Document Fragment View

Matching Fragments

12. The moot question to be answered here is, what is the reasoning or jurisprudence behind the practice of suspending the sentence of a convict, once he has served half of the sentence or 5 years, as the case may be?

13. At the first flush, one is reminded of Section 436A of the Code of Criminal Procedure, which reads thus:-

"436-A.-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;

14. But in the opinion of this Court, provisions of Section 436A of the Code of Criminal Procedure are meant for dealing with the cases of under-trials and thus, are applicable only while considering bail application of an accused under Section 439 of the Code. This provision has been enacted with a view to reduce the agony of those under-trials, who are detained in jail so that, as a (5 of 17) [SOSA-732/2020] consequence of prolonged trial they are not landed in a situation, wherein they have already served substantial, equal or more than the maximum sentence provided for the offence they are accused of.

15. The question regarding applicability of provisions of Section 436A of the Code in an appeal or in a case where conviction has taken place, recently came up for consideration before the Full Bench of Bombay High Court in the case of Maksud Sheikh Gaffur Sheikh Vs. State of Maharashtra, reported in 2020 CriLJ 3663. The Bombay High Court, after deliberating on the issue in great detail, has held that the provisions of Section 436A of the Code do not apply in the cases of appeal, as there is a clear distinction between the expression "trial" used in Section 436A, and "convict" used under Section 389 of the Code. The relevant part of the judgment of Bombay High Court is extracted hereunder:-