Holding

Section 436A does not apply retrospectively, consolidation of cases is not permissible, but limited bail relief may be granted in special circumstances of prolonged detention.

Summary

Pramod Kumar Saxena, an under‑trial prisoner detained since August 1998 for alleged fraud and other offences in 48 cases across six states, filed a writ petition under Article 32 seeking release on bail, arguing that his prolonged detention violated his fundamental rights. The State argued that the offences were non‑bailable and that Saxena should remain in custody. The Court examined whether Section 436A of the CrPC, which limits detention of under‑trial prisoners, could be applied retrospectively, and whether the petitioner could be granted a direction for consolidation of all cases in a single court. It held that Section 436A, introduced in 2006, does not apply to the present facts and that consolidation of cases is contrary to the Code. However, recognizing the extraordinary circumstance of a ten‑year detention, the Court granted limited relief directing courts and arresting officers to release the petitioner on bail upon execution of a bond, subject to conditions, while preserving the right of investigating agencies to modify bail if misused. The petition was partly allowed.

Issues considered

The applicability of Section 436A of the Code of Criminal Procedure to an under‑trial prisoner detained before its commencement.
Whether a petitioner detained for more than ten years for non‑bailable offences is entitled to bail under Article 21 of the Constitution.
The permissibility of directing consolidation of multiple criminal cases across different jurisdictions into a single court.
The scope of the Supreme Court's power under Article 32 to issue directions for bail and related reliefs.

Legislation cited

Code of Criminal Procedure, 1973s. 436A
Constitution of Indias. Article 14, s. Article 19, s. Article 20, s. Article 21, s. Article 32
Indian Penal Code, 1860s. 1208, s. 406, s. 409, s. 420
Negotiable Instruments Act, 1881s. 138

Subjects

bailunder‑trial detentionSection 436AArticle 32consolidation of criminal casesnon‑bailable offencesfundamental rightscriminal proceduremultiple jurisdictions

Judgment

[2008) 13 S.C.R. 697

PRAMOD KUMAR SAXENA A.
V.
UNION OF !NOIA & ORS.
(Writ Petition (Crl.) No. 58 of 2007)
SEPTEMBER 19, 2008
B
[C.K. THAKKER AND O.K. JAIN, JJ.)

Bail - Grant of - To under-trial prisoner since more than
1O years - A/legation that he, in capacity of Managing Direc-
tor of an Investment Company, had committed systematic fraud c
and cheated several innocent investors of crores of rupees -
48 criminal cases against him in 6 different States for various
offences under the /PC and also under the NI Act - He filed
writ petition u!Art. 32 of Constitution seeking protection of his
fundamental rights and release on bail - Held: Petitioner is
D
'Y entitled to limited relief in special circumstances of the case ,
keeping in view the fact that he is in jail since more than 10
years - Direction issued that if Petitioner applies for bail, an
appropriate Court will release him on bail on his executing a
bond to the satisfaction of such Court - Prayer for relief of
consolidation of all cases and their trial in one Court, how- E
ever, not accepted - Penal Code, 1860 - ss. 406, 409 and
420 rlw s.1208 - Negotiable Instruments Act, 1881 - s.138-
Constitution of India, 1950 -Art.32.
Code of.Criminal Procedure, 1973. - s.436A - Under- F
1' trial prisoner detained since 1998 - Seeking bail on basis of
s. 436A - Held: s.436A came into force only in 2006 - Since
no retrospective effect given to s.436A; it does not apply to
facts bf the present case - Code of Criminal Procedure
(Amendment) Act, 2005.
G
According to the prosecution, the Writ Petitioner, in
capacity of Managing Director of an Investment Company,
committed systematic fraud and cheated several innocent
investors of crores of rupees. Several FIRs were lodged
697 H
698 SUPREME COURT REPORTS [2008] 13 S. C.R.

