- (1.) THIS second bail application of the petitioner convict u/s. 302 IPC has been filed after waiting for a long period of about four years since the rejection of the first bail application. The first bail application was rejected summarily on 26-9-1974.
(2.) AT the threshold of the arguments, I enquired from Mr. Calla whether he intends to raise any objection regarding jurisdiction of the Single Bench hearing this case during vacation. Mr. Calla was fair enough to concede that Rule 63 of the Rajasthan High Court Rules authorises a Single Judge sitting in vacation to hear and decide cases which, according to the High Court Rules, are to be considered by Division Bench. The only rider is that if an Act expressly excludes the jurisdiction of the Single Bench by laying down that the case is to be heard by more than one Judges then the Vacation Judge cannot hear that case sitting in single bench. Admittedly, the present one is not a case of that type. These are the cases of the type where Indian Divorce Act or some other laws provide that a case should be heard by three Judges or so. So far as hearing of the appeals in the High Court in Criminal Cases is concerned, it is regulated only by the High Court Rules, as the Criminal Procedure Code nowhere provides whether a given case should or should not be heard by S. B. or D. B. That being so, I am in agreement with Mr. Calla that in cases where facts and circumstances of the case so warrant, a Single Bench is competent sitting in vacation to hear a criminal appeal for some urgent purpose which normally is to be heard by Division Bench. Mr. Calla, however, points out that an earlier bail application was dismissed on 26-9 74 and, therefore, it would be inexpedient to hear second bail application during vacations as a Vacation Judge sitting in Single Bench. Rule 63 of the Rajasthan High Court Rules reads as under, - "63. (1) Criminal work shall continue to be dealt with during the long vacation by such Judges as may be appointed for the purpose by the Chief Justice. (2) Subject to any general or special order of the Chief Justice, Vacation Judges shall in the absence of the Chief Justice, exercise jurisdiction as the case may be, in connection with the arrangement of listing of cases and other like matters. They may also exercise the original and appellate jurisdiction vested in the Court in any miscellaneous matters or any civil matter connected with relating to or arising out of, the execution of a decree, which may in their opinion require immediate attention. Such jurisdiction may be exercised even in cases which are, under the Rules, cognizable by two or more Judges, unless such case is required by any other law to be heard by more than one Judge. " Mr. Purohit appearing on behalf of the petitioner contends that there is great urgency in this matter, because the accused has remained in jail from 30-8-1973 as at no stage bail was granted to him, According to Mr. Purohit, the accused has already undergone six years' rigorous imprisonment by inclusion of the remission. This factual position is not denied by Mr, Calla.
(3.) MR. Purohit further contends, and rightly so, that this is a case of one of those unfortunate accused in whose cases preparation of the paper-book has not yet commenced. I have checked the record and I found that on 14th July, 1975, the office staged that the paper-book should be prepared as the bail application had been rejected on 26th September, 1974. It is not for me to comment but, as a fact, I cannot help observing that in spite of that nothing has been done so far, even to commence the work of preparation of the paper-book. On enquiry from the office I find that the office of the High Court has got 84 criminal appeals registered in the year 1974 of which the paper-books are required to be prepared and out of which only 14 have been prepared so far. The statistical data shown to me further reveals that in all, 520 paper books are to be prepared. The above data reveals a very unhappy state of affairs. It is a matter of great concern that where liberty of a citizen is concerned, for the want of requisite and sufficient staff, the paper books cannot be prepared even for a period of three or four years and more. There have been cases where the accused remained in jail for four or five years and thereafter they are found innocent by the Court. I happened to decide one of such cases, while sitting in a Division Bench with my Lord the Chief Justice (Mana and others vs. State, D. B. Criminal appeal No. 136 of 1976 decided on 8 5-1978) It is in this background that recently a Division Bench of this Court has considered the second or third bail applications of accused whose bail applications were rejected earlier. One of the examples of such cases is Bachan Dan vs. State (D B. Criminal Appeal No. 4 of 1977), in which case bail was granted by this Court by Hon'ble Chief Justice and Hon'ble D. P. Gupta J. on 12ih of May, 1978. In fact, there have been dozens of such cases in which I happened to be a party while sitting in D. B. with Hon'ble Chief Justice Mr. Honniah, where the consideration that the accused are in jail for last four years or so was taken as sufficient for releasing them on bail on second or third bail applications even in cases where appellants were serving life sentence in murder cases. Examples of some of such case are cited below, - 1. D. B. Cr. Misc. (2nd) Bail Application No. 207 of 1978, Tafasul Hussain vs. State of Rajasthan. 2. D B. Cr. Misc. (3rd) Bail Application No. 200 of 1978, Lahar Nath vs. State of Rajasthan, 3. D B. Cr. Misc. (2nd) Bail Application No. 195 of 1978, Bachan Dan vs. State of Rajasthan. 4. D. B. Cr. Misc. (4th) Bail Application No. 217 of 1978, Oat Singh and others vs. State of Rajasthan. In the instant case, the two salient features pointed out by Mr. Purohit are that the accused has remained in jail since 30th August, 1973 and further that the preparation of the paper-book has not yet commenced, makes it a case of an exceptional nature there urgent consideration is warranted. ;