Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Swami Sadashiva Brahmendra Sar (Nil)     19 May 2010

Doubts about s. 437 A, Cr.P.C.

 S. 437A has been inserted in the Cr. P.C. by amendment act, 2008 (Act No 5 of 2009). It runs as under:

"437A. (1) Before conclusion of the trial and before disposal of the appeal, the Court trying the offence 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 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.''

 

The commencement clause of the amendment Act says:

“It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different provisions of this Act”

 

Doubts:

 

  1. What is the date enforcement of s. 437 A?

      2.   Whether this section is applicable in cases of convictions also ? i.e. whether a convict has got right to bail for 6 months after the judgment ?



Learning

 18 Replies

N.K.Assumi (Advocate)     19 May 2010

Dear Dr.Tripathi, I am of the view that Secrion 437 A, says before conclusion of the trial and before disposal of the appeal, the court trying the offence or the applellate court : means the trial court trying the offence or the appellate Court hearing  the appeal against conviction or acquital, as such it should also include convicted prisoners. If the Legislature intend that Section 437.A would apply only to acquital it could have inserted the expression "before the disposal of the appeal against acquital" but it simply says before disposal of the appeal and that means appeal against conviction or acquital, as such it covers the convicted prisoners; that ia how I interprete that section 437.A. Regarding the enforcement it has come into effect on 31st december  2009, as per the Ministry of Home affairs Notification, New Delhi, the 30th december 2009. S.O.3313 (E)- In exercise of power conferred by sub section (2) of section 1 of the criminal procedure code (Amendment) Act 2008 (5 of 2009) the central government hereby appoints the 31st December 2009 as the date on which the provisions of the said Act except section 5, section 6 and Clause (b) of section 21 shall come into force.[F.No.1/1/2007-Jud-Cell.Vol-VI]. S.C Srivastava Jt.Secy.

Swami Sadashiva Brahmendra Sar (Nil)     19 May 2010

Thanks Dear Assumi Sir,

I have same opinion on bear reding of the provision. But, it is very dangerous. is it being  followed by the courts anywhere ?

N.K.Assumi (Advocate)     19 May 2010

Dear Sir.Dr.Tripathi, I dont know about that, but in our State it is not. And one thing I am sure of it, and that is that, you know what you are asking, but you are posting this query for some special reasons or to test the members of LCI, and we would be very grateful about your finding to this provisions, as even me right from day one this section 437-A CrPc was agitating my mind.


(Guest)

sincere thanks to both of you.

Swami Sadashiva Brahmendra Sar (Nil)     19 May 2010

Dear Assumi Sir,

It is not a test question. Rather it is real problem, but perhaps, unnoticed by the  lawyers on criminal side. I discussed this provision with many lawyers exclusively practicing on criminal side as well as with Government Advocates (Public Prosecutors) in the High Court , but they were not even aware of this  provision.

An undertrial accused (ex army officer) had sought my advice on this provision last month. However, at that time I was out of satation   and could not post  the issue on this forum. Today, I received a phone call from another person  who wants bail under s. 437A.

I am confused, even though words of s. 437A are clear. Let us go through report of Law Commission and aims and object  behind this provision.

Swami Sadashiva Brahmendra Sar (Nil)     20 May 2010

A plea against accused -

S. 437A speaks about notice to accused by higher court. Nessecity of notice will arise only when  appeal is preferred by the prosecution. When accused is filing appeal, there will be no occasion of notice to him.Thus, s. 437A does not confer a right to bail to a convict.

(The intention of legislature assimilates two aspects; one aspect carries the concept of ‘meaning’, i.e., what the word means and another aspect conveys the concept of ‘purpose’ and ‘object’ or the ‘reason’ or ‘spirit’ pervading through the statute. The process of construction, therefore, combines both the literal and purposive approaches.)

