Patna High Court - Orders
Ubed vs The State Of Bihar on 30 January, 2017
Author: Sharan Singh
Bench: Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.167 of 2015
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Ubed, son of Latifur Rahman, Resident of Village - Bijwar, P.S. -
Angarh, District - Purnea.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. R.K. Samrendra, Adv.
For the Respondent/s : Mr. S.A. Ahmad, APP
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI
SHARAN SINGH
ORAL ORDER
6 30-01-2017Long pendency of the criminal appeals in this Court has always been matter of concern to this Court, lawyers and litigants, more particularly when the appellants upon their conviction are incarcerating. In this Court there is long queue of criminal appeals for their final hearing. The appellants naturally would insist upon and push forward their plea for suspension of their sentence and consequent release on bail, pending appeal. At the time of admission of an appeal or upon receipt of the lower Court's record, this Court, based on merits of evidence, in exercise of power under Section 389 of the Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 2/24 Code of Criminal Procedure (hereinafter referred to as the Cr.P.C.), may or may not allow the prayer for suspension of sentence. There cannot be any difficulty up to that stage. Difficulties arise thereafter when upon rejection of claim for suspension of sentence, it becomes uncertain as to how much time will it take for final hearing and adjudication upon the appeal. Repeated attempts are made thereafter by filing successive applications for suspension of sentence and release on bail. Review of an order refusing bail, pending appeal, is impermissible under law. Should the Court, in such circumstance, based on period of custody already undergone by an appellant and chance of appeal of being taken up in near future remaining uncertain; reconsider the prayer for bail, is a question which has come forth.
2. The present case is an example, which has been placed under the heading "For Orders" on a 3rd attempt made by the appellant for suspension of sentence and his release on bail, by filing an interlocutory application, bearing I.A. No. 2363 of 2016. The appellant stands convicted of an offence punishable under Section 376 of the Indian Penal Code (hereinafter referred to as the IPC) and has been sentenced to undergo rigorous imprisonment for a period of 10 years with a fine of Rs. Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 3/24 20,000/-. In default of payment of fine, he has been made to undergo rigorous imprisonment for a further period of 2 years. He has also been convicted of the offence punishable under Section 313 of the IPC for which he has been sentenced to undergo rigorous imprisonment for a period of 5 years with a fine of Rs. 10,000/- and in default of payment of fine, he has been made to undergo rigorous imprisonment for a period of 1 year. Both the sentences are to run concurrently.
3. The dates of judgment of conviction and the order of sentence are 03.03.2015 and 04.03.2015, respectively. The appellant filed this appeal on 07.04.2015. By an order, dated 30.04.2015, the appeal was directed to be admitted, lower Court's record of the concerned sessions trial was called for with an observation that prayer for bail shall be considered on receipt of the lower Court's record. After receipt of the lower Court's record, the appellant pressed his prayer for suspension of sentence and his release on bail and took a plea that there has been unexplained delay in lodging of the complaint petition. By an order, dated 25.06.2015, his prayer for bail was, however, rejected with an observation that if the appeal was not to be heard within 9 months, the appellant may renew his prayer for bail. The Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 4/24 appellant renewed his prayer for bail by filing an interlocutory application, bearing No. 772 of 2016, on 08.04.2016, i.e., nearly 1 year after rejection of his prayer for bail pending appeal. Considering, however, the nature of allegation, his prayer was again rejected by an order, dated 27.04.2016, with an observation that hearing of the appeal be expedited.
4. The appeal has, however, not been taken up for final hearing.
5. In that background, the appellant has filed another interlocutory application, bearing I.A. No. 2363 of 2016, again seeking suspension of sentence and his release on bail during the pendency of the appeal, which has thus been placed under the heading "For Orders" before me.
