Law Web: Whether court can release convict on bail during the pendency of a criminal appeal as per S 436-A of CRPC?

In my view, Section 436-A, Cr.P.C. is restricted in

its operation to grant of bail to an under-trial prisoner

‘during the period of investigation, inquiry or trial’ and does

not, ex proprio vigore, apply at the appellate stage. I, thus,

concur with the prima facie view of Their Lordships of the

Hon’ble Division Bench expressed in the order dated

August 14, 2020 as well as the opinion of learned brothers

Deshpande and Shukre, JJ. I also agree with Their Lordships

that the reference ought to be disposed of by answering

the question referred in the negative.

7. Having so answered, I hasten to observe that in a

given situation the spirit of Section 436-A, Cr.P.C. could be

considered by an appellate court while it is seized of an

application under Section 389, Cr.P.C. and, drawing

inspiration from the principle ingrained in the former, to

suspend execution of the sentence bearing in mind all

relevant factors including the time likely to be taken for

disposal of the appeal. The judicial mind in the wise

exercise of discretion and by suitable moderation may

suspend execution of the sentence and grant bail under

Section 389, Cr.P.C., the absence of a provision like Section

436-A, Cr.P.C. in the chapter on appeals notwithstanding. If

any authority is required, one may usefully refer to the

decisions in Kashmira Singh vs. State of Punjab,

reported in (1977) 4 SCC 291, Babu Singh vs. State of

U.P., reported in (1978) 1 SCC 579, Bhagwan Rama

Shinde Gosai vs. State of Gujarat, reported in (1999) 4

SCC 421, Akhtari Bi vs. State of Madhya Pradesh,

reported in (2001) 4 SCC 355, and Suresh Kumar vs.

State [NCT, Delhi], reported in (2001) 10 SCC 338, which

are all decisions prior to the birth of Section 436-A in the

Cr.P.C. delineating factors that a Court ought to take into

account while considering a prayer for bail at the appellate

stage.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPLICATIONN (APPA) NO. 270/2020

CRIMINAL APPEAL NO. 336/2016

Maksud Sheikh Gaffur Sheikh Vs State of Maharashtra,

CORAM : DIPANKAR DATTA, C.J.

R. K. DESHPANDE &

SUNIL B. SHUKRE, JJ.

DATED : 28.08.2020

JUDGMENT (Per : Sunil B. Shukre, J)

1. Heard Shri R. K. Tiwari, learned counsel for the

applicant and Shri T. A. Mirza, learned A.P.P. for the

respondent/State.

2. We have been called upon to answer the question

referred to us in a Criminal Application filed by present

applicant seeking his bail under Section 436-A of Code of

Criminal Procedure (hereinafter referred to as “Code” for the

sake of convenience) in a pending appeal.

3. The applicant was prosecuted along with five

accused persons for offences punishable under Sections 450,

506-II, 326, 452, 366, 354-A, 354-B, 354-C, 376-B, 426, 307,

394, 201, 212 read with Sections 343 and 149 of the Indian

Penal Code 1860 and Sections 67 and 67-A of the Information

Technology Act, 2000 read with Sections 109 and 114 of the

Indian Penal Code, 1860. The applicant, upon conclusion of

his trial for these offences in Session Trial No.22 of 2015, was

convicted by the judgment dated 01.08.2016, delivered by

Additional Sessions Judge–4, Chandrapur. He was convicted

for offences punishable under Sections 506-II, 450, 326, 452,

354-A read with Sections 34, 149, 109 and 114 of the Indian

Penal Code and also under Section 66E of the Information

Technology Act, 2000. Various terms of imprisonments,

ranging from three years to ten years came to be awarded to

him. During pendency of the appeal, 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 of this Court by

its order passed on 18th November, 2016. Liberty, however,

was granted to the applicant to file an independent

application seeking bail on medical grounds, if any. The

liberty so granted to the applicant was exhausted by him later

and his bail application was rejected by the Division Bench on

31st January, 2017.

4. Having failed to get any reprieve twice, the

applicant has again renewed his effort to secure his release on

bail during pendency of appeal, this time on a new ground he

sees as available to him in Section 436-A of the Code. It is the

contention of the applicant that as 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. The applicant relies upon

the decisions in the cases of Pradip Vs. State of

Maharashtra, 2019 SCC Online Bom 9768 and Mudassir

Hussain and Anr., Vs. State and Anr., 2020 SCC Online J &

K 381, and also a few more judgments.

