same i#e# the offences discussed in the above noted .udgments are punishable for an imprisonment for a term which ma 5e+tend to three ears6# herefore% the ratio has to be applied to all such offences offences providing providing an imprisonment imprisonment for a term which which ma e+tend e+tend to three ears#
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8ne such such offence offence is provid provided ed under under Section-7 Section-73 3 of Cop Right Right Act which which reads reads as under under
5########shall be punishable with imprisonment for a term which shall not be less than si+ months but ,hich may extend to three years and with fine which shall not be less than fift thousand rupees but which ma e+tend to two la*h rupees 1rovided that where the infringement Possession of knife is a bailable offence: a discussion by Rakesh Kumar Singh
A
Latest Laws has not been made for gain in the course of trade or business the court ma ma% for for ade, ade,ua uate te and and spec specia iall reas reason onss to be ment mentio ione ned d in the the .udgement% impose a sentence of imprisonment for a term of less than si+ months or a fine of less than fift thousand rupees6
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here here seems seems to be no reason reason for denin dening g the applic applicab abilit ilit of Avinas vinash h hosle hosle (Supre (Supreme me
Court) to the offence under above section of Cop Rights Act# 1unishment provided in the above section is e+tendable to three ears as in the case of Section-'3&(')(ii) of Custom Act# "t has to be accepted that the above offence under Cop Rights Act is clearl bailable offence#
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"t seems seems that the on9bl on9blee igh Court Court of >elhi later later on applied applied the ratio ratio of Avina Avinash sh hosle hosle
(Supreme Court) to the offence punishable under section-73 of the Cop Rights Act and accepted the same as bailable# "n the same case i#e# State !s 'aresh Kumar -arg % Crl#D#C# Bo# 3$@@2;'2 dated 2;#;3#2;'3% on9ble igh Court of >elhi further held that
5"n fact in Dohan =al hapar v# F#1# >abara% "nspector% Customs% Bew Customs ouse Bew >elhi 2;;2 (') ( ') ?CC $7;J and "nder.eet Bagpal v# >irec >irector tor of Revenu Revenuee "ntell "ntellige igenc ncee (>R")% (>R")% 2;;& 2;;& (') ?CC $33% $33% two Coordinate enches of this Court had ta*en the view that the offence under Section '3& (i)(ii) of the Act of '<72 is non bailable which no longer holds good in view of the report of the Supreme Court in Avinash hosale#6
'2#
Bow% Bow% it seems seems to to be clea clearr that that an an offen offence ce punis punishab hable le for for a term term which which ma ma e+ten e+tend d to three three
ears is bound to be treated as a bailable offence unless otherewise declared b the enactment itself#
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Comi Coming ng to the the ,ues ,uesti tion on in resp respec ectt of Arms Arms Act# Act# Sect Sectio ionn-2& 2&(' (') )(b (b)) ther thereo eoff prov provid ides es a
punishment for a term which ma e+tend to three ears# here is no reason wh the ratio of Avinash Avinash hosle hosle (Supreme (Supreme Court) and Baresh Baresh Kumar Kumar Garg (>elhi igh Court) should should not be applied# applied# And therefore% we have to treat tr eat the offence punishable under Section-2&(')(b) as a bailable one#
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>oes >oes the the presc prescri ript ptio ion n of a minim minimum um sent senten ence ce of one ea earr in Sect Sectio ionn-2& 2&(' (') )(b (b)) ma*e ma*e an
difference to the nature of the offence0 " consider that prescription of minimum punishment can not be a decisive factor for determining the issue of bailabilit# Hven otherwise% the section itself Possession of knife is a bailable offence: a discussion by Rakesh Kumar Singh
B
Latest Laws provides that for ade,uate and special reasons% the court ma award punishment lesser than one ear minimum prescription# herefore this can not change the nature of offence# Dore over% on9ble igh Court of >elhi has accepted the offence punishable us-73 Cop Rights Act as bailable# A bare perusal of the said section goes to show that the same also provides for a minimum punishment#
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At this this .unctu .uncture re%% howe howeve verr% one colla collate tera rall issu issuee is also also re,ui re,uire red d to be deal dealtt with with## he same same
arises in the scenario mentioned hereinafter# he offences under Cop Rights Act and Customs Act are non-cogniEable offences and therefore on the analog of several non-cogniEable offences in "1C having similar e+pression of 5 extend to three years 6 and are bailable% the offences under Cop Rights Act and Customs Act have been treated as bailable# /hereas the offences under Arms Act are cogniEable b virtue of Section-3@ thereof# Some fertile mind will definitel raise a contention that that in the given given circum circumsta stance nces% s% analo analog g of Cop Cop Rights Rights ActCu ActCusto stoms ms Act can can not be made made applicable to Arms Act#
