Dalip Singh Alias Deepa Vs State of Punjab

S.S. Saron, J.@mdashA Division Bench of this Court, --vide order, dated 19th December, 2008 has referred the present case to Full Bench for an authoritative pronouncement. The reference order reads as follows :--

On November 26, 2008, we had expressed our extreme dismay at the long time the appellant''s trial had taken before the trial court. We now propose to record some observations on the criminal justice system in the States of Punjab and Haryana and Union Territory, Chandigarh. Our desire is to highlight Dalip Singh''s case, make it an example to demonstrate the rickety system we have developed.

It would be appropriate to preface our order with a brief chronolgy of Dalip Singh''s trial. He was arrested on July 13, 1998 and charged for murder of his wife Jasbir Kaur by smashing her head with a spade. The occurrence had taken place at 6.30 A.M. on July 13, 1998. FIR 44 was registered u/s 302 IPC at Police Station Machhiwara.

After investigation, the report u/s 173 Cr. P.C. was presented to Judicial Magistrate 1st Class, Samrala on September 1, 1998. The case was committed to the Court of Sessions for trial on September 29, 1998. Charge against Dalip Singh was framed on October 27, 1998 to which he pleaded not guilty and claimed trial, the case was adjourned to Februrary 2, 1999 for the recording of prosecution evidence. Therefore, Dalip Singh''s trial effectively commenced on February 2, 1999.

At the trial, the prosecution examined 14 witnesses, three of whom were examined on affidavits. Therefore, statements of 11 witness were recorded and their depositions ran into only 28 pages. The prosecution evidence was finally closed on August 26, 2006. 6-1/2 years were consumed for recording 28 pages of evidence. Form the above we can only conclude that the criminal justice system is in complete shambles.

No one seems to be in charge of the criminal justice system. The police blames the prosecution, who blames the defence. The trial judge is over burdened with work and the accused person, in whose favour there is a presumption of innocence, continues to languish in jail without bail.

The Code of Criminal Procedure entitles an accused to be released on bail if trials before Magistrates are not concluded within 60 days from the first date of recording of evidence. This is provided in Section 437(6) of the Code. An accused person can also be released on bail after 60/90 days where investigation has not concluded. (provisio 2 of Section 167 of Cr. P.C.) Article 22 of the Constitution provides that preventive detention or detention without trial cannot be longer than three months unless the case is considered by an Advisory Board.

A person detained in custody has many rights he has also the right to a speedy trial. This right has been recognised by the Supreme Court in a long line of judicial pronouncements [Hussainara Khatoom (I) versus Home Secy. State of Bihar, 1980 SCC (Crl.) 23, Abdul Rehman Antulay versus R.S. Nayak 1992 SCC (Cri) 93, Raj Deo Sharma versus State of Bihar (1988) 7 SCC. 507 Smt. Akhtari Bi Vs. State of M.P., , Bipin Shantilal Panchal versus State of Gujarat and Another (2001) 3 SCC 1, Supreme Court Legal Aid Committee representing Undertrial Prisons versus Union of India 1994 (3) R.C.R. (Cri) 639, Common Cause a Registered Society through its Director versus Union of India 1996 (2) R.C.R. (Cri) 419, Raj Deo Sharma versus State of Bihar 1998 (4) R.C.R. (Cri) 206 and 396, Usha Ahuja versus State of Haryana 1999 (4) R.C.R. (Cri) 52, P. Ramachandra Rao versus State of Karnataka 2002 (2) R.C.R. (Cri) 553, and Moti Lal Saraf versus State of Jammu and Kashmir and another 2006 (4) R.C.R. (Cri) 637.]

On November 26, 2008, we had asked the Advocates General of Punjab and Haryana to assist the Court. Today, the learned Additional Advocate General, Punjab has filed before us limits of undertrials lodged in Central/District Jails, Ludhiana, Patiala. Hoshiarpur and Bathinda. These lists are taken on record.

The lists contain names of undertrials, dates on which they were admitted to the jails, details of FIRs and the names of the trial courts but these lists give no information regarding the pace at which the respective trials are proceeding or the degree of violation of the rights of speedy trials of the accused/undertrial. The lists are confined to accused in custody, what about the accused who are on bail. If this is the best information that can be produced by the State then it certainly conclusively establishes that there is no central agency to monitor or oversee the progress of trials in the trial courts. How many persons are being deprived of their rights to a speedy trial cannot be accurately gauged from the information sent by the respective Superintendents of Jails.