5. The Division Bench, while considering the

application of the applicant has found itself in disagreement

with the view taken by it’s co-ordinate Bench in the case of

Pradip (Supra) while it distinguished the other cases, for the

reasons recorded in it’s detailed order, which forms the basis

of this reference. The Division Bench has, however, found

that this case involves a question of general importance

arising frequently in criminal matters and so by framing a

question, it has referred the matter for answering of the

question to a Larger Bench. The question framed by the

Division Bench, which we are called upon to answer, is as

under :-

“ 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 ?”

6. Shri R. K. Tiwari, learned counsel for the applicant

submits that 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. He further submits that 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. He further

contends that 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. He further submits that on

the first blush, it may appear from the language used in

Section 436-A of the Code that it is applicable to only undertrial

prisoners but it is really not so, if we consider the purpose

for which the provision is made. He further submits that the

provision is also applicable to an appeal proceeding, as the

appeal is nothing but an extension of the trial.

7. Shri T. A. Mirza, learned Additional Public Prosecutor

is completely at odds with the submissions made by the

learned counsel for the applicant. In the opinion of Shri Mirza,

language of Section 436-A of the Code is clear and

unequivocal admitting of no two interpretations and,

therefore, rule of liberal construction has no application here.

He submits that 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. He submits

that these provisions are required to be considered together

and understood as creating distinct stages of investigation,

inquiry or trial and an appeal. He submits that 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.

8. Shri T. A. Mirza, learned A.P.P. further submits that

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.

9. The question which we have to answer is about

applicability of Section 436-A of the Code to an appeal

proceeding. So, let us begin our quest for answer with Section

436-A of the Code. It reads as under :-

“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.”

10. This section has been inserted by the Parliament in

the Code by it’s Act, 2005, which came into force w.e.f.

23.06.2005. The legislative history of the provision lies

embedded in prolonged debates, seemingly unending,

amongst jurists and legal pundits on the subject of bail. While

it has been generally acknowledged that it is not always just

or advisable to confine the accused before conviction, the

differences on the actual practice of bail are quite sharp. The

opinion makers have been at variance as to how, when and on

what conditions the bail be granted before conviction. Both

ends of the spectrum of practice of bail are represented by

extreme views. The enforcers of law would argue for extreme

caution and stinginess in granting bail in the interest of

stringent legal action, need for preventing frequent bail

jumping, and keeping away the professional sureties. The

propounders of liberty would vouch for liberal practice of bail

to avoid agony of accused, prolonged investigations and

delayed trials, keeping in view the principle of presumption of

innocence of accused (See Law Commission of India, 177th

Report, Chapter Ten pp. 117,118). Way back in the year 1977,

in the case of The State of Rajasthan, Jaipur Vs.

Balchand, AIR 1977 SC 2447, the Hon’ble Shri Justice Krishna

Iyer, speaking on behalf of the Bench, held that bail and not

jail would be the basic Rule in ordinary circumstances, when

he observed, “The basic Rule may perhaps be tersely put as

bail, not jail, except where there are circumstances suggestive

of fleeing from justice or thwarting the course of justice or

creating other troubles in the shape of repeating offences or

intimidating witnesses and the like…...’’.

11. In the 177th Report of Law Commission of India, the

issue of introducing further bail reforms was considered (see

Chapter Ten). The Law Commission, referring to its previous

reports such as 41st, 78th and 154th reports, made a

recommendation that as a general preposition, in an offence

prescribing maximum punishment up to seven years with or

without fine, the normal rule should be bail and denial thereof

an exception, in the circumstances mentioned specifically in

the report. One of the situations referred to in the report is

relevant here. It related to consideration by the Law

Commission of the amendment proposed by the Code of

Criminal Procedure (Amendment) Bill, 1994, which was for

insertion of a new provision in Chapter XXXIII of the Code in

the nature of Section 436-A. The Law Commission also

recommended that in case of an offence punishable with

imprisonment of seven years or less, the Police Officer or the

Court would not insist for the surety, unless there are special

reasons for imposing the condition. This report was submitted

in December, 2001 and before that the Bill to amend the Code

of Criminal Procedure, 1973 was already introduced in the

Rajya Sabha on 09th May 1994. The Bill had proposed several

amendments and one of them was for insertion of Section

436-A. It, however took many more years for the Bill to

become the law. It finally received assent of the President on

23rd June, 2005 and was published in the Gazette of India on

the same day and that is how Section 436-A came into force

w.e.f. 23.06.2005.

