Bombay High Court
Prashant Sakharam Atre vs State Of Maharashtra And Anr on 20 March, 2025
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2025:BHC-AS:14726 10 BA 655.25.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 655 OF 2025
Prashant Sakharam Atre ...Applicant
Versus
State of Maharashtra & Anr. ...Respondents
Mr. Tapan Thatte i/by Mr. Vivek N. Arote, Advocate for Applicant.
Ms. Anuja Gotad, APP for the State.
CORAM: MADHAV J. JAMDAR, J.
DATED : 20th March 2025
JUDGMENT.:
1. Heard Mr. Tapan Thatte, learned Counsel for the Applicant
and Ms. Anuja Gotad, learned APP for the State.
2. This is the second Bail Application. The first Bail Application
bearing Bail Application No.2450 of 2023 has been allowed to be
withdrawn by this Court by Order dated 17th January 2024. By the
said Order, the Applicant is granted leave to file a fresh Bail
Application, if the trial is not concluded within a period of one
year. Pursuant to the said liberty, the present Bail Application is
filed.
3. The relevant details are as under :-
Dusane
10 BA 655.25.DOC
2. Date of Registration of 21/03/2023
F.I.R.
3. Name of Police Station Dighi Police Station, Pimpri
Chinchwad, District-Pune
4. Section/s invoked in F.I.R. 354 (A), 354(B) of the I.P.C.,
1860 and u/s 11 and 12 of the
Protection of Children from
Sexual Offence Act, 2012.
5. Date of Arrest of 21/03/2023
Applicant
6. Date of filing Charge- June 2023
sheet
4. At the outset, Mr. Thatte, learned Counsel for the Applicant
submitted that the Applicant is not seeking bail on merits and he is
only seeking benefit under Section 479 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 ("BNSS"). It is his submission that the
Applicant is first time offender and therefore as per first proviso to
Section 479, the Applicant is required to be released on bond by
the Court as the Applicant has undergone detention for a period up
to one-third of the maximum period of imprisonment under the
law. He submitted that the Applicant has completed detention for 2
years. The maximum punishment under Section 354A of IPC is one
year. He submitted that although the maximum punishment under
Section 354-B is 7 years and although charge-sheet is filed under
said Section the said offence is not disclosed in the entire charge-
Dusane
10 BA 655.25.DOC
sheet. He submitted that as far as the offence under Section 11 and
12 of the Protection of Children from Sexual Offence Act, 2012
("POCSO Act") the maximum punishment is 3 years and therefore
the Applicant is entitled to be released on bail as he has undergone
2 years of imprisonment.
5. It is the submission of Mr. Thatte, learned Counsel for the
Applicant that the Applicant is the first time offender and has
completed one-third of the maximum punishment for the offence
which is disclosed from the chargesheet. He submitted that the
second proviso of Section 479 of BNSS giving power to the Court
to reject the bail application even if the undertrial has completed
one-half of the imprisonment will not apply to the first proviso and
the same will only apply to the Sub-Section 1 of Section 479 of
BNSS in view of the clear language of second proviso clearly
indicating that the same applies to Sub-Section (1) of Section 479
of BNS. He therefore submitted that as the Applicant has
completed 2 years of imprisonment, the Applicant is entitled to be
released on bail.
Dusane
10 BA 655.25.DOC
6. On the other hand, Ms. Gotad, learned APP submitted that
the offence in question is very serious and heinous as the victim is
8 years and inter alia the offence is under the POCSO Act and
therefore the Applicant is not entitled to be released on bail.
7. Before considering rival contentions, it is necessary to set
out the prosecution case.
i. It is the case of the prosecution that the victim at the
relevant time was studying in 2 nd standard. The victim
commutes to School by School bus. On 20 th March 2023, the
victim, aged about 8 years went to the School by School bus
and returned at around 2.00 p.m.. When the mother of the
victim picked-up the victim from the bus, the victim was
crying while getting down from the bus and informed that
the present Applicant i.e. the driver of the said school bus
had stopped the bus, took the victim aside and sexually
assaulted the victim.
