Sushil Kumar Das vs State of Assam

R.K. Manisana, J.—The Appellant-Petitioner made an application, in pending Criminal Appeal No. 122 of 1993 from conviction u/s 302, IPC, for suspension of sentences and for releasing him on bail. The application was rejected on 19.7.93. Thereafter, this (second) application for suspension of sentences and for releasing him on bail was filed on 29.7.93.

In Babu Singh and Others Vs. State of U.P., the Supreme court has held that, although application for bail u/s 389, Code of Criminal Procedure at an early stage, was rejected, it does no necessarily preclude another, on a later occasion, giving more materials, further developments and different considerations. In the above view of the matter, the second bail application of the Petitioner is entertainable.

Mr. S. Medhi, learned Counsel for the Appellant-Petitioner, has contended that since the appeal has been admitted, the accused-Appellant has shown a prima-facie case for acquittal and, therefore, the Petitioner is to be released on ball on the facts and in the circumstances of the case.

The question then is, - What are the factors to be considered for the exercise of power u/s 389 (1) Cord of Criminal Procedure In Harbhajan Singh and Others Vs. The State of Punjab, a Division Bench of the Punjab and Haryana High Court has held that administration of criminal justice is matter of substance and not merely one of academics. It would afford scant satisfaction to the accused if after serving his full or substantial part of sentence, his appeal succeeds and he is merely acquitted of the charge. This factor cannot be ignored. Therefore, the accused is entitled to the concession of bail. In that case, a decision of a Full Bench of that court in State of Punjab Vs. Bachittar Singh Lal Singh and Others, was considered and observed thus:

Though that was a case regarding the grant of bail to the accused persons who were acquitted after trial upon a capital charge (against whom state appeals directed against their acquittal stood admitted in the Court) yet the rationale of that Judgment on the point of delay, etc is equally attracted in a case of the present kind.

In Kashmira Singh Vs. The State of Punjab, it has been held:

The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Court and in the Supreme Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not 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.

In Anurag Baitha Vs. State of Bihar,

it has been held that inordinate delay in hearing of appeal because of court''s own inability is a relevant consideration for grant of bail u/s 389, Code of Criminal Procedure, during the pendency of appeal on capital charges.

The principle laid down in the above-cited cases is that, if an accused is likely to serve substantial part of sentence before the hearing of the appeal or the appeal cannot be heard within a reasonable time that factor can be considered for granting bail, u/s 389, Cord of Criminal Procedure. In the present case, as already stated, the first application was rejected on 19.7.93. The second application was filed on 29.7.93. Therefore, the above principle is not attracted at this stage.

In respect of the contention of Mr. Medhi that, since the appeal has been admitted, the accused Appellant has shown a prima facie case for releasing the accused on bail cannot be accepted. Admission of an appeal in such a case is that the appeal is entertained for examination of the case on merits Mere admission of the appeal does not mean that prima facie ground is disclosed for substantial doubt about the conviction. However, if a strong prima facie ground is disclosed for substantial doubt about the conviction, it may be ground for consideration for grant of bail. Such a ground does not appear in the present case. That apart, if the submission of Mr. Medhi is accepted it would be against the provisions u/s 389, Cord of Criminal Procedure. Accordingly, the petition is dismissed.