Mischief Likely To Be Caused By Section 436-A Of The Code Of Criminal Procedure, 1973

I am working as Secretary, District Legal Services Authority, Thane. As a member of Judiciary, I have seen that many undertrials are languishing in jail for long period for various reasons. No doubt, there are several provisions in the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.' for short) as to grant of bail. Besides, insertion of provision like Section 436-A has reduced the number of undertrials.  However, I humbly opine that some amendment is necessary in Section 436-A of the Cr.P.C.

Introduction :

Section 436-A was inserted in the Cr.P.C. in 2005 with the objective of ensuring that undertrial prisoners were not indeterminately detained in jail due to slow progress of their cases. Section 436-A deals only with undertrial prisoners, and there are only two requirements to be satisfied for its operation: first, the prisoner has to be undertrial for an offence other than one attracting a sentence of death; and secondly, the prisoner should have remained in detention for a period amounting to half of the maximum sentence of imprisonment specified under the law. Once these conditions are satisfied, the Court is mandated to release the prisoner on personal bond, with or without sureties. The second proviso to the Section further states that no person, under any circumstances, can be detained for a period longer than the maximum period of imprisonment provided for the offence under trial. Literally interpreted, this would mean that a prisoner would have to be automatically released upon serving out the duration of the maximum sentence for the offence under trial, even if the trial is incomplete. No doubt, it appears to be a salutary provision to do complete justice to the undertrials. However, if seen from a different perspective, which appears to have been overlooked, it would be understood that it is a half baked attempt.¹

Relevant Provisions in the Cr.P.C. :

Firstly, Sections 28 and 29 of the Cr.P.C. are to be seen. They run as under:

Section 28: Sentences which High Courts and Sessions Judges may pass.

(1) A High Court may pass any sentence authorised by law.

(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law ; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court.

(3) An Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years.

Section 29: Sentences which Magistrates may pass.

(1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years.

(2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both.

(3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both.

(4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of  Magistrate of the first class.

 These two Sections prescribe the upper limit of powers of imposing sentence of imprisonment by certain Judges/ Magistrates. The Assistant Sessions Judge can not impose sentence of imprisonment for a term exceeding ten years. The C.J.M. or C.M.M. can not impose sentence of imprisonment for a term exceeding seven years. The J.M.F.C. can not impose sentence of imprisonment for a term exceeding three years. The J.M.S.C. can not impose imprisonment for a term exceeding one year.

 Section 26 of the Cr.P.C. describes the courts by which offences are triable. It states that all the offences under the Indian Penal Code (hereinafter referred to as 'the I.P.C.' for short) are triable by the High Court or the Court of Sessions or by other Court by which such offence is shown in the First Schedule to be triable. The offences under other laws are triable by the Court mentioned is such laws and if no such court is mentioned, those may be tried by the High Court or any other Court by which such offence is shown in the First Schedule to be triable.

 The First Schedule deals with classification of offences. It is very exhaustive and I do not feel it necessary to discuss all entries therein as the purpose of this article is limited. From perusal of the First Schedule, it is clear that certain offences are triable by the Court of Session and other offences are triable by the J.M.F.C. or any Magistrate.

 Sections 121, 132, 302, etc.  of the I.P.C. prescribe punishment of death or imprisonment for life and fine. They are triable by the Court of Sessions. However, considering restrictions on power of punishment to be awarded by the Assistant Sessions Judge, those cases can not be tried by the Assistant Sessions Judge. The judgment of the Hon'ble Bombay High Court Prabhakar L. Pawar Vs. State of Maharashtra 2012 Cri.L.J. 4726 prohibits the Sessions Judges from assigning the cases having offences punishable with sentence of imprisonment more than ten years to such Judges. So there can not be cases with the Assistant Session Judge in which he can not impose the full punishment prescribed the law.

 Many offences like punishable under Sections 134, 174-A (second part), 193, 214, 216, 243, 247, 256, 365,369, 380, etc. (imprisonment upto 7 years), Sections 327, 382, 386, 389, 392 (first part), etc. (imprisonment upto 10 years) are triable by the J.M.F.C.. However, the J.M.F.C. can not impose sentence of imprisonment for period exceeding 3 years considering restrictions imposed by Section 29 of  the Cr.P.C.

Mischief by S. 436-A :

 Section 436-A of the Cr.P.C. prescribes maximum period for which an undertrial prisoner can be detained. It directs that where a person has undergone detention for a period extending upto 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. First proviso to the Section permits further detention or release on bail instead of the personal bond for reasons to be recorded on hearing the Public Prosecutor.  Second proviso bars detention of a person for more than the maximum period of imprisonment provided for the said offence under that law.

 The words “Specified for that offence” or “provided for that offence” in Section 436-A allow the detention for longer period than the power of awarding sentence.

 e.g.    In cases for offences punishable under Sections like 193, 214, ........... 389, etc. (which are referred hereinabove) triable by the J.M.F.C., a person can be detained in jail as an undertrial for a period exceeding the power of granting imprisonment by the J.M.F.C.. He need not be released on his personal bond even after the period of 3 years  i.e. maximum period which he can impose as sentence on the person is over as the S. 436-A permits doing so.