12. Now, if we take a look at the amending Act entitled

the Code of Criminal Procedure (Amendment) Act, 2005, some

disappointment would be in store for us as we do not come

across any Statement of Objects and Reasons in so far as

Section 436-A is concerned. However, there is annexed to the

Bill introduced in the Rajya Sabha on 09th May, 1994 a

Statement of Objects and Reasons. It would be quite helpful

for us, to reproduce it here. It goes as under :-

“Having regard to the recommendations made

by the Law Commission and the National Police

Commission, the observations made by the

courts and the suggestions received from the

State Governments and others, and with a view

to removing certain difficulties or lacunae felt in

its working, it has been found necessary to

amend various sections of the Code of Criminal

Procedure, 1973.

2. The Notes on clauses explain, in brief, the

various provisions of the Bill.

3. The Bill seeks to achieve the above

objects.”

As the above Statement refers to notes on clauses explaining

in brief various provisions of the Bill, consideration of the note

on the relevant clause, which is clause 41, is necessary. It

reads thus :-

“Insertion of new section 436A. Maximum

period for which an under trial prisoner , can

be detained.”

13. The raging controversy on practice of bail,

recommendations of Law Commission and Statement of

Objects and Reasons appended to the Bill introduced in the

Rajya Sabha in 1994, would give us a fair idea about the

situation prevailing at the time when the Code of Criminal

Procedure (Amendment) Act, 2005 was passed, in so far as

provisions made in Section 436-A are concerned. The

situation which went into birth of Section 436-A was of undertrial

prisoners, the primary concern being of their

incarceration in jail for long period of time pending

investigation, inquiry or trial, even though the presumption of

innocence till found guilty was operating in their favour. By

introducing Section 436-A to the Code, an endeavor was made

to remedy the condition of torture and misery of accused

persons as under-trial prisoners, relegated to dark corners

within jails, away from the hustle and bustle of life activity

without jails.

14. With this background, we will deal with the

provisions contained in Section 436-A of the Code in the light

of the rival arguments and relevant provisions of law.

15. In the referral order, the Division Bench,

disagreeing with the view expressed by the co-ordinate

Division Bench in Pradip (supra) has, in a prima facie

manner, opined that Section 436-A of the Code is applicable

only to an under-trial prisoner on various grounds. It pointed

out that the section refers to “the period of investigation,

inquiry or trial” and also to the maximum period of

imprisonment specified for the offences and not to the

imprisonment as imposed while convicting the accused. The

Division Bench observed that the contingency of considering

maximum period of imprisonment specified for an offence

would arise only in case of an under-trial prisoner. The Division

Bench noted that in Section 389 of the Code, which deals with

suspension of the sentence pending appeal, the reference is

to an appeal by a convicted person. The Division Bench also

found positioning of Section 436-A in the Code, which is

inserted in Chapter-XXXIII relating to provisions as to bail and

bonds, is not without significance.

16. All these factors, weighed with the Division Bench,

have also been emphasised upon by the learned Additional

Public Prosecutor appearing for the State, though Shri R. K.

Tiwari, learned counsel for the applicant would like to strike a

discordant note. According to him, right of speedy trial being a

fundamental right, all criminal cases including criminal

appeals need to be decided as expeditiously as possible and

the Supreme Court has, in several cases, given directions to

the High Courts to find out ways and means for disposal of

such cases including appeals within specified period. He

points out that in the case of Smt. Akhtari Vs. State of

M.P., AIR 2001 SC 1528, directions have been issued by the

Apex Court to the High Courts to find a way out for speedy

disposal of pending appeals within specified period not

exceeding five years in any case. He also relies upon the

decision in the case of Kashmira Singh Vs. The State of

Punjab, 1977 SCC (4) 291. In this case the Supreme Court

has held that although it has been the practice of Courts to

not release on bail a person who has been sentenced to life

imprisonment for an offence punishable under Section 302 of

the Indian Penal Code, the underlying postulate being of the

appeal of the said person getting disposed of within a

measurable distance of time so that if he is ultimately found

to be innocent, he would not be required to remain in jail for a

unduly long period, the practice would have to be departed

from if it is not possible to dispose of the appeal within

reasonable period of time and the accused would have to be

granted bail. Shri Tiwari, submits that it is this exception made

to the general practice which would have to be said as having

found its expression in Section 436-A of the Code by according

to it liberal construction so that the limited right thereunder

becomes available even to a convict who has filed an appeal

under Section 374 of the Code.

