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385
KASHMIRA SINGH
_v._
THE STATE OF PUNJAB
_September_ 2, 1977
[P. N. BHAGWATI AND A. C. GUPTA JJ.]
_Practice and procedure in the matl£'r_ _of_ _gr.anting bail to_ _a11_ _accused pend-_
_ing the hearing_ _of_ _an_ _appeal-Order_ _XLVIL Rule_ 6 _read with Order XXL Rule_
6 _of_ _the Supren1e Court Rules._
The appellant, though charged with offences u/ss. 323 and 302 I.P.C., was
convicted only u/s. 323 and sentenced to suffer 6 months' rigorous imprisonment. The appeal preferred by the State against acquittal u/s. 302, I.P.C.
was accepled by the High Court and the appellant \\'as convicted under that
charg~ and sentenced to life imprisonn1ent. As required under Rule 6, Order
XX[ of the Supreme Court Rules, the appellant surrendered before the trial
court and preferred special leave which was granted on 28-2-1974; but the
application for bail, preferred subsequently, was rejected on 10-1-1975. Since
the appeal did not come up for hearing for a long time, the appellant preferred another application for bail. Allowing the application, the Court,
IIELD : No practice howsoever sanctified by usage and hallowed by time
can be allowed to prevail if it operates to cause injustice. Every practice of
the court Jl.1USt find its ultimate justification in the interest of justice. The
practice not to release on bail a person who has been sentenced to life imprisonment was evolved on the basis that once a person has been found guilty and
sentenced to life imprisonment, he should not be let loose so long as his
conviction and sentence are not set aside; but the underlying postulate of
this practice \Vas 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 \vould 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 aippeal for five or six years. It would, indeed, be
a travesty o[ justice to keep a person in jail for a period of five or six years
for an offence which is ultimately found not to have been committed by him.
So long as this court is not in a position to hear the appeal of an accused
within a reasonable period of time, the court should ordinarily, unless: there
a;"e cogent grounds for acting otherwise, release the accused on bail in cases
where special leave has been granted to the accused to appeal against his conviction and sentence,
In the instant case, the very fact that this court has grantc<l to the appellant special leave to appeal against his conviction shows that, in the opinion
of this court, he has, prima facie, a good case to consider and in the circumstances, namely, that he has been in jail and the total period he has spent in
jail. so far is about 4t years, it v.rould be highly unjust to detain him in jail
any longer during the hearing of the appeal and he should be released on bail.
[386 D-G, 387 A-DJ
CRIMINAL APPELLATE JURISDICTION: Criminal Misc. Petition No.
1907 of 1976. Application for Bail in Criminal Appeal No. 110 of
1974,
" _U._ _P._ _Singh_ for the Appellant.
_0._ _P._ _Sizar ma_ for the Respondent.
The Judgment of the Court was delivered by
BHAGWATI. J.,-This is an application for bail pending the hcar
iu~ o[ an appeal by special leave. The appellant was convicted by
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386 SUPREME COURT REPORTS [1978) 1 s.c.R.
the Sessions Court for an offence under section 323 of the Indian Penal
Code and sentenced to suffer six 'months' rigorous imprisonment. There
was also a charge against the appellant for an offence under section
302 of the Indian Penal Code but he was acquitted of that offence by
the Sessions Court and hence the State preferred an appeal against the
order of acquittal to the High Court. This appeal was allowed and
the High Court set aside the order of acquittal and convicted the appellant of the offence under section 302 and sentenced him to suffer imprisonment for life. The appellant, thereupon, preferred a petition for
special leave to appeal to this Court and special leave was granted to
him on 28th February, 1974. The appellant filed an application for
bail pending the hearing of the appeal, but 'the application was dismissed on 10th January, 1975. Since the appea~ did not reach hearing for
a long time, the appellant preferred another application for bail and
that is the application which is now being disposed of by this judgment.
The appellant contends in this application that pending the hearing
of the appeal he should be released on bail. Now, the practice in
this Court as also in many of the High Courts has been not to release
on bail a person who h.as been sentenced to life imprisonment for an
offence under section 302 of the Indian :Penal Code. The question
is whether tris practice should be depaited from and if so, in wliat circumstances. It is obvious that no practice howsoever sanctified by
usage and hallowed by time can be allowed to prevail if it operates to
cause injustice. Every practice of the Court must find its ultimate
justification in the interest of justice. The practice not to release on
bail a person who has been sentenced to life imprisonment was evolved
in the High Courts and in this Court on the basis that once a person
has been found guilty and sentenced to life imprisonment, he should
not be 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 oi. within a measureable 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. It would indeed be a
tra vesity of justice to keep a person in jail for a period of five or six
years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration
which is found to unjustified ? Would it be just at all for the Court
to tell a person : "We have admitted your appeal because we think
you have a _prima facie_ case, but unfortunately we have no time to hear
your appeal for quite a few years and, therefore, until we hear your
appeal, you must remain in jail, even though you may be innocent ?"
What confidence would such administration of justice inspire in the
mind of the public ? It may quite conceiveably happen, and it has in
fact happened in a few cases in this Court, that a person may serve out
his full term of imprisonment before his appeal is taken up for hearing.
Would a judge not be overwhelmed with a feeling of contrition while
acquitting such a person after hearing the appeal ? Would it not be
an affront to his sense of justice ? Of what avail would the acquittal be to such a person who has already served out his term of impri
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KASHMIRA SINGH _v._ PUNJAB _(Bhagwati,_ J.) 387
'sonment or at any rate a major part of it ? It is, therefore, absolu- A
. tely essential that the practice which this Court has been following in
the past must be reconsidered and so· long as this Court is not in a position to hear the appeal of an accused within a reasonable period of
time, the Court should ordinarily, unless there are cogent grounds for
acting otherwise, release the accused on bail in cases where special
leave has been granted to the accused to appeal against his conviction
.and sentence. B
Here in the present case, the appellant, after serving out the sentence
'Of six months' rigorous imprisonment for the offence under section 323
imposed upon him by the Sessions Court, was on bail throughout the
duration of the appeal before the High Court and since the appeal was
allowed and he was convicted for the offence under section 302 and
sentenced to life imprisonment, he surrendered before presenting his C
petition for special leave to appeal to this Court. Since then, the
appellant has been in jail and the total period he has spent in jail so far
is about four and a half years. The appeal is of 197 4 1and it is not
likely to come up for hearing for at least another two years since this
Court is at present hearing appeals preferred in the year 1972. The
very fact that this Court has granted to the appellant special leave
to appeal against his conviction shows that, in the opinion of this Court, D
he has _prima_ _facie_ a good case to consider and in the circumstances it
would be highly unjust to detain him in jail any longer during the
hearing of the appeal.
We, therefore, direct that the appellant be released On bail to the
·satisfaction ·of the Chief Judicial Magistrato, Patiala. The appellant
·will report at the nearest police station once in a fortnight. E
::S.R. _Appeal_ _allowed._
