TAHIR KHAN ALIAS SHAKEEL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE dockets of this Court and various other High Courts in the country are not only full but overbrimming. Admitted matters are lying in the archives of the High Court and are blessed with touch of hand of the Judge after number of years. In such matters awaiting listing before the Hon'ble Judge, there are 2,784 D. B. Criminal Appeals that are pending in Rajasthan High Court (Jaipur Bench ). Out of the number of cases mentioned above, 885 appeals are such where accused are in jail. Some criminal appeals pertaining to the year 1980 are also pending hearing. Out of 885 appeals, where accused are in jail, 184 have been listed for checking the paper book by the office. 430 appeals are such where preparation/comparison of paper book is going on. 350 appeals are such in which the office is still to take the exercise of preparing paper books, in hand. 80 cases are such where learned counsel appearing for the parties have on their own placed on record paper books which are still to be compared by the office. THEre are 40 cases which are ready for hearing but have not been listed in court. During the last three years, 1278 appeals were filed. As compared to that, disposal during the last three years was only of 497 cases. THE oldest DB Criminal Appeal pending in this Court, where the accused are in custody, is stated to be D. B. Criminal Appeal No. 605/98 Ram Swaroop vs. State. Accused therein have already undergone sentence for a period of six years nine months and twenty six days as on 30. 4. 2005. This period only pertains to the time the appeal is pending in this Court. In D. B. Criminal Appeal No. 780/2003 Sudama Das vs. State, accused therein have already undergone sentence for a period of 12 years 15 days. In as many as 188 criminal appeals, the accused concerned are in jail for last more than five years. THE aforesaid statistics has been supplied by the office pursuant to our detailed order dated 2. 5. 2005. THE report dated 13. 5. 2005 submitted by the office has been placed on records.

(2.) HON'ble Supreme Court of India in Hussainara Khatoon and Others vs. State of Bihar (AIR 1979 SC 1360) while dealing with the miserable plight of jail inmates facing trial for a number of years, observed as follows: " It is a crying shame on the judicial system which permits incarceration of men and women for such long periods of time without trial. We are shouting from house tops about the protection and enforcement of human rights. We are talking passionately and eloquently about the maintenance and preservation of basic freedoms. But, are we not denying human rights to these nameless persons who are languishing in jails for years for offences which perhaps they might ultimately be found not to have committed ? Are we not withholding basic freedoms from these neglected and helpless human beings who have been condemned to a life of imprisonment and degradation for years on end ? Are expeditious trial and freedom from detention not part of human rights and basic freedoms ? Many of these unfortunate men and women must not even be remembering when they entered the jail and for what offence ? They have over the years ceased to be human beings; they are mere ticket-numbers. It is high time that the public conscience is awakened and the Government as well as the judiciary begin to realise that in the dark cells of our prisons there are large number of men and women who are waiting patiently, impatiently perhaps, but in vain, for justice-a commodity which is tragically beyond their reach and grasp. Law has become for them an instrument of injustice and they are helpless and despairing victims of the callousness of the legal and judicial system. The time has come when the legal and judicial system has to be revamped and restructured so that such injustices do not occur and disfigure the fair and otherwise luminous face of our nascent democracy. "

(3.) WE have heard contentions raised by galaxy of lawyers appearing in various cases on behalf of the applicants as also Mr. M. Rafiq, Addl. A. G. who represents the State. The matter, it appears to us, is no more res integra. The precise points that have been urged before us have been the subject matter of debate before the Hon'ble Supreme Court and some of the High Courts in the country. In Kashmira Singh vs. State of Punjab (AIR 1977 SC 2147 = (1978) 1 SCR 385) where the accused had undergone sentence for a period of 4 years and a half, he was granted bail by holding that it would be highly unjust to detain him in jail any longer during hearing of appeal. Facts of the case aforesaid reveal that Kashmira Singh was charged for offences u/s 323 and 302 IPC; was convicted for offence u/s 323 IPC and sentenced to undergo RI for a period of six months. State preferred appeal against his acquittal u/s 302 IPC which was accepted by the High Court. He was thus convicted u/s 302 IPC and sentenced to R. I. for life. Kashmira Singh surrendered before the Trial Court and preferred special leave which was granted on 28. 2. 1974. His application for bail, preferred subsequently, was rejected on 10. 1. 1975. Simply for the reason that the appeal did not come up for hearing for a long period, he moved yet another application for grant of bail. Supreme Court after making observations with regard to practice prevalent in the said Court and many of the High Courts which was not to release on bail a person who had been sentenced to life imprisonment for an offence u/s 302 IPC, framed a question as to whether the said practice should be departed from and if so, in what circumstances. The question framed above was answered by observing- " It is obvious that no practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it operates to cause injustice. Every practice of the court must find its ultimate justification in the interest of justice. The 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 would be disposed of within a measurable 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 travesity 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. (emphasis supplied ). Can the Court ever compensate him for his incarceration which is found to unjustified ? Would it be just at all for the Court to tell a person: "we 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. "