LETI @ JAYADEB ROY AND ANR. Vs. THE STATE

JUDGEMENT

(1.) "Give me liberty or give me death, thundered Patrick Henry, more than two hundred years ago, in the virginia Convention." This is how one of us (Patnaik, J.) prefaced his judgment in Mangal Hemrum v. State of Orissa : 53 (1982) CLT 259 when confronted with the detention of a person pending investigation in violation of the right made available under the proviso to Section 167(2) of the Code of Criminal Procedure (shortly, 'the Code'). It is the same concern for liberty which has necessitated examination of the question as to whether the convicts who are languishing in jails due to the inability of this Court in disposing of their appeals should be released on bail de hors the provision of Section 339 of the Code; and if so, when and under what circumstances. This liberty loaded question has much relevance so far as this Court is concerned inasmuch as it has not been able to dispose of jail Criminal Appeals even of 1989. The total Jail Criminal Appeals pending till the end of the year 1989 being 435, the aforesaid question has assumed greater significance. There must be many more Criminal Appeals filed by convicts from outside jail wherein prayers for release on bail were rejected by this Court

(2.) BEFORE proceeding further, we may say that as between funeral fire and mental worry, it is the latter which is more devastating , for funeral fire burns only the dead body whereas mental worry burns the living one'. We are told about this reality of life, noted by Shotty, J. in Triveniben v. State of Gujarat : AIR 1989 S.C. 1335 by Mr. S. Mohapatra, a learned member of the Bar who voluntarily come forward to assist the Court in answering the important question at hand. Lest the concern shown for convicts be misunderstood, may we remind ourselves what was stated by the Apex Court in Kadra Pehadiya v. State of Bihar : AIR 1981 S.C. 939.

(3.) THAT has been stated in the aforesaid case relating to under trial prisoners would apply to the convicts as well whose appeals remain pending for years. Though we may not agree in this connection with what was stated in Anama v. Trilochan : AIR 1969 Ori. 75 to which our attention has been invited by Mr. S. Mohapatra, that the presumption of innocence continues all throughout the trial and till the dispose of the case in the final Court of appeal, there can be no denial that the right of speedy trial Which is available to an under trial prisoner by the force of Article 21 of the Constitution would be available to the convicts also. In this connection we feel tempted to quite what was stated by Sandhawalia, C.J. in Anurag v. State, AIR 1987 Pat 74 (F.B.) in paragraph 11: