BALI, J. - (1.) THE dockets of this Court and various other High Courts in the country are not only full but overbrimming. Admitted matters are lying in the archives of the High Court and are blessed with touch of hand of the Judge after number of years. In such matters awaiting listing before the Hon'ble Judge, there are 2,784 D. B. Criminal Appeals that are pending in Rajasthan High Court (Jaipur Bench ). Out of the number of cases mentioned above, 885 appeals are such where accused are in jail. Some criminal appeals pertaining to the year 1980 are also pending hearing. Out of 885 appeals, where accused are in jail, 184 have been listed for checking the paper book by the office. 430 appeals are such where preparation/comparison of paper book is going on. 350 appeals are such in which the office is still to take the exercise of preparing paper books, in hand. 80 cases are such where learned counsel appearing for the parties have on their own placed on record paper books which are still to be compared by the office. THEre are 40 cases which are ready for hearing but have not been listed in court. During the last three years, 1278 appeals were filed. As compared to that, disposal during the last three years was only of 497 cases. THE oldest DB Criminal Appeal pending in this Court, where the accused are in custody, is stated to be D. B. Criminal Appeal No. 605/98 Ram Swaroop vs. State. Accused therein have already undergone sentence for a period of six years nine months and twenty six days as on 30. 4. 2005. This period only pertains to the time the appeal is pending in this Court. In D. B. Criminal Appeal No. 780/2003 Sudama Das vs. State, accused therein have already undergone sentence for a period of 12 years 15 days. In as many as 188 criminal appeals, the accused concerned are in jail for last more than five years. THE aforesaid statistics has been supplied by the office pursuant to our detailed order dated 2. 5. 2005. THE report dated 13. 5. 2005 submitted by the office has been placed on records.
(2.) HON'ble Supreme Court of India in Hussainara Khatoon and Others vs. State of Bihar (AIR 1979 SC 1360) while dealing with the miserable plight of jail inmates facing trial for a number of years, observed as follows: " 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 realise 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. " A period of two and half decades has gone by when the observations extracted above came to be made by the Supreme Court. It was specifically observed that the time had come when legal and judicial system had to be revamped and restructured so that such injustices do not occur and disfigure the fair and otherwise luminous face of our nascent democracy. Nothing at all has changed; there has been no revamping and restructuring of the judicial system and the injustice noted by the Supreme Court, that is disfiguring the face of democracy, is continuing unabated. The situation far from improving appears to have further deteriorated. We need not examine the causes leading to massive delay in disposal of criminal appeals before the High Court as such an exercise has been done on a number of occasions by the Hon'ble Supreme Court and High Courts in the country. In wake of such trying circumstances, some of the accused in pending appeals have approached this Court for suspension of their sentences. The ground for seeking suspension of sentence is only long incarceration in jail. Mr. S. R. Surana, learned counsel appearing for the applicant Mohan Meena in D. B. Criminal VIth Bail Application No. 372/2005 states that the applicant was convicted vide judgment and order dated 14. 8. 2001 for life imprisonment u/s 302 IPC. He was arrested on 27. 3. 2000. By now, he has undergone sentence for a period of approximately five years and four months. It is stated that the family conditions of the applicant are precarious. His wife expired and he has got small children who are minor. His son Nitin is 15 years of age and another son Sachin is 13 years of age. There is no other family member to look after them. Mr. A. K. Gupta, learned counsel appearing for the applicant Budhram in D. B. Criminal Misc. (SOS) Application No. 532/2005 states that the applicant has remained in jail for about six years and the appeal was admitted on 24. 9. 2003 and has even not been listed for hearing as yet. There is no need to give facts of all the cases listed for hearing before us and suffice is to mention at this stage that the learned counsel appearing for the applicants in all the matters listed before us, seek suspension of sentence of the applicants represented by them in various appeals, primarily on the ground of long incarceration in jail.
(3.) WE have heard contentions raised by galaxy of lawyers appearing in various cases on behalf of the applicants as also Mr. M. Rafiq, Addl. A. G. who represents the State. The matter, it appears to us, is no more res integra. The precise points that have been urged before us have been the subject matter of debate before the Hon'ble Supreme Court and some of the High Courts in the country. In Kashmira Singh vs. State of Punjab (AIR 1977 SC 2147 = (1978) 1 SCR 385) where the accused had undergone sentence for a period of 4 years and a half, he was granted bail by holding that it would be highly unjust to detain him in jail any longer during hearing of appeal. Facts of the case aforesaid reveal that Kashmira Singh was charged for offences u/s 323 and 302 IPC; was convicted for offence u/s 323 IPC and sentenced to undergo RI for a period of six months. State preferred appeal against his acquittal u/s 302 IPC which was accepted by the High Court. He was thus convicted u/s 302 IPC and sentenced to R. I. for life. Kashmira Singh surrendered before the Trial Court and preferred special leave which was granted on 28. 2. 1974. His application for bail, preferred subsequently, was rejected on 10. 1. 1975. Simply for the reason that the appeal did not come up for hearing for a long period, he moved yet another application for grant of bail. Supreme Court after making observations with regard to practice prevalent in the said Court and many of the High Courts which was not to release on bail a person who had been sentenced to life imprisonment for an offence u/s 302 IPC, framed a question as to whether the said practice should be departed from and if so, in what circumstances. The question framed above was answered by observing- " 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 travesity 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. (emphasis supplied ). 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. " In Kashmira Singh vs. State of Punjab (supra), Supreme Court while dealing with writ of habeas corpus in which it was reported that alarmingly large number of men and women including children were behind prison for years waiting trial in courts of law, after observing, as extracted in the earlier part of this judgment and taking into consideration Article 21 of the Constitution of India and its judgment in Maneka Gandhi vs. Union of India (AIR 1978 SC 597) and further observed as under: " We have held in that case that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be `reasonable, fair and just'. If a person is deprived of his liberty under a procedure which is not `reasonable, fair or just', such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be `reasonable, fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as `reasonable, fair or just' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Art. 21. Would he be entitled to be released unconditionally freed from the charge levelled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21 ? That is a question we shall have to consider when we hear the writ petition on merits on the adjourned date. But one thing is certain and we cannot impress it too strongly on the State Government that it is high time that the State Government realises its responsibility to the people in the matter of administration of justice and set up more courts for the trial of cases. We may point out that it would not be enough merely to established more courts but the State Government would also have to man them by competent Judges and whatever is necessary for the purpose of recruiting competent Judges, such as improving their conditions of service, would have to be done by the State Government, if they want to improve the system of administration of justice and make it an effective instrument for reaching justice to the large masses of people for whom justice is today a meaningless and empty word. " A division bench of Punjab and Haryana High Court in Dharam Pal vs. State of Haryana (1994) 4 RCR (Criminal) 600 while dealing with the precise proposition as in hand, after placing reliance upon two judgments of the Supreme Court in Kashmira Singh and Hussainara Khatoon (supra), as also Kadra Pehadiya and Others vs. State of Bihar (AIR 1981 SC 939) and Suprme Court Legal Aid Committee representing Undetrial Prisoners vs. Union of India and Others ( (1994) 3 RCR (Criminal) 639 (SC), directed as follows: " 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 release on bail. " ;