The Unfathomable Interpretation of Section 437(1)(ii) of the Code of Criminal Procedure, 1973

Introduction

The common grasp of Section 437 of the Code of Criminal Procedure, 1973¹ comes with an admittance that “bail is a rule and jail is an exception”. Notably, Section 437 in common parlance empowers the Magistrate to grant bail in case of a non-bailable offence. However, the Magistrate while granting bail must not be audacious sans perusal of the two conditions given in sub-section (1).

Conditions

Section 437(1) glaringly exposits two conditions that serve as a bar while granting bail by the Magistrate to the accused. The coherent reading of Section 437(1)(i) alludes to the grant of bail by the Magistrate in a non-bailable offence that is not punishable with death or imprisonment for life.

437. (1) …(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

However, Section 437(1)(ii) proffers a dubious interpretation in granting bail to habitual offenders. The elucidation of the first part of Section 437(1)(ii) mandates that the accused whilst applying for bail in a non-bailable and cognizable offence must not be previously convicted for an offence punishable with death or life imprisonment or imprisonment for more than 7 years.

437. (2) …(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more,….

Now, the second part of Section 437(1)(ii) exposits a prima facie interpretation that the Magistrate must not grant bail to the accused if he or she was previously convicted for two or more offences. It is, however, pertinent to mention that the second part of Section 437(1)(ii) proffers a can of worms when it comes to the interpretation of “a cognizable offence punishable with imprisonment for three years or more but not less than seven years”.

437. (2) …(ii) … or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years:

(emphasis supplied)

To put it simply, the aforesaid part provides a spot of bother sub-silentio when the accused who was previously convicted of two or more offences applies for bail by the Magistrate in terms of Section 437(1)(ii) CrPC.

Steps under Section 437(1)(ii) CrPC

The Magistrate at this juncture has to prepense certain steps in order to calculate the term of imprisonment so prescribed by the legislature in the previously convicted offences of the accused person. These steps are as follows:

Step 1: If the accused person is convicted of two or more previous offences, then the Magistrate must exclude the previous offences wherein the conviction has attained finality.

For instance: An accused person was previously convicted for five different offences named as A, B, C, D and E. Now suppose the previous conviction of offences A, B, C and D had attained finality but the previous conviction of offence E is still pending. The Magistrate herein will exclude E offence and move further to the next step.

Step 2:The Magistrate at this juncture must see whether the previously convicted offences which had attained finality are punishable with death or imprisonment for life or imprisonment for more than seven years. If the answer is affirmative, then the Magistrate must not grant bail by virtue of Section 437(1)(ii) CrPC. However, in case the answer is negative, then the Magistrate must move forward a further step.

Continuing our example, suppose the previous offences of the accused person i.e. A, B, C, and D are not punishable with death or imprisonment for life or imprisonment for more than seven years. In view thereof, the Magistrate will move further with A, B, C and D offences.

Step 3:Now in case the accused is not previously convicted of the offences punishable with death or imprisonment for life or imprisonment for more than seven years then the Magistrate must distinguish the previously convicted offences as cognizable and non-cognizable.

Continuing our example, suppose A, B and C offences are cognizable and D offence is non-cognizable then the Magistrate will exclude D.

Step 4:The Magistrate now must assure himself or herself that whether the left out previously convicted offences which are cognizable and were finally decided are punishable with more than three years or not.

Continuing our example, suppose A and B offences are punishable with more than 3 years whereas C offence is punishable with less than three years. Then the Magistrate must proceed with only the two left out previous offences i.e. A and B offences.

Step 5:In the last step, the Magistrate must see whether the combined punishment of the left out previously convicted offences is more than seven years or less than seven years. In case, the combined punishment of previously convicted offences is more than seven years then bail cannot be granted by the Magistrate within the strict connotation of Section 437(1)(ii). Contrariwise, if the combined punishment of previously convicted offences is less than seven years then bail can be granted to the accused by the Magistrate.

Continuing our example, if the combined punishment of A and B offences is more than seven years then bail under Section 437(1)(ii) cannot be granted. However, in case the combined punishment of A offence and B offence is less than seven years then bail as aforesaid can be granted.

Conclusion

On a conjoint reading of the aforesaid steps, we can exposit the following points:

1. If the accused has been previously convicted of two or more offences.

2. Each of them being a cognizable offence and punishable with imprisonment of 3 years or more with combined punishment of not less than seven years.

In that case, the Magistrate cannot grant bail to the accused within the strict connotation of Section 437(1)(ii) CrPC.

Resultantly, the Magistrate cannot grant bail wherein the two or more offences being cognizable and non-bailable are punishable with imprisonment of three years or more individually having the combined punishment of not less than seven years.

However, it must be clarified that the aforesaid conditions so given in Section 437(1) are subject to the attached provisos given therein.

In toto, the second part of Section 437(1)(ii) must be read with the conjoint reading of the aforesaid steps when the accused is previously convicted of two or more offences which are cognizable and non-bailable and are punishable with imprisonment of three years or more individually, but the combined imprisonment is not less than seven years.