TILL WHEN CAN AN UNDERTRIAL BE DETAINED?

 

TILL WHEN CAN AN UNDERTRIAL PRISONER BE DETAINED?

 

Ancient Greek Tragedian Aeschylus has rightly said,

“Wrong must not win by technicalities”

 

Author:

 Adv. Sidhant Malik & Mr. Akaash Nandwani 

Supreme Court of India

+91 7011490440

The substantive criminal laws of Bharat, including the Indian Penal Code 1860, Prevention of Money Laundering Act 2002, Prevention of Corruption Act 1988 etc. prescribe punishment for different kinds of offenses, and these punishments, particularly in terms of detention, range from 24 hour imprisonment (if convicted) for the Misconduct in public by a drunken person as defined in section 510 of the Indian Penal Code 1860 to life imprisonment for heinous offenses like Dacoity with Murder, Dowry Death, Murder, Rape etc.

From the above discussion, we can get an understanding of the range of imprisonment as punishment.

Every under trial necessarily does not undergo detention, as the procedural criminal law, that is, the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) categorize different forms of crimes/ offense as:

a.     1. Cognizable/ Non Cognizable

b.    2. Bailable/ Non Bailable

c.     3. Compoundable/ Non Compoundable

In this article, our discussion will revolve around the exceptions to the law of bails, particularly discussing the exception to the rule of bail for under trials and analyzing the section 436A Cr.P.C. {Now replaced by 479 BNSS, 2023}

Section 436A is reproduced herein:

436A. 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. 

Section 436A Cr.P.C. provides “Maximum period for which an undertrial prisoner can be detained”, and on plain reading of the provision, one may decipher that, while undergoing trial, one can be detained in custody for one half of the period of punishment specified for the offense he/ she is charged with.

Though it is clear that the undertrial detainee shall not be detained for a period which is more than the maximum punishment specified for the offense he is charged with.

However, the first proviso to the section is often ignored by the students of law which relates to powers of the court in ordering a detention beyond the one half of imprisonment for the offense the accused/ applicant is charged with as many believe that a bail order will mechanically be passed in favour of undertrial accused if he has already undergone half of the imprisonment specified for the offense he is charged with.

As on the date of writing this article, the author is dazzled with the latest order rejecting bail of accused Sharjeel Imam in the case involving North East Delhi Riots of 2019 – 2020 which allegedly spurred after the Union Government announced Citizenship Amendment Act and National Register of Citizens (CAA - NRC). The accused, in the bail application took the advantage of the direction of Supreme Court passed on May 11, 2022 by the then Chief Justice Mr. N.V. Ramana in writ petition (civil) no. 682/2021 titled as S.G. Vombutkere vs. Union of India which stayed all proceedings in sedition cases and directed the Centre and States to not register any fresh FIR invoking sedition charges until government re-examines the colonial era law.

The case of applicant was that the Supreme Court has stayed the proceedings under section 124A IPC and out of other offenses for which he has been charged with, the maximum imprisonment is 7 years however, he is in custody since about 4 years (more than one half of the maximum punishment) therefore he is entitled to bail as per section 436A. the applicant cited the judgement title “Satender Kumar Antil v. Central Bureau Of Investigation” and further contended although the court has no discretion and bound to give the relief to the applicant but even if the proviso to the section is considered, the court may use its discretion only when the delay in trial is on the part of the accused. The applicant, further relied on some parts of the judgement in the case of “Vijay Madanlal Chaudhary and ors. v. Union of India” and submitted that section 436A Cr.P.C. has been construed as a statutory bail akin to section 167 of 1973 Code.

The prosecution responded with following points:

a.     If conviction is recorded, the sentence likely to be awarded is to be seen in terms of the legal provision under section 31 Cr.P.C., which prescribes that when a person is convicted at one trial for two or more offences, the punishments shall run one after the other, unless the court in its discretion orders that the punishments shall run concurrently.

b.    By virtue of para 8(d) of the order dated 11.05.2022, the Hon’ble Supreme Court kept in abeyance only the pending trials, appeals and proceedings with respect to the charge framed under section 124A of IPC and not any proceeding with regard to the bail under section 436A Cr.P.C.

c.     Out of all the offences as charged against the applicant, only section 124A IPC has been kept in abeyance but despite that the nature and gravity of the offences is not diluted and the same continues to be part of the statute book.

Although the court did not find any merit in argument of the prosecution as listed in point (b.) above but still dismissed the bail application.

The court, after hearing both the sides, observed that there is no rule/ law that prohibit the detention beyond such period if there are compelling circumstances and without commenting anything on merits of the case, the court took into account the acts of the applicant as per the charge sheet, which included his speeches which incited the public and triggered the riots, caused public inconvenience, a speech also talked about communalizing the organization of particular number of people so that North-East part of the country can be cut, he also distributed some pamphlets to instigate public and also created a Whatsapp group titled “Muslim Students of JNU”. The applicant’s voice matched with the voice of speeches as confirmed by the report of Central Forensic Science Laboratory. The court further observed that the words as used by the applicant in his different speeches were so powerful that they captured the mind of the people of a particular community and incited them to take part in the disruptive activities which finally resulted into the riots.

               In the Bail order, the concerned court specifically observed, in para 26:

“Although the court cannot take into consideration section 124A IPC but if the acts and actions of the applicant are considered, in a normal dictionary meaning they can be termed as seditious.”

After reading the relevant provisions, the court’s order and the role of the law of Bails, the author, who is a student of law, is captivated by the present order. 

Where the court is of the opinion and the available evidence prima-facie establish that the accused has committed those crimes and can commit further crimes if enlarged, a person who intends to tamper the integrity of the largest democracy in the world, whose case is bereft of merits, in the opinion of author shall be enlarged only in case of exceptional circumstances.

The author further appreciates the Ld. Court for setting a precedent that refuses mechanical bail orders in favour of seasoned criminals and those accused of terror related offenses after they have undergone some part of the sentence specified for the offense they are charged with, while being undertrial.

TILL WHEN CAN AN UNDERTRIAL  BE DETAINED -Law8