17. There can be no two opinions about the fact that

the provision under consideration in the present case is

beneficient as well as remedial as it seeks to confer benefit of

release from custody with or without sureties or on bail with a

view to alleviating suffering of those who have slid into

obscurity of jails pending their trials. So, the principle of liberal

construction, would apply and to this extent Shri Tiwari, the

learned counsel for the applicant is right. But, the rule of

liberal construction of beneficient or remedial provision has

it’s own limitations, in ignorance of which the construction

cannot be stretched so much as to rewrite the provision. The

rule only states that if a remedial or beneficient 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

(See Alembic Chemical Works Co. Ltd. vs. The

Workmen, AIR 1961 SC 647). The liberal construction,

however, must flow from the language used and the rule does

not permit placing of an unnatural interpretation to the words

contained in the provision, nor does it permit raising of any

presumption that protection of widest amplitude must be

deemed to have been conferred upon those for whose benefit

the legislation may have been enacted, as held in the case of

Mangilal vs. Sugan Chand, AIR 1965 SC 101. The principle

of liberal construction of beneficial enactment has to be

applied without rewriting or doing violence to the enactment

for removing the ambiguity but where there is none and the

language is clear, the rule of liberal construction, cannot be

given a go bye (See Steel Authority of India Ltd. and ors.

Vs. National Union Water Front Workers and ors., AIR

2001 SC 3527, PP. 3535, 3539). These principles of

interpretation cannot be put under shelf as we proceed to

ascertain true meaning of the words used in Section 436-A of

the Code and true intent of the legislature in enacting it.

18. 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.

19. 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 undertrials

and not the convicts. This being the position, we do not

think that rule of liberal construction would have any

application here.

20. 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.

21. Upon taking a birds eye view of various provisions

contained in the Code, something that strikingly appears is

that the process of dispensation of justice in criminal cases

has been divided into different stages beginning from lodging

of First Information Report or complaint, investigation or

inquiry into the report or complaint, discharge of the accused

or framing of the charge against the accused, trial of the

accused, and the termination of the trial upon pronouncement

of the judgment in open Court by the Presiding Officer. These

provisions referring specifically to various stages of

investigation, inquiry and trials are found in different Chapters

from the Chapter-XII to Chapter XXVII and lay down a

procedural framework for administration of criminal justice.

22. In so far as the provisions relating to appeals are

concerned, they find their place in Chapter-XXIX entitled

“Appeals”. Section 374 of the Code creates a right of appeal

and it lays down that any person convicted on a “trial” would

have remedy of appeal to the superior Court. When conviction

on “trial” is by Sessions Judge or Additional Sessions Judge, or

by any other Court in which sentence of imprisonment

imposed is for more than seven years, the appeal would lie to

the High Court and when the conviction is rendered on “trial”

by a High Court in its extraordinary orignal criminal

jurisdiction, the appeal would lie to the Supreme Court.

23. 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;

(b) by reading out the whole of the judgment;

judgment 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.

24. At this juncture, explanation to Section 436-A of the

Code also assumes importance. It clarifies as to how the

period of detention contemplated under Section 436-A of the

Code for granting bail has to be calculated. It lays down that

period of delay in a proceeding caused by an accused must be

excluded. Any occasion of causing of delay in a proceeding, if

it has to arise, would arise only during trial as for hearing of

an appeal against conviction, personal presence of the

accused is not required, unless directed otherwise, and so

there would be no question of the convict personally

contributing to delay in an appeal proceeding.

25. The discussion thus far made would show that even

though an appeal could be said to be continuation of trial in

the general sense of the term, it is not so for the purposes of

Section 436-A of the Code. The word “trial” used in Section

436-A of the Code is for achieving a certain purpose, a defined

goal of reducing the woes of a person in jail as he faces trial,

even before he is found guilty and to a larger extent also to

decongest overcrowded jails. The provision is benefic and

remedial and, therefore, it must be understood in the sense

which sub-serves the purpose, which remedies the situation or

otherwise the remedial medicine may itself become the

malady. So, the meaning plainly conveyed by Section 436-A is

that its benefit is intended only for under-trial prisoners, and it

is not possible to make any different or alternate construction.