 No doubt, all the offences under the I.P.C. are triable by the High Court and the Court of Session (excluding the Assistant Sessions Judge) and they are armed with power of passing any imprisonment. Further the C.J.M., Addl. C.J.M., C.M.M. and M.M. can award sentence of imprisonment upto 7 years. However, it does not happen that the case pending before the J.M.F.C. automatically gets transferred to those Courts if a person has undergone more imprisonment than one which can be awarded by the J.M.F.C./ C.J.M., C.M.M., M.M.. As such, it may happen that a person accused of commission of an offence punishable with 7 years imprisonment may languish in jail for 3 and half years to get entitled for release on personal bond even if the trial Court may not be empowered to grant even that much of sentence. The situation may worsen if the offence is punishable with more imprisonment.

 The detention may not be illegal. But, in my humble opinion, it may not be justifiable. Justice, in its purely ethical aspect, is justness, a moral quality residing in a disposition of character. When we speak of the “administration of justice” (and we often use the term as synonymous with the administration of law), we really mean the application of the moral principle of justice to existing laws when rights and duties are disputed by rival claims.²

 If a person is convicted by the J.M.F.C. or C.J.M., C.M.M., M.M. for an offence punishable under Section 326 of the I.P.C., the maximum punishment that can be awarded would be three years or seven years. If he has undergone imprisonment for more than that period at the time of passing Judgment, what can be done? Section 428 of the Cr.P.C. prescribes benefit of set off. But, nothing can be done in such situation. Here, what is done cannot be undone. Hence,  though keeping a person as undertrial for such long period may be legal, it would be unjust.

 Section 325 of the Cr.P.C. empowers the J.M.F.C. to record his opinion and submit his proceeding and forward the accused to the C.J.M., if he opines that severe punishment than his power is necessary. The opinion has to be arrived at on the basis of seriousness of the offence, mode of commission of the offence and other aggravating circumstances. Non conclusion of the trial within the period of maximum sentence that can be awarded by the J.M.F.C. can not to be a ground for him to invoke Section 325 of the Cr.P.C. So also, like Section 325, there is no similar provision under the Cr.P.C. permitting the C.J.M. to transfer the case to the Sessions Judge if he comes to conclusion that the accused is liable for more severe punishment.

 Recently, in Hussain and another vs Union of India (2017) 5 SCC 702, the Hon'ble Supreme Court has directed as under:-

“(d) As a supplement to Section 436-A, but consistent with the spirit thereof, if an undertrial has completed period of custody in excess of the sentence likely to be awarded if conviction is recorded such undertrial must be released on personal bond. Such an assessment must be made by the concerned trial courts from time to time.”

 However, the provisions of Sections 28 and 29 of the Cr.P.C. was not brought to the notice of the Hon'ble Supreme Court and appropriate orders were not obtained.

Suggested Solution :

 The situation of detention for such more period has to be avoided by us and it can be done with amendment of Section 436-A of the Cr.P.C. The word “ the maximum period of imprisonment specified for that offence under that law” are to be replaced by “the maximum period of imprisonment that can be awarded by the lowest competent court trying that offence.” So also same amendment is necessary  in second proviso to Section 436-A replacing “the maximum period of imprisonment provided for the said offence under that law” by “the maximum period of imprisonment that can be awarded by the lowest competent court trying that offence”

 One may say, 'the Court trying that offence' could be suggested instead of 'the lowest competent Court trying that offence'.  I have to clarify the use of those words. In city like Mumbai, there are either C.M.M. or M.M.. It means there is no J.M.F.C. in city of Mumbai. All C.M.M. and M.M. can award sentence of imprisonment upto seven years. At other District Headquarters, there are C.J.M., Addl. C.J.M. and J.M.F.C. In other cities, also there can be Addl. C.J.Ms. and J.M.F.C.. Now, situation may arise that, one person whose case for offence punishable under Section 380 may get released on personal bond after one and half year if his case is pending before the J.M.F.C.. While the other person with same offence has to wait for three and half years if his case is pending before the C.M.M. / M.M. / C.J.M. or Addl. C.J.M.. So, there would be discrimination and it would be without reasonable classification. Article 14 of the Constitution guarantees the right to equality to every citizen of India. It embodies the general principles of equality before law and prohibits unreasonable discrimination between persons. Hence, if the words “the lowest competent Court” are used there would not be such discrimination. I am of the humble opinion that the words 'likely to be awarded' used in Hussain's case (supra) are to be construed on the basis of power of the Courts as per Section 29 of the Cr.P.C. until Section  436-A is suitably amended. By doing so, an unjust law may be administered justly.

References :

1. 1.http://www.centreforsocialjustice.net/wp-content/uploads/2016/09/section-436A-concept-note.pdf.


2. 'Aspects of Justice' by Sir Carleton Kemp Allen, Q.C., p. 65.

 Mr D.N.KHER is Secretary, District Legal Services Authority, Thane.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]