Smt. Akhtari
Bi Vs. State of M.P [2001] Insc 167 (22 March 2001)
K.T.
Thomas & R.P. Sethi. Sethi,J.
Leave
granted.
L.I.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 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.
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.
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