A against the Petitioner and 48 cases were instituted against
him in six different States for commission of offences pun-
ishable under ss. 406, 409 and 420 r/w s.1208, IPC and
also under s.138 of the Negotiable Instruments Act, 1881.
Since the offences allegedly committed by the Peti-
B tioner were non-bailable, police authorities arrested him
and he was taken in custody. The Petitioner is an under-
trial prisoner since more than ten years i.e. since August,
1998 and he has approached this Court for protection of
his fundamental rights under Arts. 14, 19, 20 and 21 of the
c Constitution by an appropriate direction to the Respon-
dents so that he may be able to come out of jail as also
make arrangement for his defence.
The Petitioner submitted before this Court that even
though he has been ordered to be enlarged on bail in
D
some of the cases, he is unable to come out since in other 'I'
cases, either the investigation is in progress or the Peti-
tioner has not been produced before the Magistrate for
trial; that even if the Petitioner is convicted in some of the
cases for some offences, he may have to remain in jail
E only for few years and that therefore, even if it is assumed
for sake of argument that the Petitioner will be convicted,
incarceration suffered by him by now might be more than
the sentence which could be imposed on him. It was,
therefore, submitted that an appropriate direction may be
F issued so that the Petitioner may be released on bail.
The Petitioner also invited attention to s.436A of
CrPC, which provides maximum period for which an un-
der-trial prisoner may be detained, and on that basis sub-
mitted that during pendency and final disposal of the crirni-
G
nal cases, he may be ordered to be enlarged on bail or.
his executing a personal bond.
)'
Partly allowing the Writ Petition and issuing Cf)rt~in
directions, the Court
H
PRAMOD KUMAR SAXENA v. UNION OF 699
INDIA & ORS.

HELD: 1. On the facts and in the circumstances of A
the case, the Petitioner deserves some relief from this
Court. True it is that as per the allegation of the prosecu-
tion, various offences have been committed by the peti-
tioner and those cases are pending at different places. But
+- another equally important fact also cannot be overlooked B
that he is in jail since more than ten years. Prima facie, the
submission of the Petitioner is well-founded that only if he
comes out of jail that he may be able to make arrangement
for repayment of amount and also to defend cases regis-
tered against him. It would be appropriate in the facts and c
circumstances of the case, if limited relief is granted to the
Petitioner. So far as consolidation of cases and trial of all
the cases in one Court is concerned, such relief cannot be
granted. [Paras 24, 34] [707-C-D; 712-A-B]
2. As regards s.436A, the said provision was inserted D
-Y by Amendment Act of 2005 and came in force in June,
2006. Since no retrospective effect has been given to the
said provision, s.436A does not directly apply to the facts
of the case. [Paras 31, 33] [710-E-F; 711-G]
3. On overall facts and circumstances, and keeping E
in view the fact that the Petitioner is in jail since more than
ten years, the ends of justice would be served, if the fol-
lowing directions are issued:
a) If the petitioner will apply for bail, an appropriate F
Court will release him on bail on his executing a bond to
the satisfaction of such Court;
b) If the petitioner is not arrested but is likely/required
to be arrested, the Arresting Officer shall release him on
bail on his executing a bond to the satisfaction of the Ar- G
resting Officer;
c) The above relief will be granted to the petitioner
only in those cases where he is arrested in his capacity
as Managing Director/Director of Imperial Forestry Cor- H
700 SUPREME COURT REPORTS [2008] 13 S.C.R.

A poration Ltd.;
d) Such relief will be allowed to the petitioner on his
giving an assurance/ undertaking that he will remain
present in the court concerned as and when his case is
posted for hearing or his presence is required;
B
e) It is open to the petitioner to apply to the Court
concerned for exempting him from personal appearance.
The Court will pass an appropriate order on such appli-
cation on such terms and conditions as the Court deems
c fit;
f) If the petitioner is having a passport with him, he
will surrender his passport to police authorities. The po-
lice authorities will retain the same till the final disposal of
all the cases;
D
g) It is open to the investigating agency in any case
to move a competent Court for cancellation of bail/modi-
fication of conditions, if any such investigating agency
finds that petitioner is misusing the liberty granted by this
E Court; [Para 35) [712-B-H; 713-A-B]
State of Punjab & Anr. v. Rajesh Syal, (2002) 8 SCC 158
- relied on.
VK. Sharma v. Union of India & Ors., (2000) 9 SCC 449
- held overruled in (2002) 8 sec 158
F
Narinderjit Singh Sahni & Anr. v. Union of India & Ors.,
(2002) 2 sec 210 - referred to.
Case Law Reference
(2000) 9 sec 449 held overruled Para 25
G
(2002) 8 sec 158 relied on Para 27
(2002) 2 sec 210 referred to Para 30
WRIT APPELLATE JURISDICTION : 1Nrit Petition (CRI)
H No. 58 of 2007
PRAMOD KUMAR SAXENA v. UNION OF 701
~
INDIA& ORS.

