In the landmark case of Satender Kumar Antil v. CBI, the Supreme Court of India expressed concern over the increasing number of undertrial prisoners, highlighting that many of these individuals are from marginalized, illiterate backgrounds and are unjustly entrenched in a ‘culture of offense.’. The Court remarked that this situation reflected a colonial mindset within investigative agencies. In light of such issues, new criminal laws were introduced to modernize legislation, making it more attuned to the needs of contemporary Indian society. One of the most pressing reforms in these laws was regarding bail, especially for undertrial prisoners, who comprise a significant portion of the prison population.
The recently enacted Bhartiya Nagarik Suraksha Sanhita (BNSS), 2023, includes Section 479, an updated version of Section 436A of the Code of Criminal Procedure (CrPC), 1973. Section 436A allowed undertrial prisoners to be released on bail if they had been detained for a period equivalent to one-half of the maximum sentence for the alleged offence. The provision was a safeguard, ensuring the fundamental right to a speedy trial, as enshrined under Article 21 of the Constitution. The intent was to prevent the indefinite detention of individuals awaiting trial, especially in light of India’s judicial backlog.
Section 479: Continuity with Ambiguities
While Section 479 of the BNSS shares the same goal as its predecessor, it introduces certain ambiguities and restrictions. Sub-section (1) of Section 479 categorizes undertrial prisoners into three groups: (a) those detained for up to one-half of the maximum sentence for the alleged offence, (b) first-time offenders with no prior convictions who have been detained for one-third of the maximum sentence, and (c) those who have completed the maximum sentence for the alleged offence. Categories (a) and (c) are largely carried over from Section 436A, while category (b) is a new addition.
However, sub-section (2) of Section 479 introduces a critical caveat: undertrials will not be eligible for release if they are under investigation, inquiry, or trial for multiple offences or if more than one case is pending against them. This provision did not exist in the earlier law. Under the previous Section 436A, bail was granted if the detainee had served one-half of the sentence for the specific offence they were charged with, regardless of other cases or investigations. Section 479(2), however, incorporates a new layer of complexity by factoring in the detainee’s criminal background and other pending cases, leading to a potential denial of bail.
This shift in policy raises concerns, particularly concerning the fundamental rights under Article 21 and the established principles of bail jurisprudence. In Sanjay Chandra v. CBI, the Supreme Court affirmed that the purpose of bail is to ensure the accused’s presence at trial, not to punish them preemptively. The Court further emphasized that bail should not be denied as a punitive measure for past conduct or to subject the accused to imprisonment before a conviction. Yet, Section 479(2) directly contradicts this principle by mandating prolonged detention for undertrial prisoners without considering the merits of their cases or the nature of the multiple charges they may face.
Challenges in Implementing Section 479
The interpretation of what constitutes ‘multiple cases’ or ‘more than one offence’ under Section 479 is crucial, particularly in the context of special laws such as the Prevention of Money Laundering Act (PMLA) and the Unlawful Activities (Prevention) Act (UAPA). These statutes operate as independent legal proceedings alongside the Indian Penal Code (IPC), raising the question of whether these concurrent prosecutions would qualify as separate cases under Section 479(2).
For instance, under Section 44 of the PMLA, investigations and trials are treated as separate proceedings from the underlying scheduled offence. If such cases are considered independent under Section 479, it could severely hinder the release of undertrial prisoners, especially given the tendency of prosecuting agencies, like the Enforcement Directorate (ED) and the National Investigation Agency (NIA), to file multiple supplementary chargesheets, thereby delaying trials. Recent statistics from the ED reveal that of the 513 people arrested under the PMLA, only 45 have been convicted, leaving 92% languishing as undertrial prisoners. If Section 479(2) applies to these detainees, they may remain imprisoned for the entire duration of their trials, even if they are eventually acquitted.
Additionally, while past criminal records have always been relevant in bail decisions, Section 479(2) eliminates the need for judicial discretion, automatically denying bail based on the mere existence of multiple cases. This rigid approach conflicts with the principles of justice, which require a nuanced assessment of an individual’s background and the specifics of their case before deciding on bail.
The Case for Purposive Interpretation
A purposive interpretation of Section 479 is necessary to prevent the erosion of personal liberty and the right to a speedy trial. Section 480 of the BNSS, which deals with bail in non-bailable offences, provides for judicial discretion, particularly in cases involving vulnerable individuals such as women, children, or the infirm. In contrast, Section 479(2) imposes an absolute bar on bail without offering similar judicial flexibility. This leads to an inconsistency within the legal framework, where one section may allow bail even in non-bailable offences, while another imposes a blanket denial based on the existence of multiple charges.
To resolve this, a purposive interpretation could reframe the word ‘shall’ in Section 479(2) to ‘may’, allowing courts to exercise discretion and take into account the unique circumstances of each case. This would restore balance to the bail process, ensuring that an undertrial’s past criminal record is considered, but not used as an automatic bar to their release.
The issue of how new provisions are applied retrospectively has been addressed before. In the case of Boucher Pierre Andre v. Superintendent, Central Jail, the Supreme Court allowed the benefit of a new provision even for cases convicted before the enactment of a new law, so long as it did not disturb the conviction itself. To avoid confusion, the Central Government has clarified that Section 479 will be applied retrospectively.
Conclusion
The primary purpose of bail is to ensure the presence of an accused at trial, not to subject them to prolonged imprisonment without a conviction. Unfortunately, Section 479(2) of the BNSS allows prosecuting agencies to exploit the system by filing multiple cases, thereby extending the detention of undertrial prisoners. This practice perpetuates the very colonial mindset the Supreme Court sought to eliminate. A careful and nuanced interpretation of Section 479(2) is essential to prevent the denial of fundamental rights, particularly the right to personal liberty and a speedy trial, for undertrial prisoners who have not yet been convicted.