Rajasthan High Court - Jaipur
Mohammed Mohsin Khan @ Bhooria vs State Of Raj on 31 May, 2013
Author: Ajay Rastogi
Bench: Ajay Rastogi
In the High Court of Judicature for Rajasthan Jaipur Bench, Jaipur D.B. Criminal Misc. 6th SOS Application No.155/2010 In D.B. Criminal Appeal No.1298/2004 (Mohd. Mohsin Khan @ Bhooria V/s State) D.B. Criminal Misc. 5th SOS Application No.607/2010 In D.B. Criminal Appeal No.183/2005 (Nasir Khan V/s State) D.B. Criminal Misc. 3rd SOS Application No.1171/2009 In D.B. Criminal Appeal No.663/2006 (Mohan Lal V/s State) D.B. Criminal Misc. 2nd SOS Application No.881/2009 In D.B. Criminal Appeal No.803/2006 (Ram Chandra V/s State) D.B. Criminal Misc. 2nd SOS Application No.1134/2009 In D.B. Criminal Appeal No.504/2007 (Suresh Kumar V/s State) D.B. Criminal Misc. 3rd SOS Application No.222/2011 In D.B. Criminal Appeal No.323/2007 (Ashwani Kumar V/s State) D.B. Criminal Misc. 2nd SOS Application No.566/2009 In D.B. Criminal Appeal No.1380/2007 (Natrapal V/s State) Judgment reserved on : 30.4.2013 Judgment pronounced on : 31.5.2013 Hon'ble Mr. Justice Ajay Rastogi Hon'ble Mr. Justice Raghuvendra S. Rathore Hon'ble Mr. Justice V.K. Mathur Mr. Suresh Sahni, Mr. NC Choudhary, Mr. Vijay Choudhary, Mr. Abhay Jain, Mr. DG Chaturvedi, Mr. PS Sirohi, Mr. Anil Upman, Mr. Ravi Shankar Sharma, Mr. Kapil Gupta,for appellants. Mr. GS Rathore, Ms. Rekha Madnani, Govt. Advocates for State. REORTABLE BY THE COURT: (Per Hon'ble Ajay Rastogi, J.)
1. When DB Criminal Misc. second/third application for Suspense of Sentence came up for hearing the Division Bench of this Court doubted the correctness of the decision of a Coordinate Division Bench of this Court in Tahir Khan @ Shakeel Vs. State & Ors. (2005) 4 WLC Raj. 637 and referred it to be heard by Larger Bench, vide its order dt.21.12.2011. The operative part whereof reads ad infra:
In view of aforesaid discussion, we have our own doubts about the correctness of the Division Bench judgment of this Court in Tahir Khan @ Shakkel, supra. For the sake of judicial propriety, however, we deem it appropriate to refer this question to a larger bench to be constituted by Hon'ble the Chief Justice of at least three judges, which may also consider correctness of the guidelines laid down by the Division Bench of this Court in Tahir Khan, supra, in the light of various Supreme Court judgments noted above.
Following question was therefore referred to the larger bench:-
Whether sentence of life imprisonment of a convict can be suspended solely on the ground of his having served five years or one-half of the maximum sentence, inclusive of remission, which would otherwise entitle him to release from jail, and whether the judgment of a Division Bench of this Court in Tahir Khan @ Shakeel and Others Vs. State of Rajasthan 2005 (4) WLC (Raj.) 637, holding so, has been correctly decided ?
2. This is how the matter has come up for consideration before us.
3. Counsel for appellants jointly submitted that the broad guidelines laid down by this Court in Tahir Khan @ Shakeel (supra) stands affirmed by the Apex Court in Surinder Singh @ Singhara reported in (2005 (7) SCC 387) and the question no more remains res integra at least to be examined by this Court and more so when the special leave to appeal (cr.) filed by the State of Raj. before the Apex Court arising from the judgment in the case of Tahir Khan has been dismissed.
4. Learned Public Prosecutor on the other hand is also unable to support the view of the reference court where the correctness of judgment of the division bench is being doubted.
