With the best interests of under trial prisoners in mind, Section 436-A of the Code of Criminal Procedure, 1973 was brought in. The intent behind the new Section was to uphold the rights of imprisoned individuals who are forced to languish in jail for prolonged periods of time pending investigation, inquiry or trial. In many cases, imprisonment of under trial prisoners was continuing for substantial periods of time as against the principle of presumption of innocence until found guilty.

The primary constitutional and moral concern with under trial detention is that it violates normative principle that there should be no punishment before a finding of guilt by due process. So under trial detention of those suspected, investigated or accused of an offence effectively detains the innocent. However, all criminal justice systems across the world authorize limited pre trial incarceration to facilitate investigation and ensure the presence of accused persons during trial. So, the critical challenge in this area is to identify the normatively optimal and necessary level of pre trial incarceration and then design a criminal justice system to achieve this.

The criminal justice system established in India appertains to a reformative model of administering justice, and posits a need to reform the criminal, rather than opting for retribution against the crime committed. Debunking this aspirational model, the present study aims to analyze the present condition of prisoners in India languishing in prisons after their arrest, which is depreciating at an alarming rate. These under-trials are detained in explicit contravention of the statutory requirements explicated in the Criminal Procedure Code, 1973, while consistently being subject to barbaric third degree torture methods and are coerced to undertake dehumanizing activities during incarceration.

436-A of Code of Criminal Procedure, 1973

Section 436-A Code of Criminal Procedure, 1973 was brought into force w. e. f. June 23, 2005, by virtue of an Ordinance duly promulgated by the President of India.

Section 436-A Code of Criminal Procedure, 1973 states that where a person has, during the period of investigation, inquiry or trial under the Code of Criminal Procedure, 1973 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.

The first proviso states 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.

The second proviso envisages 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.

Furthermore, the explanatory provision states – 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.

Scope of Section 436-A of Code of Criminal Procedure, 1973

Section 436-A of Code of Criminal Procedure, 1973 provides that in a case where punishment for the offence cannot be death and a person has undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for the offence, he shall be released on bail. The fact that this is not absolute in terms is apparent from the proviso thereof which states that the Court may, after hearing the Public Prosecutor and for the reasons to be recorded in writing, order the continued detention of such a person for a period longer than one half of the period of imprisonment prescribed in law.

The Law Commission recommended incorporation of Section 436-A, keeping in mind the inordinate delay in trials, where even for lesser offences long incarceration continued without trial leading to overcrowd in jails also. The salutary purpose of the amendment would stand defeated if it is construed in a blanket manner without its applicability in the facts and circumstances of a given case.

The liberty to citizen has been noticed in Section 436-A, Part I of the Legislation. The proviso balances the liberty of the citizen with the need for protection of the interest of the society. Therefore, it is apparent that the Legislature did not intend to make the first part concerning the liberty of the citizen absolute in terms, but allowed it to be subject to regulatory control. But when this liberty is to be denied, the Court must indicate the reasons for exercise of the regulatory control. Thus, the legislation itself incorporates adequate safeguard for the person in custody.

Gamut of the Provision

Although the provision appears to be quite axiomatic, it can be seen that the relief of bail does not follow as a matter of course even if the pre-conditions contemplated in the provision are satisfied. The first proviso empowers the Court to deny such relief if it is of the opinion that further detention is necessary. As regards the second proviso – it elucidates that the relief is absolute in case the under-trial prisoner has served the maximum term prescribed for the offence he is charged with.

The First Proviso of Section 436-A of Code of Criminal Procedure, 1973

The Supreme Court and High Courts in a spate of Judgments have indicated that speedy trial is a fundamental right of an accused under Article 21 of the Constitution of India and the consequence of denying such right is bail.

Although, the right to bail under the provision is not an absolute right, can the Courts deny relief to prisoners by getting into merits of the matter?
In [Bhim Singh Vs. Union of India & Ors., (2015) 13 SCC 605], a Three-Judge Bench of the Supreme Court directed the Jurisdictional Magistrates/Sessions Judges to hold one sitting in a week in each jail/prison for two months to identify the under-trial prisoners who had completed half period of the maximum term; or maximum term of imprisonment stipulated for the offence – and pass an appropriate order to release them on bail. The bench also issued directions to all the High Courts in the country to ensure compliance of the said order and submit a report to the Secretary of the Supreme Court without unnecessary delay.