When two different constructions are not fairly possible,

contingency of adopting that construction which favours the

convict by granting him benefit of Section 436-A of the Code

does not arise and so, rule of liberal construction would have

no application here.

26. Here is a case where the intention of the Parliament

to confer the benefit of Section 436-A of the Code upon only

undertrial prisoners is clearly found in the words used in

Section 436-A of the Code and understood in the context of

the scheme of the Code. In the case of State of Himachal

Pradesh and anr. Vs. Kailash Chand Mahajan and ors.,

AIR 1992 SC 1277, p. 1300, the Hon’ble Apex Court has held

that the legislative intention behind an enactment and the

true meaning thereof is derived by considering the meaning

of the words used in the enactment in the light of it’s

discernible purpose or object which comprehends the mischief

and provides a remedy. This formulation later came to be

known as the “cardinal principle of construction” (See Union

of India Vs. Elphinstone Spinning and Weaving Co.

Ltd., AIR 2001 SC 724, p. 740).

27. Upon considering the scheme of the Code, in a

holistic manner as also the distinctive use of the terms “trial”

and “appeal” therein, we have already found that the benefit

under Section 436-A of the Code is aimed only at under-trial

prisoners. We have also delved into the legislative history of

Section 436-A of the Code briefly and Statement of Objects

and Reasons appended to the Bill seeking amendment to the

Code of Criminal Procedure, 1973 introduced in the Rajya

Sabha on 09th May, 1994. They all would show that the entire

endeavor was for reducing the agony of the person accused of

an offence who is detained in jail pending his trial for unduly

long time, affecting his fundamental right to speedy trial. Even

the notes on relevant clause, clause 41, which proposed

insertion of Section 436-A, clarified that the benefit was made

for an under-trial prisoner when it suggestively explained the

purpose which was of the maximum period for which an

“under-trial prisoner” could be detained.

28. There are more indications appearing from the

section. One of them is the placement in the Code of the

Section, which points out that the benefit has been intended

by the Parliament to be only for the under-trial prisoners and

not convicts. Essential prescription of the Section is that one

half period of detention has to be counted not in relation to

the punishment awarded but in relation to the maximum

period of imprisonment prescribed for an offence. If it were

the intention of the legislature to confer this benefit even

upon a convict, it would also have made suitable provision by

making appropriate reference to the sentence imposed. But,

that is not the case here. As against this, Section 389 of the

Code specifically refers to a convicted person and the power

of the Court to suspend the sentence or order appealed

against and also direct release of the convict on bail, if he is in

confinement. Section 389 of the Code has not been amended

so as to include the limited right given by Section 436-A to a

person under investigation or inquiry or facing trial. The other

indicator is that Section 436-A has been inserted in Chapter-

XXXIII containing provisions as to bail and bonds. The

provisions contained in this Chapter, deal with bail and bonds

and the principles applicable to them in relation to a person

accused of or suspected of commission of an offence. These

provisions do not by themselves enable a convict to secure

bail, and he has to take recourse to Section 389 of the Code,

which makes possibility of getting bail for a convict a reality,

subject to appellate court suspending his sentence. In other

words the provision does not make the event of grant of bail

as independent of the satisfaction of the Court as regards the

need for suspending the sentence or order appealled against,

till final disposal of the appeal and it is only upon recording

necessary satisfaction that a convict would succeed in getting

bail. So, in a pending appeal there is no right of bail for a

convict which is alive and available for him to be taken

advantage of at any point of time desired by him. The right

remains eclipsed by the requirement of suspension of

sentence and becomes clearly visible when the eclipse is

removed. Even after the right becomes available, it’s

realization depends on the discretion of the Court. But that is

a different matter. The point here is of the exercise of right

being dependent on suspension of sentence by the Court.

That would show that the right of bail in Section 389 of the

Code is consequential to suspension of the sentence and

unless the first requirement is fulfilled, the consequence of

bail of convict would not happen. If the legislature had

intended that the benefit under Section 436-A of the Code

should be given even to a convict before an Appellate Court, it

would have amended suitably Section 389 of the Code. The

legislature did not do it. It would show that the legislative

policy was limited to extending benefit only to an undertrial

prisoner and not to convicts whose appeal is pending before

the Appellate Court under Section 374 of the Code.