Advocates General of the States of Punjab and Haryana should be responsible, nay accountable, if trials are not conducted speedily and rights of accused are violated.

It seems to us that refusal of bail and keeping the accused person in custody has failed to raise the hackles of those in charge of various limbs of the criminal justice system, if at all anyone is an accused person in custody is entitled to assert that he is innocent and his detention is unwarranted. Therefore, there must be a time limit within which the trial should be concluded for the accused to establish his innocence, or for the prosecution to establish his guilt. Law provides time limits for various types of detention because each day''s detention brings with it tension worry, heartburn and loss. If an accused person is released on bail, he does not suffer the above collateral damage, is united with his family and is able to pursue his job or vocation and also provide for his family. He is also able to prepare his defence which he would have been unable to do if he had remained in custody. Needless to say he must refrain from winning over witnesses or abscond to escape punishment.

If a court is satisfied that the accused will resist tampering with evidence or try to abscond, the court should not hesitate from granting bail. Heavy amount of bond can be imposed with a local surety. The accused can be required to submit himself to police surveillance or electronic surveillance to keep a lag on him. Detention during trial destroys the man bail saves him from ill affects of detention and yet makes him available to receive sentence, if he is convicted. Therefore, bail has many advantages which detention during trial does not have. This is particularly true if the trial is speedy, period of bail is short and verdict is pronounced while public memory about the crime is fresh.

We have thought about framing some guidelines for the benefit of appellants who have already spent long periods at the trial. Convicts get paid some daily wage. Undertrials get nothing, they lose their jobs, their families are deprived of income, their children are unable to pursue studies.....all because of the criminal justice system has condemned them to long judicial custody pending conclusion of trial. Dalip Singh''s trial took 6-1/2 years for recording of prosecution evidence from 2nd February, 1999 to 26th August, 2006, 28 pages of evidence and 6-1/2 years. There are large number of such cases where trial take unduly long time and the accused are denied bail.

Therefore, every trial court should consider release of accused on bail if 180 days have passed and the trial is not nearing conclusion. Trial court must be satisfied that the accused will not tamper with evidence or win over witnesses and shall not abscond. Trial courts should devise ways and means that the accused does not misuse bail. Therefore, bail ought to be considered by the trial court itself after 180 days from the date of commencement of the prosecution evidence.

We would like to suggest that the States of Punjab and Haryana and the Union Territory, Chandigarh, should examine the feasibility of a "Criminal Justice Monitoring Board" consisting of the heads of Police, Prosecution and Prisons. Such a Board would cover three important limbs of the criminal justice system-Investigators, Prosecutors and Jail Superintendents. The Board could meet regularly to monitor the progress of all trials and give directions or guidelines to their respective wings, if it is found that delays are taking place on account of lack of infrastructure or manpower concerning their respective limbs.

As regards benefit given to appellants of suspension of sentence on account of long period spent in custody, this court is consistently following the judgments in Dharam Pal versus State of Haryana 1999 (4) RCR Crl.) 600 and Daler Singh versus State of Punjab 2007 (1) RCR (Cri) 316. However, both in Dharam Pal and Daler Singh''s cases (supra), the appellants required to complete a certain minimum period post conviction before sentence can be suspended. In Dharam Pal''s case, the appellant is required to complete 3 years post conviction and total period of 5 years in custody. In Daler Singh''s case the appellant is required to complete period varying from 12 to 15 months post conviction and total sentence varying from 2 to 6 years.

We feel that in cases where accused spend long time in custody as undertrials, it would be unfair to require them to again spend certain fixed period post conviction before sentence can be suspended. u/s 428 Cr. P.C. the period of detention undergone by the accused is set off against the sentence of imprisonment. Therefore, we feel that the undertrial period should be added to the post conviction period and an appellant who has completed 5 years in all should be entitled to suspension of sentence automatically. In the present case, the appellant has served nearly 6-1/2 years of sentence as an undertrial and 2 years post conviction. There may be many such cases where accused languish in prison as undertrials and are deprived of suspension of sentence because there conviction is comparatively recent. When the undertrial period is also counted towards sentence then it should not make any difference if the appellant has or has not done three years after conviction.

We are of the view that on the above aspect, the Division Bench judgments in Dharam Pal (supra) and Daler Singh (supra) require to be re-considered. Refer to Full Bench. Let this case be placed before Hon''ble the Chief Justice for constituting a Full Bench.