ii. The victim in her statement recorded by the police on 21 st
March 2023 has inter alia stated as follows:-
Dusane
10 BA 655.25.DOC
"7½ rq 'kkGsr d'kh tkrsl\
&eh 'kkGsP;k Ldqy cl us tkrs
8½ rqeP;k Ldqy cl e/ks dks.k dks.k vlrs\
&eqys eqyh vkf.k Mªk;Ogj dkdk vlrkr
9½ rqeP;k cl e/ks dks.kh eWMe fdaok Ldqy P;k eko'kh vlrkr dk\
&ukgh QDr Mªk;Ogj dkdk vlrkr
10½ rq>h 'kkGk fdrh oktrk Hkjrs\
&ldkGh 8 oktrk
11½ 'kkGk fdrh oktrk lqVrs\
&2 oktrk
12½ vkt cl e/kqu ?kjh ;srkuk dk; >kys\
&vkt 'kkGk lqVY;k uarj eh Ldqy P;k cl e/ks clys Mªk;Ogj
dkdk ;kauh ,dk fBdk.kh cl Fkkacoyh o eyk gkrkyk /k#u cl e/kqu
[kkyh mrjoys o R;kaps lkscr pkyr pkyr ,dk cktwyk [kMMîkkr ?ksowu
xsys rsFks R;kauh ek>s vksBkauk vkf.k xkykyk iI;k ?ksÅ ykxys eh R;kauk
udks Eg.kqu jMk;yk ykxys gksrs Ik.k rs rjh ?ksr gksrs-
13½ R;k uarj dk; >kyss\
&RksFks ,d xkMh okys dkdk vkys rs vkjMys dk; djrks js NksV;k
eqyhyk rsOgk Mªk;Ogj dkdk ?kkcjys vkf.k ek÷;k gkrkyk /k#u iGr
iGr cl e/;s ?ksowus xsys o yxsp rsFkqu cl dk<yh\
14½ ex dk >kys\
&eh jMr gksrs ek>k LVkWi vkyk eh cl e/kqu mrjys o ek>s eEehyk
Mªk;Ogj dkdk uh eyk ykac [kMîkkr ?ksowu tkoqu iI;k ?ksrY;k ps
lkafxrys"
Thus, it is clear that the offence is very serious. The child aged 8
years has been subjected to sexually assault by the Applicant.
8. Although Mr. Thatte, learned Counsel at the outset
submitted that the Applicant is not seeking bail on merits and
submitted that the Applicant is only seeking benefit under Section
Dusane
10 BA 655.25.DOC
479 of the BNSS, even for considering the said aspect also the
merits are required to be taken into consideration.
9. As per the settled legal position the following parameters are
inter alia required to be taken into consideration while considering
prayer for grant of bail :
a) Nature and gravity of circumstances in which offence was
committed;
b) Position and status of accused with reference to the victim
and the witnesses;
c) Likelihood of accused fleeing from justice;
d) Likelihood of accused tampering with witnesses;
e) History of the case as well as of its investigation.
It is also a settled legal position that the Court is not required
to enter into a detailed analysis of the evidence at the stage of
consideration of Bail Application.
10. The Hon'ble Supreme Court in the decision of Ram Govind
Upadhyay vs. Sudarshan Singh1 has held as follows :
1 (2002) 3 SCC 598
Dusane
10 BA 655.25.DOC
"4. Apart from the above, certain other which may be
attributed to be relevant considerations may also be
noticed at this juncture, though however, the same are
only illustrative and not exhaustive, neither there can
be any. The considerations being:
(a) While granting bail the court has to keep in mind
not only the nature of the accusations, but the severity
of the punishment, if the accusation entails a
conviction and the nature of evidence in support of the
accusations.
(b) Reasonable apprehensions of the witnesses being
tampered with or the apprehension of there being a
threat for the complainant should also weigh with the
court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence
establishing the guilt of the accused beyond reasonable
doubt but there ought always to be a prima facie
satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be
considered and it is only the element of genuineness
that shall have to be considered in the matter of grant
of bail, and in the event of there being some doubt as
to the genuineness of the prosecution, in the normal
course of events, the accused is entitled to an order of
bail."
(Emphasis addded)
11. If the above parameters are applied to the present case, the
material on record clearly shows the involvement of the Applicant
in a very serious and heinous crime where the girl child of 8 years
Dusane
10 BA 655.25.DOC
has been subjected to sexual assault. This is the case where the
Applicant who was driving the School bus at the relevant time
stopped the bus, took the victim aside and sexually assaulted the
victim. The victim has narrated about the incident. Statement of
other students who were also travelling by the said bus when the
incident took place supports the prosecution case.
