Section 437-A Cr.P.C :-

"Section 437A- Bail to require accused to appear before next appellate Court. - (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."

Note- This section was inserted by Code of Criminal Procedure (Amendment) Act, 2008 (Act No. 5 of 2009).

A textual reading of the aforesaid provision will show that the courts have to ask for the bonds before the conclusion of the matter. However, we have to understand the intention of the Legislature behind the enactment of the provision. An instance of bad drafting cannot give raise to an interpretation which can in some situation become absurd. It is to be noted that the provision was inserted on the recommendation of the Law Commission. The report makes it clear that the only reason for the recommendation had been that it becomes difficult to serve the notice of appeal in
case the appellate court wants to examine the judgment of acquittal and the appeal remains pending after admission, as the presence of the person so acquitted is not secured inspite the issuance of non bailable warrant. Even the basis of the Report was a judgment of division bench of Hon’ble Gujarat High Court and the same was also simply concerned with acquittal cases. It is clear that the
intention behind the enactment of the Section-437A was to take care of accused of acquittal cases.

Law Commission of India recommended the insertion of Section 437-A CrPC in Chapter VII of its 154th report. The division bench order dated 13.01.1994 of the Gujarat High Court in criminal appeal no. 51 of 1991 titled as State of Gujarat vs. Harish Laxman Solanki (1994) 35(1) Guj LR 581 wherein it was observed as:
 “While accepting the bail and bail-bonds for securing attendance before the Officer in-charge of the Police Station or Court, as provided in Form No. 45 in Schedule-11 of the Code, all the Criminal Courts shall also take the same covering the appellate as well as revisional stage.......the same should be taken for a further period of 12 months from the date of order of acquittal”.

In pursuance of the directions in the Solanki case, the bail was asked from those, who were acquitted. This was challenged and the question regarding validity of the aforesaid directions was
referred to the full bench of the Gujrat High Court. The Full bench in Omprakash Tekchand Batra vs State of Gujarat 1998 (3) GLR 2031 overruled the directions issued in the Solanki case.

Recently, the Law Commission of India in its Report No.-268 itself has recommended some amendment in Section-437A to the effect that it shall govern the acquittal only and Courts shall obtain only personal bond from the accused under the said section.
Apart from the above, some additional reason may also be provided. A trial will result either in conviction or in acquittal. If accused is convicted, he will have to be dealt with under Section- 389(3) CrPC which talks about bail by trial court in case of conviction. If the case does not fall under the Section-389(3) CrPC, the accused then has to go to jail. There can therefore be no question of taking any bond from the accused except in accordance with Section-389(3) CrPC. It would also be interesting to note that Section-437A does not talk about the bail. It only requires the accused to execute bail bonds with surety. It neither entitles nor deprives the accused in respect of bail. Similarly, if an appellate court is dealing with an appeal against conviction/acquittal and
upholds the conviction or reverse the acquittal, the accused has to go to jail unless Section-389(3) applies to his case and therefore, again there is no scope for the applicability of Section-437A.
It is clear that neither before the trial court nor before the appellate court there is any applicability of Section-437A CrPC in cases where the accused is convicted. As such, the only time when the court is required to ask the accused to execute bonds is the time when the court acquits the accused.

A single judge bench of Hon’ble High Court of Delhi in Praveen Agarwal vs CBI dated19.09.2014 has observed as “Section 437A Cr.P.C. nowhere speaks of releasing the accused on bail. The object of Section 437A Cr.P.C. is to secure the attendance of an accused in cases where appeal are likely to be filed against the verdict of acquittal”.

A division bench of Hon’ble Bombay High Court in Farooq Abdul Gani Surve vs the State Of Maharashtra dated 17.10.2011 has observed as “From the language of Section 437-A, it is apparent that the said provision is applicable only in cases where the Trial Court acquits the accused and it would not be applicable on conviction of the accused. All the Sessions Court are, therefore, directed not to release the convicted accused on bail under this provision”.

In view of the aforesaid analysis, it can safely be said that Section-437A CrPC is applicable only to the cases of acquittal and the bonds therefore have to be taken after pronouncing the accused not guilty. Further, there is nothing to prohibit the court from accepting personal bond from the accused in deserving cases where the accused is unable to arrange surety as the Liberty in terms of Article-21 is the prime consideration and acquittal always strengthen the presumption of innocence.
Even further, a practical approach can be adopted and Form-45 can be used with variation with a view to include the terms of Section-437A and accused can be asked to execute the bonds during the trial at one time which will remain valid for 6 months from the pronouncement of judgment.



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