JUDGMENT
C.K. Buch, J.
1. Heard Mr. B.B. Naik, learned Counsel appearing with Mr. D.P. Kinariwala and Mr. C.B. Gupta for the applicant.
2. This is an application praying for bail under Section 389 of the Code of Criminal Procedure, 1973. The applicant is a convict who has been sentenced for 10 years’ rigorous imprisonment for the offence punishable under Section 304 of the Indian Penal Code. Some of the co-accused have been awarded lesser punishment. They were on bail pending trial and it is submitted by Mr. Naik that this Court, considering the quantum of punishment imposed to those accused, have enlarged them on bail.
3. All the accused have been held guilty for the offence punishable under Section 304 read with Section 34 of the Indian Penal Code. The accused No. 3-Vijay Balubhai Naidu, who has been awarded sentence of five years has been refused bail because he is found involved in one another grave offence by the Court when the bail plea of orig. accused No. 3 was considered.
4. Mr. Naik, learned Counsel appearing for the applicant, has taken us through the facts of the case and has attempted to point out that the incident in question has occurred in the area which can be said to be the area of accused persons and there is no adequate evidence as to the intention of the accused and, therefore, the learned trial Judge by passing a reasoned order has acquitted all the accused from the charge of offence punishable under Section 302 of the Indian Penal Code. If the opponent-State is even intending to file any appeal against the judgment and order of acquittal on account of the acquittal of the accused persons from the charge of offence punishable under Section 302 of Indian Penal Code, it would not be a matter of much relevance and the Court should exercise discretionary jurisdiction vested with the Court, especially when the Court has admitted the appeal on 04th October, 2006 and there is no scope to hear and dispose of the appeal in a reasonable period of time. Mr. Naik has drawn attention of the Court towards the number of pending appeals and it is submitted that at present though two Benches are taking up the appeals against the judgment and order of conviction, the appeals filed in the year 2002-03 are being heard; even in the case of sentence of fixed period. When the accused is not found guilty of the offence punishable under Section 302 of the Indian Penal Code, the Court should liberally exercise jurisdiction, pending hearing and final disposal of the appeal, and the substantive sentence should be placed under suspension. The accused is ready and willing to abide by any condition that may be imposed by this Court. According to Mr. Naik, the appellant has a fairly arguable case and he should not be kept in prison for more than reasonable period. He is in prison since August, 2001. Even for the sake of argument if it is accepted that the judgment and order of conviction and sentence passed by the trial Court was a good and sustainable order, even then the accused when has undergone more than 50% of sentence, ignoring the period of remission for which he may be entitled, the Court when has admitted the appeal, considering the strength of the case of the applicant, should exercise discretionary jurisdiction vested with it in favour of the applicant-accused. While developing this argument, Mr. Naik has taken us through the observations made by the Apex Court in the case of Supreme Court Legal Aid committee v. Union of India, reported in 1994 AIR SCW 5115. We have considered the relevant paragraph Nos. 15 to 18 of the judgment and the directions issued by the Apex Court enumerated in paragraph No. 15. The Apex Court has made these observations in reference to Articles 21, 14 and 19 of the Constitution of India and the cases pending against the undertrial were not the facts of the grievance brought before the Apex Court by the Supreme Court Legal Aid Committee representing the undertrial prisoners. The status of the present applicant cannot be equated with the undertrial prisoners because now there is no presumption of innocence against the present applicant. Of course, the ratio of the decision in the case of Bhagwan Rama Shinde Gosai, reported in 1999 SCC (Cri.) 553, is able to give some force to the arguments advanced by Mr. Naik, where the Apex Court has observed that when a suspension of substantive sentence is prayed for pending appeal by the applicant-accused, such a prayer should be considered liberally, unless there is any statutory restriction. Such discretion should be exercised in cases where sentence is of limited period. But according to us in the case of Bhagwan Rama (supra), the High Court has not even shown any inclination to hear the appeal of the applicant expeditiously. According to us, when the Apex Court found that in this situation a very valuable right of appeal would be rendered fruitless by a flux of time. The period of imprisonment in the case of Bhagwan Rama (supra) was also 10 years and the accused was held guilty for the offence punishable under Section 392 read with Section 397 of the Indian Penal Code; but in the present case, the Court has admitted the appeal very recently on 04th October, 2006. Now more than one Bench is dealing with the appeal against the judgment and order of conviction and it is possible to see that the registry is directed to prepare the paper-book as expeditiously as possible. When the accused was not on bail pending trial, the yardstick would be somewhat different when it comes to a question of granting bail under Section 389 of the Code of Criminal Procedure, 1973. On plain reading of the decision in the case of Bhagwan Rama (supra), it is not possible for us whether he was on bail pending trial or not. It is likely that he may be in prison pending trial because he had remained in jail for pretty long time. According to Mr. Naik, when the present applicant-accused had remained in jail as an undertrial because of protraction of trial for a long period and the scope of protraction of hearing of the appeal tilts the balance in favour of the applicant and, therefore, the Court should exercise discretion.
