Criminal

Whether a convict who has challenged his conviction u/s 374 is entitled to benefit of Sec 436A of CrPC 1973 for Bail?

Section 436-A, Cr.P.C. is restricted in its operation to grant of bail to an under-trial prisoner ‘during the period of investigation, inquiry or trial’ and does not, ex proprio vigore, apply at the appellate stage.

The question which we have to answer is about applicability of Section 436-A of the Code to an appeal proceeding. So, let us begin our quest for answer with Section 436-A of the Code. It reads as under :-

“436-A. Maximum period for which an undertrial prisoner can be detained.-

Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:

Provided that the Court may, after hearing the Public Prosecutor and for reasons
to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:

Provided further that no such person shall in any case be detained during the period
of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

Explanation – In computing the period of detention under this section for granting bail the period of detention passed due to delay in proceeding caused by the accused shall be excluded.”

This section has been inserted by the Parliament in the Code by it’s Act, 2005, which came into force w.e.f. 23.06.2005. The legislative history of the provision lies embedded in prolonged debates, seemingly unending, amongst jurists and legal pundits on the subject of bail. While it has been generally acknowledged that it is not always just or advisable to confine the accused before conviction, the differences on the actual practice of bail are quite sharp. The opinion makers have been at variance as to how, when and on what conditions the bail be granted before conviction. Both ends of the spectrum of practice of bail are represented by extreme views. The enforcers of law would argue for extreme caution and stinginess in granting bail in the interest of stringent legal action, need for preventing frequent bail jumping, and keeping away the professional sureties. The propounders of liberty would vouch for liberal practice of bail to avoid agony of accused, prolonged investigations and delayed trials, keeping in view the principle of presumption of innocence of accused (See Law Commission of India, 177th Report, Chapter Ten pp. 117,118). Way back in the year 1977, in the case of The State of Rajasthan, Jaipur Vs. Balchand, AIR 1977 SC 2447, the Hon’ble Shri Justice Krishna Iyer, speaking on behalf of the Bench, held that bail and not jail would be the basic Rule in ordinary circumstances, when he observed, “The basic Rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like……’’.

The raging controversy on practice of bail, recommendations of Law Commission and Statement of Objects and Reasons appended to the Bill introduced in the Rajya Sabha in 1994, would give us a fair idea about the situation prevailing at the time when the Code of Criminal Procedure (Amendment) Act, 2005 was passed, in so far as provisions made in Section 436-A are concerned. The situation which went into birth of Section 436-A was of undertrial prisoners, the primary concern being of their incarceration in jail for long period of time pending investigation, inquiry or trial, even though the presumption of innocence till found guilty was operating in their favour. By introducing Section 436-A to the Code, an endeavor was made to remedy the condition of torture and misery of accused persons as under-trial prisoners, relegated to dark corners within jails, away from the hustle and bustle of life activity without jails.

With this background, we will deal with the provisions contained in Section 436-A of the Code in the light of the rival arguments and relevant provisions of law.

