Barey and Others vs State

Giridhar Malaviya, J.—Today along with this appeal, there are listed for hearing four more criminal appeals of the year 1979 and 10 more Criminal Appeals of the year 1980. It is apparent that these appeals being more than 16 or 17 years old, the incident in question had taken place even earlier. All these appeals are to be disposed of by a single Judge of the High Court.

Allahabad High Court Rules, inter alia, deal with the question of Jurisdiction of Judges sitting alone or in Benches. The relevant portion of Rule 2 of Chapter v reads as follows:

Jurisdiction of a single Judge.-Except as provided in these Rules or other law, the following cases shall be heard and disposed of by a Judge sitting alone, namely.

(i)...

(ii)...

(iii)...

(iv)...

(v)...

(vi)...

(vii) a criminal appeal, application or reference except-

(a) an appeal or reference in a case in which a sentence of death or imprisonment for life has been passed;

(b) an appeal u/s 378 of the Code of Criminal Procedure, 1973 from an order of acquittal;

(c) deleted;

(d) a case in which notice has been issued u/s 401 of the Code of Criminal Procedure to an accused person to appear and show cause why his sentence should not be enhanced;

(e) deleted;

(f) an application to which Chapter XXI, Part IV, applies;

(viii) a case coming before the Court in the exercise of its ordinary or extraordinary original criminal jurisdiction;

(ix) an appeal or revision from an order passed u/s 340, 341 or 348 of the Code of Criminal Procedure, 1973.

A perusal of the Allahabad High Court Rules will demonstrate that all the appeals before a single Judge of the High Court are only such appeals in which a sentence other than life sentence or death sentence has been awarded to an accused.

Realising that these appeals have come up for hearing after 17 or 18 years, after they were filed in the High Court, this Court enquired about the total pendency of criminal cases in the High Court. The Information as given by Sri. S.C. Srivastava, Section Officer of the Criminal Section of this Court indicates that as on 30.4.1996 total number of criminal cases pending in the High Court was 95,935. Out of them pending single Judge crl. appeals are 24,659. The other major nature of cases pending are 25,902 applications u/s 482, Code of Criminal Procedure; 16,957 crl. revisions and 13,756 two Judges crl. appeals and 11, 208 matters or contempt. The two Judges Criminal Appeals are obviously such appeals In which the sentence awarded is either the life term or death after conviction by the trial court. These appeals are to be heard by a division Bench. Similarly, Crl. Contempt cases are again the matters which are to be heard by a division Bench comprising of atleast two Hon''ble Judges.

Various High Courts as also the Supreme Court have very often taken a view that if the period of more than a decade has elapsed after the date of the incident, then instead of sending an accused back to Jail again, the sentence should be substituted with that of fine. Many a time even counsel for such Appellantss have unhesitatingly made submissions in the Courts that In such appeals which are pending for more than a decade, the Appellants may not be sent back to Jail and in view of the fact that on his appeal being filed in the High Court, the Appellants must have necessarily undergone some period of sentence In jail, before being enlarged on bail by the High Court, the request is made to modify the sentence in appeal by imposing fine In lieu of the remaining term of jail sentence.

The figures quoted above show that almost 25% of the criminal cases pending In the High Court are single Judge criminal appeals. This Court also enquired from the Registry as to how many single Judge criminal appeals were being filed in the High Court daily and it transpired that as every person who is convicted can file an appeal in the High Court even in a single: Judge matters as of right, on an average 9-10 appeals are being filed dally in the High Court (in the month of August, 1996 against 20 working days 178 crl. appeals were filed). On the other hand, even if one Hon''ble Judge is nominated to hear the appeals against conviction after going through the entire evidence and the paper book and after hearing counsel for both the sides, it is obvious that, on an average, no Judge would be able to dispose of more than two appeals In a day. Consequently, if four Benches are constituted only to dispose of crl. appeals, on an average, not more than 6 to 8 appeals would be disposed of every day. The maximum days on which the High Court works during a year being 210 days, the disposal of the single Judge crl. appeals during a year, if four Benches sit on all the 210 working days, would be of about 1,600 appeals. As against this, single Judge crl. appeals which are to be filed in one particular year is about 2,000. Consequently, it would not be possible to clear up the arrears of single Judge crl. appeals in the present set of circumstances. It may be added that on account of paucity of Judges, this Court has not been able to make available even 3 or 4 Judges to take up single Judge crl. appeals every day and, therefore, the arrears of such appeals are mounting up.