5. The provision of Code of Criminal Procedure 1973 gives a right to an accused to file appeal against order of conviction u/S. 374 to this Court where sentence of imprisonment is for more than seven years and the convict person also have a right of filing an application for suspension of sentence, pending appeal, for his release on bail u/S. 389 of the Code. This Court can take judicial notice of the fact that DB Cr. Appeals which are pending in this Court where the accused are in jail and have rendered even more than 10 years of their incarceration but because of long pendency of cases they could not be taken up for hearing. We have taken details from the office of the registry and number of appeals awaiting hearing before the Court where the accused are incarceration for a period of more than seven years and could not be taken up for hearing by the Court even once and are lying in the archives of the High Court without having a touch of the hands of judges for number of years.
6. The report submitted by the office has been placed on record which reads ad infra:
At Jodhpur Total Number of DB Cr. Appeals in the category of Hearing in which accused are in Jail for seven or more than seven years-Total No. DB Cr. Appeals 114
Total Number of DB Cr. Appeals in the category of Hearing in which accused are in Jail for five or more than five years-Total No. of DB Cr. Appeals 207
Total Number of SB Cr. Appeals in the category of Hearing in which accused are in Jail for seven or more than seven years-
Total No. of SB Cr. Appeals 08.
Total Number of SB Cr. Appeals in the category of Hearing in which accused are in Jail for five or more than five years-Total No. of SB Cr. Appeals 24
Jaipur Bench Total Number of DB Cr. Appeals in the category of Hearing in which accused are in Jail for more than seven years-Total No. DB Cr. Appeals 308
Total Number of DB Cr. Appeals in the category of Hearing in which accused are in Jail for five or more than five years-Total No. of DB Cr. Appeals 441
Total Number of SB Cr. Appeals in the category of Hearing in which accused are in Jail for more than seven years-
Total No. of SB Cr. Appeals 38.
Total Number of SB Cr. Appeals in the category of Hearing in which accused are in Jail for five or more than five years-Total No. of SB Cr. Appeals 146
7. The matter earlier came up for consideration before the Division Bench on second/third application for suspension of sentence filed by the accused appellant u/S. 389 Cr.P.C. in appeals against their conviction u/S. 302 IPC in which they have been sentenced to undergo life imprisonment only on account of their long incarceration in jail and their first application for suspension of sentence came to be dismissed on merits.
8. Before we take note of the view expressed by the Division Bench of this Court in Tahir Khan @ Shakeel and Others Vs. State of Rajasthan 2005 (4) WLC (Raj.) 637 we would first like to have a glance of the law laid down by the Apex Court and multiple plight of jail inmates facing trial or incarceration for number of years.
9. The Apex court in Hussainara Khatoon and ors. V. State of Bihar (AIR 1979 SC 1360) while examining the habeas corpus petition took note of the plight of jail inmates who are incarceration for a long period and their trial either could not commence or has not been concluded for long time and observed ad infra.
"It is a crying shame on the judicial system which permits incarceration of men and women for such long periods of time without trial. We are shouting from house tops about the protection and enforcement of human rights. We are talking passionately and eloquently about the maintenance and preservation of basic freedoms. But, are we not denying human rights to these nameless persons who are languishing in jails for years for offences which perhaps they might ultimately be found not to have committed ? Are we not withholding basic freedoms from these neglected and helpless human beings who have been condemned to a life of imprisonment and degradation for years on end ? Are expeditious trial and freedom from detention not part of human rights and basic freedoms ? Many of these unfortunate men and women must not even be remembering when they entered the jail and for what offence ? They have over the years ceased to be human beings; they are mere ticket-numbers. It is high time that the public conscience is awakened and the Government as well as the judiciary begin to realize that in the dark cells of our prisons there are large number of men and women who are waiting patiently, impatiently perhaps, but in vain, for justice-a commodity which is tragically beyond their reach and grasp. Law has become for them an instrument of injustice and they are helpless and despairing victims of the callousness of the legal and judicial system. The time has come when the legal and judicial system has to be revamped and restructured so that such injustices do not occur and disfigure the fair and otherwise luminous face of our nascent democracy."
