Showing posts with label Sec.436A of Cr.P.C.. Show all posts
Showing posts with label Sec.436A of Cr.P.C.. Show all posts

31 August 2020

Benefit of bail u/s.436A of Cr.P.C. is available only to under-trial prisoners and not to convicted who has filed an appeal

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. In such a case, the person is required to be released on his personal bond with or without sureties in normal course of circumstances. But, there could be some special circumstances justifying his further detention, for reasons to be recorded, which makes the right of the person limited and not absolute. This is evident from the first proviso which lays down that the Court may, after hearing the Public Prosecutor and for reasons to be recorded in writing, order continued detention of the person for a period longer than one half of the period mentioned in the Section or release him on bail instead of the personal bond with or without sureties. However, this limited right has the potential of becoming absolute when the condition prescribed in second proviso is fulfilled. The condition is that if the person has been detained during the period of investigation, inquiry or trial for more than maximum period of imprisonment provided for an offence under that law, the person has to be released. There is also an explanation appended to the section. It lays down that in computing the period of detention for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.[Para No.18]

Benefit of bail u/s.436A of Cr.P.C. is available only to under-trial prisoners and not to convicted who has filed an appeal
    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. The Section does not say that a person who has been detained for one half period of imprisonment imposed would be eligible. 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. Such presumption of innocence being absent in case of a convict, the legislature refrained, and consciously, from mentioning the words "punishment imposed". This clearly shows the intention of the legislature to confer the benefit on the under- trials and not the convicts. This being the position, we do not think that rule of liberal construction would have any application here.[Para No.19]

    There are further indications about the clarity of intention of the legislature. The provision refers to "investigation, inquiry and trial under  the Code". There can be no doubt about what "investigation or inquiry" means as they have been defined in Section 2(h) and Section 2(g) of the Code respectively. The doubt, however, could be about meaning of the word "trial" as it has not been defined in the Code. It has not been defined in the General Clauses Act either. So, we have to turn to its dictionary meaning, if it helps. In Black's Law Dictionary (9th Edition page 1644) "trial" has been defined to be a formal judicial examination of evidence and determination of legal claims in a advisory proceeding. This definition is too general an explanation of "trial" and, therefore, it would not help us in understanding its meaning here. So, we must again revert to the Code, in an attempt to understand the sense in which the word "trial" has been used in Section 436-A of the Code or to be precise, to know, as to whether or not the trial of an accused goes beyond his conviction and continues, if appeal is filed under 374 of the Code, till it is finally decided, or it culminates upon acquittal or conviction for the purpose of Section 436-A of the Code.[Para No.20]

    As these provisions create a step-wise mechanism to procedurally deal with crimes and so the word, "trial" used in Section 436-A would get it's meaning in the context of this scheme of the Code, at least for the purpose which is sought to be achieved by the provision of Section 436-A. Under this scheme of the Code, "trial" of a person accused of an offence is contemplated only by a Court having original criminal jurisdiction or assuming original criminal jurisdiction after committal of a Sessions case and appeal as a remedy against the judgment of conviction and/or sentence or even acquittal has been made available before the Court exercising Appellate jurisdiction. In this sense, so far as the Section 436- A benefit is concerned, the word "trial" has to be understood in contra-distinction to an "appeal proceeding". Our conclusion is further bolstered up by the provisions contained in Section 353. Provisions contained in Section 389 also help us in drawing of such an inference. It would be, therefore, convenient for us to quote relevant portions of these sections here. They are as under :
"353. Judgment - (1) The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders,
(a) by delivering the whole of the judgment; or
(b) by reading out the whole of the judgment; or
(c)  by reading out the operative part of thej udgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader."
   "389. Suspension of sentence pending the appeal; release of appellant on bail. - (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond:
Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:"
    It is clear from Section 353 that it requires a criminal Court to pronounce judgment in every trial in open Court immediately "after the termination of the trial or at some subsequent time". It is indicative of the fact that upon pronouncement of the judgment, in the contemplation of the scheme of the Code, there occurs termination of the trial. If we examine Section 389 of the Code, on the backdrop of Section 353, we would find that under the scheme of the Code, appeal has been considered to be a stage separate from trial, which comes into being after pronouncement of the judgment upon termination of the trial. In other words, unless there is termination of trial, there is no question of stage of appeal being born. That means the words "trial" and "appeal" have been used in distinctive sense thereby signaling that no one makes a mistake in understanding that "trial" is not synonymous with "appeal", when it comes to extending benefit available to an under trial prisoner to a convict undergoing sentence of imprisonment.
Of course, in general sense, appeal could be said to be an extension of trial on the parameters of rights available to a convict, principles to be followed by Appellate Court in appreciation of evidence and power of Appellate Court. But, this is not so for the purposes of Section 436-A of the Code. This is the reason why in Section 389 of the Code, the words "trial of the person", "are not used and instead the words, "pending any appeal by a convicted person" are employed for considering suspension of sentence of the convict and grant of bail to him.[Para No.23]

Adv. Jainodin's Legal Blog