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TMI Blog2009 (9) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... reface our order with a brief chronology of Dalip Singh's trial. He was arrested on July 13, 1998 and charged for murder of his wife Jasbir Kaur by smashing her head with a spade. The occurrence had taken place at 6.30 a.m. on July 13, 1998. FIR 44 was registered under Section 302 IPC at Police Station Machhiwara. 3. After investigation, the report under Section 173 Cr.P.C. was presented to Judicial Magistrate 1st Class, Samrala on September 1, 1998. The case was committed to the Court of Sessions for trial on September 29, 1998. Charge against Dalip Singh was framed on October 27, 1998 to which he pleaded not guilty and claimed trial. The case was adjourned to February 2, 1999 for the recording of prosecution evidence. Therefore, Dalip Singh's trial effectively commenced on February 2, 1999. 4. At the trial, the prosecution examined 14 witnesses, three of whom were examined on affidavits. Therefore, statements of 11 witnesses were recorded and their depositions ran into only 28 pages. The prosecution evidence was finally closed on August 26, 2006, 6-1/2 years were consumed for recording 28 pages of evidence. From the above we can only conclude that the criminal justice sys ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information regarding the pace at which the respective trials are proceeding or the degree of violation of the rights of speedy trial of the accused/undertrial. The lists are confined to accused in custody, what about the accused who are on bail. If this is the best information that can be produced by the State then it certainly conclusively establishes that there is no central agency to monitor or oversee the progress of trials in the trial courts. How many persons are being deprived of their rights to a speedy trial cannot be accurately gauged from the information sent by the respective Superintendents of Jails. 10. Advocates General of the States of Punjab and Haryana should be responsible, nay accountable, if trials are not conducted speedily and rights of accused are violated. 11. It seems to us that refusal of bail and keeping the accused person in custody has failed to raise the hackles of those incharge of various limbs of the criminal justice system, if at all anyone is. An accused person in custody is entitled to assert that he is innocent and his detention is unwarranted. Therefore, there must be a time limit within which the trial should be concluded for the accused to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 180 days from the date of commencement of the prosecution evidence. 15. We would like to suggest that the States of Punjab and Haryana and the Union Territory, Chandigarh, should examine the feasibility of a Criminal Justice Monitoring Board consisting of the heads of Police, Prosecution and Prisons. Such a Board would cover three important limbs of the criminal justice system Investigators, Prosecutors, and Jail Superintendents. The Board could meet regularly to monitor the progress of all trials and give directions or guidelines to their respective wings, if it is found that delays are taking place on account of lack of infrastructure or manpower concerning their respective limbs. 16. As regards benefit given to appellants of suspension of sentence on account of long period spent in custody, this court is consistently following the judgments in Dharam Pal v. State of Haryana 1999 (4) RCR (Cri.) 600, and Daler Singh v. State of Punjab 2007(1) RCR(Cri) 316. However, both in Dharam Pal and Daler Singh's cases (supra), the appellants required to complete a certain minimum period post conviction before sentence can be suspended. In Dharam Pal's case, the appellant is required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il or the suspension of sentence. 20. A Division Bench of this Court in Dharam Pal v. State of Haryana, 1999(4) RCR (Cr.) 600, had provided for certain time-frame for convicts to be released, pending disposal of their appeals. The Bench was of the opinion that certain principles ought to be framed where there appeared no likelihood of an early hearing of their appeal. The nature of crime, it was observed, would be one of the factors that may be considered for the said purpose. For the categorization of the crimes, the Punjab Government circular laying down various aspects for consideration of release prematurely were also adverted to. 21. The principles that were laid down were considered by the Supreme Court in Surinder Singh alias Shingara Singh v. State of Punjab, 2005 (4) RCR (Cri.) 103. The Supreme Court held that the directions contained in Dharam Pal's case (supra) were only in the nature of guidelines and the High Court should not be understood to have laid down as an invariable rule to be observed with mathematical precision. Indeed, pending disposal of an appeal cannot be laid down or limited in a straitjacket formula so as to be mathematically applied to each and eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the provisions of Cr.P.C. However, it was also emphasized that no time limit for trial can be drawn and each case must be decided on its own facts. It is, however, pertinent to note that where the accused is himself responsible for the delay he cannot take advantage of the delay. Besides, delay due to system of trial cannot be treated