10. Thereafter nothing happened and more than three decade had gone by and the observation made by the Apex Court remain in vain and time has come when the legal and judicial system has to be revamped and restructured so that such injustices do not occur and disfigure the fair and otherwise luminous face of our nascent democracy and it revealed that it is continuing unabated and the situation far from improving appears to have further deteriorated.
11. The Apex Court while dealing with the writ of habeas corpus in Kasmira Singh Vs. State of Punjab (AIR 1977 SC 2147) and where the accused were in prison for years awaiting trial in Court of Law, how far it would be justified to keep in judicial custody without affording opportunity of hearing to the appellant. It was a case where accused was charged for offences u/S. 302 & 323 IPC but convicted u/s. 323 IPC by the learned trial court. However, on appeal being preferred by the State against his acquittal u/s. 302 IPC was accepted by the High Court and he was convicted for the offence u/s. 302 IPC and sentenced to R.I. for life. An special leave to appeal against the order of conviction was preferred and his bail application was initially rejected. He moved another application for grant of bail essentially for the reason that the appeal did not come up for hearing for a long period and facing incarceration while examining the second successive application for grant of bail moved by the accused appellant, the Apex Court was of the view that merely conviction & sentence of accused being u/S. 302 IPC that itself may not be sufficient to deprive him of seeking indulgence for release on bail more so when his appeal could not possibly be heard on merits during times to come and in this context the Apex court taking judicial notice observed ad infra:
The appellant contends in this application that pending the hearing of the appeal he should be released on bail. Now, the practice in this Court as also in many of the High Courts has been not to release on bail a person who has been sentenced to life imprisonment for an offence under Section 302 of the Indian (Penal Code. The question is whether this practice should be departed from and if so, in what circumstances. It is obvious 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 practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that, once a person has 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 the underlying postulate of this practice was 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 long period. The rationale of this practice can have no application where the Court is 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 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.
12. The Apex Court in Kasmira Singh (supra) while dealing with the writ of habeas corpus took note of alarming situation where the large number of women including children were in judicial custody for years together facing trial in Court of law and took note of the fact that if their appeal could not be heard for sufficient long time for which accused could not be blamed, it would be travesty of justice to keep a person in judicial custody who may be ultimately found not to have committed any offence and whether the Court will at all be in a position to compensate him/her for their incarceration which if later on found to be unjustified.
13. This is what the Apex Court had taken note of in its later judgment, while examining the scope of Art. 21 of the Constitution in Smt. Menka Gandhi V Union of India And Another (AIR 978 Supreme Court 597) where the Constitution Bench observed that Art. 21 confer fundamental right on every person not to be deprived of his life and liberty except in accordance with the procedure prescribed by law and the procedure should be reasonable, fair and just. Further that speedy trial is an integral and essential part of the fundamental right to life and liberty, deprivation of which would be violative of Article 21 of the Constitution of India.
14. When such a situation arose before the Punjab & Haryana High Court where the appeals against order of conviction was awaiting hearing and incarceration of accused pending appeal was for almost more than half of the sentence in Dharam Pal Vs. State of Haryana (1994) 4 RCR 600 placing reliance on two earlier decisions of Apex Court in Kasmira singh and Hussainara Khatoon (supra), laid down certain broad guidelines which reads ad infra:
16. We have heard the learned Counsel for the parties and have gone through the various documents on record. We too are of the opinion that as there appears no likelihood of an early hearing of the appeals of those undergoing a sentence of life imprisonment, certain guidelines for the release of such prisoners on bail ought to be framed. We do agree with Mr. Randhawa that the nature of the crime would to some extent determine the guidelines for this purpose. We have, therefore, chosen to accept the categorization of crimes given in the Punjab Government circular referred to above. The categorization as also the actual imprisonment and imprisonment with remission qua each category is reproduced below :
(Periods in years)
------------------------------------------------
A B C D E For convicts whose death Convicts who have Convicts who have Other life convicts Other life sentence has been commuted been imprisoned for been imprisoned for imprisoned for life convicts to life imprisonment- life for offences for life for offences for for offences which death is a which death is a for which the death punishment and have penalty but crimes penalty is not a committed heinous are not considered punishment and have crime. Heinous. committed heinous Actual Imprisonment Actual Imprisonment Actual imprisonment Actual Imprisonment Actual imprison- imprisonment with remission imprisonment with remission imprisonment with remission imprison- with remission imprison ment ment ment with remission Results 14 20 12 18 10 14 10 14 8-1/2 14 females/ . minors 10 14 8 12 8 12 8-1/2 12 6 10
17. Columns B and D pertain to heinous crimes, the same are reproduced below :
"A. Heinous crimes with reference to column B of 1(1) above are defined as follows -
(i) Offence under Section 302 along with Section 347 of the I.P.C. i.e. murder with wrongful confinement of extortion.
