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2018 DIGILAW 1611 (GAU)

Abdul Malek v. State of Assam

2018-11-14

NELSON SAILO, UJJAL BHUYAN

body2018
ORDER : Ujjal Bhuyan, J. 1. Heard Mr. N. Dutta, learned Senior counsel assisted by Mr. S.C. Biswas, learned counsel for the appellants and Mr. R.C. Barpatragohain, learned Advocate General, Assam assisted by Mr. P.P. Baruah, learned Public Prosecutor, Assam. We have also heard Mr. A. Ahmed, learned counsel for the informant in both the appeals. 2. Short point for consideration is whether Section 437A Cr.P.C. can be invoked in a case of conviction or whether it can be invoked only in a case of acquittal? 3. Both the appeals are directed against the judgment and order dated 17.08.2017 passed by the learned Additional Sessions Judge, Barpeta in Sessions Case No. 41/2015 convicting the appellants under Section 302 IPC read with Sections 147/148/149 thereof and sentenced to undergo imprisonment for life and fine with a default clause for the conviction under Section 302 IPC and other minor sentences for conviction under the other Sections. 4. While sentencing the accused-appellants as above, learned court below passed the following order:- "The court feels the sentences are appropriate in the present case and it would serve the purpose of law. However, they are acquitted from the charges under sections 323/324 IPC on the ground of benefit of doubt. The bail bond of the accused persons are however extended for a period of 6(six) months from today in view of Section 437A Cr.P.C.." 5. Thus, it is seen that learned court below while sentencing the appellants had extended the bail bonds for a period of 6 months in view of Section 437A Cr.P.C.. 6. While admitting the two appeals, an issue of considerable importance surfaced, namely, the scope and ambit of Section 437A Cr.P.C., i.e., whether this provision can be invoked in a case of conviction like in the present two appeals or whether this provision can be invoked only in case of acquittal. 7. Therefore, we were of the view that irrespective of the outcome of the hearing of the two appeals on merit, a detailed hearing on the scope and object of Section 437A Cr.P.C. was required. In that view of the matter, we had issued notice to the learned Advocate General, Assam who thereafter made his submissions; so also Mr. Dutta, learned Senior counsel for the appellants. 8. In that view of the matter, we had issued notice to the learned Advocate General, Assam who thereafter made his submissions; so also Mr. Dutta, learned Senior counsel for the appellants. 8. It may be mentioned that Criminal Appeal No. 359/2017 was admitted for hearing vide order dated 08.09.2017 by which order the appellant was allowed to remain on bail. Likewise, Criminal Appeal No. 362/2017 was admitted for hearing vide order dated 26.10.2017 by which order appellants of this appeal were allowed to remain on bail. On 06.02.2018 it was made clear that bail orders passed in both the appeals shall continue till disposal of the appeals. 9. Mr. Barpatragohain, in the course of his detailed submissions, had placed before the Court the 154th and 268th Reports of the Law Commission of India as well as judgments of different High Courts of the country to contend that the real import of Section 437A Cr.P.C. is to ensure that in a case of acquittal, the person acquitted responds to the notice issued by the appellate court when his acquittal is put to challenge. He submits that this provision cannot be invoked in case of conviction. 10. On the other hand, Mr. Dutta, learned Senior counsel for the appellants has referred to the various provisions in the Cr.P.C. and contends that view taken by the learned Advocate General would be too constrictive and would be violative of Article 21 of the Constitution of India. A person who has been acquitted of a criminal charge cannot be tied down by executing bail bonds for an uncertain future eventuality i.e., filing of appeal against acquittal. Therefore, learned trial Judge was correct in applying this provision while convicting the appellants. 11. Submissions made by learned counsel for the parties have been considered. 12. Section 437A Cr.P.C., as it stands today, reads as under:- "437A. Bail to require accused to appear before next appellate court (1) Before conclusion of the trial and before disposal of the appeal, the Court trying the offence of the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months. (2) If such accused fails to appear, the bond stand forfeited and the procedure under Section 446 shall apply." 