29. The interpretation so made by us receives support

from the decision of the Apex Court in the case of Hussain

and Anr., Vs. Union of India, (2017) 5 SCC, 702 relied upon

by learned Additional Public Prosecutor. In this case, the

Supreme Court being concerned about speedy conclusion of

criminal trials and appeals considered the question as to the

circumstances in which bail could be granted on the ground of

delay in the proceeding when a person is in custody. Supreme

Court, having noticed that speedy trial was a part of

reasonable, fair and just procedure guaranteed under Article

21 of Constitution of India, issued several directions for

speedy disposal of cases of under-trial prisoners. In that case,

a submission was made that the provisions contained in

Section 436-A of the Code were not applicable to appeals and

they would apply only during trials. Supreme Court was of the

view that while deprivation of personal liberty guaranteed

under Article 21 for some period may not be unavoidable,

deprivation of the same pending trial/appeal could not be

unduly long. While finding so, Supreme Court considered the

decisions in the cases of Akhtari Bi Vs.State of M.P, AIR

2001 SC 1528, Abdul Rehman Antulay Vs.R.S.Nayak

and anr, AIR 1992 SC 1701, Surinder Singh @ Shingara

Singh Vs. State of Punjab, (2005) 7 SCC 387, Hussainara

Khatoon Vs. State of Bihar, 1980 SCC (1) 98 and some

more cases. Ultimately, Supreme Court directed the High

Courts to issue directions to subordinate Courts for disposal of

bail applications and criminal trials within the periods

mentioned therein. It also observed that the timelines given in

its decision could be made the touchstone for assessing

judicial performance of judges in their confidential reports.

Supreme Court, however, nowhere held that the provisions

contained in Section 436-A of the Code would also be

applicable to an appeal proceeding rather, in paragraph

29.1.4, it directed as under :

“As a supplement to Section 436-A, but

consistent with the spirit thereof, if an

undertrial has completed period of custody in

excess of the sentence likely to be awarded if

conviction is recorded such undertrial must be

released on personal bond. Such an

assessment must be made by the trial courts

concerned from time to time:”

30. It would be clear from above that Supreme Court

did not reject the submission that Section 436-A of the Code

was not applicable to an appeal proceeding, rather, it added

that as a supplement to Section 436-A of the Code and

consistent with its spirit, an under-trial prisoner completing

period of custody which is in excess of the sentence likely to

be awarded, if conviction was to be recorded, must be

released on personal bond. The Apex Court having thus

considered the issue of applicability of Section 436-A of the

Code and having extended further its benefit only to undertrial

prisoners and not to convicts, cannot be said to have

approved, even by implication, the proposition that the benefit

is applicable to a convict. In fact, a conclusion in reversal

would arise that Supreme Court did not reject the submission

that benefit under Section 436-A was available only during

trial, thereby impliedly refusing to apply it to an appeal

proceeding. On realising the ratio of Hussain (supra),

learned counsel for the applicant has fairly submitted that he

would not say anything more in reply. It is now clear that

decisions in Pradip (supra) and Mudassir Hussain (supra),

really do not present correct legal position, though in Pradip

(supra), we must say, the Division Bench has not

categorically held that the provision of Section 436-A of the

Code is applicable to an appeal proceeding. It was only

observed that in view of provisions of Section 436-A of the

Code coupled with the fact that as the Bench was not in a

position to take up the appeal immediately for final hearing in

near future, the Bench would grant bail. This is suggestive of

the fact that the Division Bench appears to have drawn

inspiration from the principles stated in Section 436-A of the

Code and chose to apply them together with other relevant

circumstances so as to effectuate the right of a convict

regarding expeditious disposal of a criminal appeal. Following

the consistent view taken by the Apex Court since the case

Hussainara (supra) till date, we are inclined to say that the

principles stated in Section 436-A of the Code can be used by

an appellate court while considering application of a convict

filed under Section 389 of the Code seeking suspension of

sentence and bail, as constituting one of the relevant criteria

for exercise of its discretion and of course not as a matter of

any right or course.

31. Shri R. K. Tiwari, learned counsel for the applicant

has also placed reliance upon the cases of Bhim Singh Vs.

Union of India and Ors., (2015) 13 SCC 605, Mithu Pasi

and Anr., Vs. State of Jharkhand, (2018) 11 SCC 196,

Bhagwan Rama Shinde Gosavi and Ors. Vs. State of

Gujrat, 1999 Cri.L.J. 2658 and the Supreme Court Legal

Aid Committee Representing Under-trial Prisoners Vs.