12. In the incident in question a 8 year girl has been subjected to
sexual assault. The Applicant was the bus driver of the School bus.
Thus, in fact it was the Applicant's duty to reach the students from
School to their residence safely. The conduct of the Applicant of
stopping the School bus, taking the victim to the nearby place and
sexually assaulting the victim clearly shows prima facie
involvement of the Applicant in a very serious, grave and henious
offence. In fact, when the Applicant was sexually assaulting the
victim one person had seen the incident and as he prevented the
same there was no further sexual assault on the victim. Thus, on
the touchstone of the parameters of granting bail namely, nature
and gravity of circumstances in which offence was committed and
position and status of accused with reference to the victim and the
witnesses, no case is made out for grant of bail on merits.
Dusane
10 BA 655.25.DOC
13. The charge-sheet filed in this case is under Section 354-A,
354-B of Indian Penal Code, 1860 ("IPC") and Section 11 and 12 of
the POCSO Act. The said sections read as under :
Indian Penal Code, 1860 :
"354-A. Sexual harassment and punishment for
sexual harassment.--(1) A man committing any of
the following acts--
(i) physical contact and advances involving
unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a
woman; or
(iv) making sexually coloured remarks, shall be guilty
of the offence of sexual harassment.
(2) Any man who commits the offence specified in
clause (i) or clause (ii) or clause (iii) of sub-section
(1) shall be punished with rigorous imprisonment for
a term which may extend to three years, or with fine,
or with both.
(3) Any man who commits the offence specified in
clause (iv) of sub-section (1) shall be punished with
imprisonment of either description for a term which
may extend to one year, or with fine, or with both.]
354-B. Assault or use of criminal force to woman
with intent to disrobe.--Any man who assaults or
uses criminal force to any woman or abets such act
with the intention of disrobing or compelling her to
be naked, shall be punished with imprisonment of
either description for a term which shall not be less
Dusane
10 BA 655.25.DOC
than three years but which may extend to seven
years, and shall also be liable to fine."
The Protection Of Children From Sexual Offences Act,
2012:
"11. Sexual harassment.--A person is said to commit sexual
harassment upon a child when such person with sexual
intent,--
(i) utters any word or makes any sound, or makes
any gesture or exhibits any object or part of body
with the intention that such word or sound shall be
heard, or such gesture or object or part of body shall
be seen by the child; or
(ii) makes a child exhibit his body or any part of his
body so as it is seen by such person or any other
person; or
(iii) shows any object to a child in any form or
media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or
contacts a child either directly or through electronic,
digital or any other means; or
(v) threatens to use, in any form of media, a real or
fabricated depiction through electronic, film or
digital or any other mode, of any part of the body of
the child or the involvement of the child in a sexual
act; or
(vi) entices a child for pornographic purposes or
gives gratification therefor.
Dusane
10 BA 655.25.DOC
Explanation.--Any question which involves "sexual intent"
shall be a question of fact.
12. Punishment for sexual harassment.--Whoever, commits
sexual harassment upon a child shall be punished with
imprisonment of either description for a term which may
extend to three years and shall also be liable to fine."
(Emphasis added)
14. In view of the statement of the victim as well as other
material produced alongwith the charge-sheet, offences under
Sections 7, 8, 9(m) and 10 of the POCSO Act are also relevant and
the said Sections are also reproduced hereinbelow:
"7. Sexual assualt.- Whoever, with sexual intent
touches the vagina, penis, anus or breast of the child
or makes the child touch the vagina, penis, anus or
breast of such person or any other person, or does
any other act with sexual intent which involves
physical contact without penetration is said to
commit sexual assault.
8. Punishment for sexual assault.- Whoever, commits
sexual assault, shall be punished with imprisonment
of either description for a term which shall not be less
than three years but which may extend to five years,
and shall also be liable to fine.
9. Aggravated sexual assault.-
(m) whoever commits sexual assault on a child below
twelve years;
...
is said to commit aggravated sexual assault.