K. S. Garewal, J. and

Jitendra Chauhan, J.

2. Delay in completing trials after filing of charge report (challan) by the Police and disposal of an appeal against an order of conviction and sentence, and the entitlement of an accused for the grant of bail or the convict to have his sentence suspended in case of delay in the hearing of his appeal post conviction has engaged the attention of the Courts in several ways. The questions that primarily require to be considered by the Full Bench are whether under-trials are entitled to bail when trials are unduly prolonged and whether any time frame can be provided for the grant of bail. And whether convicts undergoing imprisonment for life must undergo a minimum period of sentence of imprisonment before their pleas for suspension of their sentence are considered. What means can be devised so that undertrials or convicts do not misuse the concession of bail or the suspension of sentence.

3. A Division Bench of this Court in Dharam Pal versus State of Haryana, 1999 (4) RCR (Crl.) 600 had provided for certain time-frame for convicts to be released, pending disposal of their appeals. The Bench was of the opinion that certain principles ought to be framed where there appeared no likelihood of an early hearing of their appeal. The nature of crime, it was observed, would be one of the factors that may be considered for the said purpose. For the categorization of the crimes, the Punjab Government circular laying down various aspects for consideration of release prematurely were also adverted to.

4. The principles that were laid down were considered by the Supreme Court in Surinder Singh alias Shingara Singh versus State of Punjab 2005 (4) RCR (Crl.) 103. The Supreme Court held that the directions contained in Dharam Pal''s case (supra) were only in the nature of guidelines and the High Court should not be understood to have laid down as an invariable rule to be observed with mathematical precision. Indeed, pending disposal of an appeal cannot be laid down or limited in a straitjacket formula so as to be mathematically applied to each and every case. It is an accepted principle of criminal jurisprudence that each case is to be decided in accordance with its own facts and circumstances. However, certain guidelines can be followed for uniform application to undertrials and convicts.

5. The following principles: which are to be considered in the nature of guidelines were laid down in Dharam Pal''s case (supra) which were to be followed for consideration for release of prisoners and convicts pending disposal of their appeals :--

(i) Life convicts who have undergone five years of imprisonment of which three years should be after conviction, should be released on bail pending of the appeals.

(v) Same principles ought to apply to those convicted by Court martial.

(vi) Period of five years should be reduced to four for females and minors with at least two years imprisonment after conviction.

(vii) These directions will not apply in cases where very grant of bail is forbidden by law.

6. The foremost which this Court has consistently followed for the past decade, on the basis of Dharam Pal''s case (supra), is that convicts who have undergone five years, three years after conviction, should be released on bail pending appeals.

7. During the course of hearing by this Bench the question regarding grant of bail to an under-trial in a case in which trial is getting prolonged and three years post-conviction time frame is a minimum requirement for convicts were subject matter of debate and are required to be considered. It is, therefore, to be seen whether any of time-frame can be fixed for the grant of bail to an under-trial if the trial is getting prolonged. As regards convicts, whether three year post-conviction period or two years in the case of females is a necessary mandate to be followed before a person can be considered for release on bail.

8. The right to a speedy trial and expeditious disposal of appeals is a well recognized facet of the principles of natural justice enshrined in Article 21 of the Constitution of India. In Abdul Rehman Antulay and others versus R.S. Nayak and Another, 1992 (2) R.C.R. (Crl.) 634, a five Judge Bench of the Supreme Court held that provisions of the Code of Criminal Procedure (''Cr.P.C.''-for short) provide for an early investigation and for a speedy and fair trial. Constitutional guarantee of speedy trial emanating from Article 21 is properly reflected in the provisions of Cr.P.C. However, it was also emphasized that no time limit for trial can he drawn and each case must be decided on its own facts. It is, however, pertinent to note that where the accused is himself responsible for the delay he cannot take advantage of the delay. Besides, delay due to system of trial cannot be treated unjustifiable. The right to speedy trial is part of fair, just and reasonable procedure implicit in Article 21 and is reflected in Section 309 Cr. P.C. The said right covers all stages viz. investigation, inquiry, trial, appeal/revision and re-trial. While proceedings must be concluded with reasonable dispatch, no outer limit could be prescribed. The burden lies on the prosecution to justify and explain the delay. The accused cannot be denied the right merely on the ground of his failure to demand and insist upon speedy trial. Question of denial of the right has to be decided by balancing the attending circumstances and relevant factors. It was observed, that a speedy trial was in public interest and served societal interest as well. This did not make it any-the-less a right of the accused. Social interest lies in punishing the guilty and exoneration of the innocent. The determination of guilt or innocence must be arrived at with reasonable dispatch, reasonable in the circumstances of the case. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible. It is to be noticed that it is usually the accused who is interested in delaying the proceedings since the burden of proving guilt lies on the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be a case where the prosecution, for whatever reason, also delays the proceedings.

