Bombay High Court
Maksud Sheikh Gaffur Sheikh And Another vs State Of Maharashtra, Thr. P.S.O. ... on 20 August, 2020
Bench: A.S. Chandurkar, Amit B. Borkar
CR.APPA270.20 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION(APPA) NO.270/2020 IN CRI.APPEAL NO.336/2016
Maksud Sheikh Gafoor Sheikh (In Central Prison, Nagpur)
Vs.
State of Maharashtra through PSO Ramnagar Police Station, Chandrapur
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
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Shri R.K.Tiwari, Advocate for applicant/appellant.
Shri T.A.Mirza, Additional Public Prosecutor, for non applicant/State.
CORAM : A.S.CHANDURKAR and AMIT B. BORKAR, JJ.
DATE OF HEARING THE ARGUMESNTS : 14.08.2020
DATE OF PRONOUNCEMENT OF THE ORDER :20.08.2020
ORDER
Hearing was conducted through Video Conferencing and the learned counsel agreed that the audio and visual quality was proper.
2. The applicant stands convicted in Session Trial No.22/2015 by the judgment dated 01.08.2016 for the offences punishable under Sections 506-II, 450, 326, 452, 354-A read with 34, 149,109, 114 of the Indian Penal Code and Section 66 E of the Income Tax Act, 2000. He has been sentenced on various counts which sentence includes rigorous imprisonment for a period of ten years. After the appeal preferred by the applicant was admitted, he had moved an application under Section 389 of the Code of Criminal Procedure, 1973 (for short, the Code) being Criminal Application (APPA) No.597/2016 praying that the sentences as imposed upon him be suspended. This Court on 18.11.2016 ::: Uploaded on - 20/08/2020 ::: Downloaded on - 21/08/2020 06:36:39 ::: CR.APPA270.20 2/7 was pleased to reject the said application. The preparation of the paper book was however expedited.
3. The applicant has now filed the present application renewing his prayer to suspend the sentence imposed upon him by the Sessions Court. It is the principal contention of the applicant is that by virtue of the provisions of Section 436 A of the Code, the applicant having undergone detention for a period of almost five years and eight months, he is entitled to be released on his personal bond. The applicant contends that he is in jail since 07.11.2014 and having been sentenced to imprisonment of ten years, he has undergone more than half of the sentence imposed upon him.
4. Shri R.K.Tiwari, learned counsel for the applicant submitted that in view of the fact that the applicant has undergone more than half of the sentence imposed upon him, he is entitled to be released on his personal bond in view of the provisions of Section 436-A of the Code. According to him, the said provisions are applicable even in a pending appeal under Section 374 of the Code in view of the fact that an appeal is in effect continuation of the trial. In support of the aforesaid contention, the learned counsel sought to place reliance on the decisions in Pradip Vs. State of Maharashtra 2019 SCC Online Bom 9768, Mudassir Hussain and Another Vs. State and another 2020 SCC Online J&K 381, Supreme Court Legal Aid Committee Vs. Union of India and others, (1994) 6 SCC 731, Bhim Singh Vs. Union of India, (2015) 13 SCC 605, Mithu Pasi and Ors Vs. State of Jharkhand (2018) 11 SCC 196, Kashmira Singh Vs. The State of Punjab, AIR 1977 SC 2147 and Bhagwan Rama Shinde Gosai and others Vs. State of Gujrat, 1999 Cri.L.J. 2568 . In addition, it is submitted that considering the nature of evidence available on record against the ::: Uploaded on - 20/08/2020 ::: Downloaded on - 21/08/2020 06:36:39 ::: CR.APPA270.20 3/7 present applicant, it was clear that no specific fatal overt act has been attributed to the applicant. At the highest, offences under Sections 450 and 506-II of the Indian Penal Code could be said to have been made out against the applicant. He therefore submits that the application deserves to be allowed by enlarging the applicant on bail.
5. Shri T.A.Mirza, learned Additional Public Prosecutor for the non applicant-State on the other hand opposed the aforesaid submissions. According to him, the provisions of Section 436 A of the Code would not be applicable to an accused who stands convicted by the Sessions Court. The said provision is applicable only to an undertrial prisoner and not to a convict whose appeal is pending. He further submitted that in view of the fact that the earlier application preferred by the applicant under Section 389 of the Code had been rejected, there was no question of fresh consideration of a similar application. He therefore submitted that the application in its entirety was liable to be rejected.
6. We have heard the learned counsel for the parties and we have given due consideration to their respective contentions. At the outset, we may note that the earlier application preferred by the applicant under Section 389 of the Code for suspension of sentences came to be rejected by this Court on 18.11.2016 by taking a prima facie view of the matter. Except for granting liberty to the applicant to move application for grant of bail based on his alleged ailments, no other liberty was granted to him. The applicant thereafter exhausted the liberty as granted to him by filing Criminal Application No.773/2016. That application also came to be rejected on 31.01.2017. In the light of aforesaid orders, we find that it would not be open for ::: Uploaded on - 20/08/2020 ::: Downloaded on - 21/08/2020 06:36:39 ::: CR.APPA270.20 4/7 the applicant to again invoke the provisions of Section 389 of the Code for seeking suspension of the sentence imposed upon him. Entertaining that request would amount to reviewing the earlier order dated 18.11.2016 which is not permissible. We are therefore not inclined to consider the applicant's prayer for suspension of sentence in the light of Section 389 of the Code.