Dusane
10 BA 655.25.DOC
10. Punishment for aggravated sexual assault.--
Whoever, commits aggravated sexual assault shall be
punished with imprisonment of either description for
a term which shall not be less than five years but
which may extend to seven years, and shall also be
liable to fine."
(Emphasis added)
15. In this particular case the material produced alongwith the
charge-sheet prima facie shows that the Applicant is involved in
the offence of sexual assault on the victim. Prima facie the
Applicant with sexual intent estabished physical contact with the
victim which is an offence under Section 7 of POCSO Act. As the
victim is child of 8 years i.e. less than 12 years, the sexual assault
is aggravated sexual assault in terms of Section 9(m) of the POCSO
Act and the same is punishable under Section 10 of the said Act.
Thus, although charge-sheet is filed only under Section 354-A,
354-B of IPC and under Section 11 and 12 of the POCSO Act, the
offences under Section 7, 8, 9(m) and 10 are also disclosed from
the material produced alongwith the charge-sheet. The learned
trial Court will take note of the same at the time of framing of the
charge or before the commencement of the trial or at appropriate
Dusane
10 BA 655.25.DOC
stage. In any case the said aspect can be taken into consideration
while considering the prayer for bail as the nature and gravity of
the circumstances in which offence is committed is required to be
taken into consideration. Thus, the maximum punishment
provided is 7 years. The Applicant has completed 2 years
imprisonment. Therefore, the case of the Applicant do not fall
under Section 479 of BNSS including the first proviso of Section
479 of BNSS.
16. It is also necessary to consider the contention of Mr. Thatte,
learned Counsel for the Applicant that in the case of the first time
offender once he completes one-third of the maximum period of
imprisonment, then such undertrial prisoner who is a first time
offender has to be released on bond/bail in accordance with first
proviso to Section 479 (1) of BNSS and in that case the Court has
no jurisdiction to reject his bail application.
17. Main emphasis of submission of Mr. Thatte, learned Counsel,
is that, the first proviso to Sub-Section (1) of Section 479 provides
that, if the undertrial is first time offender then he shall be released
on bond if he has undergone detention for the period extending up
Dusane
10 BA 655.25.DOC
to one-third of the maximum period of imprisonment specified for
such offence under that law. He submits that the second proviso to
Sub-Section (1) of Section 479 giving power to the Court of the
continuing the detention of such person for a period longer than
one-half of the said period and thus in effect the same is applicable
to cases covered under Sub-Section (1) of Section 479 and cases
covered under the first proviso concerning one-third of the
detention are excluded and the second proviso will not apply in
such a case.
18. To appreciate said contention, it is necessary to set out
Section 479 of BNSS, which reads as under :
"479. Maximum period for which undertrial prisoner
can be detained.
(1) Where a person has, during the period of
investigation, inquiry or trial under this Sanhita of an
offence under any law (not being an offence for which
the punishment of death or life imprisonment has been
specified as one of the punishments under that law)
undergone detention for a period extending up to one-
half of the maximum period of imprisonment specified
for that offence under that law, he shall be released by
the Court on bail:
Dusane
10 BA 655.25.DOC
Provided that where such person is a first-time offender
(who has never been convicted of any offence in the
past) he shall be released on bond by the Court, if he
has undergone detention for the period extending up to
one-third of the maximum period of imprisonment
specified for such offence under that law:
Provided further that the Court may, after hearing the
Public Prosecutor and for reasons to be recorded by it in
writing, order the continued detention of such person
for a period longer than one-half of the said period or
release him on bail bond instead of his bond:
Provided also that no such person shall in any case be
detained during the period of investigation, inquiry or
trial for more than the maximum period of
imprisonment provided for the said offence under that
law.
Explanation.-- In computing the period of detention
under this section for granting bail, the period of
detention passed due to delay in proceeding caused by
the accused shall be excluded.
(2) Notwithstanding anything in sub-section (1), and
subject to the third proviso thereof, where an
investigation, inquiry or trial in more than one offence
or in multiple cases are pending against a person, he
shall not be released on bail by the Court.
(3) The Superintendent of jail, where the accused
person is detained, on completion of one-half or one-
third of the period mentioned in sub-section (1), as the
case may be, shall forthwith make an application in
Dusane
10 BA 655.25.DOC
writing to the Court to proceed under sub-section (1)
for the release of such person on bail."