9. Therefore, in every case where the right to speedy trial is alleged to have been infringed the first question to be necessarily put is : who is responsible for the delay ? Besides, each and every delay does not necessarily prejudice the case. Some delays may indeed work to the advantage of the accused. Inordinate long delay may be taken as presumptive proof of prejudice. In this context, incareeration of the accused will also be a relevant fact. Prosecution should not be reduced to persecution. But when docs prosecution become persecution, depends upon the facts of a given case. Ultimately, the Court has to balance and weigh the several relevant factors- through a ''balancing test" or ''balancing process'' to determine in each case whether the right to speedy trial has been denied. It is neither advisable nor practical to fix any time-frame for trials. Any such rule is bound to be a qualified one. Such a rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. It also follows from the judgment in Abdul Rehman Antulay''s case (supra) that no outer time limit can be fixed for hearing an appeal, which is in a manner of speaking, a continuation of the proceedings. Endeavour must be to decide expeditiously. The dictum of the Constitutional Bench in Abdul Rehman Antulay''s case (supra) has been reiterated in CSIR and Others Vs. Ramesh Chandra Agrawal and Another, . It was held that the right of speedy trial in all criminal prosecution is an inalienable right under Article 21. The right is applicable not only to actual trial proceedings in Court but also includes within its reach the pre-trial investigation, inquiry and post-trial appeals/revisions. The right to speedy trial extends to all criminal prosecutions and is not confined to any particular category of cases. In every case where this right is infringed, the Court has to perform a ''balancing act'' by taking into consideration all the attending circumstances and determine in each case whether the right of speedy trial has been denied. Where the Court comes to the conclusion that the right of speedy trial of an accused has been infringed, even the charges may be quashed unless the Court feels that quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the Court to also make an appropriate order to fix a time-frame for conclusion of trial.

10. In P. Ramachandra Rao Vs. State of Karnataka, , a seven Judges Bench of the Supreme Court laid down that the question of delay has to be decided by Court having regard to the totality of circumstances of an individual case and the test is whether the delay is oppressive or unwarranted. If so, it would be violative of Article 21. The Constitutional philosophy propounded of right to speedy trial, it was observed, has grown in age by almost two and a half decades, the goal sought to be achieved is still far away. Myriad fact situations bearing testimonial to denial of such fundamental rights to the accused persons, on account of failure on the part of prosecuting agencies and the executive to act, and their turning a blind eye at securing expeditious and speedy trial to satisfy the mandate of Article 21 persuaded the Supreme Court in devising solutions by grafting a bar of limitation beyond which a criminal proceeding or trial shall not proceed. Though the bar of limitation was meant to provide a solution but a solution of this nature gives rise to greater problems like scuttling a trial without adjudication, stultifying the access to justice and giving easy exit from the portals of justice. Such general remedial measures, it was observed, cannot be apt solutions. Therefore, it must be left to the judicious discretion of the Court seized of an individual case, to find out from the totality of circumstances of a given case, if the quantum of time consumed upto a given point of time amounted to violation of Article 21. And if so, then to terminate the particular proceedings, and if not, then proceed ahead. The test whether the proceedings or trial has remained pending for such a length of time, the inordinate delay can legitimately be called oppressive and unwarranted, as suggested in Abdul Rehman Antulay''s case (supra), it was correct and still holds the field.

11. The proposition emerging from Article 21 is that the right to speedy trial laid down as guide-lines in Abdul Rehman Antulay''s case (supra) adequately protect the right to speedy trial. However, the guidelines are not exhaustive but only illustrative. They are not intended to operate as a hard-and-fast rule to be applied like a straitjacket formula. Their applicability would depend on the fact situation of each case and it is difficult to foresee all situations and no generalization can be done.