12.1. The heading of this Section is bail to require accused to appear before the next appellate court. This is indicative though not specifically worded of the intent that the accused has to appear before the next higher court where his acquittal is put to challenge. This is so because in case of conviction, accused himself has to prefer appeal before the appellate court. Sub-Section (1) deals with two stages: one is before conclusion of trial, i.e., at the stage of trial, and the second is before disposal of the appeal, i.e., at the appellate stage. In either of the two situations, the trial court or the appellate court, as the case may be, shall require the accused to execute bail bonds with sureties to appear before the higher court as and when such higher court issues notice in respect of any appeal or petition filed against the judgment of the respective court. In other words, if the bail bond is executed at the trial stage, the accused has to appear before the appellate court as and when such court issues notice in respect of any appeal filed against the judgment of the trial court. As noted above, in a case of conviction by the trial court, it is the accused who has to move the higher court against his conviction. It is only when he is acquitted which acquittal may be questioned before the higher court by the State or by the informant that presence of the accused since acquitted would become necessary. 12.2. Likewise, in an appeal preferred by the accused against his conviction and sentence by the trial court, before disposal of the appeal, appellate court shall require the accused-appellant to execute bail bonds with sureties so that in the event of the appeal succeeding and his conviction and sentence being set aside, he would appear before the higher court as and when such higher court issues notice in respect of any appeal or petition filed against the judgment of the appellate Court. 13. Trial court has to invoke this provision before conclusion of the trial and the appellate court has to invoke this provision before disposal of the appeal. Whether this provision has been invoked at all, especially by the appellate court, is another matter altogether. 14. 13. Trial court has to invoke this provision before conclusion of the trial and the appellate court has to invoke this provision before disposal of the appeal. Whether this provision has been invoked at all, especially by the appellate court, is another matter altogether. 14. The bail bonds so executed before conclusion of trial or before disposal of the appeal shall remain in force for 6 months. 15. As per Sub-Section (2), if the accused person who has since been acquitted either by the trial court or by the appellate court fails to appear in response to notice issued by the higher court, bail bond so executed would stand forfeited and the procedure under Section 446 Cr.P.C. would apply, i.e., procedure when bail bond is forfeited. 16. This thus appears to be the scheme of Section 437A Cr.P.C.. 17. Section 437A was inserted in the Criminal Procedure Code, 1973 (Cr.P.C.) by way of amendment in the year 2009 and this provision came into force with effect from 31.12.2009. 18. A Division Bench of the Gujarat High Court in State Vs. Harish Laxman Solanki, reported in, (1994) 1 GLR 581 , observed that while Cr.P.C. has taken enough care to secure attendance of the accused at the stage of investigation and trial, it was unfortunately silent about the interim period between the order of acquittal and the appeal against acquittal. It was observed that it was this "free-zone" which was being freely and conveniently exploited by the accused to the disadvantage of the public justice. Therefore, Gujarat High Court suggested that some provision should be provided in the Cr.P.C. to ensure presence of the accused post-acquittal at the appellate stage. 19. The Law Commission of India in its 154th report discussed this judgment of the Gujarat High Court with respect to attendance of the accused at the appellate stage. It noted that Cr.P.C. was silent on the point of securing attendance of the accused at a later stage after the acquittal in cases where appeals against acquittals had been filed or in cases where appeals for enhancement of sentence were filed. Law Commission of India noted that there were several instances where the appellate courts having admitted an appeal against acquittal were not in a position to secure presence of the acquitted accused. Law Commission of India noted that there were several instances where the appellate courts having admitted an appeal against acquittal were not in a position to secure presence of the acquitted accused. After due deliberation, Law Commission recommended insertion of a new section 437A empowering all the criminal courts including the first appellate court to take bail and bail bond before the conclusion of the trial or disposal of the appeal requiring the accused to bind themselves to appear before the next appellate court in case an appeal against acquittal or an appeal for enhancement was filed. It was suggested that bail bonds should remain in force for a period of 12 months. 20. This report of the Law Commission was submitted on 22.08.1996. The amendment came in the year 2009, 13 years thereafter. Against the suggestion of bail bonds remaining in force for a period of 12 months, it was made for 6 months. 