Whether convict entitled to benefit of Section 436-A Cr.P.C. ?-

In Maksud Sheikh vs State of Maharashtra (Criminal Application No.270/2020 in Criminal Appeal No. 336/2016) a Full Bench of Bombay High Court comprising Chief Justice Dipankar Datta, Justice R.K. Deshpande and Justice Sunil B.Shukre, decided the question, as to whether a convict is entitled to seek bail under Section 436-A Cr.P.C.

Issue:

“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 ?”

Background:

The Applicant before the Court was prosecuted along with 5 other accused for offences punishable various Sections of IPC and I.T. Act.Upon Conclusion of Trial he was convicted for various terms of imprisonment ranging from 3 years to 10 years.

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 the Division Bench. Again another Bail Application was filed seeking bail on Medical Ground, it was also rejected. Then the Applicant filed another application seeking bail under Section 436-A Cr.P.C., contending that he is in jail since 07th November, 2014 and has completed in jail a period equivalent to one half of the maximum imprisonment imposed upon him, he is entitled to be released on bail by virtue of his right under Section 436-A of the Code. 

Relevant Provision: 436-A Cr.P.C.

“436-A. Maximum period for which an undertrial prisoner can be detained.-

Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to 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:

Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:

Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

Explanation – In computing the period of detention under this section for granting bail the period of detention passed due to delay in proceeding caused by the accused shall be excluded.”

Contention on behalf of Applicant/Convict:

  1. 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
  2. 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.
  3. Speedy trial is a fundamental right and the legislative intent underlying Section 436-A of the Code is to effectuate the fundamental right of the accused persons, whether under-trials or convicts. 
  4. The provision is also applicable to an appeal proceeding, as the appeal is nothing but an extension of the trial.

Contention of State:

  1. Language of Section 436-A of the Code is clear and unequivocal admitting of no two interpretations and, therefore, the rule of liberal construction has no application here.
  2. An elaborate scheme has been provided in the Code for trial of offences, recording findings of guilt or innocence, imposing of sentences of imprisonment on conviction, filing of appeals against the conviction, provisions regarding bail and bonds and other allied matters.
  3. Once it is seen that there are separate stages for procedurally dealing with criminal offences and accused persons, it would be easy to not mistake an appeal for trial on the ground that appeal is extension of trial, as far as provision of release of a person on personal bond or bail under Section 436-A of the Code is concerned.
  4. Placement of Section 436-A in Chapter-XXXIII which relates to provisions as to bail and bonds is also significant and it suggests that a limited right created under Section 436-A of the Code has been intended by the legislature to be conferred only upon under-trial prisoners and if it were not so the legislature would also have made a suitable provision under Section 389 of the Code, which is the only provision under which bail can be sought by a convict who has filed an appeal under Section 374 of the Code and that too after successfully pleading his case for suspension of sentence.

The Court held:

  1. The rule of liberal construction of beneficent or remedial provision has it’s own limitations, in ignorance of which the construction cannot be stretched so much as to rewrite the provision.
  2. The rule only states that if a remedial or beneficent provision is reasonably capable of two constructions, that construction must be preferred which furthers the policy of the legislature and which is more beneficial to those in whose interest it is made, and the doubt, if any should be resolved in their favour
  3. Upon the closer examination of the language used in Section 436-A of the Code, it can be seen without any difficulty or doubt that the benefit intended to be given is for a person who has, during the period of investigation, inquiry or trial under the Code of an offence, not being an offence for which capital punishment has been prescribed as one of the punishments, undergone detention for a period extending up to one half of the maximum period of imprisonment specified for that offence under that law.
  4. 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. 
  5. Mentioning of “the maximum period of imprisonment specified for that offence under that law” and omission of the words “punishment imposed” shows that the legislature was aware of the difference in the status of an undertrial prisoner and a convict, and with it of the consequences of detaining a person who enjoys presumption of innocence till found guilty for unduly long time
  6. It is, therefore, not possible to agree with the contention that the accused remains an under-trial prisoner during the pendency of the appeal and the Appellate Court is competent to exercise the power under Section 436-A of the Code.

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