12. The position, therefore, which emerges is that Article 21 provides for speedy trials which would include within its ambit the right to expeditious disposal of the appeals. After conviction convicts expect modification of sentence if not outright acquittal. However, faced with the ground realities in the disposal of the appeals, this Court in Dharam Pal''s case (supra) had sought data for the period from 1990 to 1999 with respect to the number of appeals instituted, allowed, partially allowed and dismissed. The position as per Dharam Pal''s case (supra) for the period from 1990 to 1999 was as follows :--

13. The data supplied by the IC & RA Section of Criminal Branch, the list of the number of Division Bench cases under the headings allowed, partially allowed and dismissed year-wise from 2000 2008 has been given which is as follows :--

14. The above position, therefore, shows that post -- Dharam Pal from 2000 to 2008, the institution and disposal is more. However, the problem persists, inasmuch as, a large number of appeals are still pending. This warrants consideration of suspension of sentence of the convicts and grant of bail.

15. The difficulty, however, arises where an under-trial prisoner has faced prosecution for a unduly long period of say four to five years before the trial Court and then sentenced to imprisonment for life. Should he be entitled to suspension of sentence without having to wait for a further period of three years post-conviction. In appeal he prays for suspension of his sentence inter alia contending that he has already undergone a period of say five years or may be even more, then why should he be still required to undergo a further period of three years as provided in Dharam Pal''s case (supra).

16. When a convict has undergone a substantial part of his sentence and is not released the very purpose of his filing the appeal may be defeated as he would have undergone most of the substantive sentence that has been imposed. At the same time, if released from custody it may convey a wrong message to the society that a person who as an under-trial had remained in custody is released on bail soon after conviction, upon filing an appeal. It is in the said context that the ''balancing test'' or the ''balancing process'' as laid down in Abdul Rehman Antulay''s case (supra) is to be applied so that even if there is no straitjacket formula there is some semblance of uniformity and parameters on the basis of which the parties know that their cases are to be considered and thereafter necessary orders passed.

17. Having delved into the various aspects of the matter we are of the view that it cannot be laid down as an absolute or invariable rule that delay in concluding the trial would ipso facto entitle an accused for the grant of bail. However, failure to conclude the trial within a period of 180 days would entitle the accused to have his case considered for release on bail. The right is of consideration and not an automatic right of grant of bail. In considering grant of bail on the ground of delay in the trial, the question to be seen who has been responsible for the delay. In case it is the accused who has delayed the trial, no relief can be granted. However, in case of delay by the prosecution, which is oppressive or unwarranted, and violative of Article 21 appropriate remedial orders would be required to be passed. These may include, in a given fact situation, the grant of bail. In any case, the salient features for the grant of bail would also be required to be considered, These are the gravity of the crime, the cruel mode of its execution, the nature of the offence, manner in which the occurrence had taken place, whether in any manner bail granted earlier had been misused, nature of other criminal cases, if any, pending against the accused, other convictions against the accused, the propensity and potentiality of the accused indulging in criminal activities while on bail, the likelihood of the accused absconding or otherwise interfere in the trial by influencing the witnesses or tampering with the evidence etc. These factors would require serious consideration. Besides, in a case where there is delay and a bail is not liable to be granted, it is open to a Court to pass an order which is just and equitable including fixation of time frame for conclusion of trial. It is best left to the judicious discretion of the Court seized of the case.

18. In post-conviction cases where a convict seeks suspension of sentence, pending disposal of his appeal, it cannot be an absolute or invariable rule that the convict must necessarily undergo at least three years of imprisonment before his case is considered for suspension of sentence or release on bail pending hearing of the appeal. The period of five years of imprisonment or four years in the case of females as laid down in Dharam Pal''s case (supra) is a substantial period undergone by a convict for the purpose of consideration for his release on bail or suspension of sentence of imprisonment. However, post-conviction period of three years or two years in the case of females, would not warrant in all cases to be applied as a straitjacket formula. Each case is liable to be considered in the facts and circumstances on record of each case. Convicted appellants have over the last decade followed, adopted and adapted the rule in Dharam Pal''s case (supra). Therefore, to tinker with it at this juncture would not be appropriate. Nevertheless the process of consideration and re-consideration of the benefit and making improvements is a continuing one. We feel it would be prudent that the normal rule of three years custody post-conviction should be applied. However, in cases of exceptional nature where the convict has already spent a long period of stay four to five years in custody as an under-trial, he should also be entitled for consideration of his release on bail pending appeal before completing three years post-conviction. In such a situation, as held in Abdul Rehman Antulay''s case (supra), it is usually the accused who is interested in delaying the proceedings. But we cannot overlook that where delay has occurred in the trial for no fault of the accused, it would be open to him to seek suspension of sentence and bail. It should be remembered that each and every delay does not necessarily prejudice the accused, some delays may indeed work to his advantage. Therefore, a convict seeking suspension of sentence may show, by way of producing relevant material including interim orders of the trial Court, that the delay in the trial of the case was not attributable to him. He would have a legitimate expectation of his case being considered for suspension of his sentence. It is in this background that it is considered necessary to slightly water down the guidelines laid down in Dharam Pal''s case (supra) that there must be a period of three years imprisonment undergone by a convict after conviction out of the total period of five years, for consideration for his release on bail. This would depend upon the facts and circumstances of each ease which would necessarily include the severity and seriousness of the crime, the role attributed to the particular convict, fact whether the delay in the trial and prosecution is attributable to him and other incidental and attending circumstances. It is not to be taken as a straitjacket rule that wherever a convict seeks suspension of his sentence he must necessarily have undergone five years or four years in the case of female including post conviction period of three years or two years in the case of females, before the case can be considered for suspension of sentence.

