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TMI Blog1987 (2) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... h Section 34 and 333 IPC as also under Section 27 of the Arms Act and was sentenced to life imprisonment on the capital charge and for two years and one year, respectively, on the minor charges though the sentences were to run concurrently. Throughout the trial, the petitioner was declined bail and remained in custody. 3. Criminal Appeal No. 151 of 1985 (Anurag Baitha v. State of Bihar) was then preferred by the petitioner along with his co-accused which came up for admission before the Division Bench on the 21st Feb. 1985. Whilst the two co-appellants were granted bail, the petitioner was declined the concession primarily on the ground that he was the main assailant to whom the primal role in the crime had been attributed. More than a year thereafter, whilst the petitioner was in continued incarceration, he renewed his prayer for bail primarily on the ground that his appeal could not be possibly listed for hearing and disposal for a considerable time as yet. The matter came up before a Division Bench to which my learned Brother Abidi, J. was a party, which poignantly noticed the issue whether continuation in jail even after conviction could be authorised for a period too long to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in an able argument at the very outset pointed out that herein the issue of the grant of bail was plainly divisible in two clearcut categories. Firstly, the grant of bail on merits. This would involve examination, whether the judgment indicates any inherent weakness on the merits of the case generally or against a particular appellant, and equally innumerable other considerations which enter into judicial scrutiny for the suspension of a sentence of a convicted accused, whilst his appeal is pending for disposal. This flows from Section 389 Cr. P.C. The merits of the case having been once considered under the aforesaid provision remain more or less a constant factor barring the addition of any exceptional factor thereafter. Entirely a class apart is, however, the second category where the issue of the grant of bail is on the ground of delay and inherent limitations or inability of the court of appeal in hearing and disposing of the substantive appeal within a reasonable time. Counsel highlighted that it is this latter and second category alone which primarily and solely calls for examination herein. 6. Perhaps, at the very threshold it may be stated for the sake of clarity that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grant of bail after one year because of the Court's default. Very fairly, learned Counsel himself stated that this should be the rule and the judicial guideline for ordinary and general application, and there may be exceptions thereto in the context of particularly heinous crimes or other circumstances which may not permit immediate and easy categorisation. 8. Now in appraising the aforesaid larger stand, it appears to me that its three distinct facets well projected by Counsel have to be kept in a somewhat sharper focus. Firstly, there is no gainsaying the fact that the constitutional right of a speedy trial would merely be a teasing mirage in capital offences, if the substantive appeals against convictions are not disposed of for years or a decade and the appellants are meanwhile obliged to rot in jail custody, sometimes even for the whole of the sentence imposed and in any case for a substantial part thereof, till the final hearing of such appeals. It is, perhaps, unnecessary to now elaborate this issue on principle afresh, because, within this jurisdiction it is concluded by the earlier Division Bench judgment in Ramdaras Ahir's case and its express subsequent affi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal in convictions on capital charges. Equally well-settled it is that such appeals are hearing and re-appraisal of the evidence and the appellant is entitled to agitate all questions of fact and law before a court of criminal appeal. It would thus be manifest that the nature of a criminal appeal under the Code -- whether against conviction or directed against acquittal -- is a re-hearing and a continuation of the trial. The appellate court is not merely a court of error and the moment the appeal is preferred, the finality of the judgment of the trial court disappears and the whole issue is in a flux afresh. Therefore, there seems to be no option, but to hold that the word 'trial' in the context of the constitutional guarantee of a speedy trial includes within its sweep a substantive appeal by the Code to the High Court -- whether against conviction or against acquittal. Thus, it would follow that the constitutional right of speedy trial envisages an equally expeditious conclusion of a substantive appeal and not merely a technical completion of the proceedings in the original court alone." 9. It is well to recall that the ratios in Ramdaras Ahir's case were ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight to speedy trial would be violated unless, of course, the trial is held up on account of some interim order passed by a superior court or the accused is responsible for the delay in the trial of the case. The consequence of violation of "the fundamental right to speedy trial would be that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right" There thus remains no doubt now that Article 21 of the Constitution would continue to extend its protective shield even after the post-conviction stage. 