In the most modern and advanced countries, the concept of plea-bargain has gained momentum. Even in India, there has been consistent discussion whether plea-bargain should be introduced in this country or not. Looking at the gigantic problem of this High Court where almost 25,000 single Judge crl. appeals are pending which are even of the years 1976, 1977, 1978, 1979, 1980 and onwards, it is desirable that an option may be given to the Appellantss in the High Court in the matters of single Judge crl. appeals, to make an application before the Court by 31.12.1996 on the principle, and pattern of plea-bargain to ask the Court that if they may not be sent to Jail and instead their sentences may be modified by the sentence of fine together with the period already undergone by them, then this Court, without going into the merits of the ease, may Just examine the nature of allegation and impose on them such sentences as the Court may deem proper after hearing their counsel. Since to send back a person to Jail after a long period has not beer, approved by the Courts of law, to begin with the liberty to bargain the sentence may be confined only to the appeals pending in the High Court upto the year 1991, i.e., such appeals which are more than five years old in the High Court.

It is obvious that there may be many Appellantss who must be desirous of getting a clean acquittal to get the stigma of conviction removed from them, which may also be necessary If some of them are In service. All such appeals where the plea to bargain the sentence is not made through an application, will necessarily be heard on merit on its turn. Consequently, opening up this avenue for all such Appellantss whose cases are pending and for whom these old appeals in the High Court are hanging on their heads as sword of democles would, in no manner, prejudice the cause of Justice of those who do not want their appeals to be heard on the principle of plea-bargain.

Consequently, the Registrar of the High Court is directed to get this judgment and a brief synopsis of the option which Is being offered through this judgment sent to the Secretary of the High Court Bar Association as also to the Secretary of the Advocates'' Association with a direction that if all such Appellantss in single Judge crl. appeals whose appeals are pending in the High Court for more than five years, want to take the plea to bargain their sentences, they can make an application supported with an affidavit in the High Court by 1.1.1997. The High Court Registry, on getting these applications, would start sorting out all these single Judge crl. appeals as a separate bunch so that from 1.1.1997 onwards, these appeals under the direction of Hon''ble the Chief Justice may be listed before such Benches of single Judge who may decide these appeals on the pattern suggested above.

Since In this case also, learned Counsel for the Appellants wants to ask his client whether he would like to opt for the plea of bargain of sentence, in this case also the Appellants may file an application as indicated hereinbefore.

This appeal as also all other appeals shall, thereafter be listed as has been indicated above.

P.S. Since by this judgment all the Appellantss in single Judge crl. appeals pending in the High Court, of the entire State, can get an option to make an application as has been suggested, it Is desirable that a copy of this judgment may be sent to all the District & Sessions Judges of the State with the direction that they may apprise the members of the Bar Associations of their districts of the opportunity which Appellantss of single Judge crl. appeals In the High Court can avail in view of this judgment so that as and when their clients may meet them to understand the Implication of this judgment, learned Counsel may be in a position to explain it to them. Efforts should also be made by the Registry to apprise all the Appellantss of single Judge crl. appeals of the State by getting these Judgments published in the newspapers. The District & Sessions Judges should also endeavour to get brief substance of this judgment published in the local newspapers of their districts so that, the maximum number of the people may come to know of it.

Giridhar Malaviya, J.

Heard

The time to give option in the judgment dated 15.10.1996 by 31st December, 1996 is extended upto 31.3.1997.