5. The other two decisions cited by Mr. Naik are : (i) Akhtari Bi (Smt.) v. State of M.P., and (ii) Suresh Kumar and Ors. v. State (NCT of Delhi), , according to us, would not help the present applicant much. In the first decision in the case of Akhtari Bi (supra), the Apex Court has found that the appeal against the order of conviction is pending in the High Court for long and the appellant-convict is languishing in jail for several years. The appellant was found old and infirm lady and her daughter-in-law was found having died during the pendency of the trial giving birth to a male child. So while propounding the ratio, the Apex Court has considered various aspects including the facts. In the second case of Suresh Kumar (supra), the Apex Court had found that the High Court has not even cared to pass a reasoned order. In the cited decision, the High Court had refused the bail passing one line order and, therefore, the Apex Court ordered that the ratio of the Bhagwan Rama (supra) would help the appellant. The appeal was pending before the High Court. Only the grievance against one line order was brought before the Apex Court in this cited decision. The Apex Court has also observed that no exceptional circumstance has been highlighted by the learned Single Judge for deviating from the core suggested by the decision in the case of Bhagwan Rama (supra). The phraseology ‘exceptional circumstance’ used in the case of Bhagwan Rama (supra) should not be construed in reference to the gravity or sensitivity of the crime. The exceptional circumstance that was found by the Apex Court in the case of Bhagwan Rama (supra) was denial of expeditious hearing of appeal by the High Court. Here in the present case, the appeal has been filed recently and it is possible for us to pass an order for expeditious hearing of the appeal. According to Mr. Naik, if this Bench orders expeditious hearing of the appeal filed by the present applicant, probably it may violate the right of other appellants-convicts, who are in jail and who have preferred appeal much earlier than the present applicant. So normally the applicant’s appeal would come in seriatem after the disposal of the earlier appeals. In the present case, when it is inferable that the appeal of the present applicant shall not be heard, the ratio of the decision in the case of Bhagwan Rama (supra) should be applied. This argument, according to us, is hypothetical. Of course, there is some logic but in a given case the appeal against the order of conviction is being heard when it is decided or directed by the Bench of this Court.
6. In another judgment cited by Mr. Naik, in the case of Kamal v. State of Haryana, reported in 2004 (13) SCC 526. In this cited decision, the accused was held guilty for the offence punishable under Section 304(B). The Apex Court in exercise of powers under Article 136 of the Constitution of India, has held that as the accused has undergone imprisonment of about 2 years and 4 months, and total period of imprisonment must imposed by the trial Court is for 7 years, the accused should be granted bail. We would like to reproduce the relevant paragraph No. 2 of the said judgment which is as under:
2. This is a case in which the appellant has been convicted under Section 304-B IPC and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before if. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that bail be granted to the appellant on such conditions as may be imposed by the District and Sessions Judge, Faridabad.
7. The said cited decision is in three parts and paragraph No. 2 is the substance of the order in the cited decision. The plain reading of the judgment takes us to a finding that the Apex Court had considered various aspects and, therefore, it is mentioned in the order that “We are of the view that the bail should have been granted by the High Court especially having regard to the fact that the appellant had already served the substantive period of sentence. In the circumstances, we are directed that the bail be granted to the appellant.” The Apex Court had directed the concerned District Judge to decide the conditions of bail. The facts of the cited decision obviously are not there in the judgment. So the order of the Apex Court, according to us, would not be useful to the applicant as a ratio.
