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14. In the judgment of the Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and Another reported in (2022) 10 SCC 51, the Supreme Court dealt with Section 436A of the Code. It was observed by the Supreme Court in the said judgment that the provision draws the maximum period for which an undertrial prisoner can be detained. The period has to be reckoned with the custody of the accused during the investigation, inquiry and trial. The Supreme Court further observed that the word "trial" has to be given an expanded meaning particularly when an appeal or admission is pending thereby in a case where an appeal is pending for a longer time, to bring it under Section 436A of the Code, the period of incarceration in all forms will have to be reckoned and so also for the revision. Therefore, the Supreme Court expanded the applicability of Section 436A of the Code thereby not limiting the benefits under the provisions of Section 436A of the Code to undertrial prisoners but also when an appeal or a revision is pending thereby giving an expanded meaning to the term "trial". The Supreme Court further observed that when a person had undergone detention for the period extending to one-half of the maximum period of imprisonment specified for that offence, he shall be released by the Court on his personal bond with or without sureties. The word "shall", as observed by the Supreme Court, clearly denotes the mandatory compliance of the provision. The Supreme Court further observed that there was no need for a bail application in a case of this nature particularly when the reasons for delay are not attributable against the accused. It was also observed taking into account that the first proviso to Section 436A of the Code that while taking a decision, the Public Prosecutor is to heard and the Court if it is of Page No.# 14/47 the view that there is a need for continued detention longer than one-half of the said period, has to do so. However, such an exercise of power is expected to be undertaken sparingly being an exception to the general Rule which is "bail is the Rule and jail is an exception" coupled with the principle governing the presumption of innocence.

16. The Supreme Court further taking note of the directions passed in the case of Bhim Singh Vs. Union of India and Others reported in (2015) 13 SCC 605 directed compliance to the said directions, if not complied with, in order to prevent the unnecessary incarceration of undertrials and to uphold the inviolable principle of presumption of innocence until proven guilty.

17. It is also relevant at this stage to take note of the directions passed by the Supreme Court in the case of Bhim Singh (supra) to understand the Page No.# 15/47 scope and ambit of Section 436A of the Code. Paragraph Nos. 5 and 6 of the judgment rendered in the case of Bhim Singh (supra) was quoted by the Supreme Court in the case of Satender Kumar Antil (Supra). The Supreme Court in the case of Bhim Singh (supra) after taking into account the legislative policy engrafted in Section 436A of the Code and the large number of undertrials housed in the prisons passed orders so that the undertrials do not continue to be detained in prison beyond the maximum period provided under Section 436A of the Code. The Supreme Court therefore directed the jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge to hold one sitting in a week in each jail/prison for two months commencing from 01.10.2014 for the purpose of effective implementation of Section 436A of the Code. It was further directed by the Supreme Court that upon identification of the undertrial prisoners who have completed one half period of the maximum period or the maximum period of imprisonment provided for the said offence under law to pass appropriate orders in the jail itself after complying with the procedure prescribed under Section 436A of the Code for release of such undertrial prisoners who fulfill the requirement of Section 436A of the Code for their release immediately. In the said order, passed by the Supreme Court in the case of Bhim Singh (supra), further directions were given to send compliance report. The above aspect of the matter in the opinion of this Court further shows the necessity for mandatory compliance to the provision of Section 436A of the Code and to enlarge the period of incarceration from what the main provision of Section 436A of the Code stipulate is an exception. Another important aspect of the said directions in the case of Bhim Singh (supra) is the continuous monitoring of applicability of Section 436A of the Code in respect to the Page No.# 16/47 undertrial prisoners which would not only aid in the release of the undertrial prisoners but also keep a tab on the undertrial prisoners impending right of the speedy justice, a facet of Article 21 of the Constitution which would fructify in terms with the main provision of Section 436A of the Code. Paragraph Nos. 63, 64 and 65 of the said judgment in the case of Satender Kumar Antil (supra) being relevant is extracted hereinunder:

65. The aforesaid directions issued by this Court if not complied fully, are expected to be complied with in order to prevent the unnecessary incarceration of undertrials, and to uphold the inviolable principle of presumption of innocence until proven guilty."

18. This Court also finds it apt to deal with two other aspects before referring to the judgment of the Supreme Court in the case of Vijay Madanlal Choudhary (supra) wherein the Supreme Court dealt with Section 436A of the Code in much more detail. The Government of India, Ministry of Home Affairs had issued an Advisory dated 17.01.2013 to all Home Secretaries of States/Union Territories for use of Section 436A of the Code to reduce overcrowding of prisoners. In the said Advisory, it was categorically mentioned that under Section 436A of the Code, an undertrial prisoner has the right to seek bail on serving more than one-half of the maximum possible sentence on their personal bond. It was further mentioned that no person can be detained in prison as an undertrial for a period exceeding the maximum possible sentence. However Section 436A of the Code was not applicable for those who are charged with offences punishable with death sentence. This very Advisory was taken into account by the Social Justice Bench of the Supreme Court in the case of Inhuman Conditions in 1382 Page No.# 19/47 Prisons, In Re reported in (2016) 3 SCC 700 and there were various directions issued to educate the undertrials of their rights to be released on bail in view of the provisions of Section 436A of the Code. The reference to the said Advisory dated 17.01.2013 and the order of the Supreme Court in Inhuman Conditions in 1382 Prisons (supra) is made herein to analyse the legislative intent behind the insertion of Section 436A of the Code, a right of the undertrial prisoners facilitating liberty which is the core intendment of Article 21 of the Constitution coupled with the principle governing the presumption of innocence.

(ix) In terms with the second proviso to Section 436A of the Code, the right of the accused who has been in detention for the maximum period of imprisonment or more provided for the offence charged with is absolute and the Court is bound to release such person.

(x) Section 436A of the Code does not apply where the offence charged with entails capital punishment.

(xi) The exercise of discretion by the Court in the case of Section 436A of the Code not to release the accused after completion of the period as mentioned in the main provision of Section 436A of the Code is very limited Page No.# 32/47 taking into consideration that the rights accruing under Section 436A of the Code is in the realm of a right to speedy justice which is a fundamental right enshrined under Article 21 read with Article 14 of the Constitution. The discretion has to be exercised keeping in mind the Explanation to Section 436A of the Code.