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Mr. Sinha, the learned counsel for the Central Bureau of Investigation next submitted that for suspension of execution of the sentence and granting bail to the Applicant-Appellant on the ground for undergoing half of the maximum sentence, following twin conditions are required to be satisfied:

(i) There is no likelihood of the appeal being taken up in near future; and

(ii) The appellant has undergone half of the maximum sentence imposed upon him in that particular case against the judgment of which the appeal has been preferred.

So far as the contention of the learned counsel for the Applicant-Appellant regarding the granting of bail and suspension of execution of sentence of the Applicant-Appellant on the ground of undergoing half of the sentence is concerned, without going to the merits as to whether the Applicant- Appellant has undergone half of the maximum sentence in view of the provisions of Section 427 of Code of Criminal Procedure or not, at this stage, assuming for the sake of arguments, the Applicant-Appellant has undergone half of the maximum sentence still this Court is of the considered view that the Applicant-Appellant is not entitled to be released on bail and suspension of execution of the sentence on the ground of undergoing more than half of the sentence simpliciter because it is a settled principle of law for releasing a convict on the ground of undergoing half of the sentence, the twin conditions must exist;

One is that there is no chance of the appeal of being taken up for hearing and final disposal in near future; and The second condition is that the Applicant-Appellant has undergone half of the maximum sentence imposed. It is needless to mention that the release of a convict on the ground of half of the sentence undergone is not based upon any statutory provision of law rather the same is based on the principle of violation of the fundamental rights of speedy trial as enshrined under Article 21 of the Constitution of India. In the case of Hussainara Khatton & Ors. Vs. Home Secretary, State of Bihar (1980 1 SCC 108), the Hon'ble Supreme Court of India recognized the right of speedy trial to be a fundamental right under Article 21 of the Constitution of India. In the case of Akhtari Bi (Smt.) v. State of M.P., reported in (2001) 4 SCC 355 which case is also relied upon by the learned counsel for the Applicant-Appellant in his written notes of arguments, the Hon'ble Supreme Court of India has observed as under in paragraph no.5:-

"5. 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."(Emphasis supplied) It is pertinent to mention here that while enunciating this principle, the Hon'ble Supreme Court of India has very much in its mind the denial of fundamental right of speedy trial guaranteed under Article 21 of the Constitution of India to the appellant of that case and thus for the purpose of computing the period beyond which the convicts can be released on bail, the Hon'ble Supreme Court has held that if an appeal is not disposed of within the aforesaid period of five years for no fault of the convicts, such convicts may be released on bail on such condition as may be deemed fit and proper by the Court and the Hon'ble Supreme Court also went on to say that in computing the five years delay which is attributable to the convict or his counsel can be deducted. This in other words means that if the delay in disposal of the appeal is caused by the appellant or his counsel certainly that will not entitle the appellant for bail because of the pendency of the appeal for a long time. So from the aforesaid discussions it is crystal clear that if the convict is not cooperating with the hearing of the appeal, he cannot take the plea that merely because he has undergone half of the sentence, he has to be released on bail and if such a proposition is accepted it will lead to an absurd consequence whereby the sentence imposed by the trial court will automatically be reduced to half of what has been imposed, without the appeal being heard because of non- cooperation of the appellant.