7. The applicant however seeks to rely upon the provisions of Section 436 A of the Code for being released on bail on the ground that he had undergone more than half of the sentence imposed upon him. Since the applicant has been sentenced to suffer rigorous imprisonment for a period of ten years and he has been in jail since 07.11.2014 which is a period of about five years and eight months, the applicant seeks to invoke the aforesaid provision. Section 436-A reads thus :
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."::: Uploaded on - 20/08/2020 ::: Downloaded on - 21/08/2020 06:36:39 ::: CR.APPA270.20 5/7
8. The provisions of Section 436 A were introduced by virtue of Act No.25 of 2005 that came into effect from 23.06.2006. The object behind introducing the aforesaid provision was the number of instances coming to light where undertrial prisoners were detained in jail for periods beyond the maximum period of imprisonment provided for the alleged offences.
9. A plain reading of the aforesaid provision indicates that Section 436-A seeks to prescribe the maximum period for which an undertrial prisoner can be detained. It prescribes that if a person during the period of investigation, inquiry or trial under the Code has undergone detention for a period extending up to one half of the maximum period of imprisonment specified, he is entitled to be released by the Court on his personal bond with or without sureties. The provision makes a specific mention of "an undertrial prisoner". It also refers to "the period of investigation, inquiry or trial". Further it refers to "the maximum period of imprisonment specified". Prima facie, it is found on a plain reading of the aforesaid Section that the same would be applicable only with regard to an undertrial prisoner. The Section does not refer to the period of imprisonment as imposed but it refers to the maximum period of imprisonment specified for the offences in question. This contingency would arise only in case of an undertrial. In contrast, in Section 389 of the Code which deals with suspending the sentence pending appeal, a reference is made to an appeal "by a convicted person". Section 436 A specifically refers only to "an undertrial prisoner". Further Section 436 A finds place in Chapter XXIII of the Code which relates to provisions as to bail and bonds. Prima facie, its placement in the Code is also an indicator that this benefit is to be made available to an undertrial ::: Uploaded on - 20/08/2020 ::: Downloaded on - 21/08/2020 06:36:39 ::: CR.APPA270.20 6/7 prisoner. It is also well settled that insofar as an undertrial prisoner is concerned, there is a presumption of innocence qua accusation against him. This presumption comes to an end with the recording of his conviction.
10. In Pradip (supra) the applicant therein had been sentenced to suffer imprisonment for seven years. In appeal it was noticed that the appellant was in custody for a period of more than three years and eight months. The Division Bench was of the view that in the light of the provisions of Section 436 A of the Code and as hearing of the appeal was not possible immediately, the appellant was entitled to be released on bail. With utmost respect we are unable to agree with the view that the provisions of Section 436 A of the Code would be applicable for being exercised in an appeal under Section 374 of the Code. In the light of the express language of Section 436 A of the Code referring to the maximum period of detention of an undertrial prisoner, we also find it difficult to agree with the view taken in Mudassir Hussain and another (supra) decided by the Jammu and Kashmir High Court. Prima facie, though an appeal would be a continuation of the trial, for the purposes of Section 436 A of the Code the operation of the said provision would have to be restricted to the trial itself.
Insofar as the decision in Bhim Singh (supra) is concerned, the Hon'ble Supreme Court was pleased to issue various directions for effective implementation of Section 436 A of the Code in relation to undertrial prisoners. It is not the ratio of the decision in Mithu Pasi and Ors (supra) that provision of Section 436 A of the Code could be made applicable in an appeal. The decisions in Kashmira Singh as well as Bhagwan Rama Shinde Gosai (supra) have been rendered prior to introduction of the provisions of Section 436 A of the Code. As regards the decision ::: Uploaded on - 20/08/2020 ::: Downloaded on - 21/08/2020 06:36:39 ::: CR.APPA270.20 7/7 in Supreme Court Legal Aid Committee (supra), it is found that the directions issued therein also pertained to undertrials accused of offences under the Narcotics Drugs and Psychotropic Substances Act, 1985. Hence these decisions do not assist the learned counsel for the applicant in his effort to invoke the provisions of Section 436 A of the Code at the appellate stage.
11. Since we are not in agreement with the view expressed by the Division Bench in Pradip (supra) and as the question as to whether the provisions of Section 436 A of the Code would be applicable for being exercised at appellate stage is a question of general importance arising frequently, the issue needs to be placed before a Larger Bench. The question that warrants a reference 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 ?"
12. The Registrar (Judicial) to take necessary steps to place the papers before the Hon'ble the Chief Justice for considering constitution of a Larger Bench to answer the reference as proposed.
13. This order be communicated to the counsel appearing for the parties, either on the email address or on WhatsApp as permitted.
JUDGE JUDGE
Andurkar..
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