(ii) Section 302 with Section 375 i.e. murder with rape.
(iii) Offence under Section 396 (sic) of IPC i.e. dacoity with murder.
(iv) Offence under Section 302 alongwith offences under the Terrorist and Disruptive Activities (Prevention) Act, 1987.
(v) Offence under Section 302 alongwith offence under the Untouchability (Offences) Act, 1955.
(vi) Offence under Section 302 where murder has been committed in connection with any dispute over dowry and this is indicated in the judgment of the Trial Court.
(vii) Offence under Section 302 where the victim is a child under age of 14 years.
(viii) Any conviction under Section 120-B of the I.P.C.
Heinous crimes with reference to column 'D' of the revised policy are defined as follows -
(i) Offence under Section 304(B) of the IPC, i.e. a dowry death.
(ii) Offence under Section 304 along with Section 347 of the IPC, i.e. culpable homicide with wrongful confinement for extortion.
(iii) Offence under Section 304 with Section 375, i.e. culpable homicide with rape.
(iv) Offence under Section 304 along with offence under the Terrorist and Disruptive Activities (Prevention) Act, 1987.
(v) Offence under Section 304 where culpable homicide has been committed in connection with any dispute on dowry and this is indicated in the judgment of the Trial Court.
(vi) Offence under Section 304 where the victim is a child under the age of 14 years.
(vii) Any conviction under Section 120-B of the IPC i.e. for criminal conspiracy in connection with the above crimes.
18. We refrain from issuing any general guidelines for prisoners, who stand convicted of offences, which find mention in category B and direct that their matters should be left to the decision of the Judges to whom an application for bail is made. We, however, order that the appeals filed by such prisoners in which bail is denied should be accorded priority in hearing. Our experience, however, tells us that the largest number of appeals are covered by categories C, D and E and it is these categories, which are our primary concern. We are firmly of the view that these prisoners are entitled to some consideration. We do appreciate that category 'D' also deals with heinous crimes pertaining to a great social evil but in the light of the fact that in prosecutions under Section 304-B, the net is often cast far and wide by the complainant (and very often unjustifiably so), this category must also be included in our decision. 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 2 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. We are cognizant of the fact that the time-frame looked at in isolation can have no obvious rationale but it stems from an attempt to balance the interest of the prisoners with the interest of the State and the complainant. We also find precedent for our view from the observations of the Supreme Court in Kashmir Singh's case, wherein it was observed that if an appeal could not be heard for five or six years, the prisoner could well be entitled to be released on bail.
15. The fact situation which has emerged, as regard pendency of cases, in this Court is almost the same where the accused appellants are incarceration for long time and their appeals could not be heard for one or other reason. Taking note of the broad guidelines laid down, deprivation of rights of the jail inmates affected, keeping in view the gravity of the crime and the interest of the state/victim, and striking balance between two conflicting interest, the division bench was of the view that guidelines with suitable modifications can be taken note of so as to consider successive bail applications of such of the prisoners whose appeal could not be heard expeditiously or in near future and observed in para 33 of Tahir Khan @ Shakkel Vs State of Raj. 2005(4) WLC 637 reads ad infra:
In view of the discussions made above, there will be no need at all to issue any general directions for prisoners who stand convicted of offence, which finds mentioned in Category 'B'. We direct that matters should be left to the decision of the Judges to whom application for bail is made. We, however, direct that the appeals filed by such persons in which bail is denied, should be accorded priority in hearing. Prisoners belonging to Category 'C', 'D' and 'E' need to be enlarged on bail or their sentences need to be suspended if they have undergone at least five years of imprisonment in which at least three years should be after conviction, if they might make an application for the same. The same principle ought to apply to those convicted by court martial and such prisoners should also be entitled to be released after seeking suspension of their sentence. The period of five years should be reduced to four years for female and minors, with at least two years of imprisonment after conviction. We clarify that these directions shall not be applicable in cases where the very grant of bail is forbidden by law. The directions made above, besides being applicable to all the prisoners of category 'C', 'D' and 'E', shall also be applicable to those convicted Under Section 304B IPC. Let all these matters be now placed for hearing in view guidelines, as fully detailed above.
