JUDGMENT

Sunil B. Shukre, J. - Heard Shri R. K. Tiwari, learned counsel for the applicant and Shri T. A. Mirza, learned A.P.P. for the respondent/State.

2. We have been called upon to answer the question referred to us in a Criminal Application filed by present applicant seeking his bail under Section 436-A of Code of Criminal Procedure (hereinafter referred to as "Code" for the sake of convenience) in a pending appeal.

3. The applicant was prosecuted along with five accused persons for offences punishable under Sections 450, 506-II, 326, 452, 366, 354-A, 354-B, 354-C, 376-B, 426, 307, 394, 201, 212 read with Sections 343 and 149 of the Indian Penal Code 1860 and Sections 67 and 67-A of the Information Technology Act, 2000 read with Sections 109 and 114 of the Indian Penal Code, 1860. The applicant, upon conclusion of his trial for these offences in Session Trial No.22 of 2015, was convicted by the judgment dated 01.08.2016, delivered by Additional Sessions Judge-4, Chandrapur. He was convicted for offences punishable under Sections 506-II, 450, 326, 452, 354-A read with Sections 34, 149, 109 and 114 of the Indian Penal Code and also under Section 66E of the Information Technology Act, 2000. Various terms of imprisonments, ranging from three years to ten years came to be awarded to him. During pendency of the appeal, the applicant filed an application under Section 389 of the Code seeking suspension of sentences imposed upon him and his release on bail. The application was rejected by the Division Bench of this Court by its order passed on 18th November, 2016. Liberty, however, was granted to the applicant to file an independent application seeking bail on medical grounds, if any. The liberty so granted to the applicant was exhausted by him later and his bail application was rejected by the Division Bench on 31st January, 2017.

4. Having failed to get any reprieve twice, the applicant has again renewed his effort to secure his release on bail during pendency of appeal, this time on a new ground he sees as available to him in Section 436-A of the Code. It is the contention of the applicant that as he is in jail since 07th November, 2014 and has completed in jail a period equivalent to one half of the maximum imprisonment imposed upon him, he is entitled to be released on bail by virtue of his right under Section 436-A of the Code. The applicant relies upon the decisions in the cases of Pradip Vs. State of Maharashtra,2019 SCCOnlineBom 9768 and Mudassir Hussain and Anr., Vs. State and Anr.,2020 SCCOnlineJ&K 381, and also a few more judgments.

5. The Division Bench, while considering the application of the applicant has found itself in disagreement with the view taken by it's co-ordinate Bench in the case of Pradip (Supra) while it distinguished the other cases, for the reasons recorded in it's detailed order, which forms the basis of this reference. The Division Bench has, however, found that this case involves a question of general importance arising frequently in criminal matters and so by framing a question, it has referred the matter for answering of the question to a Larger Bench. The question framed by the Division Bench, which we are called upon to answer, is as under :-

" Whether a convict who has challenged his conviction under Section 374 of the Code of Criminal Procedure, 1973 is entitled to the benefit of Section 436 A of the Code ?"

6. Shri R. K. Tiwari, learned counsel for the applicant submits that the provision of Section 436-A of the Code is beneficial in nature and, therefore, it deserves liberal interpretation to be made in favour of the person for whose benefit the provision has been inserted in the Code by an Act of Parliament, the Act 25 of 2005. He further submits that if the provision is liberally constructed, it would bring big relief to the convicts whose appeals filed under Section 374 of the Code are pending for final disposal for long years. He further contends that speedy trial is a fundamental right