unjustifiable. The right to speedy trial is part of fair, just and reasonable procedure implicit in Article 21 and is reflected in Section 309 Cr.P.C. The said right covers all stages viz investigation, inquiry, trial, appeal/revision and re-trial. While proceedings must be concluded with reasonable dispatch, no outer limit could be prescribed. The burden lies on the prosecution to justify and explain the delay. The accused cannot be denied the right merely on the ground of his failure to demand and insist upon speedy trial. Question of denial of the right has to be decided by balancing the attending circumstances and relevant factors. It was observed, that a speedy trial was in public interest and served societal interest as well. This did not make it any-the-less a right of the accused. Social interest lies in punishing the guilty and exoneration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation, inquiry and post-trial appeals/revisions. The right to speedy trial extends to all criminal prosecutions and is not confined to any particular category of cases. In every case where this right is infringed, the Court has to perform a 'balancing act' by taking into consideration all the attending circumstances and determine in each case whether the right of speedy trial has been denied. Where the Court comes to the conclusion that the right of speedy trial of an accused has been infringed, even the charges may be quashed unless the Court feels that quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the Court to also make an appropriate order to fix a time-frame for conclusion of trial. 27. In P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578, a seven Judges Bench of the Supreme Court laid down that the question of delay has to be decided by Court having regard to the totality of circumstances of an individual case and the test is whether the delay is oppressive or unwarranted. If so, it would be violative of Article 21. The Constitutional philosophy propounded of right to speedy trial, it was observed, has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 to 1999 with respect to the number of appeals instituted, allowed, partially allowed and dismissed. The position as per Dharam Pal's case (supra) for the period from 1990 to 1999 was as follows :- Year Appeals instituted Allowed Partially allowed Dismissed 1990 321 136 19 166 1991 282 120 47 115 1992 268 90 26 152 1993 294 59 23 209 1994 361 94 9 251 1995 458 63 7 147 1996 489 25 3 35 1997 549 13 - 20 1998 513 - - 4 1999 288 - - - 30. The data supplied by the IC RA Section of Criminal Branch, the list of the number of Division Bench cases under the headings allowed, partially allowed and dismissed year-wise from 2000-2008 has been given which is as follows :- Year Appeals instituted Allowed Partially allowed Dismissed 2000 290 63 8 219 2001 346 48 6 292 2002 314 56 11 247 2003 200 39 9 152 2004 304 60 19 225 2005 421 66 17 338 2006 448 72 27 349 2007 424 90 10 324 2008 1060 203 32 825 31. The above position, therefore, shows that post - Dharam Pal from 2000 to 2008, the institution and disposal is more. However, the problem persists, inasmuch as, a large number of appeals are still pending. This warrants consideration of suspension of sentence of the convicts and grant of bai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be required to be considered. These are the gravity of the crime, the cruel mode of its execution, the nature of the offence, manner in which the occurrence had taken place, whether in any manner bail granted earlier had been misused, nature of other criminal cases, if any, pending against the accused, other convictions against the accused, the propensity and potentiality of the accused indulging in criminal activities while on bail, the likelihood of the accused absconding or otherwise interfere in the trial by influencing the witnesses or tampering with the evidence etc. These factors would require serious consideration. Besides, in a case where there is delay and a bail is not liable to be granted, it is open to a Court to pass an order which is just and equitable including fixation of time frame for conclusion of trial. It is best left to the judicious discretion of the Court seized of the case. 35. In post-conviction cases where a convict seeks suspension of sentence, pending disposal of his appeal, it cannot be an absolute or invariable rule that the convict must necessarily undergo at least three years of imprisonment before his case is considered for suspension of sentence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h case which would necessarily include the severity and seriousness of the crime, the role attributed to the particular convict, fact whether the delay in the trial and prosecution is attributable to him and other incidental and attending circumstances. It is not to be taken as a straitjacket rule that wherever a convict seeks suspension of his sentence he must necessarily have undergone five years or four years in the case of female including post-conviction period of three years or two years in the case of females, before the case can be considered for suspension of sentence. 36. In Angana and another v. State of Rajasthan, 2009 (2) R.C.R.