16. The Apex Court had an occasion to express its view in Surinder Singh Vs. State of Punjab 2005 (7) SCC 387 and observed that what is being referred to by Punjab & Haryana High Court in Dharam Pal's case may not be misunderstood because that decision lays down certain guidelines and not any invariable rule & observed ad infra:
Similar observations are found in some of the other decisions of this Court which have been brought to our notice. But however, it is significant to note that all these decisions only lay down broad guidelines which the Courts must bear in mind while dealing with an application for grant of bail to an appellant before the Court. None of the decisions lay down any invariable rule for grant of bail on completion of a specified period of detention in custody. Indeed in a discretionary matter, like grant or refusal of bail it would be impossible to lay down any invariable rule or evolve a strait jacket formula. The Court must exercise its discretion having regard to all the relevant facts and circumstances. What the relevant facts and circumstances are, which the Court must keep in mind, has been laid down over the years by the Courts in this country in large number of decisions which are well known. It is, therefore, futile to attempt to lay down any invariable rule or formula in such matters.
Counsel for the parties submitted before us that though it has been so understood by Courts in Punjab, the decision of the Punjab and Haryana High Court in Dharampal's case only lays down guidelines and not any invariable rule. Unfortunately, the decision has been misunderstood by the Court in view of the manner in which the principles have been couched in the aforesaid judgment. After considering the various decisions of this Court and the difficulties faced by the Courts, the High Court in Dharampal's case observed:-
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".
8. We agree with the submission urged before us that the directions contained in the aforesaid judgment of the High Court are only in the nature of guidelines and the High Court should not be understood to have laid down an invariable rule to be observed with mathematical precision. In fact in the very first paragraph of the judgment the learned Judges observed that they were making "an attempt to frame certain guidelines" for the grant of bail. Difficulties may arise if such a direction is treated as an invariable rule in the matter of grant of discretionary relief. The rule laid down in Dharampal's case may be inferentially understood to mean that unless a convict has undergone five years imprisonment, he should not be released on bail. This would again lead to travesty of justice, because in a given case having regard to the evidence on record and the reasoning of the Court convicting the accused, the High Court in an appeal may well be persuaded and justified in granting bail to the appellant even while admitting his appeal.
We, therefore, hold that the High Court of Punjab and Haryana in Dharampal's case laid down guidelines which ought to be kept in mind by 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 strait jacket formula in such matters.
17. It has also been brought to our notice that the bail granted to the accused in pending appeal which was decided by Division Bench of this Court along with Tahir Khan @ Shakeel (supra) on 3.8.2005 obviously in view of broad guidelines laid down, the state government challenged such orders of granting bail by filing special leave Petitions and the same came to be dismissed by the Apex Court vide its order dt.12.1.2007 after taking note of the principles laid down in Surinder Singh's case (supra) and observed ad infra:
Since we have declared the principles in Surinder Singh @ Shingara Singh Versus State of Punjab reported in 2005 (7) SCC 387, we do not wish to entertain these Special Leave Petitions particularly, when the respondents have been granted bail by the High Court. These Special Leave Petitions are, therefore, dismissed.