11. It perhaps deserves reiteration and highlighting that within this jurisdiction the hazard of being compelled to suffer the whole of the sentence even on a capital charge and in any case a substantial part thereof is not an imaginary but an actual one in practice. By way of example reference may be made to Criminal Appeal No. 317 of 1975 decided on 16th Feb. 1984 (Gupteshwar Barhi v. State of Bihar). Therein the Division Bench to which I was a party recorded as under in acquitting the sole appellant :-- "Since this is a case in which nobody has come to support the case of the prosecution, much less the informan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l followed by late hearing of appeal can lead to no other result than the one epitomized by the aforesaid case of Gupteshwar Barhi v. State of Bihar. If Article 21 and the right to speedy public trial is not merely a twinkling star in the high heavens to be worshipped and rendered vociferous lip-service only but indeed is an actually meaningful protective provision, then a fortiori expeditious hearing of substantive appeals against convictipns is fairly and squarely within the mandate of the said Article. 12. Secondly, what has to be borne in mind is the fact that the Code and the civil laws as they stand today provide no remedy or compensation in cases where an accused person who has been obliged to undergo the whole or a substantial part of the maximum sentence (even on a capital charge) and is later even honourably acquitted by the superior courts. I am inclined to accept the stand of Mr. Rash Bihari Singh, the learned counsel for the petitioners, who poignantly contended that in reality long incarceration in jail, whereafter a person is acquitted, is not compensatable in money terms at all. Inherently, the lost years of the best part of the citizens's life spent in incarce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se for the years lost for ever and gone by in custody can possibly be granted to such a person. 13. Now, apart from the inherent incommensurability of the invaluable years lost in incarceration, what calls for pointed notice is that the Code and civil laws as they stand today, perhaps cannot but, indeed does not provide for any hope for monetary compensation for a person wrongly charged for serious crimes and honourably acquitted thereafter. The concept of damages for malicious prosecution in our jurisprudence exists only in a very limited arena even against a private prosecutor, not to talk of the State as such. Such persons can, if at all, hope to succeed in a minuscule, number of cases where it can be established to the hilt that there was malice in fact and the false prosecution stemmed from no other source but that. As against the State, when it prosecutes, such a claim, if not virtually barred, is perhaps impossible to be established in actual practice. Counsel for the parties were agreed that in State prosecutions on capital charges any hope of damages for false imprisonment or for malicious prosecution is indeed crying for the moon. Fairly enough it was pointed out that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the prisoners even to stretch themselves or sleep at night. In many supposed prisons the inmates take their turns to sleep at night in cells where even the most elementary conveniences necessary for human beings are denied. Indeed, it has to be seen to be believed that prison inmates are herded together sometimes worse than animals. It was in this context that Mr. Rash Bihari Singh rightly highlighted that in such like conditions avoidable incarceration should be the rule, and not the exception, till the final decision of a substantive appeal renders such custody inevitable. Principle apart, authority is equally consistent with the rule that sub-human jail conditions are relevant to the issue of grant of bail in the following words of V. R. Krishna Iyer, J., in Babu Singh v. State of Uttar Pradesh AIR 1978 SC 527 : (1978 Cri LJ 651) :- "Equally important is the deplorable conditions, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible." 15. To recapitulate briefly it seems well settled within this jurisdiction that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt's own inability to hear the substantive appeals expeditiously enters directly and materially for consideration in the grant of bail to the convicts. This is a factor independent, dehors the individual merits of each case. 16. In fairness to Mr. Lala Kailash Bihari, learned counsel for the State I must notice his vehement opposition to the stand taken on behalf of the petitioner and against grant of bail during the pendency of the appeals even irrespective of the delay in the hearing. With some regret it appears to me that ingrained in a somewhat older and fossilised approach he, perhaps, as yet could not rise to the higher pedestal of the constitutional right to speedy public trial by virtue of the expanded interpretation of Article 21 nor could he hearken to the voice of the new criminal jurisprudence interpretatively created under the said article by the Supreme Court. Unmindful of the developing role of the law, Mr. Kaifash Bihari in a groove repeatedly slipped back and stuck to a moribund procedural approach for contending that no consideration other than the one under Section 389 of the Code for suspension of sentences could come in, despite Article 21 and the mandate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be harmonised with the subservient one and indeed calls for pristine enforcement and it is the legislative provisions which have to be read down or bent to the constitutional mandate. What appears to me as a hypertechnical stand taken on behalf of the State in this context must necessarily fall and is hereby rejected. 