Dr. N.M. Ghatate, Pramit Saxena, Amit Yadav and Yash A
Pal Dhingra for the Appellant.
Gopal Subramanium ASG, Ratnakar Dash, Kumar
Kartikay, Ranvijay, Jatinder Kumar Bhatia, Aruneshwar Gupta,
+ Naresh K. Sharma, Navin Prakash, Sushma Suri, Ashok Bhan,
Subhash Kaushik, D.S. Mahra, Sandeep Singh and Anuvrat B
Sharma for the Respondents.
The Judgment of the Court was delivered by
C.K. THAKKER, J. 1. Rule. We have heard the learned
counsel appearing in the case. On the facts and in circumstances c
of the case, the writ petition has been taken up for final hearing.
2. The present petition is filed by the petitioner under Ar-
ticle 32 of the Constitution. The prayer clause reads thus;
"It is therefore, most respectfully prayed that this Hon'ble D
"' Court may graciously be pleased to:-
., (a) Issue appropriate writ in the nature of Mandamus or
any direction or order to release the petitioner on
bail in connection with the cases as mentioned in
Annexure P-14 forthwith on execution of personal E
bond with or without sureties; and
(b) Issue appropriate writ in the nature of mandamus or
·• any direction or order directing that if the petitioner
__, _,.
is arrested in connection with any criminal ca·se in F
capacity of Managing Director of Imperial Forestry
Corporation Ltd., the arresting officer shall release
him on bail on his executing the personal bond to the
satisfaction of arresting officer; and
~ (c) Issue appropriate writ in the nature of Mandamus or G
any direction or order directing the respondents to
'<( evolve a mechanism to ensure the presence of the
-'I petitioner in all the cases as well as speedy disposal
of all the cases pending against the petitioner within
a fixed time frame; H
702 SUPREME COURT REPORTS [2008] 13 S.C.R.

A (d) Issue appropriate order to treat the petitioner in
custody, in cases where petitioner has not been
produced, from the date of service of production
warrant on the petitioner and adjust the same for the
purpose of bail u/s. 436A of Cr.P.C.
B (e) Pass such other order or orders as this Hon'ble Court
may deem fit and proper in the facts and
circumstances of the case".

3. The case of the petitioner is that, he is an under-trial
c prisoner lodged in District Jail, Bare illy since more than ten years
i.e. since August, 1998. He has approached this Court for en-
forcement of fundamental rights guaranteed under Articles 14,
19, 20 and 21 of the Constitution of India.
4. It is the case of the petitioner that he has been impli-
D cated as an accused in as many as 48 cases in six different
States for commission of offences punishable under Sections
406, 409 and 420 read with Sectior. 1208 of the Indian Penal
Code, 1860 (IPC) and also under Section 138 of the Nego-
tiable Instruments Act, 1881.
E 5. According to the petitioner, there is a Company known
as "Imperial Forestry Corporation Ltd." (hereinafter referred to
as 'the Company'). It was incorporated on April 19, 1990. The
petitioner was the Managing Director of the said Company. In
the course of business, the Company had opened Branch Of-
F fices at several places. The petitioner asserted that he resigned
from the office as the Managing Director on October 30, 1994
and later on he also resigned as Director of the Company from
February 15, 1998.
6. It was the case of the petitioner that when he was func-
G
tioning as the Managing Director or as the Director of the Com-
pany, there was no complaint of any kind from any of the inves-
)
tors either for non-clearance of cheques issued to them or for
non-payment of dues of the depositors by the Company. Later
on, however, financial position of Investment Companies be-
H
PRAMOD KUMAR SAXENA v. UNION OF 703
INDIA & ORS. [C.K. THAKKER, J.]

