Convict cannot seek benefit of bail under sec-436 A of CrPC during pendency of appeal

Isha Sawant | Government Law College | 13th September 2020

Maksud Sheikh Gaffur Sheikh v. State of Maharashtra

Facts:

The appellant- Maksud Sheikh Gaffur Sheikh approached the Bombay High Court seeking bail under section-436A or Code of Criminal Procedure (CrPC), 1973. The appellant along with five others was accused and prosecuted for certain offences under the Indian Penal Code and the Information Technology Act, 2000. By a judgement dated 01-08-2016, he was convicted by the Sessions Court for offences punishable under sections- 506 II, 450, 326, 452, 354-A read with sections- 34, 149, 109,114 of the IPC along with sec-66 E of Information Technology Act,2000 various imprisonment terms ranging from three to five years were awarded to him. The appellant filed an application seeking suspension of sentence imposed on him and his release on bail under section-389 of CrPC. The Division Bench of the High Court rejected this application by an order dated 18^th November, 2016, the appellant was given the liberty to file an independent application for seeking bail on medical grounds, he exhausted the liberty and his bail application was rejected by the Division Bench on 31-01-2017. The appellant then filed an appeal u/s-436-A of CrPC, and sought release on bail during pendency of this appeal. He contended that he has been in jail since 07-11-2014 and has completed in jail a period equivalent to one half of the maximum imprisonment imposed on him and is so entitled to be released on bail by virtue of his right u/s- 436A, reliance was placed on the cases of Pradip v. State of Maharashtra (2019); Mudassir Hussain and Anr v. State and Anr (2020). The Division Bench while considering this application disagreed with the view taken by its co-ordinating Bench in the case of Pradip, it found that the present case involves an important general question which often arises in criminal matters and thus, referred it to a larger bench.

Issues:

• Whether the convict who has challenged his conviction u/s 374 of CrPC, 1973 is entitled to the benefit of section 436A of the code?

Legal Provisions:

• Criminal Procedure Code, 1973 Section 436A- Maximum period for which an undertrial prisoner can be detained.
• Criminal Procedure Code, 1973 Section 374- Appeals from convictions.
• Criminal Procedure Code, 1973 Section 389- Suspension of sentence pending the appeal; release of appellant on bail.

 Appellant’s Contention:

The appellant’s counsel submitted that the provision of sec-436A of CrPC should be liberally interpreted in the favour of the person for whose benefit it was inserted in the code by an Act of Parliament, Act 25 of 2005. He also submitted then a liberal interpretation would bring relief to convicts whose appeals u/s-374 of CrPC are pending for final disposal for a long time, The also contended the right to a speedy trial is a fundamental right and also the legislative intent of sec-436  A is to give effect to this right of accused person, whether under-trials or convicts. He also submitted that upon initial reading of sec-436A it would appear to be applicable only to under-trial prisoner and that is not the case if the court considers the purpose for making this provision. They also submitted that the provision would be applicable to appeal proceeding as appeal is but an extension of the trial. 

Respondent’s Contention:

The public prosecutor did not agree with the submissions made by the appellants. He submitted that language of sec-436A is clear and does not admit two interpretation so, the rule of liberal construction would not apply here. It was also submitted that the CrPC has made provisions for different aspects from evidence for trial and other allied matters, and these provisions need to be considered together. They also submitted that once it is seen that there are different stages for procedurally dealing with criminal offences and accused persons, it would be easy not to mistake an appeal for trial on the ground that appeal is extension of trial far as provision of release of a person on personal bail or bond under sec-436A of CrPC is concerned. He further submitted this section is placed in Chapter-XXXIII which relates to provisions of bails and bonds, and suggests that u/s-436A a limited right is intended by the legislature to be given to undertrial prisoners and if this was not so the legislature would have made a suitable provision u/s-389 which states that bail can only be sought by a convict who files an appeal u/s-374 of CrPC and that to after successful pleading for suspension of his sentence. 

Observations of the Court:

The matter was heard before the Bombay High Court Bench of Dipankar Datta, C.J. R.K. Deshpande and Sunil B. Sukhre, JJ. The court observed the legislative intent and purpose for framing sec-436A of the CrPC which is placed in Chapter XXXIII relating to bails and bonds, the section is very clear in its wording and seeks to provide relief to under-trail prisoners and accused persons from the unduly long delay of trials. The section can be liberally constructed only to a limited extent but not so as to change the intent and purpose of the section, it only applies to under-trail persons and not to convicted individuals awaiting appeal. In case of convicts they get a limited right of bail under sec-389 of CrPC which is consequential to suspension of sentence and unless this requirement is satisfied the convict’s plea for bail will not be accepted. The court also held that trail is a different from appeal, appeal occurs after the pronouncement of judgement at the end of trial and the two cannot be assumed to mean the same. They also stated that if the Legislature wished to extend the benefit of sec-436 A to convicts, a suitable amendment would have been made under sec-389 of CrPC, but that was not the intent. The court went through all the cases referred to by the appellant and agreed with the view of the Division Bench that the observations and decisions of those cases do not apply to the present case. The question put forth before the court was answered in negation.

R.K. Deshpande, J and Dipankar Datta, CJ agreeing with the view taken by Sunil Sukhre, J gave individual brief explanations on the contentions raised by the appellant, the final judgement remaining the same. 

Judgement:

The court held that a convict who has challenged his conviction under sec-374 of the Code is not entitled to the benefit of sec-436 A of CrPC.