6. Mr. R.K. Samrendra, learned counsel, appearing on behalf of the appellant, has submitted that there is no likelihood of the appeal being taken up in near future. He has further submitted that if the records are to be seen and the nature of the offence, proved against the appellant, is to be considered, in the background of the evidence available on record, the present case cannot be said to be one of the exceptional cases in which prayer for suspension of sentence should be refused. He has placed Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 5/24 heavy reliance on a Full Bench decision of this Court in case of Anurag Baitha Vs. The State of Bihar, reported in 1987 PLJR 485, and a Supreme Court decision in case of Surinder Singh Alias Shingara Singh Vs. State of Punjab, reported in (2005) 7 SCC 387. He has also relied on a Division Bench decision of this Court in case of Chandra Shekhar Bharti @ Chandra Pratap Singh @ C.K. Singh @ Chand Pratap Singh Vs. The State of Bihar, reported in 2014(2) PLJR 756. The aforesaid three decisions have referred to and relied on earlier Supreme Court decision in case of Kashmira Singh Vs. The State of Punjab, reported in (1977) 4 SCC 291.
7. I will begin, therefore, first with the concern expressed by the Supreme Court over delay in disposal of criminal appeals and the practice not to release on bail, a person, who has been convicted and sentenced to imprisonment (in that case life imprisonment). In case of Kashmira Singh (supra), the Supreme Court noticed long prevailing practice adopted by the Supreme Court and many High Courts not to release a person on bail, after having been sentenced to life imprisonment for an offence punishable under Section 302 of the IPC. The Supreme Court in said case posed a question to itself as to whether the practice should be Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 6/24 departed from and, if so, in what circumstance and observed that no practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it operates to cause injustice. Every practice of the Court must find its ultimate justification in the interest of justice, the Supreme Court held.
8. The Supreme Court, in case of Kashmira Singh (supra), further remarked that practice not to release on bail a person, who was sentenced to life imprisonment, was evolved in the High Courts on the basis that once a person had 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 at the same time noticed the underlying postulate of this practice 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 ling period. The Court, in case of Kashmira Singh (supra), made significant observations by answering to the questions posed by itself in paragraph 2 of the decision, relevant portion of which reads thus:-
"2. x x x x x x x. The rationale of this practice can have no application where the Court is Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 7/24 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 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 public? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 8/24 be an affront to his sense of justice? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it? It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence."
9. This Court too must have been facing similar difficulties more than three decades ago of long pendency of appeals for final hearing, arising out of capital charges, as desirability of considering suspension of sentence and release of the appellants on bail on that ground had arisen. The issue came up for consideration before Full Bench of this Court, in case of Anurag Baitha (supra). The circumstance, which compelled the matter to be considered by the Full Bench is easily noticeable Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 9/24 from the said decision. Till close of the year 1983, even murder appeals, preferred in the year 1972, and well beyond a decade were pending disposal for the fact that the Court had remained crippled by the absence of full one-third of its sanctioned strength, which was found to be the main reason for long pendency of the appeals. In paragraph 4 of the said decision, this Court observed, in case of Anurag Baitha (supra), as follows:-
"4. x x x x x x x. But for the fact that the Court has remained crippled by the absence of full one-third of its sanctioned strength and as many as thirteen vacancies on this Bench have existed, there would have been no question of any delays in such hearings. This, however, was not to be. Yet hopefully the identical position of wiping out all delays at the Patna Bench itself would be reached well within the next year.
However, there is no gainsaying
the fact that as of today 1983
murder appeals only can be listed
(barring the specially ordered
cases) and heard in the ordinary
course and there thus remains a
yawning gap of three years or
more betwixt the filing of an
appeal and its final disposal. So
Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017
10/24
long as this remains and if it
unfortunately recurs, the
significant issues raised herein
have to be considered and
frontally faced."
(Emphasis added)
10. Mr. Samrendra, learned counsel,
appearing on behalf of the appellant, has drawn my attention to observations made in paragraphs 28 and 29 of decision in case of Anurag Baitha (supra).
11. Upon analyzing the situation as then prevailed, the Full Bench made significant observations, which, in my view, are of immense importance in the present scenario, since the state of affairs as on today is more alarming. The Full Bench observed that it would be sound practice that unless there are cogent grounds for acting otherwise, on conviction, an appellant would become entitled to the favourable consideration for his liberty and grant of bail when even after 1 year of incarceration and pendency of the appeal, the High Court is not able to bring it to a final hearing. The Full Bench has observed that in such cases, where hearings of appeals extend to 3 or 4 years, the persons, who are vicariously convicted on capital charges with the aid of Section 34 or 149 of the IPC, may well be granted bail on Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 11/24 the admission of the appeal itself during the pendency of its hearing after such time. While making these observations, the Full Bench made it clear that the practice shall apply only to ordinary run of the mill cases and not to the "peculiar and exceptionally heinous crimes".