18. Now apart from principle it appears to me that the proposition that the issue of delay in the hearing of appeals dehors the merits is directly and materially relevant for the question of grant of bail to the convicts is equally borne out by persuasive and indeed binding precedents. The question was directly raised before the Division Bench in the case of Harbhajan Singh v. State of Punjab, to which 1 was a party. After examination of the principles and precedent it was concluded therein as follows : -- "I believe that in an issue of this nature, the attitude of this Court cannot necessarily remain static. It is not possible to lose sight of the fact that in normal routine at present the criminal appeals filed in the year 1973 are as yet being listed for hearing. Indeed, as many as 40 life sentence appeals of that year are still pending disposal. In order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified? Would it be just at all for the Court to tell a person : We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?' What confidence would such administration of justice inspire in the mind of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well. In particular, he highlighted that where, as here, there is a delay of 3 or 4 years in the hearing of a substantive appeal itself owing to the High Court's inability to do so then the denial of bail in the ordinary run of the mill capital cases would indeed amount to a denial of justice itself. It was pointed out that not unoften some of these appeals end either wholly or partially in acquittal. In the conditions existing in our State, it is not unusual for even sessions trials to have dragged on for 4 or 5 years in which the primal accused are normally denied bail in capital offences. Therefore, if an accused person was obliged to undergo 8 or 9 years of incarceration during the pendency of the trial and the substantive appeal directed against his conviction which is allowed and he is ultimately acquitted, the same would undoubtedly result in a travesty of justice. Counsel highlighted that no recompense can possibly be made for such long incarceration which may well include the best years of a convict's life in such cases. Primal reliance was proceed on Hussainara Khatoon v. Home Secretary, State of Bihar AIR 1979 SC 1360) (supra) and Kadra Pehadiya v. Stateof Bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including the service on witnesses, their production, recording of evidence and so many other factors must be completed in one year, then there must be the least reason to hold otherwise in the context of a substantive appeal from the said sessions trial. It may sometimes, for exceptional reasons, be not possible to adhere to such a time frame but there appears to be no gainsaying the fact that the reasonable period prescribed by their Lordships for sessions trial, namely, one year would be equally applicable to appeals there from as well. Beyond that, the delays, if they occur, must be termed as unreasonable and must be avoided. It can, therefore, be said authoritatively both on larger principle and equally on binding precedent that the reasonable period for hearing of such appeals is not to be extended beyond one year. Delay beyond that period is contrary to the principles of criminal jurisprudence and would now run counter to the law and spirit of the constitutional mandate of speedy public trials and consequently must be termed as unreasonable. 24. Mr. Lala Kailash Bihari Prasad, appearing for the State, was at least fair enough to concede that delay in the hearing of appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional terms can be rendered in such a situation then it cannot but be termed as travesty of justice. I find myself wholly unable to accede to such a callous argument raised on behalf of the State. 26. Learned counsel for the respondent State's reliance on AIR 1984 SC 1503 : (1984 Cri LJ 1211) (supra) is somewhat misplaced. That was a case of the grant of bail during the pendency of trial on the substantive charge under Section 3, Official Secrets Act, relating to military affairs. That considerations for the grant of bail during the pendency of the trial may vary from those for the suspension of sentence after conviction is too well known to deserve any great elaboration. Nor do I find anything in the said judgment which, even remotely, runs contrary to the mainstream of the findings arrived at by me earlier. With the deepest respect, I am unable to concur with the view in State (Through Deputy Commr. of Police, Special Branch, Delhi) v. Jaspal Singh Gill (supra), which with great reverence appears to me as having somewhat misconstrued the underlying ratio of Kashmira Singh's case, (AIR 1977 SC 2147) (supra) 27. To reiterate, it must be held that barring exceptions the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o bring it to a final hearing. Indeed, I am of the view that so long as the delay in the hearing of such appeals extends to three or four years, the persons who are vicariously convicted on capital charges with the aid of Section 34 or 149, Penal Code, may well be granted bail on the admission of the appeal itself during the pendency o its hearing after such time. It is, however, made clear that this can apply only to the ordinary run of the mill cases and not to the peculiar and exceptionally heinous crimes outlined hereinafter. 