Case Analysis Benefit under Section 436-A of CrPC Can Be Extended To Undertrials Only, Not Those Challenging Conviction: Bombay HC

Introduction:-

Bail is a kind of Security which is given by the accused to the court that he will attend the proceedings against the accusations made upon him and include personal bond and bail bond. The term bail is not defined under CRPC, although the terms “bailable offense” and “non-bailable offense” have been defined (Sec. 2a). “Bail” has been defined in the Law Lexicon as Security for the appearance of the accused person on giving which he is released pending trial or investigation. The distinction between bailable and non-bailable offenses is based on the gravity of the offense, danger of accused absconding, tampering of evidence, previous conduct, health, age, and sex of the accused person. Though the schedule for classification of offenses as bailable or non-bailable is provided in Crpc; however, it is mostly the offenses which are punishable with imprisonment for not less than three years that are classified as non-bailable.

Facts:-

A three-judge bench of the Bombay High Court consisting of Justice Dipankar Datta, CJ, and R.K. Deshpande and Sunil B. Shukre, JJ. Has held that a convict is not entitled to the benefit of section 436A of the Criminal Procedure Code (CrPC) under which under trials are entitled to bail on undergoing detention of up to half of the maximum sentence prescribed for the offenses charged against them.

The 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.

Issues:-

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?

Legal Provisions:-

• Code of Criminal Procedure, 1973, Section 374- Appeals from conviction.
• Code of Criminal Procedure, 1973, Section 436 A-In what cases bail to be taken.

Applicant’s Contention:-

The Arguments presented before the court on behalf of the applicant’s counsel RK Tiwari was that the provision of Section 436-A of the Code is beneficial and, therefore, it deserves liberal interpretation to be made in favor 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, and to support his arguments, Adv. Tiwari cited the case of Pradip vs the State of Maharashtra and Muddasir Hussain and Anr., vs State and Anr.,

Prosecutor’s Contentions:-

The arguments presented before the court on the prosecutor's side was that the language of Section 436-A is clear and unequivocal admitting of no two interpretations and, therefore, the rule of liberal construction has no application here. He argued that an elaborate scheme has been provided in the Code for trial of offenses, 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.

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 its Act, 2005, which came into force i.e. 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 difference regarding how, when and on what conditions the bail be conceded before conviction. The two finishes of the range of training of bail are spoken to by extraordinary perspectives. The implementers of law would contend for outrageous alert and miserliness in giving bail in light of a legitimate concern for severe lawful activity, requirement for forestalling successive bail hopping, and warding off the expert guarantees. 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 under trial prisoner on various grounds. Thus, the 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 is eligible for his release on personal bond with or without sureties or bail, as the case may be."

Remarks:-

A liberal approach is only possible when the section of a particular code has ambiguity and is open to different interpretations but in this case, Bail was clearly defined and no scope of ambiguity was found, therefore it would have been inappropriate on part of the court to grant bail to the applicant.