12. As can be noticed from Full Bench decision, in case of Anurag Baitha (supra), which has been quoted hereinabove, the Court held that cases of convicts to whom primal role in a capital crime is attributed and are held guilty on substantive charge of murder or other capital offences, are undoubtedly on a different footing and the said concession cannot be extended to them routinely. The Full Bench, however, added that even they should not be denied bail and allowed to continue in further incarceration for 3 or 4 years, awaiting of appeal after having already undergone the mill of a trial extending over 2 to 5 years. The Full Bench, thus, held that even in their cases after the period of 1 year of the pendency of the appeal, the issue of suspension of sentence and release on bail would have to be considered on the basic ground of delay in the light of the inability of the Court itself to hear and disposed of the appeal. The Bench in most categorical and unanimous term held that peculiarly heinous crimes shocking the very Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 12/24 conscience of the society and the Court "there will be no alternative but to extend the concession of appeal, under this class of cases as well if the insistent claim of the convicts for hearing of the appeal could not be acceded to and their appeal are not adjudicated upon within the reasonable time frame of one year."
13. The said paragraphs, for quick reference, are being extracted hereinbelow:-
"28. In concrete terms, therefore, it must be held that it would be sound practice that unless there are cogent grounds for acting otherwise, on conviction an appellant on a capital charge perhaps having already been through the mill of a delayed trial would become entitled to a favourable consideration for his liberty, and grant of bail when even after one year of incarceration and pendency of the appeal the High Court is unable to 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 Sections 34 or 149, Penal Code, may well be Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 13/24 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.
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 basic ground of delay in the light of the inability of the Court Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 14/24 itself to hear and dispose of the appeal. To my mind, barring the peculiarly heinous crimes shocking the very conscience of the society and the Court, there will be no alternative but to extend the concession of bail, under this class of cases as well if the insistent claim of the convicts for hearing of the appeal cannot be acceded to and their appeals are not adjudicated upon within the reasonable time frame of one year."
(Emphasis added)
14. At present Single Bench Criminal Appeals of 2012, where the appellants are in jail are yet to be taken up. Few such Criminal Appeals of 2011 have been taken up. Criminal Appeals (Single Bench) of the year 2002, where the appellants are on bail, are being taken up in ordinary course.
Criminal Appeals (Division Bench) of 2010, where the appellants are in custody, are being heard. Otherwise, Criminal Appeal (Division Bench) cases are pending final hearing from 1993. There may be exceptions where few appeals of subsequent years might have been taken up for final hearing and might have been disposed of Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 15/24 on urgent mentioning or for any other reason.
This is by and large, the scenario of long pendency of Criminal Appeals in Patna High Court.
Apparently, thus, an appellant, in custody, has, as on date, to wait for five years or more after filing of the Single Bench Criminal Appeal, to get his appeal heard. Many of them might have spent some period in custody in course of investigation or trial, prior to conviction and presentation of appeal.
15. It is noteworthy that under Patna High Court Rules, criminal appeals, in which substantive sentence is ten years or less, are listed before Single Bench. In that background, Mr. Samrendra, learned counsel, appearing on behalf of the appellant, has suggested that the rule for consideration of suspension of sentence because of long pendency of appeal, as enunciated in case of Anuragh Baitha (supra), should be applied to cases of offences other than capital offences.
16. Coming to Supreme Court decision in case of Surendra Singh Alias Shingara Singh (supra), this is to be noticed that the case before the Supreme Court, arose out of a decision from the Punjab & Haryana High Court in case of Dharam Pal Vs. State of Haryana, reported in (2000) 1 Chan. LR. 74, relevant portion of Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 16/24 which has been quoted in the decision of Supreme Court, in paragraph 10, which is being extracted hereinbelow:-
"10. x x x x x x. We, therefore, direct that life convicts, who have undergone at least five years of imprisonment of which at least three years should be after conviction, should be released on bail pending the hearing of their appeals should they make an application for this purpose. We are also of the opinion that the same principles ought to apply to those convicted by the courts martial and such prisoners should also be entitled to release after seeking a suspension of their sentences. We further direct that the period of five years would be reduced to four for females and minors with at least two years imprisonment after conviction. We, however, clarify that these directions shall not be applicable in cases where the very grant of bail is forbidden by law."
