Singh @ Shingara Singh Vs. State of Punjab  Insc 470 (6
Singh & S.H. Kapadia
out of SLP (Crl.) No.896 of 2005) B.P. SINGH, J.
appellant herein was found guilty of the offence under Section 302 read with
Section 34 of the Indian Penal Code and was sentenced to undergo imprisonment
for life and to pay a fine of Rs.2,000/-. He preferred an appeal before the
High Court of Punjab and Haryana at Chandigarh against his conviction and sentence
which was registered as Criminal Appeal No. 29-DB of 2000. The said appeal was
admitted for hearing on November
3, 2001. The
appellant's application for grant of regular bail was dismissed by order dated September 8, 2004. One of the co- accused namely, Satwant
Singh was granted bail by the High Court by order dated September 17, 2004
since he had suffered imprisonment for three years after his conviction and,
therefore, of Haryana : 2000 (1) C.L.R.74.
case of the appellant is that his case is also covered by the said judgment
and, therefore, he should also be released on bail. It was submitted on his
behalf that in terms of the law as laid down in Dharampal's case, he having
undergone more than three years of actual sentence he deserves to be released
on bail. The second bail application preferred by the appellant being Criminal
Miscellaneous No.42316 of 2004 was dismissed by the High Court by its Order
dated October 29, 2004. The High Court while rejecting the
bail application observed that the appellant had not undergone three years of
actual sentence after conviction, inasmuch as he had only undergone three
years, one month and six days of sentence after conviction, and out of this
period, he had remained on parole for eight months and twelve days. In sum and
substance, the Court rejected his bail application on the ground that he had
remained in actual custody after conviction only for two years and five months.
submitted before us in this appeal that in view of the ratio in Dharampal's case,
the appellant ought to have been released on bail, he having remained in
custody for more than four years. It was submitted that it makes no difference
in principle whether the appellant remained in custody for three years or more
after his conviction, or whether he remained in custody for such or longer
period since he was first arrested in connection with the case.
have carefully perused the judgment of the Punjab and Haryana High Court in Dharampal's case (supra). Strictly speaking
the case of the appellant is not covered by the directions contained in the
aforesaid decision which directs that life convicts, who have undergone atleast
five years imprisonment, of which atleast 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. This was of course, confined
to the cases which fall under categories C, D and E enumerated in the judgment.
for the State submitted that the Punjab and Haryana High Court in Dharampal's case did not intend to lay down
any invariable rule of universal application for grant of bail. It only laid
down guidelines which may be kept in mind by a Court while considering an
application for grant of bail.
notice that in Dharampal's case, the High Court referred to several decisions
of this Court viz; Hussainara Khatoon and Supreme Court Legal Aid Committee
representing under-trial 671. Apart from these cases, counsel for the parties
have also drawn our attention to some other decisions of this Court namely; SCC
no doubt true that this Court has repeatedly emphasized the fact that speedy
trial is a fundamental right implicit in the broad sweep and content of Article
21 of the Constitution of India. The aforesaid Article 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. 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 of the
Constitution of India. It has also been emphasized by this Court that the
procedure so prescribed must ensure a speedy trial for determination of the
guilt of such person.
conceded that some amount of deprivation of personal liberty cannot be avoided,
but if the period of deprivation pending trial becomes unduly long, the
fairness assured by Article 21 would receive a jolt. These are observations
made in several decisions of this Court dealing with the subject of speedy
trial. In this case, we are concerned with the case where a person has been
found guilty of an offence punishable under Section 302 IPC and who has been
sentenced to imprisonment for life. The Code of Criminal Procedure affords a
right of appeal to such a convict. The difficulty arises when the appeal
preferred by such a convict cannot be disposed of within a reasonable time. In Kashmira
such a case. It is observed :-
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 whould be disposed of within a measureable 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. Can the Court ever compensate him for his
incarceration which is found to be unjustified? Would it be just at all for the
Court to tell a person :
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".
observations are found in some of the other decisions of this Court which have
been brought to our notice.
however, it is significant to note that all these decisions only lay down broad
guidelines which the Courts must bear in mind while dealing with an application
for grant of bail to an appellant before the Court. None of the decisions lay
down any invariable rule for grant of bail on completion of a specified period
of detention in custody. Indeed in a discretionary matter, like grant or refusal
of bail, it would be impossible to lay down any invariable rule or evolve a
strait jacket formula. The Court must exercise its discretion having regard to
all the relevant facts and circumstances.
the relevant facts and circumstances are, which the Court must keep in mind,
has been laid down over the years by the Courts in this country in large number
of decisions which are well known. It is, therefore, futile to attempt to lay
down any invariable rule or formula in such matters.
for the parties submitted before us that though it has been so understood by
Courts in Punjab, the decision of the Punjab and Haryana High Court in Dharampal's
case only lays down guidelines and not any invariable rule. Unfortunately, the
decision has been misunderstood by the Court in view of the manner in which the
principles have been couched in the aforesaid judgment.
considering the various decisions of this Court and the difficulties faced by
the Courts, the High Court in Dharampal's case observed:- "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 two years imprisonment
however, clarify that these directions shall not be applicable in cases where
the very grant of bail is forbidden by law".
agree with the submission urged before us that the directions contained in the
aforesaid judgment of the High Court are only in the nature of guidelines and
the High Court should not be understood to have laid down an invariable rule to
be observed with mathematical precision. In fact in the very first paragraph of
the judgment the learned Judges observed that they were making "an attempt
to frame certain guidelines" for the grant of bail.
may arise if such a direction is treated as an invariable rule in the matter of
grant of discretionary relief. The rule laid down in Dharampal's case may be
inferentially understood to mean that unless a convict has undergone five years
imprisonment, he should not be released on bail. This would again lead to travesty
of justice, because in a given case having regard to the evidence on record and
the reasoning of the Court convicting the accused, the High Court in an appeal
may well be persuaded and justified in granting bail to the appellant even
while admitting his appeal.
therefore, hold that the High Court of Punjab and Haryana in Dharampal's case
laid down guidelines which ought to be kept in mind by Courts dealing with
applications for grant of bail in a pending appeal. It does not lay down any
hard and fast rule of universal application. As we have observed earlier, it
would be futile to lay down any strait jacket formula in such matters.
as the instant appeal is concerned by our order dated May 12, 2005 we have granted bail to the
appellant who had remained in custody for about six years and four months.
Apart from the facts and circumstances of the case, we also notice the fact
that the co-accused had been released on bail by the High Court. The interim
order made on May 5,
2005 is made absolute.
appeal stands disposed of in the above terms.