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PETITIONER: KASHMIRA SINGH

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT02/09/1977

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. GUPTA, A.C.

CITATION:  1977 AIR 2147            1978 SCR  (1) 385  1977 SCC  (4) 291  CITATOR INFO :  F          1978 SC 527  (24)

ACT: Practice and procedure in the matter of granting bail to  an accused pending the hearing of an appeal-Order XLVII Rule  6 read with Order XXI Rule 6 of the Supreme Court Rules.

HEADNOTE: The  appellant, though charged with offences u/ss.  323  and 302  I.P.C.,  was convicted only u/s. 323 and  sentenced  to suffer   6  months’  rigorous  imprisonment.    The   appeal preferred  by the State against acquittal u/s.  302,  I.P.C. was  accepted  by  the  High Court  and  the  appellant  was convicted   under   that  charge  and  sentenced   to   life imprisonment.   As required under Rule 6, Order XXI  of  the Supreme  Court Rules, the appellant surrendered  before  the trial court and preferred special leave which was granted on 28-2-1974;   but   the  application  for   bail,   preferred subsequently,  was rejected on 10-1-1975.  Since the  appeal did  not come up for hearing for a long time, the  appellant preferred  another  application  for  bail.   Allowing   the application, the Court, HELD  :  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 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 travesty 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.  So long as this court is not in a position to hear the appeal of an accused within  a

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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  the  instant  case, the very fact that  this  court  has granted to the appellant special leave to appeal against his conviction shows that, in the opinion of this court, he has, prima  facie,  a good case to consider and  in  the  circum- stances,  namely,  that he has been in jail  and  the  total period he has spent in jail so far is about 4-1/2 years,  it would  be  highly unjust to detain him in  jail  any  longer during  the hearing of the appeal and he should be  released on bail. [386 D-G, 387 A-D]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal  Misc.   Petition No.  1907 of 1976.  Application for Bail in Criminal  Appeal No. 110 of 1974. U.   P. Singh for the Appellant. O.   P. Sharma for the Respondent. The Judgment of the Court was delivered by BHAGWATI.   J.,-This is an application for bail pending  the hearing of an appeal by special leave.         The appellant was convicted by 386 the  Sessions Court for an offence under section 323 of  the Indian  Penal  Code  and sentenced  to  suffer  six  months’ rigorous imprisonment.  There was also a charge against  the appellant  for  an offence under section 302 of  the  Indian Penal  Code  but he was acquitted of that  offence  by,  the Sessions  Court  and  hence the State  preferred  an  appeal against  the  order of acquittal to the  High  Court.   This appeal was allowed and the High Court set aside the order of acquittal  and convicted the appellant of the offence  under section  302  and sentenced him to suffer  imprisonment  for life.   The appellant, thereupon, preferred a  petition  for special leave to appeal to this Court and special leave  was granted  to,  him on 28th February,  1974.   The,  appellant filed  an  application for bail pending the hearing  of  the appeal,  but the application was dismissed on 10th  January, 1975.   Since  the appeal did not reach hearing for  a  long time,  the appellant preferred another application for  bail and that is the application which is now being disposed  ’of by this judgment. The appellant contends in this application that pending  the hearing  of the appeal he should be released on bail.   Now, the  practice  in  this Court as also in many  of  the  High Courts has been not to release on bail a person who has been sentenced to life imprisonment for an offence under  section 302 of the Indian penal Code.  The question is whether  this practice  should  be departed from and if so, in  what  cir- cumstances.   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,. bail a person whohas        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

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disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, be 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 travesty of justice to keep  a person  in  jail for a period of five or six  years  for  an offence which is ultimates found not to have been  committed by  him.   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 impri- 387 sonment  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. Here  in the present case, the appellant, after serving  out the  sentence ’of six months’ rigorous imprisonment for  the offence  under section 323 imposed upon him by the  Sessions Court,  was  on bail throughout the duration of  the  appeal before the, High Court and since the appeal was allowed  and he  was  convicted  for the offence under  section  302  and sentenced  to  life  imprisonment,  he  surrendered   before presenting his petition for special leave to appeal to  this Court.   Since then, the appellant has been in jail and  the total period he has spent in jail so far is about four and a half years.  The appeal is of 1974 ;and it is not likely  to come  up for hearing for at least another two  years  since. this  Court is at present hearing appeals preferred  in  the year 1972.The  very fact that this Court has granted to the appellant specialleave     to  appeal  against   his conviction shows that, in the opinion of thisCourt,  he has  prima  facie  a  good, case  to  consider  and  in  the circumstances  it  would be highly unjust to detain  him  in jail any longer during the bearing of the appeal. We, therefore, direct that the appellant be released on bail to  the  satisfaction  of  the  Chief  Judicial  Magistrate, Patiala.   The appellant will report at the  nearest  police station once in a fortnight. S.R. Appeal allowed. 388