came precarious throughout the country. Investors became sus- A
picious and they rushed to companies for refund of money and
for return of their deposits which resulted in Financial Compa-
nies being collapsed. The petitioner, since he was Managing
~
Director and Director in past, was also joined as one of the
accused in several cases. The petitioner has annexed along B
with the present writ petition, 48 cases which have been filed
against him in six different States.
7. According to the writ petitioner, he was arrested in Au-
gust, 1998 and till today he is in jail. The petitioner stated that in
some of the cases he has not at all been produced before the c
Magistrate. Resultantly, he could not even apply for bail. The
trials have not commenced although so many years have
passed. In some other cases, though the charges have been
framed, hundreds of witnesses are likely to be examined and it
... would take several years in completion of the cases. In some D
1 other cases, prosecution witnesses have not turned up and con-
l
cerned Courts have issued either bailable or non-bailable war-
rants to secure the presence of witnesses. In few cases, though
' the petitioner was ordered to be enlarged on bail, in view of
pendency of other cases, even though the petitioner is ready E
~ and willing to abide by the terms and conditions imposed by
the Magistrate for release on bail, he is unable to come out of
jail.

-lr 8. The petitioner further stated that he has not committed
any offence. According to him, he had resigned as Managing F
~ Director as well as Director since long and, as such, no case
can be filed nor any offence has been made out against him. It
is only because the cases are not tried and decided that he is
in jail.
G
1 .;
9. Alternatively, it was submitted by the petitioner that even
if the petitioner will be convicted in some of the cases for some
·• offences, he would be ordered to undergo imprisonment which
may be for some time. Unfortunately, as an under-trial prisoner,
he has completed more than ten years in jail. He is, therefore,
H
704 SUPREME COURT REPORTS [2008] 13 S.C.R.

A constrained to approach this Court for protection of his funda-
mental rights by an appropriate direction from this Court to the
respondents so that he may be able to come out of jail as also
make arrangement for his defence.
10. On May 18, 2007, notice was issued by this Court.
B Considering the fact that the petitioner was in jail, the Registry
was directed to place the matter for final hearing. Accordingly,
the matter has been placed before us on August 18, 2008.
11. The respondents have filed affidavits. Respondent
c No.1-Union of India, in its affidavit through Under Secretary of
the Ministry of Home Affairs, Government of India, New Delhi
stated that no allegations have been leveled against the Union
of India nor specific prayer has been sought against the Union.
12. It was also stated that by the Code of Criminal Proce-
D dure (Amendment) Act, 2005, Section 436Acame to be inserted .,
which provides that an under-trial 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
E provided for the alleged offence, he should be released on his
personal bond, with or without sureties.
13. It was also stated by the deponent that 'prisons' is a
State subject covered by Entry 4 of List 11 of the Seventh Sched-
ule to the Constitution. It is, therefore, the State authorities to ~
F undertake administration of prisons under the Indian Prisons
Act, 1894. State Governments have also framed Jail Manuals
and appropriate Government is required to take appropriate
action in accordance with law.
14. An affidavit is also filed by the State of U.P. through
G
Deputy S.P., E.O.W., Meerut, U.P. In the said affidavit, it was
stated that the petitioner was Managing Director of Imperial .,
Forestry Corporation Ltd. and was actively associated with the
day to day running of the business of the Company. The Com-
pany had opened several Branches and Divisional Offices, in-
H
-f PRAMOD KUMAR SAXENA v. UNION OF 705
INDIA & ORS. [C.K. THAKKER, J.]

teralia, in the State of U.P. and appointed Marketing Managers A
along with the team of Sale Executives who used to collect
money from the pul;>lic by issuing Fixed Deposit Receipts
(FDRs). The petitioner, in the said capacity amassed crores of
._ rupees from public at large. When the maturity amount was not
paid to the investors, several First Information Reports (FIRs) B
came to be lodged against the petitioner and that is how crimi-
nal cases were filed.
15. The deponent had also given list of some of the cases
. pending in the State of U.P. It is in the above circumstances that
the petitioner was· sent to jail and is unable to come out. c
16. As held by this Court, mere long period of incarcera-
tion in jail would not be per se illegal. If the petitioner has com-
mitted offences, he has to remain behind bars. Such detention
,.. in jail even as an under-trial prisoner would not be violative of
D
Article 21 of the Constitution. If the petitioner has committed
non-bailable offences and in connection with those offences,
he is in jail, the custody can never be said to be unlaWful or
contrary to law and he is not entitled to be enlarged on bail.
17. Similar affidavit is filed by C.O. City, Dehradun; E
Uttarakhand stating therein that various complaints were filed
against the petitioner and in pursuance thereof, the petitioner
has been taken into custody.
·~. 18. We have heard learned counsel for the parties.
F
19. The learned counsel for the petitioner submitted that.
the petitioner has been in jail since more than a decade. Vari-
ous cases have been instituted against him in six States. Even
though the petitioner has been ordered to be enlarged on bail
in some of the cases, he is unable to come out since in other G
cases, either the investigation is in progress or the petitioner
'f<: .,._ has not been produced before the Magistrate for trial. Even if
the petitioner is convicted in some of the cases for some of-
fences, he may have to remain in jail only fo~ few years. There-
fore, even if it is assumed for the sake of argument that the
H
....
706 SUPREME COURT REPORTS [2008] 13 S.C.R.

A petitioner will be convicted, incarceration suffered by the peti-
tioner by now might be more than the sentence which could be
imposed on him. It was, therefore, submitted that an appropri-
ate direction may be issued so that the petitioner may be re-
leased on bail.
B 20. The petitioner has also invited our attention to Section
436A of the Code which provides maximum period for which
an under-trial prisoner may be detained. It was, therefore, sub-
mitted by the learned counsel for the petitioner that during the
pendency and final disposal of criminal cases, the petitioner
c may be ordered to be enlarged on bail on his executing per-
sonal bond.
21. The learned counsel for the respondent, on the other
hand, submitted that systematic fraud has been committed by
the petitioner and he has cheated several innocent investors at r
D
various places. Crores of rupees had been collected by him in
the capacity of Managing Director of the Company. It was only
when he refused to refund the amount that criminal cases have
been filed against him for which the petitioner alone is respon-
sible. Since the offences said to have been committed by the
E petitioner are non-bailable, the police authorities had arrested
him and he is taken in custody in accordance with law. No griev-
ance, therefore, can be made by the petitioner against lawful
action taken by the investigating authorities. If it is so, the peti-
tioner cannot invoke Article 21 of the Constitution. Even if the ;:
F petitioner is ordered to be enlarged on bail in some of the cases,
other cases pending against him cannot be ignored.
22. It was further submitted that the petitioner forgets that
he can be convicted in several cases for the offences with which
he is charged. All those cases are different, distinct and inde-
G
pendent. In that case, obviously, he may have to remain in jail
for several years.
)' '·'
23. Regarding applicability of Section 436A of the Code,
it was stated that firstly, the said provision came to be inserted
H by an Amendment Act of 2005 which came in force in June,
-f. PRAMOD KUMAR SAXENA v. UNION OF 707
INDIA & ORS. [C.K. THAKKER, J.]

2006 and as such, it has no application .to the present case. A
But, even if the said provision applies to the case of the peti~
tioner, in view of several cases at various places committed by
the petitioner, he would not get the benefit of the aforesaid pro-
~ vision. It was, therefore, submitted that the petition deserves to
be dismissed. B
24. Having heard learned counsel for the parties and hav-
ing gone through the writ petition along with annexures as also
counter-affidavits, we are of the view that on the facts and in the
circumstances of the case, the petitioner deserves some relief
from this Court. True it is that as per the allegation of the pros- c
ecution, various offences have been committed by the petitioner
and those cases are pending at difference places. But other
equally important fact also cannot be overlooked that he is in
, jail since more than ten years. Prima facie, the submission of
the learned counsel for the petitioner is well-founded that only if D
the petitioner comes out of jail that he may be able to make
arrangement for repayment of amount and also to defend cases
registered against him.
25. The learned counsel, in this connection, invited our at-
tention to a two Judge Bench decision of this Court in VK. E
Sharma v. Union of India & Ors., (2000) 9 SCC 449. In VK.
Sharma, the petitioner was an accused in a large number of
cases punishable under Sections 406, 409, 420 read with Sec-
"~ tion 120B, IPC in several States. There also, in spite of secur-
ing bail orders in his favour in some of the cases, the petitioner F
had to remain in jail in view of production warrants issued by
I other Courts. The petitioner, in that case too, approached this
~
Court by filing a petition under Article 32 of the Constitution al-
leging violation of his fundamental right guaranteed under Ar-
ticle 21 of the Constitution, seeking an appropriate writ, direc- G
tion or order that he should be released on bail and all the cases
... pending in different States against the petitioner be consoli-
dated in one and the same Court through investigation by Cen-
tral Bureau of Investigation (CBI) in all cases. This Court con-
'1
' side red the rival contentions of the parties. It did not think proper H
708 SUPREME COURT REPORTS [2008] 13 S.C.R.