(Emphasis added)
19. The corresponding section of the Code of Criminal
Procedure, 1973 ("CrPC") i.e. section 436-A reads as under :
"[436-A. Maximum period for which an undertrial
prisoner can be detained.--Where a person has, during
the period of investigation, inquiry or trial under this
Code of an offence under any law (not being an offence
for which the punishment of death has been specified as
one of the punishments under that law) undergone
detention for a period extending up to one-half of the
maximum period of imprisonment specified for that
offence under that law, he shall be released by the Court
on his personal bond with or without sureties:
Provided that the Court may, after hearing the
Public Prosecutor and for reasons to be recorded by it in
writing, order the continued detention of such person
for a period longer than one-half of the said period or
release him on bail instead of the personal bond with or
without sureties:
Provided further that no such person shall in any
case be detained during the period of investigation,
inquiry or trial for more than the maximum period of
imprisonment provided for the said offence under that
law.
Explanation.--In computing the period of
detention under this section for granting bail, the period
of detention passed due to delay in proceeding caused
by the accused shall be excluded.]"
(Emphasis added)
Dusane
10 BA 655.25.DOC
20. Perusal of both the Sections i.e. Section 436-A of CrPC
and Section 479 of BNSS clearly shows that the main change
is that following proviso is added between Sub-Section (1)
and first proviso to Sub-Section (1) of Section 436-A
"Provided that where such person is a first-time offender
(who has never been convicted of any offence in the
past) he shall be released on bond by the Court, if he
has undergone detention for the period extending up to
one-third of the maximum period of imprisonment
specified for such offence under that law."
21. Thus, what is provided by Section 479 of BNSS is tht if the
undertrial has completed one-half of the maximum period of
imprisonment specified for such offence under that law or in case
of first time offender if he has completed one-third of the
maximum period of imprisonment specified for such offence under
that law then such undertrial prisoner be released on bond or bail.
It is also provided that the Court may, after hearing the Public
Prosecutor and for reasons to be recorded by it in writing, order
the continued detention of such person for a period longer than
one-half of the said period.
Dusane
10 BA 655.25.DOC
22. Before understanding the scope of Section 479 of BNSS and
particularly scope of first proviso to Sub-Section (1) of Section 479
of BNSS, it is necessary to set out the statement of objects and
reasons behind enactment of Section 436-A CrPC which reads as
under :
"There had been instances, where undertrial
prisoners were detained in jail for periods beyond
the maximum period of imprisonment provided for
the alleged offence. As remedial measure Section
436-A has been inserted to provide that where an
undertrial prisoner other than the one accused of an
offence for which death has been prescribed as one
of the punishments, has been under detention for a
period extending to one-half of the maximum period
of imprisonment provided for the alleged offence, he
should be released on his personal bond, with or
without sureties. It has also been provided that in no
case will an undertrial prisoner be detained beyond
the maximum period of imprisonment for which he
can be convicted for the alleged offence.""
(Emphasis added)
23. The Supreme Court in the case of Hussainara Khatoon (IV)
vs. Hone Secy, State of Bihar2, held that the right to speedy trial is
a fundamental right of an undertrial prisoner and is a part of right
to life guaranteed under Article 21 of the Constitution of India. In
2 (1980) 1 SCC 98
Dusane
10 BA 655.25.DOC
fact Section 436A of CrPC as well as Section 479 of BNSS have
been enacted to ensure protection of said fundamental right of the
undertrial prisoner. Therefore, it has been provided that if the
undertrial prisoner has completed one-half of the maximum period
of imprisonment or in case of first time offender, if he has
completed one-third of the maximum period of imprisonment
specified for such offence, then he shall be released on bail.
24. In the case of Vijay Madanlal Chaudhary vs. Union of India 3,
the Supreme Court in the context of the offence under the
provisions of the Prevention of Money Laundering Act, 2002
("PMLA") has discussed the scope of Section 436-A of CrPC in
Paragraph Nos.322 of 326 as follows :-
"322. Be that as it may, in our opinion, this provision
is comparable with the statutory bail provision or, so
to say, the default bail, to be granted in terms of
Section 167 of the 1973 Code consequent to failure
of the investigating agency to file the charge-sheet
within the statutory period and, in the context of the
2002 Act, complaint within the specified period after
arrest of the person concerned. In the case of Section
167 of the 1973 Code, an indefeasible right is
triggered in favour of the accused the moment the
investigating agency commits default in filing the
3 (2022) SCC OnLine SC 929
Dusane
10 BA 655.25.DOC
charge-sheet/complaint within the statutory period.