29. However, the cases of convicts to whom the primal role in the capital crime is attributed and are held guilty on the substantive charge of murder or other capital offences are undoubtedly on a somewhat different footing and the same concession may not be extended to them in routine. However, it seems equally impossible that having gone through the mill of a trial extending over two to five years, they should still be denied bail and continue in further incarceration for three or four years awaiting the hearing of the appeal. Even in their cases after the period of one year of the pendency of the appeal the issue would have to be considered on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, perhaps, desirable to frame an exhaustive categorisation. However, a bird's eye view of such like crime with particular reference to our own State has perforce to be attempted. Within our State, perhaps, it would deserve highlighting that multiple and mass murders on caste and tribal considerations, which have become the horror of the day, appear to be the first in this category. These are recently exemplified in Parasbigha's case (Shyam Sunder Sharma v. State of Bihar) in Criminal Appeals Nos. 460, 478, 480, 481, 482, 483, 484, 486 and 485 of 1984, disposed of on 3rd July 1986, wherein the Bench itself described the crime as under : "Tension was prevailing in the village and for that armed force was posted but, unfortunately, it was withdrawn at the time of Parliamentary election. Madan Mohan Sharma and his associates, thus, got an opportunity and a free hand and collected a mob of about two to three hundred persons all armed with rifles, guns and other weapons and attacked the sleeping village. They acted in a most cruel and brutal manner and burnt houses, killed thirteen persons and injured six. The houses and heaps of straws were burnt by sprinkling kerosene o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is one thing, but the same leading to the murder of helpless and young women excites the deep abhorence of social mores and after conviction it would not be easy to release such a convict unless acquitted finally by the court of appeal. 34. Yet again, one may notice the recent rise of sensational crime for gam and greed which would also, to my mind, come within the category of exceptions where bail after conviction is uncalled for. In this class, perhaps, the rise and incident of terrorist crime committed defiantly and in terrorum in the society is the first that comes to mind Similarly, sensational crimes like daylight bank robbery; abduction for ransom followed by murder; indiscriminate use of firearms and bombs in murders disturbing public order, are all crimes of a nature which shock the conscience of society and persons convicted in a trial therefore cannot rightfully claim their liberty during the pendency of their appeal and till they are either purged of the crime by serving their sentence or are acquitted thereof. 35. It bears reiteration that any exhaustive classification of such like horrendous crime is neither possible nor desirable and at best the broad contours the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Administration of justice is the maintenance of right within a political community by means of a physical force of the State. It is a device adopted by the modern and civilised community in replacement of the primitive working of private vengeance and valiant services. This administration of justice is divided into two parts namely (1) administration of civil justice, and (2) administration of criminal justice. The former is dealt with the civil proceedings and the other with the criminal proceedings, and both of them are administered in different sets of circumstances. In the earlier decrees are granted, claims are allowed and specific performance, restitution, injunctions and the like are the result of the civil proceedings while in the criminal proceedings inflictment of punishment from the sentence of death to fine and binding over for a particular period to keep peace and release on bail, probation and admonition are the outcomes. Crime and punishment are the matters which have got an effect on the basic structure of a community and the science which seeks the root cause of such effect to ensure security to the society and individual are the matters of criminology and penology ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntive detention no time limit has been fixed. The courts have been holding that the disposal should be as early as possible. But time is given to the reasonable procedure and no magical formulae or despotic rules have been framed the breach of which may cause release of the detenu. 40. In this way the case of preventive detention is no better than the case of punitive detention where a person is held up during trial before conviction and then after trial on being convicted upon consideration of the evidence led by the parties. After conviction sentences are awarded which include death sentence, imprisonment for life, binding the accused for fixed and specified period and also fine. It is true that anguish and sufferings -- mentally, physically, emotionally and in many other ways -- are the inevitable consequences of every type of sentence. These sentences have been tolerated but the prolongation of it beyond the period necessary has not been tolerated by any provision of law and it has been branded as cruel and dehumanising. But at times delays are inevitable for which neither the accused is held responsible nor the persons disposing of their matters are guilty. For some inevitabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered prolonged delay so as to attract the constitutional protection of Article 21 against the execution of a sentence of death is a ticklish question. In Ediga Anamma's case AIR 1974 SC 799 : (1974 Cri LJ 683) two years was considered sufficient to justify interference with the sentence of death. In Bhagwan Bux's case AIR 1978 SC 34 : (1978 Cri LJ 153), two and a half years and in Sadhu Singh's case AIR 1978 SC 1506, three and a half years' were taken as sufficient to justify altering the sentence of death into one of imprisonment for life. The Code of Criminal Procedure provides that a sentence of death imposed by a Court of Session must be confirmed by the High Court. The practice, to our knowledge, has always been to give top priority to the hearing of such cases by the High Courts. So also in this Court. There are provisions in the Constitution (Arts. 72 and 161) which invest the President and the Governor with power to suspend, remit or commute a sentence of death. Making all