A to grant all reliefs sought by the petitioner, but granted the fol-
lowing reliefs to him;
1. If the petitioner is arrested in connection with any
criminal case in his capacity as Managing Director/
Director of JVG group of companies the arresting
B officer shall release him on bail on his executing a
bond to the satisfaction of the arresting officer.
2. Such relief shall be made after getting an assurance
from him that he will be present in the court concerned
c on the days when his case is posted. However, we
make it clear that it is open to the petitioner to apply
to the court concerned for exempting him from
personal appearance on condition that a counsel on
his behalf would be present on such posting dates
and he would not dispute his identity as the particular
D
accused in that case, and further that he would make
himself available on any date when his presence is
imperatively needed in that court.
3. We permit the petitioner to move the appropriate
E high cowts for bringing all the cases pending in
different courts within the territorial jurisdiction of
that high court to one single court or more than one

.... ..
court (depending upon the number of cases or the
width of the area of the State is concerned).
F 4. This order will come into effect only if the petitioner
would surrender his passport in this Court. Shri Shanti
Bhushan, learned senior counsel expressed a doubt •
)o
that petitioner would have already surrendered his
passport before another court pursuant to the order
G passed. In that case he can satisfy the Registrar
General of this Court by an affidavit of the situation
and the Registrar General can intimate the jail
authorities concerned of that position.
5. We make it clear that it is open to the investigating ,
H t-
PRAMOD KUMAR SAXENA v. UNION OF 709
INDIA & ORS. [C.K. THAKKER, J.]

agency in any case to move for cancellation of bail A
if any such investigating agency finds that petitioner
is misusing the liberty granted by this order.
(emphasis supplied)
~
26. This Court thus in V.K. Sharma granted certain relief B
keeping in view the fact that the accused was in jail since about
sixteen months. The Court further held that if the petitioner would
be arrested in any criminal case in his capacity as Managing
Director/Director of the Company, the Arresting Officer would
release him on his executing bond to the satisfaction of the Ar- c
resting Officer.
27. The learned counsel for the respondents, however, re-
ferred to a decision of a three Judge Bench of this Court in
State of Punjab & Anr. V. Rajesh Syal, (2002) 8 SCC 158. In
"" Rajesh Syal, the respondent was a former Director of a Com- D
pany. The Company collected huge amount from general public
for purchasing land and promised that the amount would be re-
turned after expiry of maturity period fixed through cheques. Mon~
ies were not repaid and complaints were made to the State.
The Vigilance Department of the State lodged various FIRs E
against the respondent.
28. According to the prosecution case, crores of rupees
had been collected by the Company from the general public.
Proceedings were initiated by the accused by filing an applica-
"*
tion under Section 482 of the Code in the High Court for quash- F
ing of criminal proceedings. A prayer was also made that all
cases be tried by one Gourt. Support was sought from VK.
Sharma. Though in the decision of VK. Sharma, this Court had
stated that the order could not be treated as a 'precedent', the
High Court; by treating the order as a 'precedent' allowed the G
petition of the accused and transferred different cases pending
'(
in the State of Punjab against the accused to a Court of Special
Judge. The said action was challenged by the State in this Court~
29. Considering the relevant provisions of the Code, par-
H
710 SUPREME COURT REPORTS [2008] 13 S.C.R.