8. The decision in the case of Surinder Singh @ Shingara Singh v. State of Punjab, , has been read over to us by Mr. Naik and he has drawn our attention to the background of the judgment in the case of Dharam Pal v. State of Haryana, reported in 2000(1) CLR 74, decided by the Punjab and Haryana High Court. For the sake of brevity and convenience, we would like to reproduce the relevant paragraph No. 11 of the said decision, read over before us by Mr. Naik, which is as under:
11. 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 Dharma Pal’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.
9. In the above cited decision, the accused was found guilty for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. He had preferred appeal against the order of conviction before the High Court of Punjab and Haryana at Chandigarh and the appeal was admitted and fixed for hearing on 03rd November, 2001. The request for bail was refused on 08th September, 2004. One of the co-accused Sat want Singh was granted bail by the High Court vide order dated 17th September, 2004, since he had undergone imprisonment for three years and it was observed that the case of the co-accused would be covered by the case of Dharam Pal (supra). The appellant-accused was granted temporary bail when a petition was moved before the Apex Court but while dealing with the Special Leave Petition, the Apex Court has observed that when the accused had already undergone substantive period of sentence in prison i.e. about 6 years, the order of bail granted earlier should be made absolute. The appellant was granted bail on 15th May, 2005. Paragraph No. 13 of the decision (corrected vide official corrigendum on 19th September, 2005) clarifies the circumstance and the background in which the Apex Court continued the bail. We would like to reproduce the relevant paragraph No. 13 of the said decision for the sake of brevity and convenience as under:
13. So far as the instant appeal is concerned by our order dated May 12, 2005 we have granted bail to the appellant who had remained in custody for about six years and four months. Apart from the facts and circumstances of the case, we also notice the fact that the co-accused had been released on bail by the High Court. The interim order made on May 12, 2005 is made absolute. This appeal stands disposed of in the above terms.
Order accordingly.
10. So according to us, the discretion was exercised in a given circumstance in above cited decisions.
11. The resistance placed by Mr. K.C. Shah, learned Additional Public Prosecutor, is that the respondent-accused has been imposed rigorous imprisonment for 10 years. The appropriate orders to hear the appeal as expeditiously as possible can be passed and should be passed. The District and Sessions Judge can be directed to prepare the paper-book at the earliest. It is true that the involvement of some other accused in some other grave offence and cancellation of bail of the concerned accused would not come in the way of the present applicant. But considering the reasons assigned by the learned trial Judge and the fact that the applicant-accused has also been held guilty of the offence punishable under Section 34 of the Indian Penal Code along with other accused and the role attributed to other convicts of the same offence, it is not a matter of dispute that even in cases of sentence of fixed period when the accused is not on bail pending trial, the Court has remained consistent while dealing with the bail plea in the case of convict who has been sentenced for more than 7 years and who was not on bail pending trial. If the Court finds that it is not possible to hear the appeal of the applicant-accused in the recent period of time, at that time the Court can positively think over to grant bail to the applicant-accused even pending appeal. The present case is not a case where the accused has been denied expeditious hearing of the appeal, which was done in the case of Bhagwan Rama (supra).
12. We are not dealing with the facts and other aspects which could have been discussed by us because it is likely to prejudice the either side.
13. When we are asked to exercise our discretionary jurisdiction in favour of the applicant-accused, we would continue with the consistency in the background of the totality and discussion made in the foregoing paragraphs by rejecting the applicant’s application for bail.
14. In view of above observations and discussion, the application for bail filed by the applicant-accused is hereby rejected. However, it is observed that the applicant shall be entitled to apply for bail afresh, if his appeal is not heard within reasonable period of time i.e. within one year. Meanwhile, the Registry shall see that the paper-book is prepared as expeditiously as possible. On receipt of the paper-book from the trial Court, the Registry shall place the appeal filed by the applicant-accused before the Bench taking up appeal against the order of conviction so that the Bench can take appropriate decision to fix the hearing of the appeal as expeditiously as possible.