Report No. 154
Bail-Attendance of Accused-Appellate Stage
1. The Code of Criminal Procedure, 1973 is silent on the point of securing attendance of the accused at a later stage after the acquittal in cases where appeals against acquittals have been filed or in cases where appeals for enhancement of sentence are filed. There are many instances where the appellate courts having admitted an appeal against acquittal are not in a position to secure presence of acquitted accused.
Even though non-bailable warrants are issued the police agency has been unable to serve the notices as well as the non-bailable warrants on the respondents accused in spite of lapse of long time. Some time they are returned saying that the police have no information whatsoever regarding the respondents or their whereabouts.
A large number of such appeals after admission have been pending in various appellate courts including the Supreme Court without being disposed of since the service could not be effected or where the presence of acquitted accused could not be secured in spite of issuance of non-bailable warrants. Number of such matters for want of service are piling up and have added to the pendency. The Division Bench of Gujarat High Court in Appeal No. 51/91 in its judgment dated 13-1-1994 considered these aspects and have recommended to make a special provision and amend Form 45 in Schedule 11 of the Code, suitably.
2. Form 45 pertains to bonds and bail bonds for attendance before Office-in-charge of Police Station or Court, bearing relevance to sections 436, 437, 438(iii) and 440. The perusal of the form shows that it is prescribed in two proforma whereby the accused and sureties undertake to appear in the first instance before the investigating agency and in the 2nd before the Trial Court, during the trial. It does not provide for securing the attendance of the accused at the appellate stage.
If this gap is not properly filled, the disposal, of appeals against the acquittal in these circumstances becomes difficult and even result in injustice, and the same has to be remedied.
Accordingly, we recommend insertion of a new section 437A empowering all the criminal courts (including the first appellate court) to take bail and bail bond before the conclusion of the trial or disposal of the appeal requiring the accused to bind themselves to appear before the next appellate court; in case an appeal against acquittal or an appeal for enhancement is filed in the higher court such a bond shall be in force for a period of 12 months from the date of the judgment disposing of the case either by the trial court or by the first appellate court, as the case may be. We feel the twelve months limit would be enough to cover the period of limitation for processing and filing of such appeals.
3. A question may arise whether such a provision is likely to be challenged as unconstitutional by virtue of Article 21 of the Constitution on the ground that the bail bond restricts the personal liberty of the individual. We are of the view that sections 377 and 378, Cr. P.C. provide for filing such appeals by the State, and a period of limitation is also prescribed. Therefore binding over the accused till such time will not amount to a restraint on his personal freedom. Even otherwise, it may amount to a restriction permissible under law particularly when there is no deprivation of his liberty or freedom of movement.
4. The proposed section 437A may be on the following lines:
(1) Before conclusion of the trial and before disposal of the appeal, the trial court or the appellate court; as the case may be, require the accused to execute bail bonds with sureties, which shall be in force for twelve months, undertaking 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 those respective courts;
(2) If such accused fails to appear, the bond stands forfeited and the procedure under section 446 shall be applicable.
On the same lines Form 45 has to be amended.