The provision in the form of Section 436-A of the
1973 Code, as has now come into being is in
recognition of the constitutional right of the accused
regarding speedy trial under Article 21 of the
Constitution. For, it is a sanguine hope of every
accused, who is in custody in particular, that he/she
should be tried expeditiously -- so as to uphold the
tenets of speedy justice. If the trial cannot proceed
even after the accused has undergone one-half of the
maximum period of imprisonment provided by law,
there is no reason to deny him this lesser relief of
considering his prayer for release on bail or bond, as
the case may be, with appropriate conditions,
including to secure his/her presence during the trial.
323. The learned Solicitor General was at pains to
persuade us that this view would impact the
objectives of the 2002 Act and is in the nature of
superimposition of Section 436-A of the 1973 Code
over Section 45 of the 2002 Act. He has also
expressed concern that the same logic may be
invoked in respect of other serious offences, including
terrorist offences which would be counterproductive.
So be it. We are not impressed by this submission.
For, it is the constitutional obligation of the State to
ensure that trials are concluded expeditiously and at
least within a reasonable time where strict bail
provisions apply. If a person is detained for a period
extending up to one-half of the maximum period of
imprisonment specified by law and is still facing trial,
it is nothing short of failure of the State in upholding
the constitutional rights of the citizens, including
person accused of an offence.
Dusane
10 BA 655.25.DOC
324. Section 436-A of the 1973 Code, is a wholesome
beneficial provision, which is for effectuating the
right of speedy trial guaranteed by Article 21 of the
Constitution and which merely specifies the outer
limits within which the trial is expected to be
concluded, failing which, the accused ought not to be
detained further. Indeed, Section 436-A of the 1973
Code also contemplates that the relief under this
provision cannot be granted mechanically. It is still
within the discretion of the court, unlike the default
bail under Section 167 of the 1973 Code. Under
Section 436-A of the 1973 Code, however, the court
is required to consider the relief on case-to-case basis.
As the proviso therein itself recognises that, in a
given case, the detention can be continued by the
court even longer than one-half of the period, for
which, reasons are to be recorded by it in writing and
also by imposing such terms and conditions so as to
ensure that after release, the accused makes
himself/herself available for expeditious completion
of the trial.
325. However, that does not mean that the principle
enunciated by this Court in Supreme Court Legal Aid
Committee Representing Undertrial Prisoners
[Supreme Court Legal Aid Committee Representing
Undertrial Prisoners v. Union of India, (1994) 6 SCC
731 : 1995 SCC (Cri) 39] , to ameliorate the agony
and pain of persons kept in jail for unreasonably long
time, even without trial, can be whittled down on
such specious plea of the State. If
Parliament/legislature provides for stringent
provision of no bail, unless the stringent conditions
are fulfilled, it is the bounden duty of the State to
ensure that such trials get precedence and are
Dusane
10 BA 655.25.DOC
concluded within a reasonable time, at least before
the accused undergoes detention for a period
extending up to one-half of the maximum period of
imprisonment specified for the offence concerned by
law. [Be it noted, this provision (Section 436-A of the
1973 Code) is not available to the accused who is
facing trial for the offences punishable with death
sentence.]
326. In our opinion, therefore, Section 436-A needs
to be construed as a statutory bail provision and akin
to Section 167 of the 1973 Code. Notably, the learned
Solicitor General has fairly accepted during the
arguments and also restated in the written notes that
the mandate of Section 167 of the 1973 Code would
apply with full force even to cases falling under
Section 3 of the 2002 Act, regarding money
laundering offences. On the same logic, we must hold
that Section 436-A of the 1973 Code could be
invoked by the accused arrested for the offence
punishable under the 2002 Act, being a statutory
bail."
(Emphasis added)
25. Second proviso of Sub-Section (1) of Section 479 of BNSS
clearly provides that the Court may after hearing the learned APP
and for the reasons recorded in writing, order the continued
detention for a period longer than one-half of the said period.