18. This Court can take notice that the nature of crime certainly remain the predominant factor in laying down broad guidelines which has to be kept in mind while dealing with an application for suspension of sentence to an appellant while appeal is pending for hearing. None of the decisions lay down any invariable rule for grant of bail on completion of a specified period of detention in custody. Indeed in a discretionary matter, like grant or refusal of bail it would be impossible to lay down any invariable rule or evolve a strait jacket formula and as regard the discretion vests with the court it is always to be exercised taking note of relevant facts & circumstances of each case and certainly after view being expressed by the Apex Court in Surinder Singh's (supra) and what has been observed it certainly attract the applicability of Art. 141 of the Constitution and obviously will have a binding effect and no Court or Tribunal will at all take a liberty of canvassing any view contrary to the one expressed by the Apex Court.
19. It was also considered in Babu Singh and Ors. V The State of Uttar Pradesh A.I.R. 1978 SC 527; (1978 SC 527), the Apex Court observed ad infra:
Rationale of the practice can have no application where the Court is 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 ultimately found to be unjustified ?
20. From the data made available if a convict has undergone substantial part of sentence and is not released the very purpose of its filing of appeal may be defeated as he would undergone more than half of the sentence that has been imposed but, at the same time, if an accused is released it may have wrong message to the society that a person who under trial had remained in custody is released on bail soon after conviction, upon filing an appeal. It is in the said context that the 'balancing text' or the 'balancing process' as laid down in Abdul Rehman Antulay's case is to be applied so that even if there is no strait jacket formula still there is some semblance of uniformity and parameters on the basis of which the parties know that their cases are to be considered and thereafter necessary orders are passed.
It is true that it cannot lay down an absolute or invariable rule that delay in concluding the trial would ipso fact entitle an accused for the grant of bail. The right is of consideration and not an automatic right of bail. However, in case of delay of the prosecution, which is oppressive or unwarranted, and violative of Art. 21 of the Constitution appropriate remedial orders would be required to be passed in a given fact situation of each case and this has been noticed by Legislation to some extent and for which remedial measures were required to be taken and accordingly the legislation has inserted sec. 436A in the Code by the Code of Criminal Procedure (Amendment) Act, 2005 for an under trial prisoners other than the one where the accused of an offence for which death has been specified as one of the punishments under that law, if under detention for a period extending to one-half of the maximum period of imprisonment provided for the alleged offence, he should be released on his personal bond with or without sureties. It will be relevant to quote the relevant sec. 436A amended by Act 2005 ad infra:
Section 436A - Maximum period for which an under trial prisoner can be detained-
Maximum period for which an under trial prisoner can be detained Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:
Provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.
Explanation.--In computing the period of detention under this section for granting bail the period of detention passed due to delay in proceeding caused by the accused shall be excluded.]
21. The plight of under trial prisoners to the extent has been certainly taken note of by legislature by inserting sec. 436A in the Code but in the case of post conviction cases where a convict seeks suspension of sentence, pending disposal of appeal complaint can always be made to the Court for long incarceration. It is true that there cannot be an absolute or invariable rule that the convict must necessarily undergo minimum sentence before his case is considered for suspension of sentence or release on bail pending hearing of the appeal. However, the period of five years of imprisonment or four years in the case of females as laid down in Dharam Pals case (supra) was considered to be substantial period to be undergone by a convict for the purpose of consideration for his/her release on bail or suspension of sentence.
22. What has been observed by the Apex Court in Surinder Singh's case are the broad guidelines and it is always open for the court to consider as and when application comes for suspension of sentence in the facts of each case and no invariable rule or strait jacket formula could be lay down in this regard.
23. We would like to observe that the guidelines laid down by the Division Bench and later on observed by the Apex Court in Surinder Singh's case (supra) it is manifestly clear that detention period alone cannot be in isolation sufficient to entitle an accused to bail. It is also equally true that presumption of innocence of accused comes to an end with the recording of his conviction but at the same time when the appeal is a continuation of proceedings of trial as the conviction has not yet attained finality, in this regard observation has been made by the Apex Court in para 5 of the judgment in Smt. Akhtari Bi V State of M.P. (2001) 4 SCC 355 that 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. Para 5 reads ad infra:
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 purposes.
24. Even in the court of appeal the appellate court has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court. The judicial approach in dealing with the case where an accused is charged of murder u/S. 302 has to be cautious, circumspect and careful taking note of nature of crime and all relevant material circumstances upholding conviction.