19. In Angana and Another Vs. State of Rajasthan, it was observed by the Supreme Court that where an appeal is preferred against conviction in the High Court, the High Court has ample power and discretion to suspend the sentence. That discretion has to be exercised judiciously depending upon the facts and circumstances of each case. While considering the suspension of sentence each case is to be considered on the basis of the nature of the offence, manner in which the occurrence had taken place, whether bail granted earlier had been misused. It was observed that there was no straitjacket formula which could be applied in exercising discretion and the facts and circumstances of each case would govern the exercise of judicious discretion while considering an application filed by a convict u/s 389 Cr. P.C. These, of course, are some of the conditions. Other conditions like the nature of the offence, including the gravity or heinousness or the cruel mode of its execution, the question whether there has been misuse earlier, other criminal cases, if any, pending against the convict or other cases where he has been convicted, the propensity and potentiality of the person seeking suspension of sentence in criminal activities while on bail, the likelihood of the convict absconding or his having been a proclaimed offender, his conduct in jail and whether he has misused the concession of parole or furlough, his capacity to furnish surety for his release are some of the factors which would require consideration. Besides, it would be open to the Court to even post the appeal for hearing by fixing a time-frame for its disposal. Therefore, these aspects would also be best left to the judicious discretion of the Court seized of the case.

20. We may, however, hasten to add that the said position would not strictly be applicable to cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 (''NDPS Act''--for short) which provides for various other factors to be kept in view including that of Sections 32-A and 37 (1) (b) and (2) of the NDPS Act. A case for the grant of bail pending trial or suspension of sentence pending disposal of appeal would not be on the same analogy in view of the provisions of Section 32-A and 37 (1)(b) and (2) of the NDPS Act. In respect of the said provisions a Full Bench of this Court in the case of Tule Ram versus State of Haryana, 2005(4) R.C.R. (Crl.)319, considered the powers of the appellate Court for suspension of sentence in a case under the NDPS Act pending appeal. It was held that the appellate Court has no power to suspend sentence during pendency of the appeal. The NDPS Act, it was observed, makes no provision for post-conviction suspension of sentence. Besides, it is difficult for an appellate Court to record its satisfaction that there are reasonable grounds for believing that the convict is not guilty of the offence. The exception, however, that was carved out is when there is delay in disposal of the appeal and the delay is not attributable to the appellant. In such a situation the appellate Court may pass such orders so as to protect the right of speedy trial guaranteed to a convict under Article 21. It was observed that according to the Constitutional mandate of Article 21 a speedy trial is guaranteed by the State for all accused persons, and since an appeal is only an extension of the trial, the Courts of law would be obliged to ensure the expeditious disposal of appeals and pass appropriate orders as and when they feel that the right of the convict to the guarantee provided under Article 21 is being interefered with. Therefore, as and when any appellant moves this Court, then taking into consideration the facts and circumstances of the case, in case the delay is in the disposal of the appeal is not attributable to the appellant himself, the Court may pass such orders as the appellant may be entitled in view of the provisions of Article 21.

