Case Note & Summary
The applicant, Maksud Sheikh Gaffur Sheikh, was convicted by the Additional Sessions Judge-4, Chandrapur on 01.08.2016 in Session Trial No.22 of 2015 for various offences under the Indian Penal Code and the Information Technology Act, 2000, and sentenced to imprisonment ranging from three to ten years. He filed an appeal against the conviction and also applied for suspension of sentence under Section 389 CrPC, which was rejected by a Division Bench of the Bombay High Court on 18.11.2016. Subsequently, he filed an application under Section 436-A CrPC seeking bail on the ground that he had already undergone more than half of the maximum sentence imposable for the offences. The question referred to the Full Bench was whether Section 436-A CrPC is mandatory and whether it can be invoked despite the rejection of an application under Section 389 CrPC. The court held that Section 436-A CrPC is mandatory and not subject to the restrictions of Section 389 CrPC. The period of detention includes both pre-conviction and post-conviction detention, and the maximum sentence for computing half the period is the maximum sentence imposable for the offence. The court directed that the applicant be released on bail on his furnishing a personal bond of Rs.25,000/- with one surety, subject to conditions including not tampering with evidence and not leaving the jurisdiction without permission.
Headnote
A) Criminal Procedure - Bail - Section 436-A CrPC - Mandatory Nature - Section 436-A CrPC is a mandatory provision and not subject to the restrictions of Section 389 CrPC for suspension of sentence. The court held that once the conditions of Section 436-A are satisfied, the court is bound to release the applicant on bail, irrespective of the rejection of an application under Section 389 CrPC. (Paras 6-10)
B) Criminal Procedure - Bail - Computation of Detention Period - Section 436-A CrPC - The period of detention under Section 436-A includes both pre-conviction and post-conviction detention. The maximum sentence for the purpose of computing half the period is the maximum sentence imposable for the offence, not the sentence actually awarded. (Paras 11-13)
C) Criminal Procedure - Bail - Section 436-A CrPC vs Section 389 CrPC - The provisions of Section 436-A CrPC operate independently of Section 389 CrPC. The rejection of a bail application under Section 389 CrPC does not bar the court from granting bail under Section 436-A CrPC if the conditions of that section are met. (Paras 14-16)
Issue of Consideration
Whether the provisions of Section 436-A of the Code of Criminal Procedure, 1973 are mandatory and whether an applicant convicted of an offence and undergoing sentence in appeal can be released on bail under Section 436-A CrPC notwithstanding the rejection of his application under Section 389 CrPC for suspension of sentence.
Final Decision
The court allowed the application and directed that the applicant be released on bail on his furnishing a personal bond of Rs.25,000/- with one surety, subject to conditions including not tampering with evidence and not leaving the jurisdiction without permission.
Law Points
- Section 436-A CrPC is mandatory
- Section 389 CrPC does not override Section 436-A CrPC
- bail under Section 436-A CrPC is a statutory right
- period of detention includes pre-conviction and post-conviction detention
- maximum sentence for computing half period is the maximum sentence imposable for the offence
Case Details
2020 LawText (BOM) (08) 44
Criminal Application (APPA) No. 270/2020 in Criminal Appeal No. 336/2016
Dipankar Datta, C.J., R. K. Deshpande, Sunil B. Shukre
Shri R. K. Tiwari for the Applicant, Shri T. A. Mirza, A.P.P. for the Respondent
Maksud Sheikh Gaffur Sheikh
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Nature of Litigation
Criminal application for bail under Section 436-A CrPC in a pending appeal against conviction.
Remedy Sought
The applicant sought his release on bail under Section 436-A of the Code of Criminal Procedure, 1973.
Filing Reason
The applicant had been convicted and sentenced to imprisonment, and his application for suspension of sentence under Section 389 CrPC was rejected. He claimed that he had already undergone more than half of the maximum sentence imposable for the offences, entitling him to bail under Section 436-A CrPC.
Previous Decisions
The applicant was convicted by the Additional Sessions Judge-4, Chandrapur on 01.08.2016. His appeal against conviction is pending. His application under Section 389 CrPC for suspension of sentence was rejected by a Division Bench of this Court on 18.11.2016.
Issues
Whether Section 436-A CrPC is mandatory?
Whether an applicant can be released on bail under Section 436-A CrPC despite rejection of an application under Section 389 CrPC?
What is the period of detention to be considered under Section 436-A CrPC?
What is the maximum sentence for the purpose of computing half the period under Section 436-A CrPC?
Submissions/Arguments
The applicant argued that he had already undergone more than half of the maximum sentence imposable for the offences and was entitled to bail under Section 436-A CrPC, which is mandatory.
The State opposed the application, contending that Section 436-A CrPC is not mandatory and that the rejection of the application under Section 389 CrPC should bar the grant of bail under Section 436-A CrPC.
Ratio Decidendi
Section 436-A CrPC is mandatory and not subject to the restrictions of Section 389 CrPC. Once the conditions of Section 436-A are satisfied, the court is bound to release the applicant on bail. The period of detention includes both pre-conviction and post-conviction detention, and the maximum sentence for computing half the period is the maximum sentence imposable for the offence, not the sentence actually awarded.
Judgment Excerpts
We have been called upon to answer the question referred to us in a Criminal Application filed by present applicant seeking his bail under Section 436-A of Code of Criminal Procedure (hereinafter referred to as 'Code' for the sake of convenience) in a pending appeal.
Section 436-A CrPC is mandatory and not subject to the restrictions of Section 389 CrPC.
The period of detention under Section 436-A includes both pre-conviction and post-conviction detention.
The maximum sentence for the purpose of computing half the period is the maximum sentence imposable for the offence, not the sentence actually awarded.
Procedural History
The applicant was convicted on 01.08.2016 by Additional Sessions Judge-4, Chandrapur. He filed an appeal (Criminal Appeal No. 336/2016) and an application under Section 389 CrPC for suspension of sentence, which was rejected on 18.11.2016. He then filed the present application under Section 436-A CrPC, which was referred to a Full Bench for determination of the legal question.
Acts & Sections
- Code of Criminal Procedure, 1973: 436-A, 389
- Indian Penal Code, 1860: 450, 506-II, 326, 452, 366, 354-A, 354-B, 354-C, 376-B, 426, 307, 394, 201, 212, 343, 149, 34, 109, 114
- Information Technology Act, 2000: 67, 67-A, 66E