reasonable allowance for the time necessary for appeal and consideration of reprieve, we think that delay exceeding two years in the execution of a sentence of death should be consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is interesting to note that in the United States, speedy trial is one of the constitutionally guaranteed rights." Later at p. 1376 (AIR 1979 SC 1369) : (at page 1051 of 1979 Cri LJ 1045) their Lordships observed :-- "The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability. The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State. It is also the constitutional obligation of this Court, as the guardian of the fundamental rights of the people, as a sentinel on the quivive, to enforce the fundamental right of the accused to speedy trial by issuing the necessary directions to the State which may include taking of positive action, such as augmenting and strengthening the investigative machinery, setting up new courts, building new court houses, providing more staff and equipment to the Courts, appointment of additional Judges and other measures calculated to ensure speedy trial." 46. In the case of Kadra Pehadiya v. State of Bihar AIR 1981 SC 939 at p. 940 : (1981 Cri LJ 481 at p. 482) their Lordship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebrao v. State of Maharashtra AIR 1973 SC 2622 : (1973 Cri LJ 1783) which arose out of an appeal against acquittal, the Supreme Court observed at p. 2626 (of AIR) : (at pp. 1787-1788 of Cri LJ) in para 6 as follows : -- "Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which run through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and los ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les an accused person to the dismissal of the indictment or the vacation of the sentence which is apparent from the observations of the Supreme Court in the case of State of Maharashtra v. Champalal AIR 1981 SC 1675: (1981 Cri LJ 1273). Efforts have been made to follow strictly the American Constitution but how far the American Constitution can be followed and adopted in our Indian settings for that in the case of A. K. Roy v. Union of India (AIR 1982 SC 710:1982 Cri LJ 340 ) it was observed : -- "For reasons........ the decisions of the U.S. Supreme Court which turn peculiarly on the due process clause in the American Constitution cannot be applied wholesale for resolving questions which arise under our Constitution, specially when, after a full 'discussion of that clause in the Constituent Assembly, the proposal to incorporate it in Art 21 was rejected. In U.S.A. itself Judges have expressed views on the scope of that clause, which are not only divergent but diametrically opposite................... It is only proper that we must evolve our own solution to problems arising under our Constitution without, of course, spurning the learning and wisdom of our counterparts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lia, J. (as he then was) considered about the pendency of the cases and observed that the disposal of the appeals against conviction and acquittal took a period of about four years and so if a person was refused bail, then it would involve a detention for the whole of such period and that is why an unfettered power under Section 427 (old Code), Cr. P.C., was provided for grant of bail, even in appropriate cases under capital charges. Later in the same decision Gujral, J. also considered the matter and held at page 351 as follows: -- "Besides the main objects of the detention of an accused person during his trial referred to above, it is also in the public interest that a person against whom serious allegations are levelled which carry the sentence of death or life imprisonment is not at large till his case is finally decided. Leaving the question of public policy apart, even the consideration that an accused ought to be available to abide by and serve out the sentence which may ultimately be imposed has to be viewed in the context of the nature of the accusation and the punishment which will ultimately be imposed and also the character, status and means of the accused" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diverse relations, all sorts of disputes have multiplied day and night; but the courts have also to see as to whether the provisions for the settlement of that disputes of every nature have been made in the same ratio as that of increase in population, litigation and disputes. In the society whether this ratio has been maintained? Courts have observed from time to time as mentioned above that the arrears are there and there are shortage of Judges and lack of paraphernalia and so in that event delays in disposal of cases are inevitable. As a matter of fact the delays are not to be looked but its causes should be removed by providing speedy justice. It will be denial of justice or distortion of justice if the courts with a view to clear up the arrears and to cover up the lapses on the part of State clears off the cases in hasty and slipshod manners and so the criminals are let loose and they go scot free. This is not the purpose of the law and the Constitution of a civilised society in which we are living. Here both, the criminals as well as those who are innocent are equally protected within their legal, constitutional and human limits. Orders for bail or orders for abatement of app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution and the evidence adduced in court, the court comes to the conclusion that the evidence is clinching and the guilt of the accused is proved beyond any shadow of reasonable doubt and to the hilt then the accused has to face the punishment for the offence. His liberty then comes under eclipse till the period of sentence lasts, though during this period also he enjoys the legally and constitutionally available rights to the fullest. If against the conviction an appeal is filed then question of suspension of the sentence till the final disposal of the appeal of the convict is provided under law with considerations and after the appeal is disposed of by the last appellate court then the question of execution of sentence arises and then all considerations of fundamental rights of the convict except to move out are strictly followed. These are the various considerations which have been provided under law as well as followed and observed by the court from time to time and the same find expression in the judicial pronouncements. 