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TMI Blog2022 (1) TMI 1471X X X X Extracts X X X X X X X X Extracts X X X X ..... such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.' In the recent case of MOSSA KOYA KP VERSUS STATE (NCT OF DELHI) [ 2021 (12) TMI 1395 - SUPREME COURT] , the Hon'ble Supreme Court granted the concession of bail to the applicant who had undergone 08 years of his substantial sentence of 10 years. The applicant in the present case is a prior convict, and therefore, his case would be an exception to the ratio of the law laid down in DALER SINGH VERSUS STATE OF PUNJAB [ 2006 (12) TMI 576 - PUNJAB AND HARYANA HIGH COURT] . However, on having examined the factual matrix in the case of the applicant, it is required to suspend the rest of the sentence of the applicant. In view of the aforesaid discussion, the applicant ought to be released on bail having undergone 08 years 11 months and 19 days of his substantive sentence of 12 years - the present application is allowed and the rest of the sentence imposed on the applicant-appellant namely Rajender Singh is suspended subject to his furnishing necessary surety bonds/bail bonds to the satisfact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re reproduced hereinbelow. 29. We, therefore, feel that keeping in view the spirit of Article 21, the following principles should be adopted for the release of the prisoners (convicts) on bail after placing them in different categories as under:- (i) Where the convicts is sentenced for more than 10 years for having in his conscious possession commercial quantity of contraband, he shall be entitled to bail if he has already undergone a total sentence of six years, which must include at least fifteen months after conviction. (ii) 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 at least fifteen months after conviction. (iii) Where the convict is sentenced for ten years for having in his conscious possession, merely marginally more than non-commercial 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 at least twelve months after conviction. (iv) The convict who, according to the allegations, is not arrested at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point of view of the accused are: (a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction; (b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and (c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise. 4. At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, delay is a known defence tactic . Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the Right to speedy trial is alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf; he is tried by the court at the behest of the prosecution. Hence, an accussed's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in U.S.A., the relevance of demand rule has been substantially watered down in Barker and other succeeding cases. 8. Ultimately, the court has to balance and weigh the several relevant factors-'balancing test' or 'balancing process'-and determine in each case whether the right to speedy trial has been denied in a given case. 9. Ordinarily speaking, where the court comes to the conclusion that Right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancies, it is incumbent upon the high courts to find ways and means by taking steps to ensure the disposal of criminal appeals, particularly such appeals where the accused are in jails, that the matters are disposed of within the specified period not exceeding 05 years in any case. Regular benches to deal with the criminal cases can be set up where such appeals be listed for final disposal. We feel that if an appeal is not disposed of within the aforesaid period of 5 years, for no fault of the convicts, such convicts may be released on bail on such conditions as may be deemed fit and proper by the Court. In computing the period of 5 years, the delay for any period, which is requisite in preparation of the record and the delay attributable to the convict or his counsel can be deducted. There may be cases where even after the lapse of 5 years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the disposal of the appeals filed by them. We request the Chief Justices of the High Courts, where the criminal cases are pending for more than 5 years to take immediate effective steps for their disposal by constituting regular and special benche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the rigors of Section 37 would have to be met before the sentence of a convict is suspended and bail granted and mere passage of time cannot be a reason for the same. However, we are faced with unusual times where the Covid situation permeates. We are also conscious that this Court has passed orders for release of persons on bail to de-congest the jail but that is applicable to cases of upto seven years sentence. 6. In the given aforesaid facts and circumstances of the case, we consider it appropriate to enlarge the appellant on bail on terms and conditions to the satisfaction of the Trial Court. 7. At the insistence of the learned Additional Solicitor General, we clarify that the order has been passed in the given facts of the case and not to be treated as a precedent. 13. In the recent case of 'Mossa Koya KP vs. State (NCT of Delhi), Criminal Appeal No. 1562 of 2021 (arising out of SLP (Crl.) No. 8647 of 2021) decided on 06.12.2021, the Hon'ble Supreme Court granted the concession of bail to the applicant who had undergone 08 years of his substantial sentence of 10 years. Paras 12 and 13 thereof are reproduced hereinbelow:- 12. We appreciate the submission of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Psychotropic Substances Act, 1985 ('NDPS Act' - for short) which provides for various other factors to be kept in view including that of Sections 32-A and 37(1)(b) and (2) of the NDPS Act. A case for the grant of bail pending trial or suspension of sentence pending disposal of appeal would not be on the same analogy in view of the provisions of Sections 32-A and 37(1)(b) and (2) of the NDPS Act. In respect of the said provisions a Full Bench of this Court in the case of Tule Ram v. State of Haryana, 2005 (4) RCR (Cr.) 319 considered the powers of the appellate Court for suspension of sentence in a case under the NDPS Act pending appeal. It was held that the appellate Court has no power to suspend sentence during pendency of the appeal. The NDPS Act, it was observed, makes no provision for post-conviction suspension of sentence. Besides, it is difficult for an appellate Court to record its satisfaction that there are reasonable grounds for believing that the convict is not guilty of the offence. The exception, however, that was carved out 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am's case (supra) and Daler Singh's case (supra) have not been challenged in the Supreme Court till date. The guidelines framed by this Court are thus being followed, keeping in view the fact that appeals are not likely to be listed in near future and sentences are being suspended. The application for suspension of sentence can, therefore, be considered as per Section 37 of the NDPS Act in the facts and circumstances of the present case'. 17. A perusal of the aforementioned judgments would bear testament to the fact that the right under Article 21 of the Constitution of India includes the right to a speedy trial and expeditious disposal of the appeal of a convict, and a delayed trial/disposal of an appeal would entitle the accused/convict to suspension of his sentence, of course, depending on facts and circumstances of the each case. 18. As has already been submitted hereinabove, the learned State counsel has while admitting to the settled legal position enumerated in the judgments (supra), regarding the right to a speedy trial/quick disposal of appeal, however, reiterates that the case of the applicant would not be covered by the ratio of Daler Singh's case, due to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce under Section 389 of the CrPC, 1973 and grant of bail, post-conviction. In the earlier case there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. and Anr. (supra). However, in case of post-conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the Court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) of the Cr.P.C., 1973. 10. The principles which must guide the grant of bail in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the pendency of another case/conviction. This would clearly be violative of the right to speedy trial/expeditious disposal of an appeal as recognized under Article 21 of the Constitution of India, as the accused would never be granted bail in any case leading to indefinite periods of incarceration assuming of course that the appeal is not heard within a reasonable period of time. (iv) The appeal, in the present case, which stands admitted on 14.11.2014, is not likely to be heard in the near future due to the COVID-19 pandemic, which does not show sign of abating. 20. In view of the aforesaid discussion, we are of the view that the applicant ought to be released on bail having undergone 08 years 11 months and 19 days of his substantive sentence of 12 years. 21. Accordingly, the present application is allowed and the rest of the sentence imposed on the applicant-appellant namely Rajender Singh is suspended subject to his furnishing necessary surety bonds/bail bonds to the satisfaction of the Chief Judicial Magistrate/Duty Magistrate, Fatehabad. 22. Needless to say if the applicant indulges in a similar offence for which he has been convicted, while on bail, the State would be at libe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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