DILIP MALIK Vs. STATE

JUDGEMENT

(1.) My learned brother Nandi, J. has held in his judgment to be delivered now that there is nothing on record to justify our intervention in revision in respect of the order of conviction passed against and the sentence imposed upon the accused-petitioner under Section 395/397 of the Penal Code condemning him to suffer rigorous imprisonment for seven years. I agree with him and also share his sense of shock and dismay at the fact that by the time we could find time in 1989 to hear this Revisional application filed in this Court in 1982, the petitioner had to fully serve out the sentence of seven years rigorous imprisonment.

(2.) But suppose we ruled otherwise and held that the revision was to be allowed and the orders of conviction and the resultant sentence were to be quashed? Who was then to compensate the accused for all the agony and strain suffered by him under an unlawful order of conviction and sentence?

(3.) It is true that under our Code of Procedure, an order of conviction and sentence are not automatically suspended during any appeal or revision against such order. It is also equally true that under our Code, setting aside of conviction and sentence by the higher Court does not, by itself, entitle the accused to any compensation. Section 250 of the Code only provides for some sort of compensation when a Magistrate discharges or acquits an accused in a case triable and tried by the Magistrate. But that is a compensation for accusation without reasonable cause. But I am on a different question, the question being when the accused had to suffer a long term imprisonment under an order of conviction, though subsequently set aside on appeal or revision, only because of the inordinate delay made by the higher Court in disposing of the proceeding pending before it, is he entitled to be compensated under the Code and, if so, by whom ? Even if we can extend the principles of Section 250 to acquittal by the higher Courts in appeal or revision, such acquittal may very often be on the ground that the accusation is not proved or on some other ground, and not necessarily on a finding "that there was no reasonable ground for making the accusation" as envisaged in Section 250.