In the landmark case of Satender Kumar Antil v. CBI, the Supreme Court acknowledged the alarming reality of overcrowded jails in India, predominantly populated by undertrial prisoners. The Court observed that many of these undertrial prisoners belong to economically disadvantaged groups and are often illiterate, leading to their inadvertent inheritance of a ‘culture of offence.’ Moreover, the Court highlighted that this situation reflects a ‘colonial mindset’ lingering within investigative agencies.
In response to the systemic inefficiencies, the Indian legislature introduced new criminal laws aimed at modernizing outdated statutes, aligning them with contemporary societal needs, and addressing the colonial hangover. Among these legislative reforms, the most pressing and pertinent focus has been bail provisions for undertrial prisoners. Section 479 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) represents an evolved version of Section 436A of the Code of Criminal Procedure, 1973 (CrPC), yet its implementation raises several ambiguities and concerns.
Section 479 BNSS: An Overview
Section 436A of the CrPC was introduced to protect the fundamental right of an accused to a speedy trial, as guaranteed under Article 21 of the Constitution. It mandated the release of an undertrial prisoner who had undergone detention for a period extending up to one-half of the maximum sentence for the alleged offence. Further, the second proviso clarified that under no circumstances could an undertrial be detained beyond the maximum period of imprisonment prescribed for the offence.
Section 479 of the BNSS echoes a similar objective but introduces certain changes that complicate its application. Notably, the provision categorizes detainees into three groups:
Undertrials detained for a period extending up to one-half of the maximum sentence for the offence.
First-time offenders with no prior convictions, who have undergone detention for one-third of the maximum sentence.
Undertrials detained for the maximum period of imprisonment prescribed for the offence.
While categories (a) and (c) are carried over from Section 436A, category (b) is a new inclusion aimed at granting relief to first-time offenders.
Constricting the Relief of Bail
However, sub-section (2) of Section 479 imposes significant restrictions on the relief of bail. It explicitly states that an undertrial prisoner cannot be released if investigations, inquiries, or trials in multiple cases are pending against them. This non-obstante clause introduces a departure from Section 436A of the CrPC, which provided bail without considering pending cases under other offences.
This restriction under sub-section (2) effectively denies bail to undertrial prisoners who may face multiple charges, even if the offences in question are bailable. It disregards established judicial principles, such as those articulated in Sanjay Chandra v. CBI, wherein the Supreme Court held that bail should primarily aim to secure the appearance of the accused at trial. The Court also emphasized that refusing bail as a punitive measure or a moral reprimand is improper.
Sub-section (2) thus undermines the presumption of innocence, a cornerstone of criminal jurisprudence, and risks rendering the right to bail illusory for individuals entangled in multiple cases—regardless of the severity or nature of those cases.
Ambiguities in Scope and Application
Definition of ‘Multiple Cases’
One of the critical ambiguities in Section 479(2) pertains to its interpretation of ‘multiple cases.’ This becomes particularly significant when dealing with proceedings under special laws such as the Prevention of Money Laundering Act, 2002 (PMLA) or the Unlawful Activities (Prevention) Act, 1967 (UAPA). For instance, Section 44 of the PMLA stipulates that investigations or trials under the Act operate independently of the scheduled offences, raising questions about whether such proceedings constitute ‘multiple cases’ under Section 479(2).
Moreover, investigative agencies like the Directorate of Enforcement (ED) and the National Investigation Agency (NIA) often prolong proceedings by filing supplementary chargesheets, further delaying trials. Data from the ED reveal that out of 513 individuals arrested under the PMLA, only 45 have been convicted, leaving the remaining 92% as undertrials. Under Section 479(2), these individuals may be denied bail despite their prolonged detention.
Judicial Discretion in Bail Applications
Past criminal antecedents have traditionally been a factor in adjudicating bail applications, requiring careful judicial analysis. However, Section 479(2) removes this discretionary element, replacing it with a blanket denial of bail based on pending cases. This rigidity fails to account for circumstances where sufficient grounds exist to grant bail, such as when the pending cases are minor or bailable offences.
Purposive Interpretation: Bridging the Gap
The inconsistencies within Section 479 demand a purposive interpretation to uphold constitutional guarantees. For instance, Section 480 of the BNSS grants courts the discretion to grant bail in non-bailable offences, particularly for vulnerable individuals such as women, children, and the infirm. This discretion contrasts starkly with the rigid framework of Section 479(2), creating a paradox where a general provision may offer relief while a specific provision imposes an absolute bar.
In T.R. Thandur v. Union of India, the Supreme Court underscored that non-obstante clauses must be interpreted to harmonize with legislative intent. Applying this principle, the word ‘shall’ in Section 479(2) could be construed as ‘may’ to restore judicial discretion and avoid the outright denial of personal liberty.
Retrospective Applicability
The introduction of Section 479 has also raised questions about its applicability to ongoing cases. Historically, the Supreme Court has clarified such ambiguities during legislative transitions. In Boucher Pierre Andre v. Superintendent, Central Jail, the Court granted the benefit of set-off under the new CrPC provisions, reasoning that the statute’s intention was to reduce the sentence rather than invalidate prior convictions.
Similarly, the Central Government has clarified that Section 479 will apply retrospectively, ensuring that undertrial prisoners already detained under the old regime are not excluded from its purview.
Conclusion
Section 479 of the BNSS reflects an effort to streamline bail provisions and address the plight of undertrial prisoners. However, its restrictive framework—especially the bar on bail for individuals with pending cases—poses significant challenges to the principles of personal liberty and presumption of innocence. Ambiguities in the interpretation of ‘multiple cases’ and the absence of judicial discretion further compound these issues.
To ensure that the provision aligns with constitutional guarantees, a purposive interpretation is essential. By restoring judicial discretion and addressing ambiguities, Section 479 can better serve its intended purpose of safeguarding the rights of undertrial prisoners while maintaining the integrity of the judicial process.