A three-judge at Nagpur bench of the Bombay High Court (HC) has held that a convict is not entitled to the benefit of section 436A of the Code of Criminal Procedure (CrPC) under which under trials are entitled to bail on undergoing detention of up to half of the maximum sentence prescribed for the offences charged against them.This provision deals with release of undertrial prisoners on bail during the investigation period on completion of half of the maximum jail sentence.
“Reading the section as a whole, we find that the benefit under the section has been intended to be given only to undertrial prisoners,” said the bench comprising Chief Justice Dipankar Datta, Justice Ravi Deshpande and Justice Sunil Shukre.
The bench answered a question referred by a division bench led by justice AS Chandurkar on August 20, while hearing a plea filed by a convict from Chandrapur, Maksud Sheikh, who has been convicted by the Chandrapur sessions court in November 2016 for voluntarily causing grievous hurt and sentenced to 10 years’ imprisonment. After failing to get bail twice during the pendency of his appeal, the 46-year-old labourer filed a third application claiming he was entitled to bail under section 436A of CrPC. He said he was booked and arrested in November 2014 and as such he has undergone more than half the sentence handed down to him.
In support of his contention, he relied on an order passed by a division bench of the HC holding a convict entitled to bail under section 436A. However, the bench headed by justice Chandurkar refused to accept the view and referred the question for consideration to a larger bench.
The three-judge bench remarked that the section was introduced by 2005 amendment to the CrPC in an endeavor to remedy the condition of misery of undertrials relegated to dark corners within jails and accordingly decided on the question on Friday, holding that a convict is not entitled to the benefit of section 436A of CrPC.
The larger bench clarified that “the situation which went into the birth of section 436A was of undertrial prisoners, the primary concern being their incarceration in jail for a long period of time pending investigation, inquiry or trial, even though the presumption of innocence till found guilty was operating in their favour”.
It added that the words “during the period of investigation, inquiry or trial” and “maximum period of imprisonment specified for that offense” used in section 436A are significant and they clearly indicated that only the person who has undergone detention for a period of half or more of the maximum prescribed punishment during investigation, inquiry or trial is eligible for release on bail.
It added that the section does not say that a person who has been detained for half the period of imprisonment imposed would be eligible. Instead, the larger bench added, use of the words like “maximum period of imprisonment” shows that the legislature was aware of the difference in the status of an undertrial 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.