57. Courts in India following the law have been laying down the criteria for granting bail, both at the stages of pre-conviction and post-conviction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that bails should be granted to persons if they are below 16 years of age or is a woman or a sick or an infirm person. No seeker of justice should be allowed to play confidence tricks on the court or community. Grant of bail is a judicial process. There cannot be inflexible rules for the exercise of the judicial discretion and no hard and fast guidelines can be laid down. 59. Reasonableness is the criterion for the exercise of the judicial power and that reasonableness postulates intelligent care and predicates that the deprivation of freedom by refusal of bail is not for the punitive purpose but for the bifocal interests of justice to the individual involved and society affected. All deprivation of liberty is validated by the social defence and individual correction along an anti-criminal direction. Public justice is central to the whole scheme of bail law. Fleeing justice has been forbidden but punitive harshness has been minimised. Exercise of power of bail should be judicial and not capricious. Powers of the Sessions Judge and the High Court for this exercise of judicial discretion are very wide, but they are fettered by reasonableness and interest of justice, both for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question of grant of bail to the appellant, though both the orders, that is suspension of sentence and granting of bail, are passed simultaneously and they involve two separate mandatory processes and in both the processes the basis is only the merits of the case and the degree of the probability of the appeal standing at the final stage besides the other factors like nature and gravity of the offence and the age and the health of the accused. He has further observed that the remaining of the accused on bail or in jail during the trial in the court below cannot of course be a relevant reason for suspending or not executing the sentence because this circumstance has no nexus with the execution or suspension of the sentence after conviction order has been recorded and circumstances stand neutralised and after conviction the man in jail and the man on bail stand on the same footing and so the classification of the appellants on their being on bail or in jail would be unreasonable. He also held that the extent and period of sentence and the quantum of punishment cannot be a relevant reason for the suspension of sentence, though it can be a relevant factor only if prima facie it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be kept indefinitely in jail when he is ready with his appeal and the court is not finding opportunity to hear the same for no fault of his ? Such a question arose in the case of Kashmira Singh v. State of Punjab AIR 1977 SC 2147 : (1977 Cri LJ 1746), where even after the grant of special leave the court was not able to hear the appeal for a period of four and half years. It was observed in that case that "The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in the Supreme Court on the basis that once a person has been found guilty and sentenced to life imprisonment he should not be let loose so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person should be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for a unduly long period. The rationale of this practice can have no application where the court is not in a position to dispose of the appeal for 5 or 6 years". The Supreme Court held further.... ...... "It is, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears, the persons who are vicariously convicted on capital charges with the aid of Ss. 34 or 149 Penal Code, may well be granted bail on the admission of the appeal itself during the pendency of its hearing after such time. It is, however, made clear that this can apply only to the ordinary run of the mill cases and not to the peculiar and exceptionally heinous crimes outlined hereinafter. However, the cases of convicts to whom the primal role in the capital crime is attributed and are held guilty on the substantive charge of murder or other capital offences are undoubtedly on a somewhat different footing and the same concession may not be extended to them in routine. However, it seems equally impossible that having gone through the mill of a trial extending over two to five years, they should still be denied bail and continue in further incarceration for three or four years awaiting the hearing of the appeal. Even in their cases after the period of one year of the pendency of the appeal the issue would have to be considered on the basic ground of delay in the light of the inability of the court itself to hear and dispose of the appeal. To my mind, barring the peculiarly heinous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties concerned to present their cases to the best of their capacity, comes to a judicial finding about the guilt of the accused and the court after considering the matters on merits and the interest of the parties concerned including the society and the State considers that it is not a fit case to grant bail, then by fixing despotic period of one year without