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CASE NO.: Appeal (crl.) 320  of  2001

PETITIONER: SMT.AKHTARI BI

       Vs.

RESPONDENT: STATE OF M.P.

DATE OF JUDGMENT:       22/03/2001

BENCH: K.T. Thomas & R.P. Sethi.

JUDGMENT:

SETHI,J.

       Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   For  the  murder of her daughter-in-law, Prem  Bai,  the appellant  was tried with others and after the conclusion of the  trial, sentenced to imprisonment for life vide judgment of the court dated 27th February, 1997.  The appeal filed by her  is pending in the High Court of Madhya Pradesh and  not listed for hearing till date.  Her prayer for grant of bail, pending  disposal of the appeal, on the grounds of infirmity and  old  age has been rejected by the High Court  vide  the order impugned in this appeal.

   At  the  time of preliminary hearing on  1.12.2000,  the learned  Senior  Counsel Shri Anoop G.  Chaudhary  submitted that the position in the Madhya Pradesh High Court regarding criminal  appeals pending before the Division Bench was that as on that day appeals of 1989-1990 have only been taken up. The  appeal filed by the appellant, being an appeal of 1997, there  was  no  reasonable chance for its being  brought  on Board.   Distressed by such a situation allegedly prevailing in the High Court, we called for the report of the Registrar of  the  Madhya  Pradesh  High Court (Jabalpur)  as  to  the position of the criminal appeals pending before the Division Bench and the possibility of this 1997 appeal to be heard in the  near future.  Vide his reply dated 23rd January,  2000, the Registrar has intimated as under:

   "I  am to inform you that as per the practice  prevalent in  the  High Court of Madhya Pradesh cases are  listed  for final  hearing  seniority-wise.  Accordingly, at present  at the  Main  Seat at Jabalpur, Criminal Appeals instituted  in the  year 1989 and 1990 are being listed before the Division Bench  (Criminal),  sitting regularly.  However, some  times courts  do  allow applications for early hearing.   In  that case even Criminal Appeals instituted in the later years are heard.   As such Criminal Appeal No.708/97 is unlikely to be heard  in  near  future  in the  normal  course,  unless  an application  for  early  hearing  is moved by  a  party  and

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allowed by the court."

   From the report of the Registrar it appears that even if an  application  for  early hearing is filed,  there  is  no surety  that such an appeal would be heard at an early stage apparently  on  the ground that many such applications  must have  been  filed and the appeals directed to be listed  for early hearing.

   To  have  speedy  justice is a fundamental  right  which flows  from Article 21 of the Constitution.  Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers a right upon him to apply for bail.  This Court, has time and again, reminded the  executive  of  their obligation  to  appoint  requisite number  of judges to cope with the ever increasing  pressure on   the  existing  judicial   apparatus.   Appeal  being  a statutory  right, the trial court’s verdict does not  attain finality  during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction.  It is  unfortunate that even from the existing strength of  the High  Courts huge vacancies are not being filled up with the result that the accused in criminal cases are languishing in the  jails for no fault of theirs.  In the absence of prompt action  under the constitution to fill up the vacancies,  it is  incumbent upon the high courts to find ways and means by taking  steps  to ensure the disposal of  criminal  appeals, particularly  such  appeals where the accused are in  jails, that the matters are disposed of within the specified period not  exceeding 5 years in any case.  Regular benches to deal with  the criminal cases can be set up where such appeals be listed for final disposal.  We feel that if an appeal is not disposed  of within the aforesaid period of 5 years, for  no fault of the convicts, such convicts may be released on bail on  such  conditions as may be deemed fit and proper by  the Court.   In  computing the period of 5 years, the delay  for any  period, which is requisite in preparation of the record and the delay attributable to the convict or his counsel can be  deducted.  There may be cases where even after the lapse of 5 years the convicts may, under the special circumstances of  the  case,  be  held not entitled to  bail  pending  the disposal of the appeals filed by them.  We request the Chief Justices  of  the High Courts, where the criminal cases  are pending  for  more than 5 years to take immediate  effective steps for their disposal by constituting regular and special benches for that purposes.

   However,  in the instant case without commenting on  the merits  of the case but keeping in view the allegations made against  the appellant coupled with the fact that she is old and  infirm, we feel it appropriate to direct her release on bail  by keeping the sentence awarded to her in  suspension. We have further been persuaded to take such a course in view of  the  fact that during the pendency of the trial wife  of Hasru, the son of the appellant and co-accused with her, has died  while  giving  birth to a male child,  who  under  the compulsion  of  circumstances  was also kept in jail  to  be looked  after  by the appellant till he attained the age  of three  years.   Now the said child has been sent out as  the jail authorities did not permit the child to remain with the appellant  after attaining the age of three years.   Keeping the  appellant further in jail is likely to deprive the said child  of  the  parental love, affection and care  which  he needs  at this stage.  There is no law by which such a child can  also be directed to be kept with the appellant in jail.

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Depriving  the appellant from looking after the child  would not  only be against the interests of the child but  against the interests of the society as well.

   In the circumstances of the case we allow this appeal by setting  aside the order impugned with a direction that  the order of conviction and sentence passed against her shall be kept  in abeyance and she be released on bail on  furnishing personal  bond  with two sureties in the amount and  to  the satisfaction of the trial court.