The Supreme Court on Monday issued notice to the Union of India on a plea challenging constitutionality of Section 437A of the Code of Criminal Procedure (CrPC).
Section 437A pertains to allowing accused individuals to be released on bail during their appeal by furnishing bail bonds with sureties.
It reads as follows:
“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./BR (2) If such accused fails to appear, the bond stand forfeited and the procedure under section 446 shall apply.”
A bench of Chief Justice of India (CJI) DY Chandrachud and Justices JB Pardiwala and Manoj Misra sought the response of the Central government on the plea and sought the assistance of Attorney General (AG) R Venkataramani in the matter.
As per the plea filed by one Ajay Verma, Sections 437A and 354(d) of the Code are contradictory because 354(d) obliges courts to set the accused at liberty.
The petition said that in the case of Nannu & Ors v State of UP, the Allahabad High Court had ruled that in situations where a bond is not furnished but the person is acquitted, a personal bond should suffice.
The plea also noted that both the Kerala High Court and the Delhi High Court have previously held that the use of the word “shall” in Section 437A should be interpreted as a directive rather than a mandatory requirement.
Further, the plea stated that the provision lacks a sense of proportionality because there may be accused persons who lack financial resources and cannot find sureties. As such, insisting on bail with sureties would only lead to their continued incarceration, the petitioner pointed out.
Moreover, the period for appealing against an acquittal (60 days) is shorter than the period prescribed for the subsistence of the bond under Section 437A (180 days), raising concerns about unjustified incarceration, the petitioner contended.
These grounds are sufficient to demonstrate that the provision not only poses a hurdle to the administration of criminal justice but also violates the fundamental right to liberty under Article 21 of the Constitution, it was submitted.