21. Section 437A Cr.P.C. was examined by the Allahabad High Court in Nannu Vs. State of UP. Allahabad High Court observed that basic purpose of this Section is to secure attendance of the accused at the appellate stage if any appeal is filed against the acquittal or for enhancement of the sentence. However, Allahabad High Court observed that form 45 Cr.P.C. was not amended to accommodate the terms of Section 437A Cr.P.C.. Allahabad High Court further observed that Section 437A Cr.P.C. would also require some clarification and held as under:- "100. Section 437A Cr.P.C. also requires some clarification. Take a case where bail was not granted or granted but the accused/convict could not be released on bail as he could not furnish sureties, or a case where accused/convict is in jail and in pursuance of requiring bail bonds to be furnished under Section 437A Cr.P.C. states that he cannot furnish sureties. Does it mean that the trial will not be conducted or appeal will not be heard, or in a case he is acquitted then would not be released for six months? Perhaps, in such situation personal bond should suffice. But the existing language of Section 437A Cr.P.C. does not permit it." 22. Delhi High Court in Praveen Agarwal Vs CBI, also observed that the object of Section 437A Cr.P.C. is to secure the attendance of an accused in a case where appeal is likely to be filed against the verdict of acquittal. 23. But the existing language of Section 437A Cr.P.C. does not permit it." 22. Delhi High Court in Praveen Agarwal Vs CBI, also observed that the object of Section 437A Cr.P.C. is to secure the attendance of an accused in a case where appeal is likely to be filed against the verdict of acquittal. 23. Section 353 Cr.P.C. deals with judgment by the trial court. It says that at the conclusion of the trial, judgment shall be pronounced in the open court by the Presiding Officer. If the accused is in custody, he shall be brought to the court to hear pronouncement of the judgment. If the accused is not in custody, he shall be required by the court to attend to hear the judgment pronounced except where his personal attendance during trial was dispensed with and sentence is one of fine only or where he is acquitted. 24. Section 378 Cr.P.C. provides for appeal in case of acquittal. Under Sub-Section (3), no such appeal shall be entertained by the High Court except with the leave of the High Court. As per Sub-Section (4), in a case instituted upon complaint, the complainant may also present an appeal to the High Court subject to leave being granted. Sub-Section (5) provides that no petition for leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of 6 months where the complainant is a public servant and in other cases 60 days computed from the date of order of acquittal. 25. Section 389 Cr.P.C. provides for suspension of sentence pending appeal and release of appellant on bail. As per Sub-Section (1), the appellate court may order for suspension of sentence and release of the appellant on bail, if the appellant is in confinement, during pendency of the appeal by the convicted person against his conviction and sentence. Under Sub-Section (3), where the convicted person satisfies the court by which he is convicted that he intends to present an appeal, the court shall - where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years or where the offence for which the person has been convicted is a bailable one and he is on bail, order that the convicted person be released on bail unless there are special reasons for refusing bail, to enable such person to prefer an appeal. In such a situation, sentence of imprisonment as long as the accused is on bail, shall be deemed to be suspended. 26. Coming to Section 437 Cr.P.C., it deals with situations when bail may be taken in case of non-bailable offence. Sub-Section (7) is relevant. Section 437(7) Cr.P.C. says that if at any time after conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, Court is of the opinion that there are reasonable grounds for believing the accused to be not guilty of any such offence, it shall release the accused if he is in custody on the execution by him of a bond 'without sureties' for his appearance to hear the judgment delivered. 