Document Fragment View
Matching Fragments
(e) Learned senior counsel for the appellant has also referred briefly to section 436A Cr.P.C., which, it is contended, entitles an accused to be enlarged on bail if the accused has undergone more than half of the maximum period of imprisonment specified for that offence. In our opinion, though section 436A Cr.P.C. in its terms does not apply to this case, since „death‟ is one of the punishments specified for the offences with which the appellant is charged, in our reading of section 436A Cr.P.C., that provision only creates a right in an accused/undertrial that "he shall be released by the Court" on bail if he has undergone detention of at least one-half of the maximum sentence specified for the offence; but section 436A does not create any bar on releasing an undertrial on bail if he has undergone imprisonment of one-half or more of the maximum period of sentence, even if one of the punishments specified for the offence is a death sentence. Much less is there any bar on releasing such an undertrial on bail, to preserve his right to a speedy trial under Article 21 on the principles of K.A. Najeeb (supra). We may point-out that section 436A Cr.P.C. in any case suffers from faulty drafting since, curiously, the words used in the provision are " ... undergone detention for a period extending up to one-half of the maximum period of imprisonment ...", which, if applied literally, would mean that an undertrial should have undergone any period of detention of less than half of the maximum sentence, to be entitled to bail; and, as a sequitur, that this provision would not be of aid to an undertrial who has undergone imprisonment of more than half of the maximum period of imprisonment, which is completely contrary to the intent and purpose of the provision.
32. There is another way to address the State‟s submission that since the appellant is charged with an offence under section 16 of UAPA, the court must proceed on the assumption that he may be meted-out the death penalty. For one, this submission is purely an assumption. Besides, if it wishes to canvass this one assumption, the State must address at least two contrary assumptions to test if the State‟s assumption deserves to form the basis of a decision, at this stage. The two contrary assumptions are : first, what if the appellant is acquitted. In the event of acquittal, how would the State compensate the appellant for having been robbed of what may have been the most productive and defining decade of his life, at the State‟s instance? Second, even assuming the appellant is ultimately convicted but sentenced to life imprisonment, how would the State compensate him for having negated his entitlement to bail under section 436A Cr.P.C. read with section 57 IPC? We are sure the State has not delved into these contrary assumptions.