Tuesday, 1 September 2020

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
IN
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;
or
(b) by reading out the whole of the judgment;
or
(c) by reading out the operative part of the
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
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.
8. Since the Hon’ble Division Bench has rejected
the applicant’s prayer for suspension of execution of
sentence for the third time, it is highly unlikely that any
further prayer in this regard shall be favourably considered.
If the appeal is otherwise ready, its hearing ought to be
expedited.
CHIEF JUSTICE

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