In a well-reasoned, well-researched, well-analysed and well-articulated judgment titled Maksud Sheikh Gaffur Sheikh vs State of Maharashtra in Criminal Application (APPA) No. 270/2020 in Criminal Appeal No. 336/2016 delivered on August 28, 2020, a full Bench of the Bombay High Court has held in no uncertain terms that the benefit under Section 436-A of the Code of Criminal Procedure can be extended to an undertrial prisoner only, not a convict who has challenged his conviction under Section 374 of CrPC. Chief Justice Dipankar Datta, Justice RK Deshpande and Justice Sunil B Shukre at the Nagpur Bench answered a question posed to them by a Division Bench of the High Court after the Bench found that the case at hand involves a question of general importance arising frequently in criminal matters and so the matter was referred to a larger Bench. The question framed by the Division Bench was:

'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?'

To start with, this latest, landmark and laudable judgment authored by Justice Sunil B Shukre for himself, Chief Justice Dipankar Datta and Justice RK Deshpande sets the ball rolling in para 2 wherein the purpose has been mentioned stating that, 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.

While elaborating on the facts of the case, it is then stated in para 3 that, 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.

To put things in perspective, para 4 then states that, 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.

As it turned out, it is then pointed out in para 5 that, 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 436A of the Code?

For esteemed readers exclusive benefit, it must be mentioned here that it is rightly pointed out in para 25 that, 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.

While continuing in the same vein, it is then added in para 26 that, 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).

Briefly stated, the key point made in para 28 is that, 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.

To be sure, Justice Sunil B Shukre finally concludes his judgment by saying in para 34 that, 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.

Going ahead, Justice RK Deshpande in his separate concurring judgment too holds that, 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 powers under Section 436-A of the Code.

Finally, Chief Justice Dipankar Datta too while concurring holds in para 6 of his own judgment that, In my view, Section 436-A, CrPC 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.

Thus, we see that the conclusion is inescapable: the benefit under Section 436-A of the Code of Criminal Procedure can be extended to an undertrial prisoner only, not a convict who has challenged his conviction under Section 374 of CrPC. Justice Sunil B Shukre who authored the main judgment along with the concurring opinion of Chief Justice Dipankar Datta and Justice RK Deshpande should leave no room of doubt on this vital issue!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.