Thus, inspite of completion of one-half of the maximum period of
Dusane
10 BA 655.25.DOC
imprisonment the Court has got power to order the continued
detention of such person.
26. The submission of Mr. Thatte, is that the second proviso by
which power is given to the Court to order the continued detention
of the undertrial prisoner inspite of completion of sentence as
provided under Section 479(1) will not apply to first time
offenders as the second proviso specifically mentions about one-
half of the punishment. It is his submission that the said proviso
will not apply in case the person is the first time offender.
27. The Supreme Court in the case of Tribhovandas Haribhai
Tamboli vs. Gujarat Revenue Tribunal4 has held in paragraph 6 as
follows:
"6. It is a cardinal rule of interpretation that a proviso
to a particular provision of a statute only embraces the
field, which is covered by the main provision. It carves
out an exception to the main provision to which it has
been enacted by the proviso and to no other. The proper
function of a proviso is to except and deal with a case
which would otherwise fall within the general language
of the main enactment, and its effect is to confine to that
case. Where the language of the main enactment is
explicit and unambiguous, the proviso can have no
4 1991 3 SCC 442
Dusane
10 BA 655.25.DOC
repercussion on the interpretation of the main
enactment, so as to exclude from it, by implication what
clearly falls within its express terms. The scope of the
proviso, therefore, is to carve out an exception to the
main enactment and it excludes something which
otherwise would have been within the rule. It has to
operate in the same field and if the language of the main
enactment is clear, the proviso cannot be torn apart from
the main enactment nor can it be used to nullify by
implication what the enactment clearly says nor set at
naught the real object of the main enactment, unless the
words of the proviso are such that it is its necessary
effect."
Thus, it is clear that a cardinal rule of interpretation is that a
proviso to a particular provision of a statute only embraces the
field, which is covered by the main provision. It carves out an
exception to the main provision to which it has been enacted by
the proviso and to no other. The proper function of a proviso is to
except and deal with a case which would otherwise fall within the
general language of the main enactment, and its effect is to confine
to that case.
28. The Supreme Court in the case of S. Sundaram Pillai vs. V. R.
Pattabiraman5 after discussing law regarding general principles of
5 1985 1 SCC 591
Dusane
10 BA 655.25.DOC
construction of a proviso and main purport and parameters held in
paragraph no.43 as under :
"43. We need not multiply authorities after authorities on
this point because the legal position seems to be clearly
and manifestly well established. To sum up, a proviso
may serve four different purposes:
(1) qualifying or excepting certain provisions from the
main enactment:
(2) it may entirely change the very concept of the
intendment of the enactment by insisting on certain
mandatory conditions to be fulfilled in order to make the
enactment workable:
(3) it may be so embedded in the Act itself as to become
an integral part of the enactment and thus acquire the
tenor and colour of the substantive enactment itself; and
7 (1985) 1 SCC 591.
(4) it may be used merely to act as an optional addenda
to the enactment with the sole object of explaining the
real intendment of the statutory provision."
(Emphasis added)
29. The Supreme Court in the case of S. Sundaram (supra) in
paragraph 22 has held as follows :
"22. Ordinarily a proviso to a section is intended to take
out a part of the main section for special treatment. It is
not expected to enlarge the scope of the main section.
Dusane
10 BA 655.25.DOC
But cases have arisen in which this Court has held that
despite the fact that a provision is called proviso, it is
really a separate provision and the so-called proviso has
substantially altered the main section."
30. Thus, ordinarily the proviso is intended to take out a part of
the main section for special treatment. Thus, reading of Sub-
Section (1) of Section 479 of BNSS clearly shows that the mainly it
provides that if the under trial prisoner has undergone one-half of
the maximum period of imprisonment, then he shall be released by
the Court on bail. An exception is carved out to said main proviso
by providing by first proviso that where such a person is the first-
time offender, who has never been convicted, of any offence, he
shall be released on bail by the Court if he has undergone
detention for a period extending upto one-third of the maximum
period of imprisonment. Thus, Section 479(1) is required to be
read with the first proviso. The language of second proviso clearly
shows that the Court has got power to direct continued detention
of such person for a period longer than one-half of the said period.