It would not be out of place to say that much prior to the provision coming in existence, the Supreme Court had expressed concerns with regard to persons languishing in jail for long periods of time. In [Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar, (1980) 1 SCC 98], Justice P. N. Bhagwati, speaking for the Supreme Court, recognised ‘speedy trial’ as a fundamental right of an accused and anxiously directed the State to take steps for a positive approach on enforcing this fundamental right.

In [Supreme Court Legal Aid Committee Vs. Union of India, (1994) 6 SCC 731], the Supreme Court, relying on Hussainara Khatoon (supra) directed the release of prisoners charged under the Narcotic Drugs & Psychotropic Act after completion of one half of the maximum term prescribed under the Act. A. M. Ahmadi, J. (speaking for the Court) directed the same in an Article 32 Petition, after taking into account the non obstante provision of Section 37 of the Act which imposed the rigours of twin conditions for release on bail.

It was observed:
We are conscious of the statutory provision finding place in Section 37 of the Act prescribing the conditions which have to be satisfied before a person accused of an offence under the Act can be released. Indeed we have adverted to this Section in the earlier part of the Judgment.

We have also kept in mind the interpretation placed on a similar provision in Section 20 of the TADA Act by the Constitution Bench in [Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569].

Despite this provision, we have directed as above mainly at the call of Article 21 as the right to speedy trial may even require in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in [A. R. Antulay Vs. R. S. Nayak & Anr., (1988) SCC 1531], release on bail, which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21.

As we have not felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21.

Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters.

In [Hasan Ali Khan Vs. State, (2015) SCC OnLine Bom 8695] the Bombay High Court was pleased to release an under-trial prisoner charged under provisions of PMLA, after serving one half of the maximum term prescribed under the special statute.

It was held:
Since the Hon’ble Supreme Court has observed that the case of the present Applicant is to be considered in view of the Judgment of Bhim Singh Vs. Union of India, this Court is of the opinion that it would not be necessary to go into the merits of the matter. Hence, this Court is of the opinion that by virtue of Section 436-A of the Code of Criminal Procedure, 1973, the applicant is entitled to be enlarged on bail.

Similarly, the Bombay High Court in [Rashesh Mukesh Shah Vs. State, 2018 SCC OnLine 17551] enlarged the accused (who had completed one-half of the maximum term prescribed) on bail under Section 436-A of the Code of Criminal Procedure, 1973  without getting into the merits of the matter.

The approach of Courts indicates that although the first proviso of Section 436-A of the Code of Criminal Procedure, 1973  empowers the Court to direct continued detention of the prisoners, the Courts would be overstepping the very said boundaries if the merits of the matter are ventured into for the purpose of denying relief under the provision.

Just as right to speedy investigation is a facet of Article 21 of the Constitution of India, the right to speedy trial, too, is a facet of Article 21 of Constitution of India. Two sides of the same coin, both facets hold water. As we know, failure to complete investigation within the prescribed period under Section 167 (2) of the Code of Criminal Procedure, 1973  renders an indefeasible and right of bail in favour of the accused.

Conclusion
Under-trial prisoners are facing trials in Court and for ensuring fair trial are kept in the custody so that they are not in a position to influence and a fair trial can be ensured. By promising judicial custody they are remanded in the jail mostly. Key reason for them spending substantial time in prison is the delay in trial. Other reasons includes lack of legal awareness, poor legal aid etc, due to which under-trial prisoners are unable to employ the advantages of Bail provisions and are forced to languish in the jails.

All these factors give birth to various problems such as overcrowding of prisons, human rights abuse to due to lack of speedy trial, violation of fundamental right due to unnecessary prolonged detention, corroded reputation in society and other emotional and physical setbacks, which runs against the under-trial prisoners in their future endeavours. Section 436-A of the Code of Criminal Procedure, 1973  deals with the rights of the under-trials prisoners to be released on bail. Section 436-A of the Code of Criminal Procedure, 1973 explains the maximum duration after which under-trial prisoners is entitled to be released on Bail.

The Section reads as:
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.

Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature, Jammu.
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