In the case of Kashmira Singh Vs. The State of Punjab, 1977 SCC (4) 291. In this case the Supreme Court has held that although it has been the practice of Courts to not release on bail a person who has been sentenced to life imprisonment for an offence punishable under Section 302 of the Indian Penal Code, the underlying postulate being of the appeal of the said person getting disposed of within a measurable distance of time so that if he is ultimately found to be innocent, he would not be required to remain in jail for a unduly long period, the practice would have to be departed from if it is not possible to dispose of the appeal within reasonable period of time and the accused would have to be granted bail. Shri Tiwari, submits that it is this exception made to the general practice which would have to be said as having found its expression in Section 436-A of the Code by according to it liberal construction so that the limited right thereunder becomes available even to a convict who has filed an appeal under Section 374 of the Code.There can be no two opinions about the fact that the provision under consideration in the present case is beneficient as well as remedial as it seeks to confer benefit of release from custody with or without sureties or on bail with a view to alleviating suffering of those who have slid into obscurity of jails pending their trials. So, the principle of liberal construction, would apply and to this extent Shri Tiwari, the learned counsel for the applicant is right. But, the rule of liberal construction of beneficient or remedial provision has it’s own limitations, in ignorance of which the construction cannot be stretched so much as to rewrite the provision. The rule only states that if a remedial or beneficient provision is reasonably capable of two constructions, that construction must be preferred which furthers the policy of the legislature and which is more beneficial to those in whose interest it is made, and the doubt, if any should be resolved in their favour (See Alembic Chemical Works Co. Ltd. vs. The Workmen, AIR 1961 SC 647). The liberal construction, however, must flow from the language used and the rule does not permit placing of an unnatural interpretation to the words contained in the provision, nor does it permit raising of any presumption that protection of widest amplitude must be deemed to have been conferred upon those for whose benefit the legislation may have been enacted, as held in the case of Mangilal vs. Sugan Chand, AIR 1965 SC 101. The principle of liberal construction of beneficial enactment has to be applied without rewriting or doing violence to the enactment for removing the ambiguity but where there is none and the language is clear, the rule of liberal construction, cannot be given a go bye (See Steel Authority of India Ltd. and ors. Vs. National Union Water Front Workers and ors., AIR 2001 SC 3527, PP. 3535, 3539). These principles of interpretation cannot be put under shelf as we proceed to ascertain true meaning of the words used in Section 436-A of the Code and true intent of the legislature in enacting it.Upon the closer examination of the language used in Section 436-A of the Code, it can be seen without any difficulty or doubt that the benefit intended to be given is for a person who has, during the period of investigation, inquiry or trial under the Code of an offence, not being an offence for which capital punishment has been prescribed as one of the punishments, undergone detention for a period extending up to one half of the maximum period of imprisonment specified for that offence under that law. In such a case, the person is required to be released on his personal bond with or without sureties in normal course of circumstances. But, there could be some special circumstances justifying his further detention, for reasons to be recorded, which makes the right of the person limited and not absolute. This is evident from the first proviso which lays down that the Court may, after hearing the Public Prosecutor and for reasons to be recorded in writing, order continued detention of the person for a period longer than one half of the period mentioned in the Section or release him on bail instead of the personal bond with or without sureties. However, this limited right has the potential of becoming absolute when the condition prescribed in second proviso is fulfilled. The condition is that if the person has been detained during the period of investigation, inquiry or trial for more than maximum period of imprisonment provided for an offence under that law, the person has to be released. There is also an explanation appended to the section. It lays down that in computing the period of detention for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.

Once again the question referred for an answer is set out below :

“Whether a convict who has challenged his conviction under Section 374 of the Code
of Criminal Procedure, 1973 is entitled to the benefit of Section 436 A of the Code ?”

Section 436-A, Cr.P.C. was introduced in Chapter XXXIII of the Code of Criminal Procedure (hereafter “the Cr.P.C.”, for short) by an Amendment Act of 2005 upon instances of accused having remained in custody during the period of investigation, inquiry or trial, in excess of the maximum period of imprisonment provided for the same offence under the law, being noticed.

Apart from the enacting part, the section has a couple of proviso and an explanation. The enacting part envisages grant of bail to a person in custody ‘during the period of investigation, inquiry or trial’ under the Cr.P.C. for any offence (except an offence attracting the punishment of death), provided that such a person is in detention for a period extending upto one-half of the maximum period of imprisonment specified therefor in law.

As an explanation, it is provided that when the accused has caused delay in the proceeding, such delay is required to be deducted in computing the period of detention suffered by him for the purposes thereof. However, it is to be noted that the relief of bail, even if the pre-conditions of Section 436-A Cr.P.C. are satisfied, does not follow as a matter of course.

The Court may, for reasons to be recorded in writing, deny relief if it is of the opinion that further detention is necessary. It is, therefore, clear that Section 436-A, Cr.P.C. does not envisage an automatic release as in Section 167(2), Cr.P.C., i.e., default made during investigation, but is akin to sub-section (6) of Section 437 thereof. The other part of the section, however, appears to be of mandatory nature requiring release of the under-trial who has been detained for more than the maximum period of imprisonment provided in law. On a plain reading of the enacting part, the first proviso and the explanation together (which are relevant for the purpose of answering the reference) and on a literal interpretation thereof, the law seems to be free from blur, obscurity or
absurdity and the conclusion is inescapable that the benefit of Section 436-A, Cr.P.C. is intended for an under-trial prisoner.