17. In case of Dharam Pal (supra), the High Court of Punjab & Haryana has held, as can be easily seen that the Court decided that such life convicts, who had undergone at least 5 years of imprisonment of which at Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 17/24 least 3 years, should be after conviction, should be released on bail pending the hearing of their appeals, if they made an application for the said purpose. In case of female and minors, the Punjab & Haryana High Court fixed 4 years in place of 5 years and 2 years imprisonment after conviction instead of conviction 3 years. The direction, the Punjab & Haryana High Court held, not to apply in cases, where very grant of bail is forbidden by law.
18. In another case when an application for release on bail was refused by a Bench of Punjab & Haryana High Court, the Supreme Court, on an appeal, had an occasion to consider the said direction issued by the Punjab & Haryana High Court. The Supreme Court, in case of Surinder Singh Alias Shingara Singh (supra), held that the said directions, issued by the Punjab & Haryana High Court, were only in the nature of guidelines and it should not be understood to have laid down any invariable rule to be observed with mathematical precision. The Supreme Court laid down in paragraph 12 that the guidelines laid by Punjab & Haryana High Court, in case of Dharam Pal (supra), should be kept in mind by the Courts dealing with applications for grant of bail in a pending appeal. Though, it does not lay down any hard- and-fast rule of universal application. Paragraph 12 of the Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 18/24 said decision, in case of Surinder Singh Alias Shingara Singh (supra), reads thus:-
"12. We, therefore, hold that the High Court of Punjab and Haryana in Dharam Pal case laid down guidelines which ought to be kept in mind by the courts dealing with applications for grant of bail in a pending appeal. It does not lay down any hard-and-fast rule of universal application. As we have observed earlier, it would be futile to lay down any straitjacket formula in such matters."
19. Similar question arose for consideration by a Division Bench of this Court in case of Chandra Shekhar Bharti (supra), wherein, this Court dealt elaborately the Full Bench decision of this Court, in case of Anurag Baitha (supra), and Supreme Court decision, in case of Kashmira Singh (supra). The Division Bench of this Court, in case of Chandra Shekhar Bharti (supra), noticed the ratio laid down in Full Bench decision, in case of Anurag Baitha (supra), rejecting the plea of the State that delay in hearing of appeal cannot be a ground for release of a prisoner. In case of Anurag Baitha (supra), the Full Bench of this Court held that neither principle nor precedent could be cited for any such constricted view Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 19/24 rather even under Section 389 of the Cr.P.C., inordinate delay in hearing of substantive appeals, because of the Court's own inability to do so, would be extremely relevant factor for grant of bail inasmuch as Section 389 of the Cr.P.C. mentions necessity of recording of reasons for suspending sentence and undoubtedly it would be a good reason to state that there is no practicable possibility of expeditious hearing of the appeal. The Division Bench, in case of Chandra Shekhar Bharti (supra), concluded in paragraph 111 that notwithstanding the fact that prisoner's application for suspension of sentence and his consequent release on bail cannot be allowed on merit or has been rejected on merit, the Appellate Court still retains the power to suspend sentence for such period as the Court may consider imperative, particularly, when the Court finds that such suspension of sentence would make the right to life, guaranteed by Article 21 of the Constitution of India, meaningful. The Division Bench held
(i) inordinate delay in disposal of the appeal, (ii) terminal ailments, (iii) marriage of daughter, and (iv) performing last rites, etc. are the circumstances falling in the broader definition of right to life and can become valid grounds for suspension of sentence of a prisoner and his release on bail for a temporary period or until disposal of his Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 20/24 substantive appeal.
20. Having considered the Supreme Court decision, in case of Kashmira Singh (supra), and the Full Bench decision, in case of Anurag Baitha (supra), what essentially emerges that in the event there is any conflict between the constitutional rights, flowing from Article 21 of the Constitution of India and the provisions of Section 389 Cr.P.C., it is constitutional right, which would override and the legislative provisions have to give way to the constitutional rights. The question of harmonizing the legislative provisions with constitutional mandate does not arise as the supreme law. It is not need to be harmonized with subservient one. The applicability of Article 21 of the Constitution of India and right of speedy trial and expeditious hearing of substantive appeals, cannot be excluded from the arena of the discretion to be exercised under Section 389 of the Cr.P.C..