Union of India and Ors., (1994) 6 SCC 731.

32. We have carefully perused all these judgments. We

are of the view that none of them covers the issue involved

here, which fact has also been found by the Division Bench.

The Division Bench has found that in Bhim Singh (supra)

various directions were issued for effective implementation of

Section 436-A of the Code in relation to under-trial prisoners. It

further found that it was not the ratio of the decision in

Mithu Pasi (supra) that provision of Section 436-A of the

Code could be made applicable to any appeal proceeding. The

Division Bench further found that Bhagwan Rama (supra)

was a case which was decided prior to introduction of the

provision of Section 436-A in the Code. It further noticed that

in Supreme Court Legal Aid Committee (supra), directions

issued pertained to those under-trials who were accused of

offences under the N.D.P.S. Act, 1985. Noting these

distinguishing features, the Division Bench expressed a view

that all these decisions would not render any assistance to the

applicant in the present case. Having noted the

distinctiveness in these cases, we have no reason to disagree

with their Lordships.

33. There is one more case which needs to be referred

to here. It was about giving effect to the right relating to

speedy trial and expeditious disposal of appeal. The case

was of Krishnakant Tamrakar Vs. State of Madhya

Pradesh, (2018) 17 SCC 27. In this case, Supreme Court did

not invoke the provisions contained in Section 436-A of the

Code, even though it was conscious of the fact that the

petitioner therein was in custody for more than ten years,

was neither granted bail nor early hearing of his appeal, nor

was there an assurance to him that there was likelihood of his

appeal being heard by the High Court in the near future. This

would only show that the Hon’ble Apex Court has consciously

chosen to not take any recourse to Section 436-A of the Code

while issuing direction to initiate various measures for

expeditious disposal of criminal trials and appeals.

34. With this discussion, the inevitability of our

conclusion is writ large and it provides a negative answer to

the question referred to us. To be specific, we answer the

question in terms that a convict who has challenged his

conviction under Section 374 of the Code, is not entitled to

the benefit of Section 436-A of the Code.

35. Answered accordingly.

(Sunil B. Shukre, J)

R. K. Deshpande, J :

1. I have gone through an erudite view expressed

by my learned Brother Shri Sunil Shukre, J. I am in complete

agreement with it. However, I would like to deal with a

specific contention raised by Shri Tiwari, the learned

counsel for the appellant. Inviting our attention to the

provisions of Sections 386(b), 391 and 393 of the Code of

Criminal Procedure, it is urged that the conviction recorded

attains finality upon dismissal of the appeal against

conviction under Section 374 of the Code and the Appellate

Court also exercises the power to record the additional

evidence. This is an indication to treat the accused, whose

application under Section 389 of the Code for suspension of

sentence and grant of bail is rejected, as “an under-trial

prisoner”. It is also urged that the Appellate Court being

the “Court” in the contemplation of Section 436-A of the

Code, is competent to exercise the power and confer benefit

upon satisfaction of the conditions.

2. In my view, there is no absolute right to get

released, conferred upon the under-trial prisoner upon

fulfillment of the conditions specified under Section 436-A of

the Code. The first proviso empowers the Court to reject the

claim for the reasons to be recorded. Be that as it may, the

intention of the Legislature, as has been pointed out by my

learned Brother, is to restrict the benefit to an under-trial

prisoner. If the contention that an accused, even after the

conviction of the trial Court, continues to be an under-trial

prisoner upon rejection of his application under Section 389

of the Code is accepted, it would create an anomalous

situation. An accused completing the period specified

under Section 436-A on the date of filing of appeal may not

apply under Section 389 of the Code for suspension of

sentence and grant of bail, but he can claim the release

from detention even without suspension of sentence. This

cannot be the intention of the Legislature. 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.

(R. K. Deshpande, J)

DIPANKAR DATTA, CJ.:

1. I have had the benefit of reading the wellresearched

and well-reasoned opinion of brother Shukre, J. I

have also read the short concurring view expressed by

brother Deshpande, J. While I am entirely in agreement with

the lucid exposition of law by brother Shukre, J. and the

reasons assigned by my brethren in support of the

conclusion that the referred question should be answered in

the negative, I feel tempted to express my views too in very

brief.

2. The formative information necessitating

constitution of the present Full Bench has been noticed by

His Lordship and hence, is not referred to by way of a

prologue. However, for facility of appreciation, once again

the question referred for an answer is set out below :

“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 ?”