21. The Supreme Court in State of Madhya Pradesh Vs. Kajad, , observed that Section 37 of the NDPS Act enjoins that a person accused of an offence punishable for a term of imprisonment of five years or more, shall generally not be released on bail. Negation of bail is the rule and its grant an exception under sub-clause (ii) of clause (b) of Section 37 (1). For granting bail the Court must, on the basis of record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. The condition for granting bail specified in clause (b) of sub-section (1) of Section 37 are in addition to the limitations provided under the Cr. P.C. or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the NDPS Act is uncalled for. The principles provided for grant of bail pending trial would apply to cases pending appeals. In Maktool Singh Vs. State of Punjab, , the Supreme Court considered the bar created in terms of Section 32-A of the NDPS Act against suspension of sentence passed on a convict under the NDPS Act except Section 27, which deals with offences of lesser degree than other offences in the NDPS Act. It was held that the object is to curb not only the powers of the Government to release a convict under the NDPS Act in terms of Section 432 and 433 Cr. P.C. but also the powers of the High Court to suspend the sentence. It was held that when Section 36-B of the NDPS Act is juxtaposed with Section 32-A, the latter must dominate over the former mainly for two reasons. First is that Section 32-A overrides all the provisions of the Code (Cr. P.C.) by specific terms, through the non-obstante clause incorporated therein. Second is that in view of the words "so far as may be" used in Section 36-B, the High Court can exercise powers under Chapter-XXIX of the Cr. P.C. only to the extent that such powers are applicable.

22. In the matter of suspension of sentence under the NDPS Act, this Court has been following the guidelines laid down by a Division Bench in the case of Daler Singh versus State of Punjab 2007 (1) R.C.R. (Crl.) 316. The said guidelines are in the following terms :--

(1) Where the convict is sentenced for more than ten years for having in his conscious possession commercial quantity of contraband, he shall be entitled to bail if he has already undergone a total sentence of six years, which must include atleast fifteen months after conviction.

(2) Where the convict is sentenced for ten years for having in his conscious possession commercial quantity of the contraband, he shall be entitled to bail if he has already undergone a total sentence of four years, which must include atleast fifteen months after conviction.

(3) Where the convict is sentenced for ten years for having in his conscious possession, merely marginally more than noncommercial quantity, as classified in the table, he shall be entitled to bail if he has already undergone a total sentence of three years, which must include atleast twelve months after conviction.

(4) The convict who, according to the allegations, is not arrested at the spot and booked subsequently during the investigation of the case but his case is not covered by the offences punishable u/s 25, 27-A and 29 of the Act, for which in any case the aforesaid clause No. (i) to (iii) shall apply as the case may be, he shall be entitled to bail if he has already undergone a total sentence of two years, which must include atleast twelve months after conviction.

(5) No bail should be granted to a proclaimed offender, absconder or the accused repeating the offence under the Act.

(6) Foreign national who has been indicted under the Act and other traffickers who stand convicted for having in their possession extraordinary heavy quantity of contraband (like heroin, brown-sugar, charas etc.) shall not be entitled to the concession of bail.

(7) Convict who is sentenced for the commission of an offence punishable u/s 31 and 31-A of the Act shall not be entitled to be released on bail.

(8) Principles enumerated above would, however, have no effect on the concession of bail, otherwise provided under the provisions of the Act or any other law for the time being in force.

(9) These principles would also not affect the right of any convict to apply for interim suspension of sentence on account of any exceptional hardship.

23. We hold that Dharam Pal''s rule for the undergoing a period of three years post-conviction is not be an absolute rule. The same principle, would be applicable to cases under the NDPS Act which has its own limitations in view of the provisions of Section 32-A of the NDPS Act and the guide-lines laid down in Daler Singh''s case (supra) which are illustrative would continue subject to convicts convicted after long trials may seek suspension of sentence before completing the requisite periods. The aforesaid guide-lines are in consonance with the spirit of Article 21. Where there is a delay in the disposal of an appeal, sentence may be suspended and exception for which has been carved out as held by a Full Bench of this Court in Tule Rain''s case (supra).

24. The other aspect which requires consideration is to devise means to secure an accused or convict from absconding in the event of grant of bail or suspension of sentence as the case may be. This though is a matter to be considered by the trial Courts or the Courts of Magistrate while accepting bail bond of an accused for his release from custody. However, certain features which may be kept in view are that bail or release from custody by suspending the sentence is not to be declined only on the ground that the accused or the convict is from a distant place and, therefore, in the event of his release from custody he is likely to abscond. In a situation where there is an apprehension of the accused or the convict may abscond, stringent conditions like heavy amount of surety and the number of sureties can be imposed. Besides, respectable of the area of the locality where the accused or the convict resides can be required to furnish surety. The involvement of respectables in respect of the under-trials and convicts for maintaining peace and good behaviour can be considered by the Courts of Magistrate or the Trial Courts while accepting bail bonds and sureties for their release. After release convicts can also be asked to regularly report at the Police Station of surveillance purposes.