Having noticed what Section 436-A is all about, the next task is to consider whether the benefit thereof can be extended to a convict who, having challenged his conviction in an appeal under Section 374, Cr.P.C., applies for suspension of execution of sentence under Section 389 thereof and seeks release on bail.

The fields of operation of Section 389, Cr.P.C. on the one hand and Sections 436, 437
and 439 thereof on the other are quite different. Section  389 is included in Chapter XXIX of the Cr.P.C., empowering the Courts (to whom the conviction and sentence are
carried in appeal), to suspend execution of the sentence and release the appellant/convict on bail pending hearing of the appeal; whereas Sections 436, 437 and 439, Cr.P.C. deal with grant of bail during investigation, inquiry or trial.

The words ‘during the period of investigation, inquiry or trial’ used in Section 436-A and the insertion of the said section in Chapter XXXIII, without insertion of a like provision in Chapter XXIX, clearly restricts its operation to the matter of grant of bail at the trial stage and not at the appellate stage. Further, Section 436-A refers to the maximum period of imprisonment specified for the offence in question, and not to the period of imprisonment actually imposed.

As a logical corollary, the question of imposing ‘the maximum period of imprisonment specified’ for an offence under the law would arise only in case of an undertrial prisoner although it could be so that after recording a conviction, the convict could be sentenced for a term lesser than what is the maximum. Also, having regard to the
explanation at the foot of Section 436-A, it can be held without any shred of doubt that the proceeding referred to  therein is referable to the proceeding before the trial court and not the appellate court.

In this connection, the decision of the Supreme Court of recent origin in Preet Pal Singh vs. The State of Uttar Pradesh and Ors., reported in MANU/SC/0591/2020 may be referred to.

In the of Krishnakant Tamrakar Vs. State of Madhya Pradesh, (2018) 17 SCC 27. In this case, Supreme Court did not invoke the provisions contained in Section 436-A of the
Code, even though it was conscious of the fact that the petitioner therein was in custody for more than ten years, was neither granted bail nor early hearing of his appeal, nor was there an assurance to him that there was likelihood of his appeal being heard by the High Court in the near future. This would only show that the Hon’ble Apex Court has consciously chosen to not take any recourse to Section 436-A of the Code while issuing direction to initiate various measures for expeditious disposal of criminal trials and appeals.

Section 436-A, Cr.P.C. is restricted in its operation to grant of bail to an under-trial prisoner ‘during the period of investigation, inquiry or trial’ and does not, ex proprio vigore, apply at the appellate stage.

Having so answered, in a given situation the spirit of Section 436-A, Cr.P.C. could be considered by an appellate court while it is seized of an application under Section 389, Cr.P.C. and, drawing inspiration from the principle ingrained in the former, to suspend execution of the sentence bearing in mind all relevant factors including the time likely to be taken for disposal of the appeal. The judicial mind in the wise exercise of discretion and by suitable moderation may suspend execution of the sentence and grant bail under Section 389, Cr.P.C., the absence of a provision like Section 436-A, Cr.P.C. in the chapter on appeals notwithstanding. If any authority is required, one may usefully refer to the Judgment in Kashmira Singh vs. State of Punjab, reported in (1977) 4 SCC 291, Babu Singh vs. State of U.P., reported in (1978) 1 SCC 579, Bhagwan Rama Shinde Gosai vs. State of Gujarat, reported in (1999) 4 SCC 421, Akhtari Bi vs. State of Madhya Pradesh, reported in (2001) 4 SCC 355, and Suresh Kumar vs. State [NCT, Delhi], reported in (2001) 10 SCC 338, which are all decisions prior to the birth of Section 436-A in the Cr.P.C. delineating factors that a Court ought to take into account while considering a prayer for bail at the appellate stage.


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