In the case of Satender Kumar Antil v. CBI, the Supreme Court took cognizance of the fact that jails are being flooded with an overwhelming majority of undertrial prisoners, and that several of these undertrial prisoners are illiterate poor who are inheriting a ‘culture of offence’. The Court further noted that this exhibited ‘the mindset, a vestige of colonial India, on the part of the investigating agency’.

The new criminal laws were introduced with an aim to modernise and adapt the legislation to Indian societal needs and to do away with the colonial mindset. Given the surge in number of the undertrial prisoners, the most pressing reform required under the new laws was with respect to bail for such prisoners.

Section 479 of the Bhartiya Nagarik Suraksha Sanhita, 2023 [BNSS] is an upgraded version of Section 436A of the Code of Criminal Procedure, 1973 [CrPC]. Section 436A mandated the release of an undertrial prisoner upon fulfilling the detention "for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law". The second proviso further clarified 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". The provision was introduced as a measure to safeguard the fundamental right to speedy trial guaranteed to an accused under Article 21 of the Constitution. The significance of the said right is paramount especially in view of a judiciary which is constantly struggling with an ever-increasing backlog of cases.

A perusal of Section 479 reveals a similar object and aim for its introduction. However, the said provision is offset with several ambiguities and restrictions.

Constricting the relief of bail

Sub-section (1) of Section 479 creates three categories of detainees: (a) where the undertrial has undergone detention for a period extending up to one-half of the maximum period of imprisonment for that offence; (b) where the undertrial is a first-time offender with no prior conviction, and has undergone detention for the period extending up to one-third of the maximum period of imprisonment for such offence; (c) where the undertrial has undergone the maximum period of imprisonment provided for the said offence. It is evident that categories (a) and (c) have been directly borrowed from Section 436A, but category (b) is a novel introduction.

However, the non-obstante sub-section (2) states that an undertrial shall not be released on bail if an investigation, inquiry or trial in more than one offence or in multiple cases are pending against him. Notably, such a restriction was not stipulated under the former provision.

Section 436A provided bail in all the instances wherein the undertrial had undergone detention for one-half period for that particular offence under that law. Section 479(2), however, takes into consideration the criminal antecedents of the undertrial prisoners under other offences and the mere fact of registration of multiple cases to deny bail.

The restriction under sub-section (2) is contrary to the guarantees under Article 21 and the bail jurisprudence. In the case of Sanjay Chandra v. CBI, the Supreme Court had held that the "object of bail is to secure the appearance of the accused person at his trial". Additionally, the Court noted that "it would be improper for any court to refuse bail as a mark of disapproval of former conduct…or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson".

Yet, sub-section (2) stands in contrast as an undertrial prisoner undergoes the entire period of imprisonment irrespective of his status of conviction in the case or regardless of the fact that the nature of offences in the multiple cases may be bailable. Evidently, the principle of presumption of innocence is rendered as a moot factor during the adjudication of bail applications.

The resultant ambiguity pertaining to the scope of ‘more than one offence or in multiple cases’ may result in supplementing another impediment for bail in cases wherein the undertrial prisoner is charged under penal code along with special laws such as Prevention of Money Laundering Act, 2002 [PMLA] or the Unlawful Activities (Prevention) Act, 1967 [UAPA].

Section 44 Explanation (i) stipulates that the investigation, enquiry or trial under the PMLA operate as a separate and independent proceeding than that of the scheduled offence. Thus, given the independent nature of proceedings initiated under the special laws, it becomes ambiguous as to whether such proceedings will be considered as multiple cases or a single case due to the inter-connected causes of action.

The need to gain clarity over the ambit of ‘multiple cases’ in view of the operation of special laws is crucial, as prosecuting agencies such as the Directorate of Enforcement [ED] and the National Investigation Agency [NIA] are known to continue their probes by filing various supplementary chargesheets, resulting in prolonging of the trial proceedings. Even by the latest statistics provided by the ED, out of the 513 persons arrested, only 45 have been convicted in a trial under PMLA. Unfortunately, the remaining 92% of the undertrial prisoners may also be doomed to suffer the entire period of imprisonment under Section 479(2).

Notably, the past criminal antecedents of an undertrial prisoner have always been a relevant factor for adjudication of bail applications. Section 479(2) does away with the requirement for judicial application of mind to the past antecedents and rather provides a straitjacket answer of denial of bail. Thus, a nuanced interpretation of the said provision is necessary to avoid outright denial of personal liberty for undertrial prisoners.

Necessity of purposive interpretation

The need for a purposive interpretation arises especially as Section 480 of BNSS empowers the court to exercise its judicial discretion for grant of bail in non-bailable offences, with a special consideration to cases concerning a child/woman/sick/infirm individual, a factor which is markedly absent under Section 479(2).

It is well-established that a non-obstante clause is a legislative device used to modify or override the ambit of the provision in certain circumstances. [TR Thandur v. Union of India] The language of Section 479(2) specifically refers to sub-section (1), thereby providing the imposition of the restriction only with respect to the benefit envisaged under sub-section (1).

This results in an incongruity whereby an undertrial prisoner under Section 480 may be granted bail in non-bailable offences, irrespective of the pendency of multiple offences/cases, whereas the same relief is absolutely denied under Section 479(2). It leads to an unfortunate situation where the beneficial provision restricts the fundamental right of personal liberty and speedy trial while another general provision may provide the relief. This absurdity is required to be resolved by a purposive interpretation whereby the word ‘shall’ under Section 479(2) may be treated as ‘may’ to restore the judicial discretion to instances wherein an undertrial prisoner may possess criminal antecedents, but sufficient reasonable grounds may exist to inure the benefit of bail in his favour.

The applicability of new provisions has always been a subject of ambiguity. During the introduction of the CrPC in 1973, the Supreme Court had interpreted the applicability of new provisions in a catena of cases. In the case of Boucher Pierre Andre v. Superintendent, Central Jail, the appellant was granted the benefit of set-off for remainder of the imprisonment period under the new Code due to absence of a clear intention in the statute stating that the conviction and sentence must be after the enactment of the new Code. Interestingly, the Court held that the provision under the new Code is not retrospective, as it does not seek to set at naught the conviction already recorded, but reduces the sentence remaining to be undergone.

Hence, to ward off any uncertainty, the Central government clarified before the Supreme Court that Section 479 shall be applied retrospectively.

Conclusion

It is essential to consider that the purpose of bail is merely to secure the presence of an undertrial without making him suffer the entire period of imprisonment merely due to registration of multiple cases. The practice of filing multiple cases is not an anomaly but a routine procedure utilised by prosecuting agencies to ensure protracted custody of the individual if bail is granted in either case. Unfortunately, the ‘culture of offence’, which was termed as a vestige of colonial India by the Supreme Court remains preserved; rather it is accentuated through Section 479(2) of BNSS. Hence, there is a pertinent need for interpreting the scope of Section 479(2) to avoid denial of the fundamental right to personal liberty and speedy trial for undertrial prisoners languishing in jails.

Malak Bhatt and Neeha Nagpal are the Founding Partners of NM Law Chambers. Samridhi is an Associate at the Firm.