3. Section 436-A, Cr.P.C. was introduced in Chapter

XXXIII of the Code of Criminal Procedure (hereafter “the

Cr.P.C.”, for short) by an Amendment Act of 2005 upon

instances of accused having remained in custody during the

period of investigation, inquiry or trial, in excess of the

maximum period of imprisonment provided for the same

offence under the law, being noticed. Apart from the

enacting part, the section has a couple of proviso and an

explanation. The enacting part envisages grant of bail to a

person in custody ‘during the period of investigation, inquiry

or trial’ under the Cr.P.C. for any offence (except an offence

attracting the punishment of death), provided that such a

person is in detention for a period extending upto one-half

of the maximum period of imprisonment specified therefor

in law. As an explanation, it is provided that when the

accused has caused delay in the proceeding, such delay is

required to be deducted in computing the period of

detention suffered by him for the purposes thereof.

However, it is to be noted that the relief of bail, even if the

pre-conditions of Section 436-A Cr.P.C. are satisfied, does

not follow as a matter of course. The Court may, for

reasons to be recorded in writing, deny relief if it is of the

opinion that further detention is necessary. It is, therefore,

clear that Section 436-A, Cr.P.C. does not envisage an

automatic release as in Section 167(2), Cr.P.C., i.e., default

made during investigation, but is akin to sub-section (6) of

Section 437 thereof. The other part of the section, however,

appears to be of mandatory nature requiring release of the

under-trial who has been detained for more than the

maximum period of imprisonment provided in law. On a

plain reading of the enacting part, the first proviso and the

explanation together (which are relevant for the purpose of

answering the reference) and on a literal interpretation

thereof, the law seems to be free from blur, obscurity or

absurdity and the conclusion is inescapable that the benefit

of Section 436-A, Cr.P.C. is intended for an under-trial

prisoner.

4. Having noticed what Section 436-A is all about,

the next task is to consider whether the benefit thereof can

be extended to a convict who, having challenged his

conviction in an appeal under Section 374, Cr.P.C., applies

for suspension of execution of sentence under Section 389

thereof and seeks release on bail. The fields of operation of

Section 389, Cr.P.C. on the one hand and Sections 436, 437

and 439 thereof on the other are quite different. Section

389 is included in Chapter XXIX of the Cr.P.C., empowering

the Courts (to whom the conviction and sentence are

carried in appeal), to suspend execution of the sentence

and release the appellant/convict on bail pending hearing

of the appeal; whereas Sections 436, 437 and 439, Cr.P.C.

deal with grant of bail during investigation, inquiry or trial.

The words ‘during the period of investigation, inquiry or

trial’ used in Section 436-A and the insertion of the said

section in Chapter XXXIII, without insertion of a like

provision in Chapter XXIX, clearly restricts its operation to

the matter of grant of bail at the trial stage and not at the

appellate stage. Further, Section 436-A refers to the

maximum period of imprisonment specified for the offence

in question, and not to the period of imprisonment actually

imposed. As a logical corollary, the question of imposing

‘the maximum period of imprisonment specified’ for an

offence under the law would arise only in case of an undertrial

prisoner although it could be so that after recording a

conviction, the convict could be sentenced for a term lesser

than what is the maximum. Also, having regard to the

explanation at the foot of Section 436-A, it can be held

without any shred of doubt that the proceeding referred to

therein is referable to the proceeding before the trial court

and not the appellate court.

5. The parameters for grant of bail at the stage of

trial and for grant of bail upon suspension of execution of

sentence at the appellate stage, though well demarcated,

are not exactly the same. To wit, in the former, the

conviction not having yet been recorded by the competent

court, the under-trial/accused would be presumed to be

innocent; ‘bail is the rule and jail the exception’ principle

would normally apply at this stage, unless provided

otherwise in any special statute. However, in the case of

the latter, the appellate court while considering whether

execution of the sentence should be suspended or not has

to, inter alia, bear in mind that upon conviction being

recorded (which, of course, is subject to the court’s judicial

scrutiny in the appeal), there is a rebuttal of the

presumption of innocence by reason of the conviction

recorded by the trial court. In this connection, the decision

of the Supreme Court of recent origin in Preet Pal Singh

vs. The State of Uttar Pradesh and Ors., reported in

6. In my view, Section 436-A, Cr.P.C. is restricted in