It is very clear that the said second proviso will also apply to the
first proviso as what is contemplated by the second proviso is that
inspite of the provisions of Sub-Section (1) of Section 479 or first
proviso to Sub-Section (1) the Court has power to continue
Dusane
10 BA 655.25.DOC
detention of such person. The same depends on several factors
including the gravity of offence, nature of accusations, likelihood
of accused fleeing from justice, tampering and various other
factors. It is very clear the Sub-Section (1) of Section 479 of BNSS
is to be read with the first proviso and the same provides the
period of imprisonment after completion of which the undertrial is
entitled to get benefit of Section 479 of BNSS. In fact the second
proviso is to be applicable to Sub-Section (1) of Section 479
including first proviso as the first proviso is integral part of Sub-
Section (1) of Section 479 of BNSS.
31. The contention of Mr. Thatte, that second proviso of Sub-
Section (1) of Section 479 of BNSS will not apply to the first
proviso on the ground that the said second proviso mentions about
one-half of the said period is not correct and legal submission. The
said one-half period of imprisonment is mentioned in the second
proviso as the main section i.e. Section 479(1) provides that if the
undertrial prisoner has completed one-half of the maximum period
of imprisonment, then he shall be released on bail and the first
proviso makes exception in case of first time offender and provides
that this one-half period of imprisonment can be one-third of
Dusane
10 BA 655.25.DOC
maximum period of imprisonment in case of the first time offender.
Thus, it is clear that the power of the Court to order the continued
detention of such undertrial prisoner, even if he has completed
one-half or one-third of maximum punishment of imprisonment in
case of the first offender, is applicable in both the cases.
32. The object behind said provision that the Court has got
power to order the continued detention of the under trial prisoner
even beyond completion of one-half or one-third of the
imprisonment, as the case may be, as the Court has to take into
consideration the nature and gravity of circumstances in which
offence was committed, the position and status of Accused with
reference to the victim and the witnesses, likelihood of accused
fleeing from justice, tampering with witnesses and other several
factors depending on the facts and circumstances of this case.
33. If the submissions of Mr. Thatte, learned Counsel are
accepted, then without reference to the nature and gravity of the
circumstances in which the offence was committed, the position
and status of accused with reference to the victim and witness, the
likelihood of accused tampering with the witness, likelihood of
Dusane
10 BA 655.25.DOC
accused fleeing from justice and other several factors depending on
the facts and circumstances of this case the under trial prisoner has
to be released in all circumstances. However, it is required to be
noted that the Court has to continue the detention only in the
grave circumstances.
34. It is admitted position that the charge-sheet is filed under
Section 354-A and 354-B of IPC and under Sections 11 and 12 of
the POCSO Act. As far as Section 354-A of IPC is concerned, the
maximum punishment is 3 years and maximum punishment under
Section 354-B is 7 years. As far as maximum punishment under
Sections 11 and 12 of the POCSO Act, the same is 3 years. As
noted hereinabove the material annexed to the charge-sheet prima
facie discloses commission of offence under Sections 7, 8, 9(m)
and 10 of POCSO Act where the maximum punishment is 7 years.
Thus, in any case even if the contention of Mr. Thatte, learned
Counsel for the Applicant is accepted as it is, then also the
maximum punishment is 7 years and as the Applicant has
completed 2 years of the imprisonment, it cannot be said that he
has completed one-third of the maximum punishment. However, it
is the submission of Mr. Thatte, that to the facts of this case,
Dusane
10 BA 655.25.DOC
Section 354-B will not apply. The same cannot be examined at this
stage and in any case, for the reasons recorded hereinbelow, the
same is not relevant as offence under Sections 7, 8, 9(m) and 10 of
the POCSO Act is also disclosed.
35. In the present case, as noted hereinabove, a girl child of 8
years has been subjected to sexual assault by the driver of the
School bus, whose duty as the driver of the School bus is to ensure
that the victim reaches her house safely.
36. Accordingly, although the Applicant is first time offender, for
the reasons recorded hereinabove he is not entitled to be released
on bail.
37. For the above reasons the Bail Application is dismissed.
38. As the victim is girl child of 8 years the learned Trial Court is
requested to to conclude the trial expeditiously.
(MADHAV J. JAMDAR, J.)
Dusane
