Is S.437 CrPC Unconstitutional For Requiring Acquitted Persons To Execute Bail Bonds For Release? Supreme Court To Consider

The Supreme Court today (06.11.2023) issued notice to the Union of India in a plea challenging the constitutionality of Section 437A of the Code of Criminal Procedure (CrPC). The bench comprising CJI DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra, whiling issuing notice, sought the assistance of the Attorney General for India (AG) R Venkatramani in the matter. 

Section 437A of the CrPC requires requires a person who has been acquitted to furnish a bail bond and sureties, valid for a period of six months, to be able to be released from custody. This is to ensure the appearance of the accused if an appeal is filed before a higher court against the acquittal.

The provision states that accused persons must execute bail bonds with sureties to appear before the higher court when an appeal or petition is filed against the judgment of the respective court. These bail bonds are valid for six months, and failure to appear leads to bond forfeiture and the application of Section 446 procedures.

The plea, filed by one Ajay Verma, highlights a contradiction between Sections 437A and 354(d) of the Code, as the latter obliges courts to set the accused at liberty. It also refers to a ruling by the Allahabad High Court in the Nannu & Ors v State of UP case, which suggested that personal bonds could suffice when a bond is not furnished, and the person is acquitted.

Furthermore, the petitioner argues that the use of the word "shall" in Section 437A should be considered a directive rather than a mandatory requirement, a perspective shared by both the Kerala High Court and the Delhi High Court. The provision is criticized for lacking proportionality, as some accused individuals may lack financial resources and the means to find sureties, potentially leading to their continued incarceration.

Additionally, the plea also raises concerns regarding the disparity in timeframes, with the period for appealing against an acquittal being shorter (60 days) than the period for the subsistence of the bond under Section 437A (180 days). This inconsistency raises worries about unjustified incarceration.

In light of these arguments, the petitioner contends that Section 437A not only poses obstacles to the administration of criminal justice but also violates the fundamental right to liberty as guaranteed by Article 21 of the Constitution. The Supreme Court has now sought a response from the Central government and enlisted the assistance of Attorney General R. Venkataramani to address the same. 

Case Title: Ajay Verma v. Union Of India And Ors. W.P.(Crl.) No. 536/2023 PIL-W

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