Safiya Malik

The Orissa High Court has granted bail to an undertrial prisoner who had been in custody for more than seven years, citing Section 436A of the Code of Criminal Procedure, 1973, and Article 21 of the Constitution of India. The court held that the petitioner had undergone more than half of the maximum sentence prescribed for the offences charged and was entitled to release. The court observed that prolonged incarceration of an undertrial prisoner without trial infringes upon the fundamental right to life and liberty.

The petitioner, Basudev Behera, had been implicated in five criminal cases, all related to alleged fraudulent land transactions. The complaints were filed under various sections of the Indian Penal Code, 1860, including Sections 420 (cheating), 468 (forgery for the purpose of cheating), 471 (using as genuine a forged document), 506 (criminal intimidation), and 294 (obscene acts and songs). Additionally, he was charged under Section 6 of the Odisha Protection of Interests of Depositors (in Financial Establishments) Act, 2011.

The first case (CRLMC No. 2220 of 2024) was based on a complaint by Arun Rana, who alleged that he had paid ₹16,50,000 for land purchase, but the transaction was not completed. The petitioner issued two cheques amounting to ₹4,00,000, which were dishonored. The second case (CRLMC No. 2196 of 2024) was based on complaints by Jitendra Kumar Nayak and Priyaranjan Behera, who alleged that the petitioner misrepresented himself as the Managing Partner of M/s. Satyam Sai Infratech and induced them to pay ₹2,50,000 and ₹1,60,000, respectively. The third case (CRLMC No. 2197 of 2024) involved an FIR by Ajay Kumar Sahoo, who alleged that he had paid ₹10,00,000 for a land transaction that was never completed. Similar allegations were made in the fourth (CRLMC No. 2208 of 2024) and fifth (CRLMC No. 2224 of 2024) cases by other complainants.

The petitioner had previously been granted bail by the Orissa High Court in these cases, subject to furnishing cash security amounts ranging from ₹40,000 to ₹10,00,000. However, he was unable to comply with the bail conditions and remained in custody despite multiple applications for modification of the bail terms.

The court examined Section 436A of the Code of Criminal Procedure, 1973, which provides that an undertrial prisoner who has been detained for more than half of the maximum sentence prescribed for the offence must be released on personal bond, unless the court records reasons for continued detention. The court stated: "Liberty is the breath of life. Sans it, it’s like a bird with crippled wings."

The court further recorded: "The provision of Section 436A Cr.P.C. gives a statutory right to all accused to be released after completion of more than 50% of the maximum sentence prescribed for the offences they are charged with, except for offences where the punishment of death has been specified."

The court cited the Supreme Court’s judgment in Satender Kumar Antil v. Central Bureau of Investigation, which held that the provision was intended to prevent excessive detention of undertrial prisoners. The Supreme Court had observed: "Under Section 436A Cr.P.C., when a person has undergone detention for a period extending to one-half of the maximum period of imprisonment specified for that offence, he shall be released by the court on his personal bond with or without sureties."

The Orissa High Court also referred to Vijay Madanlal Choudhary v. Union of India, where the Supreme Court emphasized that Section 436A ensures that undertrial prisoners are not detained indefinitely. The judgment stated: "If the Parliament provides for stringent bail provisions, it is the duty of the State to ensure that such trials get precedence and are 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 concerned offence."

The court further recorded that the petitioner had already spent more than seven years in custody, exceeding half of the maximum sentence prescribed under the charges. It stated: "Continuing to detain the accused as an undertrial for such an extended period not only contravenes the statutory rights under Section 436A but also infringes the constitutional principles embodied in Article 21 of the Constitution of India."

The Orissa High Court set aside the trial court’s rejection of the petitioner’s bail applications. It directed the trial court to release the petitioner on bail, subject to any conditions deemed appropriate. The court recorded that the inability to fulfill bail conditions should not override an accused’s fundamental right to liberty, particularly when detention has exceeded the statutory limit under Section 436A Cr.P.C.

The court also stated that its decision was not based on the merits of the allegations but solely on the petitioner’s right to bail under statutory and constitutional provisions. It further recorded that if the petitioner misused the liberty granted, the prosecution could apply for cancellation of bail.

Case Title: Basudev Behera v. State of Odisha
Case Number: CRLMC Nos. 2220, 2196, 2197, 2208, and 2224 of 2024
Bench: Justice Sibo Sankar Mishra

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