Irfan Ahmad Bhat vs State Through Police Station Budgam

Heard.

By this application, the appellant seeks suspension of the sentence awarded to him by the order dated 22.11.2017 upon his conviction under Section

302, 309, 341 RPC by the judgment dated 20.11.2017 in the case arising out of FIR No.344/2008 registered by P/S Budgam.

We have called for a nominal roll of the appellant from the Central Jail, Srinagar. The nominal of the appellant has been received under the

signatures of the Sr. Superintendent of Central Jail, Srinagar, whereby we are informed that appellant has been in continuous incarceration since 25th

July, 2008. As on 31st December, 2019, the appellant has been in jail for 11 years 5 months and 6 days. Therefore, as on date the appellant has been

continuously incarcerated for almost twelve years.

In the case reported as AIR 2001 SC 1528, Akhtari Bi v. State of M.P., the Supreme Court has held that if an appeal is pending for five years and

there is no chance of appeal being heard in near future then in such a case the applicant/appellant should be enlarged on bail. Relevant extract of the

judgment is reproduced hereunder:

“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 purpose.â€​

It has been clearly laid down by the Supreme Court in AIR 2001 SC 1528, Akhtari Bi Vs. State of M.P that if an appeal is pending for 05 years and

there is little chance of the bail being heard in the near future then in such a case, a convict would be entitled for a favourable consideration for

suspension of his remaining sentence.

In AIR 2017 SC 1568, Sandeep alias Raja Acharya Vs. State of Oriss aalso, the Supreme Court had made similar observations on a consideration

of the circumstance of the conviction appeal remaining pending for further time and the possible time by which the appeal before the High Court

would be disposed of. Relevant extract of the judgment is reproduced hereunder:

“The accused appellant is in custody for nearly nine years. The appeal filed by the accused appellant before the High Court against his

conviction under Section 302/34 IPC is of the year, 2011. As far as back on 2nd September, 2011 while rejecting the prayer for bail this

Court in Special Leave Petition (Criminal) No. 6207 of 2011 had directed expeditious hearing of the appeal. The appeal before the High

Court continues to remain pending as on date and in the normal course, the same is likely to take some further time for disposal. Having

regard to the period of custody suffered and the possible time by which the appeal before the High Court can be disposed of, we are

inclined to release the appellant on bail. Accordingly, the appellant is ordered to be released on bail to the satisfaction of the learned trial

Court in connection with Criminal Trial (Sessions) No. 12/5 of 2009.â€​

The current board of this court does not render it possible to expedite hearing in the main appeal. There is difficulty in hearing these matters also for

want of translation of the trial court records which are in Urdu. In view thereof, interests of justice demand that the prayer made in this application is

accepted. It is, accordingly, directed as follows:

i) Subject to appellant’s furnishing the bail bond in the sum of ₹50,000/- with one surety of the like amount to the satisfaction of the Registrar

Judicial, the remaining sentence imposed upon the appellants by order dated 22nd November, 2017 shall be suspended till further orders of this Court.

ii) After his release, the appellants shall report to the Station House Officer of the Police Station, M. R. Gunj, Srinagar, at any time during the day light

hours on the 2nd Saturday of every month.

A copy of this order shall also be sent to the Superintendent, Central Jail, Srinagar, and the Station House Officer, Police Station, M. R. Gunj,

Srinagar, to ensure compliance.