A ticularly relating to framing of charge and conduct of trial, this
Court held that in the light of various provisions and the scheme
of the Code, no direction could be given by a Court to consoli-
date all cases against the accused and to be tried by one Court.
Such a direction would be contrary to express provisions of the
B Code. Even in exercise of inherent powers under Section 482,
the High Court could not direct an authority to act contrary to
law. The Court also observed that this Court has ample jurisdic-
tion to pass orders under Article 142 of the Constitution for do-
ing complete justice between the parties in any case or matter
C but it is doubtful whether in exercise of the said power, such an
order could be passed. The Court held that direction as to con-
solidation of cases pending in different Courts for different of-
fences to be tried in a single Court issued in VK. Sharma was
not in consonance with law. VK. Sharma was, therefore, ex-
D pressly overruled. ..,
30. Narinderjit Singh Sahni & Anr. v. Union of India &
Ors., (2002) 2 SCC 210 was also referred to. In that case, this
Court held that if an accused commits an offence, he has to
remain in jail and he cannot make complaint to this Court under
E Article 32 of the Constitution on the ground of so called infrac-
tion of Article 21.
31. So far as Section 436A is concerned, it may be stated
that by the Code of Criminal Procedure (Amendment) Act, 2005,
the said section came to be inserted, which reads as under;
F
"436A. 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
G
punishments under that law) undergone detention for a
period extending up to one-half of the maximum period of
imprisonment specified for that offence u·nder that law, he
shall be released by the Court on his personal bond with
or without sureties:
H
7'- PRAMOD KUMAR SAXENA v. UNION OF 711
INDIA & ORS. [C.K. THAKKER. J.]

Provided that the Court may, after hearing the Public A
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 B
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.

Exp/anation.-ln computing the period of detention under c
this section for granting bail, the period of detention
passed due to delay in proceeding caused by the accused
shall be excluded."
32. In the statement of objects and reasons it was stated;
D
There had been instances, where under-trial prisoners
were detained in jail for periods beyond the maximum
period of imprisonment provided for the alleged offence.
As rem~dial measure section 436A has been inserted to
provide that where an under-trial prisoner other than the
one accused of an offence for which death has been E
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 r~leased on his personal bond, with
or without sureties. It has also been provided that in no F
case will an under-trial prisoner be detained beyond the
maximum period of imprisonment for which he can be
convicted for the alleged offence.
33. The learned counsel for the respondents are, prima
G
facie, right in submitting that no retrospective effect has been
given to the said provision and as such Section 436A does not
directly apply to the facts of the case.
34. In our opinion, however, the hard reality equally impor-
tant also cannot be lost sight of the fact that the petitioner is in H
712 SUPREME COURT REPORTS [2008] 13 S.C.R.

A jail since more than ten years. It would, therefore, be appropri-
ate if limited relief is granted to the petitioner. So far as consoli-
dation of cases and trial of all the cases in one Court is con-
cerned, as observed hereinabove, such relief cannot be
granted. V.K. Sharma, wherein such relief was granted, has
B been expressly overruled by Rajesh Syal. We are, therefore, of
the view that the petitioner is not entitled to such relief.

35. On overall facts and circumstances, in our opinion, the
ends of justice would be served if we partly allow the petition
and issue the following directions:
c 1. If the petitioner will apply for bail, an appropriate Gou.rt
will release him on bail on his executing a bond to
the satisfaction of such Court.
2. If the petitioner is not arrested but is likely/required
D to be arrested, the Arresting Officer shall release
him on bail on his executing a bond to the satisfaction
of the Arresting Officer.
3. The above relief will be granted to the petitioner only
in those cases where he is arrested in his capacity
E as Managing Director/Director of Imperial Forestry
Corporation Ltd.
4. Such relief will be allowed to the petitioner on his .
giving an assurance/ undertaking that he will remain
present in the court concerned as and when his case
F is posted for hearing or his presence is required.
5. It is open to the petitioner to apply to the Court
concerned for exempting him from personal
appearance. The Court will pass an appropriate
G order on such application on such terms and
conditions as the Court deems fit.
6. If the petitioner is having a passport with him, he will
surrender his passport to police authorities. The
police authorities will retain the same till the final
H disposal of all the cases.
PRAMOD KUMAR SAXENA v. UNION OF 713
INDIA & ORS. [C.K. THAKKER, J.]

7. It is open to the investigating agency in any case to A
move a competent Court for cancellation of bail/
modification of conditions, if any such investigating
agency finds that petitioner is misusing the liberty
granted by this Court.
8. The above directions have been issued by us in 8
special circumstances keeping in view the fact that
the petitioner is in jail since more than ten years.
36. We may make it clear that the above order is passed
without prejudice to the rights and contentions of the parties. c
37. The writ petition is accordingly partly allowed to the
extent indicated above.
8.8.8. Writ Petition Partly allowed.