25. Accordingly, the sum and substance of our discussion are:--

(a) long pendency of the trial or an appeal after conviction would be a ground for consideration for grant of bail or suspension of sentence of an accused or a convict as the case may be in the spirit of Article 21 of the Constitution of India.

(b) In the case of delay in conclusion of the trial the right is of consideration for release on bail and not an automatic right of grant of bail. In the consideration process for the grant of bail on the ground of delay in concluding the trial it shall have to be seen who was responsible for the delay. In case it is the accused who had delayed the trial no relief can be granted. In case of delay by the prosecution, which is oppressive or unwarranted, besides, affecting the right of an accused under-trial in terms of Article 21, remedial orders including grant of bail or fixing a time frame for the conclusion of the trial are to be passed.

(c) In the case of delay in the disposal of the appeal after an order of conviction, the rule of laying down a condition of undergoing three years or two years imprisonment post-conviction in the case of females for a life convict out of a period of five years or four years in the case of females is not absolute. The convict appellant may show by producing relevant materials including interim orders of the trial Court that the delay in the conclusion of the trial is not attributable to him.

(d) While considering the case for release from custody on bail during trial or suspension of sentence pending an appeal the Court is also to consider:--

(i) the nature of the offence;

(ii) the manner in which the offence has occurred;

(iii) the role attributed to the accused or the appellant as the case may be seeking bail or suspension of his sentence;

(iv) the nature of gravity or heinousness of the crime or cruel mode of its execution.

(v) whether a bail earlier granted had been misused and other criminal cases, if any, pending against the accused or the convict or other cases where he has been convicted;

(vi) the propensity and potentiality of the accused or the convict indulging in criminal activities while on bail;

(vii) the likelihood of an accused in case of an under-trial or a convict prisoner after his conviction to abscond or being a proclaimed offender, besides, in case of an under-trial prisoner the likelihood of his interfering in the trial of the case by influencing the witnesses or tampering with the evidence.

(viii) conduct of an accused or a convict while in jail and in the case of a convict whether he has misused the concession of parole or furlough;

(ix) whether the concession of bail, parole or furlough earlier granted has been misused;

these and other circumstances which are illustrative and not exhaustive are to be adverted to and taken into consideration at the time of consideration of an application seeking bail by an

(e) In respect of devising means to prevent the accused or a convict to abscond the Court accepting the bail bonds may in a case where the prisoner is likely to abscond may impose strict conditions of furnishing heavy surety and number of sureties, besides, asking for respectables of the locality or area of the accused or convict to furnish surety not only with regard to misuse of the concession of bail or suspension of sentence but also of maintaining peace and good behaviour while at large and not indulging in criminal activities while at large.

(f) We also gave serious thought on certain procedural aspects of bail applications. We feel that alter giving our detailed judgment, clarifying the various aspects of right of citizens under Art 21, the trial courts and the High Court may well get inundated with a large number of applications for bail. This will be a happy development. But some streamlining of hearing of bail applications is necessary. We would like to curb hearing of bail applications, to prevent multiple applications being filed by under-trials and convicts. We feel that repeated filing of applications for bail give rise to many difficulties. These tend to clog the courts, are often misused, raise unrealistic expectations among the under-trials and convicts which give rise to malpractice. Subsequent applications amount to a review of the previous order of dismissal of bail, which is not permissible in criminal cases. Therefore, we direct that under-trials and convicts shall get only one hearing for bail on merits and if they fail then, only one hearing for bail on the basis of long custody.

(g) We would also like to re-iterate that the suggestion given by the Division Bench, in the reference order, to constitute a "''Criminal Justice Monitoring Board'''' is a good way forward to ensure speedy trials. This should be seriously considered by the State of Punjab and Haryana and the Union Territory of Chandigarh, so that all the departments of the criminal justice system run in tandem with each like a well-oiled machine. This is the only way to ensure that citizens'' right to speedy trials, enshrined in Article 21 of the Constitution of India, are fully realized and not ignored or violated.

26. Accordingly, the questions as formulated in the earlier part of the judgment are answered.