Benefit Under Section 436-A Of CrPC Can Be Extended To Undertrials Only, Not Those Challenging Conviction: Bombay HC (Full Bench) [Read Judgment]

A full bench of the Bombay High Court has held that the benefit under Section 436-A of the Code of Criminal Procedure can be extended to an undertrial prisoner only, not a convict who has challenged his conviction under Section 374 of CrPC.

Chief Justice Dipankar Datta, Justice RK Deshpande and Justice SB Shukre at the Nagpur bench answered a question posed to them by a division bench of the High Court after the bench found that the case at hand involves a question of general importance arising frequently in criminal matters and so the matter was referred to a larger bench. The question framed by the Division Bench, was-

"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 ?"

Case Background

Court was hearing an application by one Maksud Sheikh under Section 436-A in his main appeal against conviction, seeking bail.

Sheikh was convicted in a judgment dated August 1, 2016, delivered by Additional Sessions Judge, Chandrapur, for offences punishable under Sections 506-II, 450, 326, 452, 354-A read with Sections 34, 149, 109 and 114 of the Indian Penal Code and also under Section 66E of the Information Technology Act, 2000. Various terms of sentences, ranging from three years to ten years came to be awarded to him.

During pendency of the appeal, the applicant filed an application under Section 389 of the Code seeking suspension of sentences imposed upon him and his release on bail. The application was rejected by a division bench of the High Court by its order passed on November 18, 2016. Liberty, however, was granted to the applicant to file an independent application seeking bail on medical grounds, if any. The liberty so granted was exhausted by the applicant later and his bail application was rejected by the bench on January 31, 2017.

Submissions

Applicant's counsel RK Tiwari submitted that the provision of Section 436-A of the Code is beneficial in nature and, therefore, it deserves liberal interpretation to be made in favour of the person for whose benefit the provision has been inserted in the Code by an Act of Parliament, the Act 25 of 2005. Moreover, if the provision is liberally constructed, it would bring big relief to the convicts whose appeals filed under Section 374 of the Code are pending for final disposal for long years, Adv Tiwari submitted.

Adv Tiwari relied on the following judgments of the Bombay High Court in support of his arguments- Pradip Vs. State of Maharashtra, 2019 SCC Online Bom 9768 and Mudassir Hussain and Anr., Vs. State and Anr.

On the other hand, Additional Public Prosecutor TA Mirza opposed Adv Tiwari's submissions and contended that the language of Section 436-A of the Code is clear and unequivocal admitting of no two interpretations and, therefore, rule of liberal construction has no application here. He argued that an elaborate scheme has been provided in the Code for trial of offences, recording findings of guilt or innocence, imposing sentences of imprisonment on conviction, filing of appeals against the conviction, provisions regarding bail and bonds and other allied matters. These provisions are required to be considered together and understood as creating distinct stages of investigation, inquiry or trial and an appeal, APP Mirza said.

Judgment

Justice SB Shukre authored the 45-page judgment. At the outset, he examined Section 436-A, the subject of bail and noted-

"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 proponents 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."

Justice Shukre cited the case of The State of Rajasthan, Jaipur Vs. Balchand before the Supreme Court in 1977 wherein Justice Krishna Iyer, speaking on behalf of the bench, held that bail and not jail would be the basic rule in ordinary circumstances.

Thereafter, in the 177th Report of the Law Commission of India, the issue of introducing further bail reforms was considered. The Commission made a recommendation that as a general preposition, in an offence prescribing maximum punishment up to seven years with or without fine, the normal rule should be bail and denial thereof an exception, in the circumstances mentioned specifically in the report. The Law Commission also recommended that in case of an offence punishable with imprisonment of seven years or less, the Police Officer or the Court would not insist for the surety, unless there are special reasons for imposing the condition.

The Bill to amend the Code of Criminal Procedure, 1973 was finally received assent of the President on June 23, 2005 and was published in the Gazette of India on the same day and that is how Section 436-A came into force.

After examining all the submissions and contentions put forth by the parties, Justice Shukre noted that the division bench that previously heard the case had in a prima facie manner disagreed with the view expressed in Pradip Vs. State of Maharashtra and opined that Section 436-A of the Code is applicable only to an undertrial prisoner on various grounds.

Thus, Court finally observed-

"Reading the Section as a whole, we find that the benefit under the section has been intended to be given only to the under-trial prisoners. The words "during the period of investigation, inquiry or trial" and the words "maximum period of imprisonment specified for that offence" are significant. They indicate that only that person who has undergone detention for a period of one half or more of the maximum prescribed punishment during investigation, inquiry or trial under the Code who is eligible for his release on personal bond with or without sureties or bail, as the case may be."

Therefore, Justice Shukre answered the question posed to the bench in the negative and both the Chief Justice and Justice Deshpande concurred with Justice Shukre's judgment. 

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