Gamut of Section 436-A of the Code of Criminal Procedure: An Analysis

With the best interests of under trial prisoners in mind, Section 436-A of the Code of Criminal Procedure (CrPC) was brought in. The intent behind the new section was to uphold the rights of imprisoned individuals who are forced to languish in jail for prolonged periods of time pending investigation, inquiry or trial. In many cases, imprisonment of under trial prisoners was continuing for substantial periods of time as against the principle of “presumption of innocence until found guilty”.

Section 436-A CrPC

Section 436-A CrPC was brought into force w.e.f. June 23, 2005, by virtue of an Ordinance duly promulgated by the President of India.

Section 436-A CrPC states that where a person has, during the period of investigation, inquiry or trial under the CrPC 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.

The first proviso states 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.

The second proviso envisages 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.

Furthermore, the explanatory provision states – 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.

Gamut of the Provision

Although the provision appears to be quite axiomatic, it can be seen that the relief of bail does not follow as a matter of course even if the pre-conditions contemplated in the provision are satisfied. The first proviso empowers the Court to deny such relief if it is of the opinion that further detention is necessary. As regards the second proviso – it elucidates that the relief is absolute in case the under-trial prisoner has served the maximum term prescribed for the offence he is charged with.

The First Proviso of Section 436-A CrPC

The Supreme Court and High Courts in a spate of judgments have indicated that speedy trial is a fundamental right of an accused under Article 21 of the Constitution of India and the consequence of denying such right is bail.

Although, the right to bail under the provision is not an absolute right, can the Courts deny relief to prisoners by getting into merits of the matter?

In Bhim Singh v. Union of India[1], a three-judge Bench of the Supreme Court directed the Jurisdictional Magistrates/Sessions Judges to hold one sitting in a week in each jail/prison for two months to identify the under-trial prisoners who had completed half period of the maximum term; or maximum term of imprisonment stipulated for the offence – and pass an appropriate order to release them on bail. The bench also issued directions to all the High Courts in the country to ensure compliance of the said order and submit a report to the Secretary of the Supreme Court without unnecessary delay.

It would not be out of place to say that much prior to the provision coming in existence, the Supreme Court had expressed concerns with regard to persons languishing in jail for long periods of time. In Hussainara Khatoon v. Home Secretary, State of Bihar[2], Justice Bhagwati, speaking for the Supreme Court, recognised ‘speedy trial’ as a fundamental right of an accused and anxiously directed the State to take steps for a positive approach on enforcing this fundamental right.

In Supreme Court Legal Aid Committee v. Union of India[3], the Supreme Court, relying on Hussainara Khatoon (supra) directed the release of prisoners charged under the Narcotic Drugs and Psychotropic Act after completion of one half of the maximum term prescribed under the Act. A.M. Ahmadi, J. (speaking for the Court) directed the same in an Article 32 petition, after taking into account the non obstante provision of Section 37 of the Act which imposed the rigours of twin conditions for release on bail. It was observed:

“We are conscious of the statutory provision finding place in Section 37 of the Act prescribing the conditions which have to be satisfied before a person accused of an offence under the Act can be released. Indeed we have adverted to this section in the earlier part of the judgment. We have also kept in mind the interpretation placed on a similar provision in Section 20 of the TADA Act by the Constitution Bench in Kartar Singh v. State of Punjab[4]. Despite this provision, we have directed as above mainly at the call of Article 21 as the right to speedy trial may even require in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in AR Antulay v. RS Nayak[5], release on bail, which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21.

As we have not felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters.”

In Hasan Ali Khan v. State[6] the Bombay High Court was pleased to release an undertrial prisoner charged under provisions of PMLA, after serving one half of the maximum term prescribed under the special statute. It was held:

“Since the Hon’ble Supreme Court has observed that the case of the present Applicant is to be considered in view of the judgment of Bhim Singh v. Union of India, this Court is of the opinion that it would not be necessary to go into the merits of the matter. Hence, this Court is of the opinion that by virtue of Section 436-A CrPC, 1973, the applicant is entitled to be enlarged on bail.”

Similarly, the Bombay High Court in Rashesh Mukesh Shah v. State[7] enlarged the accused (who had completed one-half of the maximum term prescribed) on bail under Section 436-A CrPC without getting into the merits of the matter.

The approach of Courts indicates that although the first proviso of Section 436-A CrPC empowers the Court to direct continued detention of the prisoners, the Courts would be overstepping the very said boundaries if the merits of the matter are ventured into for the purpose of denying relief under the provision.

Just as right to speedy investigation is a facet of Article 21 of the Constitution of India, the right to speedy trial, too, is a facet of Article 21. Two sides of the same coin, both facets hold water. As we know, failure to complete investigation within the prescribed period under Section 167(2) CrPC renders an indefeasible and right of bail in favour of the accused[8]. In fact, the Supreme Court made it clear that the pandemic of Covid-19 was no ground for the investigating agency to delay the investigation[9].

A valid approach to deny the benefit under Section 436-A CrPC, would only occur if the accused is mischievously and purposely delaying the trial and the same is solely attributable to his/her credit.

It is, therefore manifest that denial of relief under the provision, in any other case, could be a subterfuge, an infringement of a valuable fundamental right guaranteed under the Constitution of India.

Advocate, Bombay High Court. Views are personal.

[1] (2015) 13 SCC 605.

[2] (1980) 1 SCC 98

[3] (1994) 6 SCC 731.

[4]  (1994) 3 SCC 569.

[5] (1988) SCC 1531.

[6] 2015 SCC OnLine Bom 8695

[7] 2018 SCC OnLine Bom 17551

[8] (2001) 5 SCC 453

[9] 2020 SCC OnLine SC 529

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