N.K.Assumi (Advocate)     20 May 2010

Dear Sir.Dr.Tripathi, sorry i am late as i was travelling, in interpretation I always prefer the Golden Rule of interpretations, and that section 437-A, if interpreted literally it is very clear that Bail shall be granted by the Court by executing bail bond to appear before the Higher Court when notice is issued to him,that is  the intention of the Legistlatures. Now, another aspecsts of this provisions is that if the accuaed is acquited then question of bail does not arise, so it will include convicted prisoners, who has to be granted bail by executing bail bond after convictions. Here the expression " the court trying the offence or the appellate court" is very significant, and this has made bails very liberal to the accused and in the long run it may not be good as there will be no one in jail, that is if we give literal meaning to the provisions.

Swami Sadashiva Brahmendra Sar (Nil)     23 May 2010

Object and reasons - Notes on clauses reads as under:

"Clause 40 inserts a new section 437A to provide for the Court to require accused to execute bail bonds with sureties to appear before the higher Court as and when such Court issues notice in respect of an appeal against the judgment of the respective Court."

It appears that s. 437A addresses an appeal other than one filed by the accused.

SANJEEV KUMAR (STUDENT)     23 May 2010

Res Tripathi Ji

Pls find enclosed the LCI Report for your reference.

Now all members are reading CrPC Amdt Act 2008 and seeking implication of it.

I would also like views of all members on Sec 313(5) and pls see my post

Most of the members are not responding to new act due to their ignorance

sanjeev 

Swami Sadashiva Brahmendra Sar (Nil)     25 May 2010

Thank you Mr. Sanjeev.

From the report of Law Commission  it is clear that an accused can not take benefit of s. 437A. Rather it is applicable in appeal against acquital and appeal for enhancement of punishment.

f.a.khan (officer)     17 September 2010

can any one tell me ? what shall be the consequences if an accused decline to produce surities in compliance of order of the court. whether he can be taken into custody? while he is on regular bail 

f.a.khan (officer)     17 September 2010

 On declining to produce surities ,if he is not taken into custody than very purpose of enacting 437A shall be frustrated.  On the other hand if his regular bail is not cancelled ,how he can be taken in custody by the court. remember the law comission in its 154 (1)  report categorically ststed that this provision is not going to curtail the personal liberty of an accused.


(Guest)

S.437A it appears is in respect of accused who are acquitted by the trial court, for many a time if state prefers appeal against acquittal, accused is not available for service of notice of appeal.  To prempt the same bond with surety is required to be insisted upon by the trial court at the time of acquittal as per the newly introduced section. Probably the same logic may apply in case of conviction for if an accused has suffered his sentance and the state intends to appeal for enhancment of sentance the accused must be available for service of notice. Hence u/s 437A surety is also mandatory.

Therefore it seems S.437A has to be mandatorly invoked by trial courts after conclusion of trial whether be it conviction or acquittal.

However it seems trial courts have not yet taken note of this provision.  In a case where the trial court has not taken note of the provision, the accused  after suffering the sentance when he filed an appeal, the appellate court is asking the accused/appellant to make an application for bail.  Since he has undergone the sentance he is not keen on making an application and if he does not make the bail application, the appellate court is refusing to hear his appeal on the ground he has not filed bail application because he cannot be arrested for not making a bail application as he has already undergone the sentance. In such a case would it not be proper for the appellate court to direct the appellant to execute bond with surety instead of asking him to file a bail application?

vignesh Achar (advocate)     19 June 2011

Hi,

     I too am not much in favour of the Amended provision 437A. Its not a well thought one... In Karnataka all most all magistrates/judges insist on the MANDATORY clause of offering surety b4 the conclusion of Trial.. Atleast the magistrate ought to have been given a discretion... Because, if all witness turn hostile, still asking to furnish surety is absurd.

Here again, let us assume a situation, If the accused is under Judicial Custody, as he cannot afford to offer surety, and the case will end up in acquittal, CAN THE JUDGE/law STILL INSIST for furnishing surety... If he fails to do so, can he be detained infinitely????

                                  I feel the amendment calls for immediate intereference by the Higher judiciary.


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