(Cri) 51 : 2009(2) R.A.J. 25 : (2009) 3 SCC 767, it was observed by the Supreme Court that where an appeal is preferred against conviction in the High Court, the High Court has ample power and discretion to suspend the sentence. That discretion has to be exercised judiciously depending upon the facts and circumstances of each case. While considering the suspension of sentence each case is to be considered on the basis of the nature of the offence, manner in which the occurrence had taken place, whether bail granted earlier had been misused. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is when there is delay in disposal of the appeal and the delay is not attributable to the appellant. In such a situation the appellate Court may pass such orders so as to protect the right of speedy trial guaranteed to a convict under Article 21. It was observed that according to the Constitutional mandate of Article 21 a speedy trial is guaranteed by the State for all accused persons, and since an appeal is only an extension of the trial, the Courts of law would be obliged to ensure the expeditious disposal of appeals and pass appropriate orders as and when they feel that the right of the convict to the guarantee provided under Article 21 is being interfered with. Therefore, as and when any appellant moves this Court, then taking into consideration the facts and circumstances of the case, in case the delay is in the disposal of the appeal is not attributable to the appellant himself, the Court may pass such orders as the appellant may be entitled in view of the provisions of Article 21. 38. The Supreme Court in State of M.P. v. Kajad, (2001) 7 SCC 673, observed that Section 37 of the NDPS Act enjoins that a person accused of an offence punishable for a term of imprisonment of fiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de atleast fifteen months after conviction. (2) Where the convict is sentenced for ten years for having in his conscious possession commercial quantity of the contraband, he shall be entitled to bail if he has already undergone a total sentence of four years, which must include atleast fifteen months after conviction. (3) Where the convict is sentenced for ten years for having in his conscious possession, merely marginally more than noncommercial quantity, as classified in the table, he shall be entitled to bail if he has already undergone a total sentence of three years, which must include atleast twelve months after conviction. (4) The convict who, according to the allegations, is not arrested at the spot and booked subsequently during the investigation of the case but his case is not covered by the offences punishable under Sections 25, 27-A and 29 of the Act, for which in any case the aforesaid clauses No. (i) to (iii) shall apply as the case may be, he shall be entitled to bail if he has already undergone a total sentence of two years, which must include atleast twelve months after conviction. (5) No bail should be granted to a proclaimed offender, absconder or the accused rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respectables of the area or the locality where the accused or the convict resides can be required to furnish surety. The involvement of respectables in respect of the under-trials and convicts for maintaining peace and good behaviour can be considered by the Courts of Magistrate or the Trial Courts while accepting bail bonds and sureties for their release. After release convicts can also be asked to regularly report at the Police Station of surveillance purposes. 42. Accordingly, the sum and substance of our discussion are :- (a) long pendency of the trial or an appeal after conviction would be a ground for consideration for grant of bail or suspension of sentence of an accused or a convict as the case may be in the spirit of Article 21 of the Constitution of India; (b) In the case of delay in conclusion of the trial the right is of consideration for release on bail and not an automatic right of grant of bail. In the consideration process for the grant of bail on the ground of delay in concluding the trial it shall have to be seen who was responsible for the delay. In case it is the accused who has delayed the trial no relief can be granted. In case of delay by the prosecution, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prisoner is likely to abscond may impose strict conditions of furnishing heavy surety and number of sureties, besides, asking for respectables of the locality or area of the accused or convict to furnish surety not only with regard to misuse of the concession of bail or suspension of sentence but also of maintaining peace and good behaviour while at large and not indulging in criminal activities while at large. (f) We also gave serious thought on certain procedural aspects of bail applications. We feel that after giving our detailed judgment, clarifying the various aspects of rights of citizens under Art 21, the trial courts and the High Court may well get inundated with a large number of applications for bail. This will be a happy development. But some streamlining of hearing of bail applications is necessary. We would like to curb hearing of bail applications, to prevent multiple applications being filed by under-trials and convicts. We feel that repeated filing of applications for bail give rise to many difficulties. These tend to clog the courts, are often misused, raise unrealistic expectations among the under-trials and convicts which give rise to malpractice. Subsequent appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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