–Jugaad Singh
INTRODUCTION
Overflowing and overburdened prisons are often a consequence of either an increased crime rate or an increased conviction rate. However, in India, the situation is neither. It is the consequence of a delayed judicial process, as more than 75% of the in-mates are under trial prisoners. While the overflow of prisons is a matter of concern, the liberty of these under-trial prisoners is a more pressing issue faced in our criminal justice system. Although ‘bail being the rule and jail being the exception’ is the maxim put forth by our Apex Court, the aforementioned figures seem to suggest otherwise. It is to remedy the plight of these under-trial prisoners that Section 436A of the Code of Criminal Procedure (‘CrPC’) was brought into force on 23rd June 2005. This provision aims to provide liberty to undertrial prisoners who have undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for the offence. On coming into force, such bail was not statutory in nature. The proviso allows for the denial of bail according to certain reasons which are based on the discretion of the court. However, the author argues that these have been greatly diluted by recent judgements of the Supreme Court, decreasing the scope of discretion of the courts. This reduction in the scope for denial of bail is a product of judicial construction and is not empowered by the text of the law. This has resulted in improper application of the principles elaborated by the Apex Court in several cases, including that of Sharjeel Imam, who until recently had been denied bail under this provision. The author seeks to contextualize the decisions of the Apex Court with the help of the recent case of Sharjeel Imam and suggest reforms for bail under Section 436A.
SHARJEEL IMAM’S SEDITIOUS SPEECHES
On the 16th of January 2020, Shaheen Bagh in Jamia Nagar, New Delhi became the site for a controversial speech delivered by Sharjeel Imam, a PhD scholar from Jawaharlal Nehru University. Similar speeches were given by him at Jamia Milia Islamia University and later at Aligarh Muslim University. These speeches targeted the Citizenship (Amendment) Act, 2019 and the National Register of Citizens, which were aimed predominantly at a Muslim audience. He also advocated for a chakka jam (blockade) of roads and access to the eastern parts of the country, particularly Assam, to draw the attention of the Union Government. Consequently, FIRs were registered across various jurisdictions, charging Imam with offences including that of Sedition (Section 124A), promoting enmity between religious groups (Section 153A) and assertions prejudicial to national integration (Section 153B) under the Indian Penal Code (‘IPC’). Additionally, at a later date, an FIR was also lodged under Section 13 of the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’) which provides for punishment for Unlawful Activities [described u/s 2(1)(o)]. Being the gravest of the offences, it attracted the maximum sentence of seven years.
The maximum punishment for the offences under the IPC (excluding sedition, proceedings for which were retrospectively stayed nationwide in S.G. Vombatkere v. Union of India in 2022) would amount to five years, and for the offence under UAPA, up to seven years. Imam’s arrest on 28th January 2020, marked the beginning of a prolonged detention, with his pleas for general bail characterized by multiple delays and being denied several times.
Having been in custody for over four years as of 2024, Imam had served one-half (three and a half years) of the maximum sentence that could have been imposed upon conviction. As previously mentioned, section 436A of the CrPC, 1973 stipulates that when a person has undergone detention for one-half of the maximum period of imprisonment specified for an offence, they shall be granted bail by the court. However, the proviso to Section 436A confers upon the courts the discretion to continue the detention after hearing the Public Prosecutor and recording the reasons for the same in writing. Given Imam’s detention for one-half of the prescribed maximum punishment without a conviction, he was eligible to seek statutory bail under Section 436A of the CrPC. While others were also arrested during the CAA-NRC protests, at present, Sharjeel is the only one seeking relief under the particular provision.
DISCRETION ON DISPLAY – DECISION OF THE TRIAL COURT
In January 2024, the High Court of Delhi directed an expeditious adjudication of Imam’s long pending bail application under Section 436A, upon which the trial court at Karkardooma, New Delhi heard and dismissed the application. The author contends that the dismissal of the bail application marks a deviance from established judicial precedent. Despite Imam’s eligibility for bail under Section 436A, which is construed to be statutory in nature by the courts, it should have been granted as a matter of right. The trial court’s dismissal raised a pertinent question as to what should take precedence –granting of the statutory bail to the accused or the judicial discretion provided to the courts under the first proviso. The prosecution contended that Sharjeel was attempting to selectively read the provision to suit his interest and that the court had the discretion to deny bail on the basis of the gravity of the offence and the circumstances surrounding it.
The author argues that such a dismissal of bail would undermine the purpose of providing bail to under-trial prisoners by delving into the merits of the matter. The overreach of judicial discretion to deny statutory bail allowed the adjudication and dismissal of the bail application on the merits of the case. Citing factors such as ‘necessity’ and ‘extraordinary circumstances’, for the denial of bail contravened established judicial precedent, which points towards the supremacy of the statutory nature of bail under Section 436A. Therefore, the trial court had overstepped the bounds of the discretion granted under the first proviso.
BEACONS OF BAIL JURISPRUDENCE: ANTIL AND MADAN LAL JUDGEMENTS
Recent legal discourse on bail jurisprudence is incomplete without referencing the 2022 cases of Satender Kumar Antil v. Bureau of Investigation (‘Antil’) and Vijay Madan Lal Chaudhary & Ors. v. Union of India (‘Madan Lal’) in which the Supreme Court (‘SC’) meticulously examined bail laws and conditions in India. While these judgments primarily address bail under the Prevention of Money Laundering Act, 2002 (‘PMLA’), they also delve into the scope and nature of Section 436A, offering invaluable insights for our analysis.