27. Law Commission of India in its 268th Report submitted to the Central Government on 23.05.2017 again examined the provisions relating to bail pending appeal. Provisions of Section 437 A Cr.P.C. was deliberated upon. Commission observed that this provision has posed a problem because the person accused of an offence is not entitled to release even after acquittal by the trial court unless and until he furnishes a bail bond with sureties. Commission noted that Supreme Court has time and again stated that once a person is acquitted of an offence, the presumption of innocence is strengthened and makes a strong case to be released from confinement but under Section 437A Cr.P.C., even a person found innocent should not be released if he is unable to furnish sureties. Referring to the 154th Report, Law Commission explained that the only reason for recommending insertion of Section 437A Cr.P.C. was because it had become difficult to serve notice of appeal in an appeal against acquittal upon the acquitted accused and such appeal remained pending after admission because of non-service of notice on the accused since acquitted. However, this time Law Commission observed that Section 437A Cr.P.C. was inserted without taking note of the Full Bench judgment of the Gujarat High Court in Om Prakash Tek Chand Batra Vs. State, 1998(3) GLR 2031 , whereby it was held that directions issued by the Division Bench in Harish Laxman Solanki (supra) could not have been issued further observing that it would be a travesty of justice to insist on release of the person who has been found to be not guilty and acquitted, on his furnishing a bail bond. State, 1998(3) GLR 2031 , whereby it was held that directions issued by the Division Bench in Harish Laxman Solanki (supra) could not have been issued further observing that it would be a travesty of justice to insist on release of the person who has been found to be not guilty and acquitted, on his furnishing a bail bond. Accordingly, the decision in Harish Laxman Solanki (supra) was overruled by the Full Bench of the Gujarat High Court in Om Prakash Tek Chand Batra (supra) by holding that no such conditions could be imposed by the trial court requiring acquitted accused to furnish bail bonds for their release. 28. In the light of the above, Law Commission suggested substitution of Section 437A Cr.P.C. in the following manner:- "437A. Personal bond to require accused person to appear before next appellate Court. (1) Where the person accused of an offence is acquitted by the trial Court or the appellate Court as the case may be, the person so acquitted shall execute a personal bond for appearance before the higher Court, if so required, which shall remain in force for a period of one hundred and eighty days from the date of the judgment. (2) If such person fails to appear, the personal bond stand forfeited and the procedure under section 446 shall apply." 29. Thus, as per the latest Law Commission recommendation, the acquitted person is required to execute a personal bond for appearance before the higher court, if required, which shall remain in force for 180 days from the date of the judgment. 30. In the light of the above discussion, it is evident that Section 437A Cr.P.C. would be applicable only in case of an acquittal. Therefore, learned Court below in the two appeals before us was not justified in invoking this provision to grant bail to the appellants who were convicted under Section 302 IPC. However, while hearing the matter, we had clarified in our order dated 06.02.2018 that the bail orders granted in both the appeals would continue till disposal of the appeals. 31. Therefore, learned Court below in the two appeals before us was not justified in invoking this provision to grant bail to the appellants who were convicted under Section 302 IPC. However, while hearing the matter, we had clarified in our order dated 06.02.2018 that the bail orders granted in both the appeals would continue till disposal of the appeals. 31. That being the position, having regard to the latest recommendation of the Law Commission coupled with the observations of the Full Bench of the Gujarat High Court in Om Prakash Tek Chand Batra (supra) as well as on a cumulative and conjoint reading of the relevant provisions of the Cr.P.C. as discussed above, we feel that notwithstanding use of the expression 'shall' in Section 437A Cr.P.C., there is no mandatory application of this Section making it discretionary for the trial court or for the appellate court, as the case may be, if it so chooses to invoke this provision. It would depend upon the facts and circumstances of each case. 32. Thus, answer to the question framed by us would be that Section 437A Cr.P.C. would only be applicable in a case of acquittal by the trial court or in a case of acquittal by the appellate court by setting aside the conviction. However, considering the various provisions of the Cr.P.C. as discussed above, Section 437A Cr.P.C. has got no mandatory application and its invocation by the trial court or by the appellate court is discretionary depending upon facts and circumstances of each case. But if such provision is invoked, it has to be justified by giving reasons because otherwise, it may have the effect of curtailing the liberty of the accused person who has been acquitted by the court, either by the trial court or by the appellate court, as the case may be. 33. This order may be brought to the notice of the Registrar (Judicial), Gauhati High Court and Director, Judicial Academy, Assam for circulation. 34. Having answered the question as above, both the appeals shall now be listed for hearing in due course.