1. Is Section 437 A of Cr.P.C. mandatory in nature?

2. This is the pertinent question that crops up for consideration in this case.

Section 437 A of Cr.P.C. reads:-

“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 stands forfeited and the procedure under section 446 shall apply.”

3. Section 437A of Cr.P.C. was introduced as per Criminal Procedure Code (Amendment) Act, 2008 (ct 5 of 2009) which was brought into force with effect from 31.12.2009. The main object of this section is to secure attendance of the accused at the appellate stage, if any appeal is filed against the verdict of acquittal or for enhancement of the sentence.

4. The learned counsel for the petitioner points out that no specific provision as to the consequence for violation of direction to execute bond in terms of section 437A has been made. IF the accused, who was granted bail by the Court earlier, does not commit breach of any of the conditions stipulated in the bond, how can he be compelled to execute another bond before the conclusion of trial to make the bail bond alive for a further period of six months? If the accused fails to execute the bond in terms of section 437 A of Cr.P.C. how can the accused be remanded? How can it be held that the accused has committed breach of the earlier conditions imposed by the Court while granting bail? If the accused fails to execute the bond in terms of Section 437 A how can the pronouncement of the judgment be postponed indefinitely? These are some of the questions put by Sri. S.U. Nasar, the learned counsel for the petitioner, which could not be properly answered by the respondents.

5. It is also pointed out that no distinction has been made with regard to the category of offences so that as it stands now, Section 437A applies to all offences including bailable offences. The argument advanced by the learned counsel is that in regard to bailable offences, the accused, as of right, is entitled to bail and if he does not commit breach of any of the conditions of the bond originally executed how can he be directed to execute a fresh bond; if he fails to execute a bond how can he be remanded for the simple reason that he failed to execute another bond. If the Court postpones the pronouncement of judgment and if the accused fails to execute the bond on the postponed date/dates also, how can the court further postpone the pronouncement of judgment. There are also pertinent questions which remain unanswered.

6. It is also worthwhile to note that under Sec. 437A the accused has to execute bail bonds with sureties. Therefore, it may be argued that the bond is to be executed with sureties. In other words, there should be two sureties to execute the bond. As already pointed out, Section 437A makes no difference between bailable and non-bailable offences. Section 436 deals with bailable offences. The proviso thereto reads:-

“Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail from such person, discharge him on his executing a bond without sureties for his Explanation to that section further says that where a person is unable to give the bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of the proviso to Sec. 436. Therefore, it can be argued that an indigent person is entitled to be released on his executing a bond without sureties. I