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hough hough the contentio contention n is seemingl seemingl attracti attractive% ve% the same same does not not stand a closur closuree scrutin scrutin##
Arms Act provides for several offences which are punishable even for a period of 7 months# his punishment does clearl fall under entr third of the 1art-"" of second schedule of Cr#1C and is therefore bailable without an hesitation# owever% at the same time the said entr classif such offence as a non-cogniEable offence# ut then b virtue of Section-3@ of Arms Act% we have to treat all offence as cogniEable offence# >oes this fact change the nature of offence punishable for an imprisonment of 7 months under Arms Act0 Bo% it can not# he offence has to remain a bailable offence despite the fact that it is also a cogniEable offence# herefore% non-cogniEabilit can be a factor in deciding the bailabilit of an offence but can not be treated as a sole factor therefor# Doreover% Doreover% cogniEabilit itself can not change the character of the offence in respect of bailabilit or non-bailabilit#
' '##
"f we are are to belie believe ve that that sinc sincee nonnon-co cogn gniE iEab able le offe offenc nces es havi having ng puni punish shme ment nt whic which h ma ma
e+ten e+tend d to three three ears ears under under "1C are genera generall ll baila bailable ble%% theref therefore ore such such offen offences ces under under other other enactments should also be treated as bailable if the are non-cogniEable% we will be giving two different meaning to a single e+pression# he e+pression is 5 extend to three years 6# Deaning given is 5less than three years 6 if the offence is non-cogniEable and 5 three years6 if the offence is cogniEable# ow we can give two different meaning to the same e+pression0
'# '#
Hven further further%% non-cogniE non-cogniEable able offence offencess are not the onl onl class which which have been been made made bailable bailable
Possession of knife is a bailable offence: a discussion by Rakesh Kumar Singh
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Latest Laws under "1C if the are having punishment which ma e+tend to three ears# here are atleast 2; cogniEable offences such as '2<% '$@% '&2% '74% 2'2% 2'3% 2'7% 2'@% 22'% 222% 27'% 273% 2<3% 32$% 3$$% 3$4% 3$@% $'<%$72%$7< in the "1C having punishment which may extend to three years and et the have been made bailable# "n such circumstances we can not sa that onl non-cogniEable offen offences ces havin having g punish punishme ment nt which which ma ma e+tend e+tend to three three ears ears are genera generall ll made made baila bailable ble## herefore% arguments on the basis of cogniEabilit or non-cogniEabilit can not stand#
'7#
"t will will not be out of place place to mentio mention n that that the the on9bl on9blee Supr Supreme eme Court Court in in Ra&ee! .haudhary
!s State (2;;') & SCC 3$% in the conte+t of Section-'74 Cr#1C has discussed the e+pression 5 not less than 17 years 6 and come to the conclusion that it means a clear '; ears or more and does not include imprisonment which ma e+tend to '; ears# hen how an e+pression 5 less than 17 years 6 can be treated as e,uivalent to '; ears0 "t can9t be# Similarl% the e+pression 5less than 3 ears6 can9t be treated as e,uivalent to 3 ears#
'7#' '7#'##
1ert 1ertin inen entl tl%% the the subs subse, e,ue uent nt .udg .udgme ment nt )huinder Singh E 6rs !s 5arnail Singh E (nr
.haudhary0sura2% rather it could not have done so as 2;;7 Cri#=#?# 372' never overruled Ra&ee! .haudhary0sura2 bench strength in both the cases was e,ual#
'7#2#
)huinder Singh0sura2 was dealing with an offence providing life imprisonment which
itself is distinct categor for the purpose of Section-'74 Cr#1C and therefore held that the minimum sentence of 4 ears can not ma*e an difference#
'4# '4#
"ssu "ssuee in respe respect ct of Secti Section on-'7 -'74 4 Cr1C Cr1C has rece recent ntl l been been sett settle led d b a thre threee .udge .udgess bench bench of
onble Supreme Court in Rakesh Kumar Paul !s State of (ssam dated '7#;@#2;'4# "n this case% the ma.orit has not onl accepted the view ta*en in Ra.eev Chaudhar(supra) but has gone ahead and held that unless a minimum punishment of '; ears imprisonment has been provided% the <; das period period will not attract attract whatever whatever the ma+imum ma+imum sentence sentence ma be (this concept concept is for the third categor as the other two categories of death and life are altogether different things)#
'@#
Hrgo% Hrgo% we we have have to beli believe eve tha thatt posses possessio sion n simpli simplicit citor or of a *nif *nifee even even if punis punishab hable le has has to be be
treated as a bailable offence as it provides for a punishment which ma e+tend to three ears#
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Possession of knife is a bailable offence: a discussion by Rakesh Kumar Singh
11
