Convicts Can’t Seek Bail Under 436-A, Provision Extended To Undertrials Only

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 offence" and "non-bailable offence" have been defined (Section 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 offences are based on the gravity of the offence, danger of accused absconding, tampering of evidence, previous conduct, health, age, and sex of the accused person. Though the schedule for classification of offences as bailable or non-bailable is provided in Crpc; however, it is mostly the offences which are punishable with imprisonment for not less than three years that are classified as non-bailable.

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 undertrials are entitled to bail on undergoing detention of up to half of the maximum sentence prescribed for the offences charged against them.

The Applicant Maksud Sheikh in 2016 was convicted under, or the offences punishable under Sections 506-II, 450, 326, 452, 354-A read with Sections 34, 149, 109, and 114 of the Penal Code, 1860 and also under Section 66E of the Information Technology Act, 2000 and various sentences ranging from three years to a term of ten years was awarded to him.

During the pendency of the appeal, the applicant recorded an application under Section 389 of the Code looking for suspension of sentences forced upon him and his delivery on Bail. The application was dismissed by a division seat of the High Court by its request passed on November 18, 2016. The Court, however, gave the liberty that an independent bail application can be filed on terms of medical ground, which was later exhausted by the applicant and the application was also rejected

The situation which went into the Conceivement of Section 436-A was of undertrial prisoners, the primary concern being of their incarceration in jail for a long period pending investigation, inquiry, or trial, even though the presumption of innocence till found guilty was operating in their favour.

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 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, and supporting his arguments, Adv. Tiwari cited the case of Pradip vs the State of Maharashtra and Muddasir Hussain and Anr., vs State and Anr.,

The arguments presented before the Court on the prosecutor's side was that the language of Section 436-A is clear and unmistakable admitting of no two interpretations and, therefore, the rule of liberal construction has no application here. He argued that an elaborate scheme had 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. 

The Court held that the benefit of the section is to be given only to under trial prisoners, which means that they are applicable in case of those persons who have 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. In summary, The Court declined the granting of Bail to the applicant.

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