Jammu & Kashmir High Court - Srinagar Bench
Vikas Lohar vs State Of Jk Through Advocate General on 12 March, 2020
Bench: Ali Mohammad Magrey, Dhiraj Singh Thakur
Serial No. 01
Advance List
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CRA No. 14/2017
C/w
CRREF 3/2016
Vikas Lohar
---Petitioner/Appellant(s)
Through: Mr. Salih Pirzada, Advocate
V/s
State of JK through Advocate General
---Respondent(s)
Through: Mr. Mir Suhail, AAG
CORAM:
HON'BLE MR. JUSTICE ALI MOHAMMAD MAGREY, JUDGE
HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
ORDER
12.03.2020 BA No. 01/2017
01. In terms of order passed by this Court on 05.03.2020, the Superintendent Central Jail was asked to submit the nominal role of the convict/appellant before this Court.
02. Mr. Mir Suhail, learned AAG submit copy of the nominal role of the convict/appellant which is taken on record.
03. Heard.
04. By this application, the appellant seeks suspension of the sentence awarded to him by the order dated 28.04.2016 upon his conviction under Section 302, RPC by the judgment dated 28.04.2016 in the case arising out of FIR No.176/2010 registered by P/S Pampore.
05. 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 21.10.2010. As on 10.03.2020, the appellant has been in jail for 09 years 04 months and 19 days. Therefore, as on date the appellant has been continuously incarcerated for almost ten years.
06. 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 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 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."
07. 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.
08. 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."
09. 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 Superintendent Central Jail, Srinagar, the remaining sentence imposed upon the appellants by order dated 28.04.2016 shall be suspended till further orders of this Court.
ii) After his release, the appellant shall ensure his appearance on the date of hearing. He shall also seek exemption on substantial grounds.
This application is allowed in the above terms.
10. A copy of this order shall also be sent to the Superintendent, Central Jail, Srinagar, to ensure compliance.
List main case on 28. 05. 2020 Copy of the order be provided to Mr. Salih Pirzada, learned appearing counsel for the appellant.
(Dhiraj Singh Thakur) (Ali Mohammad Magrey)
Judge Judge
Srinagar
12.03.2020
"Mohammad Yasin Dar"
MOHAMMAD YASIN DAR
2020.03.12 19:30
I attest to the accuracy and
integrity of this document