Jammu & Kashmir High Court - Srinagar Bench
Irfan Ahmad Bhat vs State Through Police Station Budgam on 25 February, 2020
Bench: Chief Justice, Dhiraj Singh Thakur
Sr. No.33
Advance List
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
BA 173/2018
Irfan Ahmad Bhat
......Petitioner(s)
Through:-Mr S. T. Hussain, Sr. Advocate, with Ms Nida, Advocate.
V/s
State through Police Station Budgam.
.........Respondent(s)
Through:- Mr B. A. Dar, Sr. AAG.
Coram:
HON'BLE THE CHIEF JUSTICE.
HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE.
ORDER
25.02.2020
01. Heard.
02. By this application, the appellant seeks suspension of the sentence awarded to him by the order dated 22.11.2017 upon his conviction under Section 302, 309, 341 RPC by the judgment dated 20.11.2017 in the case arising out of FIR No.344/2008 registered by P/S Budgam.
03. We have called for a nominal roll of the appellant from the Central Jail, Srinagar. The nominal of the appellant has been received under the signatures of the Sr. Superintendent of Central Jail, Srinagar, whereby we are informed that appellant has been in continuous incarceration since 25th July, 2008. As on 31st December, 2019, the appellant has been in jail for 11 years 5 months and 6 days. Therefore, as on date the appellant has been continuously incarcerated for almost twelve years.
04. In the case reported as AIR 2001 SC 1528, Akhtari Bi v. State of M.P., the Supreme Court has held that if an appeal is pending for five years and there is no chance of appeal being heard in near future then in such a case BA 173/2018 1 of 4 the applicant/appellant should be enlarged on bail. Relevant extract of the judgment is reproduced hereunder:
"To have speedy justice is a fundamental right which flows from Article 21 of the Constitution. Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers a right upon him to apply for bail. This Court, has time and again, reminded the executive of their obligation to appoint requisite number of judges to cope with the ever- increasing pressure on the existing judicial apparatus. Appeal being a statutory right, the trial court's verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction. It is unfortunate that even from the existing strength of the High Courts huge vacancies are not being filled up with the result that the accused in criminal cases are languishing in the jails for no fault of theirs. In the absence of prompt action under the constitution to fill up the vacancies, 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 5 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 BA 173/2018 2 of 4 criminal cases are pending for more than 5 years to take immediate effective steps for their disposal by constituting regular and special benches for that purpose."
05. It has been clearly laid down by the Supreme Court in AIR 2001 SC 1528, Akhtari Bi Vs. State of M.P that if an appeal is pending for 05 years and there is little chance of the bail being heard in the near future then in such a case, a convict would be entitled for a favourable consideration for suspension of his remaining sentence.
06. In AIR 2017 SC 1568, Sandeep alias Raja Acharya Vs. State of Orissa also, the Supreme Court had made similar observations on a consideration of the circumstance of the conviction appeal remaining pending for further time and the possible time by which the appeal before the High Court would be disposed of. Relevant extract of the judgment is reproduced hereunder:
"The accused appellant is in custody for nearly nine years. The appeal filed by the accused appellant before the High Court against his conviction under Section 302/34 IPC is of the year, 2011. As far as back on 2nd September, 2011 while rejecting the prayer for bail this Court in Special Leave Petition (Criminal) No. 6207 of 2011 had directed expeditious hearing of the appeal. The appeal before the High Court continues to remain pending as on date and in the normal course, the same is likely to take some further time for disposal. Having regard to the period of custody suffered and the possible time by which the appeal before the High Court can be disposed of, we are inclined to release the appellant on bail. Accordingly, the appellant is ordered to be released on bail to the satisfaction of the learned trial Court in connection with Criminal Trial (Sessions) No. 12/5 of 2009."
07. The current board of this court does not render it possible to expedite hearing in the main appeal. There is difficulty in hearing these matters also BA 173/2018 3 of 4 for want of translation of the trial court records which are in Urdu. In view thereof, interests of justice demand that the prayer made in this application is accepted. It is, accordingly, directed as follows:
i) Subject to appellant's furnishing the bail bond in the sum of ₹ 50,000/- with one surety of the like amount to the satisfaction of the Registrar Judicial, the remaining sentence imposed upon the appellants by order dated 22nd November, 2017 shall be suspended till further orders of this Court.
ii) After his release, the appellants shall report to the Station House Officer of the Police Station, M. R. Gunj, Srinagar, at any time during the day light hours on the 2nd Saturday of every month.
This application is allowed in the above terms.
08. A copy of this order shall also be sent to the Superintendent, Central Jail, Srinagar, and the Station House Officer, Police Station, M. R. Gunj, Srinagar, to ensure compliance.
(DHIRAJ SINGH TAHKUR) (GITA MITTAL)
JUDGE CHIEF JUSTICE
Date:25.02.2020
Abdul Qayoom, PS
BA 173/2018 4 of 4
ABDUL QAYOOM LONE
2020.02.26 12:29
I attest to the accuracy and
integrity of this document