21. The question, which arises now, is as to what principle can be followed generally while considering an application for suspension of sentence and consequent release on bail of a prisoner in exercise of power under Section 389 of the Cr.P.C. when the proved offences other than capital offences, which have been dealt with by the Supreme Court, in case of Kashmira Singh (supra), and Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 21/24 by the Full Bench, in case of Anurag Baitha (supra), on the ground of delay in disposal of criminal appeals because of the Court's own inability.
22. In order to make out a case for suspension of sentence because of long pendency of the appeal, in my view, it should be a pre-condition that insistent plea of a convict for hearing of his appeal remain futile. For this purpose, he will have to satisfy the Court that effective steps were taken by filing petition/s for expeditious hearing of the appeal, which could not be acceded for because of the Court's own inability to hear the appeal.
23. I am further of the view, taking cue from the law laid down by the Full Bench of this Court, in case of Anurag Baitha (supra), and the Supreme Court decision, in case of Surinder Singh Alias Shingara Singh (supra), that in case where the sentence of imprisonment for a term of 10 years, if the appellant has remained in custody post-conviction for a period of 2 years and has remained in custody for a period of 5 years altogether, his application for suspension of sentence and release on bail will be required to be considered favourably except in exceptional circumstance. If the witnesses for a term less than 10 years and if the appeal is not taken up Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 22/24 within a period of 1 years of presentation of the appeal and the convict has remained in custody half the period of sentence, his case for suspension of sentence will be required to be considered favourably.
24. I sum up my discussions as follows:
(i) An appellant convicted of a criminal offence, whose appeal is pending, shall be entitled to a favourable consideration for his liberty and grant of bail on suspension of sentence on the ground of inordinate delay in hearing of the substantive appeals because of the Court's own inability to hear the appeals. There cannot be any straightjacket formula and hard and fast rule of universal application for consideration of bail in such situation.
The discretion always lies with the Court to allow or reject any plea for grant of bail during the pendency of appeal, in the background of nature of the case and other attending circumstances.
(ii) Ordinarily, if the appellant has spent half of the term of sentence in custody, in connection with a case, before conviction and after conviction taken together and his appeal is not likely to be heard on merits in near future, he should be released on bail on the ground of possible delay in disposal of the appeal.
(iii) In any event, if the appellant has remained in custody for two (2) years or more after conviction and awaiting for turn of his appeal to come for final hearing and there is no likelihood of the appeal being taken up in near future, his case for release on bail would need favourable consideration Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 23/24 on that ground.
(iv) Barring in peculiar and exceptional circumstance, when conviction is for a period of five (5) years or less, the appellant should be admitted to bail at the stage of admission.
(v) This will, however, not apply in case of peculiar and exceptionally heinous crimes.
(vi) In order to make out a case for suspension of sentence, on the ground of delay in hearing of substantive appeals, a party will have to establish that despite effective steps having been taken by him/her for getting the appeal heard, his prayer for expeditious hearing could not be acceded to.
25. Now, coming to the facts of the present case, the appellant stood convicted on 03.03.2015 and order of sentence was passed on 04.03.2015. Since then he is in custody. The maximum sentence is for a term of 10 years. He is yet to complete 2 years from the date of conviction and sentence. Additionally, there is nothing to show that the appellant took effective steps for expediting hearing of his appeal. However, I find from the order- sheet that despite order of this Court to expedite the hearing of the appeal, the hearing could not be expedited. In such circumstance, though I am not inclined to suspend the sentence in the present case, but I observe that the appellant shall be at liberty to apply for suspension of Patna High Court CR. APP (SJ) No.167 of 2015 (6) dt.30-01-2017 24/24 sentence and his release on bail after he completes 2 years of his incarceration after conviction.
26. Interlocutory Application No. 2363 of 2016 stands disposed of accordingly.
(Chakradhari Sharan Singh, J.) Praveen-II/-
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