The division bench of the SC in para 47 of the Antil judgement mandated that the use of the word ‘shall’ in the provision unequivocally denotes mandatory compliance in granting bail. The SC even goes to the extent to say that in such cases even a bail application may not be necessary to secure a release. In the same paragraph, the SC says that it was conscious of the authority of the court to extend detention and said that the courts have the authority to do so if necessary. However, it made clear that such an authority is to be undertaken sparingly and hailed the provision as one facilitating the liberty of under-trial prisoners. The ambiguity arises when the court says that the only caveat to ensuring ‘liberty’ was if the delay in the proceedings was caused on account of the accused. While not explicitly mentioned, a logical inference would be that only in those instances where the delays in the trial are attributable to the accused can bail be denied, effectively limiting the scope of discretion under the first proviso. The Antil judgement also laid emphasis on the case of Bhim Singh v. Union of India of 2014 whereby a three-judge bench of the SC ordered the lower courts to identify under-trial prisoners who had undergone detention for half of their sentence and release them on bail. Such an unconditional release of the prisoners to protect their right to liberty and a speedy trial indicated the mandatory nature of the bail under Section 436A.
The three-judge bench in the Madan Lal points out that bail under Section 436A is not an absolute right as is in the case of default bail under Section 167 of the CrPC and observed that the court can consider relief on a case-to-case basis. However, in para 144, the court buttresses this abstract observation with a concrete affirmation (which was absent in the Antil judgement) that the delay of the trial at the instance of the accused is the only basis for the exercise of the first proviso by the courts. Consequently, the SC recognized bail under Section 436A to be statutory in nature and an essential feature of the constitutional right to a speedy trial under Article 21 of the Constitution. It also equated bail under Section 436A with the provisions under Section 167 of the CrPC, referencing the principle enunciated in the Supreme Court Legal Aid Committee Representing Undertrial Prisoners, to reject pleas by the State to deny bail to undertrial prisoners on spurious grounds. When the Solicitor General expressed his concerns over this logic being applied in terrorist offences, the SC dismissed the plea and recognized the constitutional duty of the State to conclude trials in an expedited manner or allow the accused to seek statutory bail. The recent case of Ajay Ajit Peter Kerkar v. Directorate of Enforcement has also upheld the reasoning in the Madan Lal case.
Thus, the only ground for denial of bail under section 436A is if the delay is attributable to the accused. However, a perusal of the Antil & Madan Lal judgements suggests that they have not been clear in harmonizing the curtailment of the first proviso which could lead to varying interpretations. The court has used its powers of legal construction to uphold that only the explanation of the provision is a valid ground for denial of bail without curtailing the powers of the court under the first provision. This apparent contradiction between the jurisprudence of the court and the text of the provisions will continue to exist till amendments are made to the provision itself.
PERPLEXING PRECEDENT: MATTER OF MERITS
In the case of Sharjeel Imam, while the trial court was cognizant of these principles, it went beyond the scope of its powers and gave precedence to the text of the proviso over the almost mandatory nature of bail under Section 436A. (Para 15-18) The adoption of such an interpretation by the trial court can be understood to be a result of the confusion and contradiction between the Antil & Madan Lal judgements and the text of the provision. The judgments too, while delineating the scope and nature of such bail, had in the same breath underscored the authority of the courts, amplifying the uncertainty. It is only upon a holistic examination of the judgements that it becomes apparent that the discretion of the courts comes with caveats. This uncertainty resulted in the court venturing into the merits of the case where the bail should have been granted as a matter of statutory right. (Para 23-27). The trial court subsequently denied bail to Imam by substantiating the necessity for the same.
On 29th May 2024, a division bench of the Delhi High Court granted a much-awaited bail to Sharjeel Imam. However, the approach adopted by the High Court in granting bail was different than what has been argued above. The HC observed that the reasons cited by the trial court were that such relief could not be granted mechanically and that the allegations were ‘serious in nature’. It held these reasons to be insufficient and irrational and that the trial court ‘got swayed by the enormity of the allegations.’ It further relied upon the case of Abdul Qureshi v. State (NCT of Delhi) to emphasize that the mere fact that the allegations against the appellant were serious in nature, cannot be taken as a ground for declining such relief provided under s. 436-A. While the judgement of the HC was mindful of the objective behind the provision and the application of the Doctrine of Reasoned Decision to grant relief is a welcome step, there remains an air of ambiguity regarding the scope of the discretionary proviso as elaborated above.
CONCLUSION: CHANGES FOR CLARITY
In recent years, the plight of under-trial prisoners has been a focal point in discussions on reforming our criminal justice system. Section 436A of the IPC is a pivotal component in ensuring that the liberty of under-trial prisoners is not threatened. Any uncertainty in interpretation and application by the courts could be highly detrimental for under-trial prisoners who have languished in prison without having received a conviction. It then becomes imperative for the judiciary to dispel any ambiguity in its decisions and for the legislation to do the same in the text of the law.
Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023, equivalent to Section 436A of the CrPC, has already been criticized for decreasing the scope of bail. Instead of amending the existing proviso and explanation to provide clarity, section 479 only adds to the plight of under-trial prisoners. This allows uncertainty to exist at a juncture where the legislature had ample opportunity to allow for clarificatory changes in response to the established judicial precedence.
However, as per the recommendations given in the Antil case, the SC in its latest order, has asked the Centre to expedite the process of drafting a new law for bail provisions. This presents a second opportunity for the legislature to provide clarity and ensure that the preservation of the liberty of under-trial prisoners through Section 436A is upheld at the district judiciary level and the High Courts. With the rise of individuals who engage in ‘disruptive activities’ and are ‘necessary to be kept under custody’, a failure to provide clarity over the discretion of the courts may result in a defeat for the personal liberty of under-trial prisoners.
The author is a third-year student at RGNUL Patiala.
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