any basis or criteria without looking to the conditions of the court and the alarming decrease in the number of courts and with the best possible efforts of the Government including the head of the judiciary to provide the judicial system with proportionate and proper paraphernalia, will be to set at naught the considerations at the time of refusing suspension of sentence and grant of bail. 67. In the case of Gora v. State of West Bengal AIR 1975 SC 473 : (1975 Cri LJ 429) where Bhagwati, J. (as he then was) considered the question of proximity of time and the like link between the grounds of criminal activities and the purpose of detention and the intervals and unexplained delay in between the two and observed that no authority acting rationally can be satisfied subjectively or otherwise, of future mischief merely because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days or months. 69. In the Chap. XII, Rule 17, Sub-rule (c), Patna High Court Rules, says : -- "The Registrar shall have the paper Book of the cases in Part II of the Monthly Cause List and Weekly supplements thereto prepared strictly in order of issue of notice and receipt of records and this order shall not be deviated from in the absence of a special direction with regard to any particular case from the Registrar or Bench : Provided that - Death reference cases, bail petit ions, cases in which bail has been refused applications for transfer of cases, cases admitted on question of extent and legality of sentence, petitions for restoration of cases dismissed for non-prosecution and all cases (appeals, applications and motions) which after admission and passing of the interim orders hold tip proceeding before lower courts shall have precedence over other cases in preparation for hearing and the Registrar shall have the paper book in such cases prepared at once according to the prescribed rules shall such cases the word "Expeditious" shall be marked boldly in red ink in from page of the order sheet." 70. In view of this provision the cases in which bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person who has been convicted in a case of heinous offence and whom the court has not found fit to be released on bail or suspending the sentences then the time lag between their prosecution from the stage of the court below till the disposal of the appeal will not come in way and the law will have its own course. The law has made a provision for early disposal in its Rule. Without following those rules if the accused found guilty in accordance with law and moreover again found unfit for release on bail by the High Court are enlarged on bail simply because the period of one year has elapsed, it will be something to deviate from the provision of law as well as the judicial pronouncement of the highest court of law. It is for the court to see that the cases of those persons who are in jail are listed with top priority and precedence without regard to the year of filing and if the procedure is followed it will be in accordance with law and Rules and will not be individuals distinction. 72. I may add as a word of caution that if a period of one year is fixed for the disposal of the appeals then in the event of inability of the court to dispose of the appeals on account of the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay in the trial of the case. The consequence of violation of the fundamental right to speedy trial would be that the prosecution itself would be liable to be quashed on the ground that it is in breach, of the fundamental right. One of the primary reasons why trial of criminal cases is delayed in the courts of Magistrate and Additional Sessions Judges is the total inadequacy of judge-strength and lack of satisfactory working conditions for Magistrates and Additional Sessions Judges. There are courts of Magistrates and Additional Sessions Judges where the work load is so heavy that it is just not possible to cope with the work load, unless there is increase in the strength of Magistarates and Additional Sessions Judges. There are instances where appointments of Magistrates and Additional Sessions Judges are held up for years and the courts have to work with depleted strength and this affects speedy trial of criminal cases. The Magistrates and Additional Sessions Judges are often not provided adequate staff and other facilities which would help improve their disposal of cases. We are, therefore, firmly of the view that every State Government must take necessary measures for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age of 16 years and that question will have to be considered in some other case as to what will be the reasonable length of time for a trial beyond which the court would regard the right to speedy trial as violated. 75. The Courts have been the guardian of the Constitution and sentinels of the rights and liberties of the citizens and they have been guarding the same through the judicial process. They have looked to the interest of the citizens even if there is no specific provision for the same as it is apparent from the cases decided by the courts specially the Supreme Court from time to time and they have tried to protect the interest of the society as the aim of law is to harmonise the social interest and that is why the courts have administered justice even without law but on other considerations quite within the ambit of law and Constitution. Though the courts have power to fix any period as has been done in the case of Sheela Barse v. Union of India AIR 1986 SC 1773) (supra), but the courts have also refrained from doing so unless there are adequate provisions for the same. How far the provisions for the early disposal of cases and the appeals are looking have been mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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