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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:
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.