25. In the instant case while making reference the Division Bench has doubted the correctness of the judgment reported in Tahir Khan @ Shakil (supra) but nothing came to record to support thereof and merely contrary opinion expressed to examine the correctness by the larger Bench of this Court in the light of judgments of the Apex Court. However, the fact is that Tahir Khan's case is based on the broad guidelines lays down by the High Court of Punjab & Haryana in Dharam Pal's case (supra) and that came to be affirmed by the Apex Court in Surinder Singh @ Singhara (2005 (7) SC 387) upholding Dharam Pal case in its unequivocal terms and observed that the broad guidelines lays down ought to be kept in mind by the courts while dealing with the applications for grant of bail in a pending appeal and further observed that it does not lay down any hard and fast rule of universal application and there could not be any strait jacket formula in such matters and always open for the courts to keep in mind the guidelines while dealing with an application for grant of bail.
26. However, none of the decision lay down any invariable rule for grant of bail on completion of a specified period of detention in custody. Even the judgment relied by the reference bench to doubt the correctness of the judgment in view of State of Punjab Vs. Deepak Mattu (2007) 11 SCC 319 & Sidharth Vashisth @ Manu Sharma 2008 (5) SCC 320 with respect has no relevance at all and it was a case where the accused was public servant and was convicted for the offence under the Prevention of Corruption Act and on appeal being preferred against the order of conviction apart from sentence the conviction of appellant was suspended during pendency of appeal, suspension of conviction came to be assailed by the State of Punjab by filing Cr. Appeal before the Apex Court and the order of suspending conviction was set aside by the Apex court. The latter case of Sidharth Vashisht @ Manu Sharma (supra) was a case where the appellant was acquitted by the learned trial court and against the order of acquittal appeal was preferred by the State (N.C.T. of Delhi) and the High Court reversed the judgment holding the appellant guilty and convicted him for the offence punishable u/S. 302 IPC and imposed sentence of imprisonment for life and that came to be challenged by filing appeal before the Apex Court along with application for suspension of sentence and taking note of seriousness of the offence, the Apex Court was not inclined to suspend the sentence pending appeal and to release on bail.
27. The very basis on which the reference court doubted the correctness of the judgment of the Division Bench of this Court, we do not find any material in support thereof and in either of the case relied upon the entitlement of a convict to seek suspension of sentence on long incarceration in jail was not under consideration and in our considered view the judgment of this Court in Tahir Khan @ Shakil (2005) 4 WLC 637 lays down broad guidelines which are to be kept in mind while considering bail application pending appeal and it lays no invariable rule for grant of bail on completion of specified period however it is discretionary like grant or refusal of bail but at the same time rule out any strait jacket formula and this what the Apex Court observed in Surinder Singh Vs. State of Punjab 2005 (7) SCC 387 which came after pronouncement of judgment by this Court, In our considered view the correctness of the division bench judgment in Tahir Khan @ Shakeel (supra) remain no more res integra to be examined by this Court after the judgment of Apex Court in Surinder Singh's case referred to supra.
28. In fact this reference was not called for but since it has come up before us and arguments were advanced at length we have expressed our view as noted above. At the same time, we would like to observe that it is the duty of the court to reach at the conclusion regarding correctness of the judgment delivered by it previously particularly that which has been delivered by the coordinate Bench and adjudge the effect of any error for warrant of review of such earlier judgment. In the instant case we do not find any such circumstances which may warrant review of the judgment in Tahir Khan @ Shakeel (supra).
Conclusion-
29. Accordingly, in view of above the answer of this Court to the question referred is in negative and merely the convict has served five or one half of the sentence including remission would not ipsi dixit make him/her entitle to be released on bail as a matter of right and the division bench judgment in Tahir Khan @ Shakeel (2005) 4 WLC (Raj.) 637 lays down the correct proposition of law and the guidelines for the Courts to keep in view while dealing with successive application for grant of bail for long incarceration in jail in the facts of each case before the Court. All the bail applications may be listed before the Division Bench for necessary orders.
(VK Mathur),J (Raghuvendra S. Rathore),J (Ajay Rastogi,),J dsr/-