Mehmoodmiya @ Mulla vs The State of Gujarat

This is a successive application preferred by the applicant for suspension of sentence and release of the applicant on bail during pendency of the appeal.

Earlier application was rejected considering the merits of the applicant''s case as well as considering the fact that sentence of co-convict was suspended during pendency of hearing of the appeal by the co-convict. No grounds are indicated for taking a different view of the matter so far as merits of the applicant''s case and suspension of sentence and grant of bail to the applicant are concerned.

The points that the learned Advocate for the applicant could canvass were efflux of time and deteriorating physical condition of the applicant''s only son.

The applicant has been in jail since 22nd October, 2001 and it was, therefore, canvassed that it is nearly five years since he has been in jail. Reliance was placed on decision of the Supreme Court in the case of Surinder Singh alias Shingara Singh v. State of Punjah (2995) 7 SCC 387.

We have considered the submissions made by the learned Advocate for the applicant, so also learned the learned Additional Public Prosecutor. It is true that the applicant is in jail since 22nd October, 2001 and is a convict for offence of murder sentenced to undergo imprisonment for life. There cannot be any dispute that right to speedy trial is envisaged by Article 21 of the Constitution of India but, at the same time, some amount of deprivation of personal liberty cannot be avoided in certain cases for the reasons beyond control. Their Lordships, in the case of Surinder Singh (supra), relied upon by the learned Advocate for the applicant, considered the question whether the view expressed by Punjab & Haryana High Court in the case of Dharam Pal is mandatory. Their Lordships observed that the said decision laid down guidelines which ought to be kept in mind by the Courts dealing with applications for grant of bail pending an appeal. It was held that the said decision did not lay down any hard and fast rule of universal application. The ultimate outcome is that the directions given by Punjab & Haryana High Court in the case of Dharam Pal are only guidelines where it was held that life convicts, who have undergone at least five years'' imprisonment, of which at least three years'' after conviction, should be released on bail.

5.1 Against these guidelines in the case of Dharam Pal, we have views of the Apex Court itself, as expressed in the case of Ramji Prasad Vs. Rattan Kumar Jaiswal and Another, , where Their Lordships have said that it is only in exceptional cases that benefit of suspension of sentence and grant of bail during pendency of appeal in cases of convicts u/s 302 sentenced to undergo imprisonment for life can be considered. While considering such question, the Court should consider factors like nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of offence and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence or murder. These aspects have already been considered by earlier Bench of this Court while deciding the earlier application of the applicant for suspension of sentence during pendency of appeal.

In our opinion, the view expressed by the Apex Court in the above referred cases, if applied to the present case, do not satisfy the criteria of exceptional circumstances. Efflux of time may not be an altogether irrelevant aspect, but it is only considered as some amount of unavoidable deprivation of personal liberty, if the decisions are read harmoniously.

We have, on our hand, Criminal Appeals of 1997-1998 awaiting for their turn to come up for final hearing and, in these circumstances, we do not think it proper to treat this application as exceptional case and suspend the sentence.

So far as the ground of sickness of only son of the applicant is concerned, the applicant has, in his application stated thus:

His son is physically and mentally handicapped.

The applicant has not annexed any supportive material to support this plea of his. This plea could have been taken by the applicant in the earlier application as well.

We do not find any merits in any of the pleas taken by the applicant, namely efflux of time and sickness of his son. The application, therefore, must fail and stands rejected.