- (1.) All these matters are listed for consideration of applications for suspension of sentence filed by appellants/applicants under Section 389 Cr.P.C. in appeals against their conviction under Section 302 IPC, in which they have been sentenced to undergo life imprisonment. First application for suspension of sentence in all these matters was dismissed on merits. Out of the matters listed today, in Criminal Appeal No.1298/2004, it is 6th application, in Criminal Appeal No.183/2005, it is 5th application, in Criminal Appeal No.663/2006, it is 3rd application, in Criminal Appeal No.803/2006, it is 2nd application, in Criminal Appeal No.504/2007, it is 2nd appli- cation, in Criminal Appeal No.323/2007, it is 3rd application and in Criminal Appeal No.1380/2007, it is 2nd application.
(2.) Apart from addressing the court on merits of individual cases, learned counsel for the appellants in all these appeals have heavily relied on division bench judgment of this court in Tahir Khan @ Shakeel and others v. State of Rajasthan,2005 4 WLC (Raj) 637, and argued that as per ratio of aforesaid judgment, sentence of appellants/applicants in all these appeals is liable to be suspended pending disposal of appeals, considering the fact that they have already served the sentence for five or more years, which includes three years after their conviction and none of them have been convicted for heinous offence. Learned counsel argued that this court in Tahir Khan, supra, relied on division bench judgment of Punjab and Haryana High Court in Dharam Pal v. State of Haryana, 1994 4 RCR(Cri) 600, wherein a similar view was taken. Aforesaid judgment of Punjab and Haryana High Court in Dharam Pal, has been upheld by the Supreme Court in Surinder Singh @ Shingara Singh v. State of Punjab, 2005 7 SCC 387. It was argued that the full bench of this Court in Damo v. Sate of Rajasthan, 1985 RajLW 374, has not laid down any law of general proposition that if appeals are not decided within the time of five years or more, that should not be a ground for suspending the sentence. Reference to a larger bench in that case was made in view of division bench judgment of this court in Ramju v. The State of Rajasthan, 1985 RajLW 152primarily on the question whether priority can be accorded in the matter of hearing of appeal. Learned counsel also cited decision of the Supreme Court in Kashmira Singh v. The State of Punjab, 1977 4 SCC 291, and argued that in fact the division bench judgment of this court in Tahir Khan, supra, is based on Kashmira Singh, supra, in which the Supreme Court held that so long as the Court is not in a position to hear the appeal of an accused within a reasonable period of time, it 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. The very fact that the Supreme Court has granted to the appellant special leave to appeal against his conviction, shows that, in the opinion of the Supreme Court, he has prima facie good case to consider and in the circumstances it would be highly unjust to detain him in jail any longer till hearing of the appeal. On the said analogy, argument of learned counsel for appellants in these matters is that once the appeals filed by appellants have been admitted by this court, which in any case is statutorily provided remedy to them, that would mean that they have prima facie case and if the court has not been able to hear and decide the appeal for more than five years now, it would at-least make out a case for suspension of their sentence.
(3.) Learned counsel for appellants, referring to the cause list of hearing of the division bench of this court, argued that presently the division bench of this court is hearing the appeals where the convicts have remained behind the bar for more than nine years and in the present set of seven appeals the appellants (applicants in applications for suspension of sentence) have remained behind the bar for about (1) 6 years 11 months, (2) 8 years 5 months, (3) 5 years 11 months, (4) 6 years 4 months, (5) 5 years 11 months, (6) 5 years 11 months and (7) 5 years 2 months, respectively, and their appeals may yet take three to five years more time for decision. Learned counsel relied on Section 436A of the Criminal Procedure Code inserted by Amendment Act No.25 of 2005 with effect from 23.06.2006, and argued that the Parliament in that provision has provided that where a prisoner during the period of investigations, inquiry or trial, has undergone detention up to one-half of the maximum period of imprisonment specified for that offence under the law, he shall be released by the court on his personal bond with or without sureties. Same principle of law should apply for suspension of sentence of convicts pending their appeal, wherein they have served more than half of the maximum period of imprisonment they are required to serve in jail. This provision, inserted by Amendment Act No.25 of 2005, postulates legislative mandate that if the trial of a criminal case is not completed and an accused has served more than one-half of the maximum period of imprisonment specified for offence un- der that law, he can no longer be detained in jail pending trial. Conviction does not attain finality unless its correctness is tested in at-least one statutory remedy of appeal provided by Section 374 of the Cr.P.C. Appeal is continuation of original trial proceedings, the same principle should therefore extend to the appeal as well became right to speedy trial also includes the right to speedy disposal of appeal against conviction. It would therefore be highly unjust and unfair to detain them in jail for such a long period merely because there appeals have not been heard and decided. It is therefore prayed that the applications for suspension of their sentence may be allowed and they be released on bail.;