Mumbai: In a significant ruling, the Nagpur bench of the Bombay High Court has held that a convict cannot seek bail on the ground of having spent half of his sentence in jail during the pendency of his challenge to conviction. The HC has held that only an under-trial can seek bail for having spent half of his probable sentence in jail.
A full bench headed by Chief Justice Dipankar Datta said the section 436 (A) of the Code of Criminal Procedure (CrPC) provides for the release of an undertrial after she/he has spent half of his probable punishment in the jail.
The bench, which also comprised of Justices Ravi Deshpande and Sunil Shukre, said that there could not be any liberal view in releasing convicts or undertials from the prison.
The full bench was dealing with a question as to whether convicts, who have challenged their conviction, could be released on bail on the ground of spending half of their sentence in jail. The full bench noted the intent for which section 436 (A) was introduced in the law book.
"The primary concern being of the incarceration of undertrials in jail for long period of time pending investigation, inquiry or trial, even though the presumption of innocence till found guilty was operating in their favour. By introducing the provision, an endeavour was made to remedy the condition of torture and misery of accused persons as undertrial prisoners, relegated to dark corners within jails, away from the hustle and bustle of life activity without jails," said Justice Shukre in the order authored by him.
Justice Shukre further said that the benefit intended to be given is for a person who has, during the period of investigation, inquiry or trial have undergone detention for a period extending up to one half of the maximum period of imprisonment to be given to them. "We find that the benefit under the section has been intended to be given only to the under-trial prisoners," Justice Shukre ruled.
The other half of the judgment authored by Justice Deshpande, stated, "In my view, there is no absolute right to get released, once convicted."
Apart from the two judges, even Chief Justice Datta penned down a separate but concurring judgment, saying, "The provision in question is restricted in its operation to grant of bail to an under-trial prisoner ‘during the period of investigation, inquiry or trial’ and does not, apply at the appellate stage, when a convict challenges his conviction before a higher court."
