Section 436-A of the Code OF CRIMINAL PROCEDURE

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Section 436-A of the Code OF CRIMINAL PROCEDURE

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.


NOTE

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.

Now, if we take a look at the amending Act entitled the Code of Criminal Procedure (Amendment) Act, 2005, some disappointment would be in store for us as we do not come across any Statement of Objects and Reasons in so far as Section 436-A is concerned. However, there is annexed to the Bill introduced in the Rajya Sabha on 09th May, 1994 a Statement of Objects and Reasons. It would be quite helpful for us, to reproduce it here. It goes as under :-

“Having regard to the recommendations made by the Law Commission and the National Police Commission, the observations made by the courts and the suggestions received from the State Governments and others, and with a view to removing certain difficulties or lacunae felt in its working, it has been found necessary to amend various sections of the Code of Criminal Procedure, 1973.
2. The Notes on clauses explain, in brief, the various provisions of the Bill.
3. The Bill seeks to achieve the above objects.”

 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 under- trial 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.

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 Judgment 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.

The Section does not say that a person who has been detained for one half period of imprisonment imposed would be eligible. Mentioning of “the maximum period of imprisonment specified for that offence under that law” and omission of the words “punishment imposed” shows that the legislature was aware of the difference in the status of an Judgment undertrial prisoner and a convict, and with it of the consequences of detaining a person who enjoys presumption of innocence till found guilty for unduly long time. Such presumption of innocence being absent in case of a convict, the legislature refrained, and consciously, from mentioning the words “punishment imposed”. This clearly shows the intention of the legislature to confer the benefit on the under- trials and not the convicts. This being the position, we do not think that rule of liberal construction would have any application here.

It clarifies as to how the period of detention contemplated under Section 436-A of the Code for granting bail has to be calculated. It lays down that period of delay in a proceeding caused by an accused must be Judgment excluded. Any occasion of causing of delay in a proceeding, if it has to arise, would arise only during trial as for hearing of an appeal against conviction, personal presence of the accused is not required, unless directed otherwise, and so there would be no question of the convict personally contributing to delay in an appeal proceeding.