HARJIT SINGH BEDI, J.

1. Vide order dated September 8, 1999, we had granted bail to the accused-appellant. We now give detailed reasons for doing so and also make an attempt to frame certain guidelines for the grant of bail where appeals against conviction filed in the High Court by those who stand convicted for life and which cannot be heard with reasonable expedition should be deal with.

While issuing notice on the bail application, we had invited all Counsels, who wished to assist us, to address us on the question posed.

2. Mr. R. S. Ghai, Sr. Advocate, the appellants Counsel in this case, Mr. P. S. Mann, Mr. R. S. Cheema, Sr. Advocates and Mr. R. T. P. S. Tulsi, Advocate, had appeared before us to project the point of view of the prisoners whereas Mr. Ram Avtar and Mr. S. S. Randhawa, Addl. Advocate General, Haryana and Deputy Advocate General, Punjab respectively, had put in appearance on behalf of their respective States.

3. The delay in disposal of criminal appeals pending in the High Courts is a matter of serious concern to all those involved in the administration of criminal justice but whereas the Administrators have an undoubted (albeit an impersonal concern) the persons widely affected by the delay are the prisoners themselves despairing of the fact that their appeals are not being heard within a reasonable time. The plight of such persons can well be imagined. The appellant in the present case, a young student 24 years of age 6 years ago, was arrested on a charge of murder on 29. 7. 1993. The allegation against him was that he has caused one injury with a knife on the person of the deceased, which proved to be fatal. He was convicted of the charge by the Sessions Judge, Ambala on 12. 4. 1996. He filed an appeal in this Court on 31. 5. 1996 alongwith an application for bail and though the appeal was admitted, bail was declined on 3. 12. 1996. a second bail application was also dismissed on 7. 2. 1997. The present application is the third one.

This application has been allowed for the reasons that follow and in the background of what has been stated above, after he has been in custody for more than six years.

4. The Honble Supreme Court has often been seized of the problem in the disposal of criminal trials of which an appeal is but a continuation. In all these judgments, an attempt has been made to balance the conflict of interest that arises with the State trying to ensure that a prisoner must be retained in custody till the completion of the trial or his period of sentence, as the case may be, and the effort of the prisoner, on the other hand, to seek a speedy trial or an expeditious hearing of the appeal, failing which, staking his claim to the grant of bail. In Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, Patna, AIR 1979 Supreme Court 1360, it was observed that it was appropriate that the grant of bail should be liberalised at the pre-conviction stage but in any eventuality, the grant of bail should be seriously considered in the case of a delayed trial. We reproduce here paragraph 5 of the report:

"5. There is also one other infirmity of the legal and judicial system which is responsible for this gross denial of justice to the undertrial prisoners and that is the notorious delay in disposal of cases. It is sad reflection on the legal and judicial system that the trial of an accused should not even commence for a long number of years. Even a delay of one year in commencement of the trial is bad enough; how much worse could it be when the delay, is as long as 3 or 5 or 7 or even 10 years. Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice. It is interesting to note that in the United States, speedy trial is one of the constitutionally guaranteed lights. The Sixth Amendment to the Constitution provides that:

"in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. "

So also Article 3 of the European Convention on Human Rights provides that, "every one arrested or detained shall be entitled to trial within a reasonable time or to release pending trial. "

We think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by this Court in Maneka Gandhi v. Union of India, AIR 1978 Supreme Court 597. We have held in that case that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be reasonable, fair and just. If a person is deprived of his liberty under a procedure which is not reasonable, fair and just, such deprivation would be violative of his fundamental right under Article 22 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be reasonable, fair or just, unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as reasonable, fair or just, and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be consequence, if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21. Would he be entitled to be released unconditionally freed from the charge levelled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21"

5. These observations were reiterated in Kadra Pehadiya and Ors. v. State of Bihar, AIR 1981 Supreme Court 939.

6. In Supreme Court Legal Aid Committee representing Undertrial Prisoners v. Union of India and Ors. , IV (1994) CCR 732 (SC) : JT 1994 (6) SC 544 [LQ/SC/1994/977] , the Honble Supreme Court was primarily seized of the plight of undertrials of foreign origin being prosecuted under the Narcotic Drugs and Psychotropic Substances Act, 1985 wherein the conditions for the grant of bail and penalties imposable were rather stiff. The Court observed that the stringent provisions with regard to the grant of bail under the N. D. P. S. Act, on the one hand, and the delay in the disposal of the trial expeditiously, on the other hand, appeared to be contrary to the spirit of Articles 14, 19 and 21 of the Constitution and that the release on bail on the failure of providing a speedy trial may in "some cases be the demand of Article 21. " It was finally held as under :

"we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters. "

The Honble Supreme Court thereafter laid down certain guidelines for the release on bail of undertrials, who had been in custody for certain periods after their arrest.

7. The passage quoted above deals with the constitutional questions that would arise in the absence of a speedy trial or the hearing of an appeal. Certain basic human issues are, however even more relevant. These issues were noticed by the Supreme Court in Kashmir Singh v. State of Punjab, AIR 1977 SC 2147 [LQ/SC/1977/261] :1977 C. L. R. 262, a matter, as the title suggests, from Punjab State. In paragraph 2 of the report, it was said as under :

"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 has been sentenced to life imprisonment for an offence under Section 302 of the Indian Penal Code. The question is whether this practice should be departed from and if so, in what circumstances. It is obvious that no practice, however 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 of within i reasonable 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 travesty 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 be 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 conceivably 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 imprisonment or at any rate a major part of it It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and as 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 case where special leave has been granted to the accused to appeal against his conviction and sentence. "

8. We have considered the present matter in the perspective of the Constitutional provisions as also the social implications that arise out of Kashmir Singhs case, (supra ).

9. While issuing notice on the bail application, we had called upon the Joint Registrar (Judl.) of this Court to give us a year-wise statement of the Criminal Division Bench Appeals against the convictions from the year 1990 onwards, detailing the number of appeals instituted, those allowed wholly or in part and those ultimately dismissed. We reproduce here- under the details from the affidavit :

Year No. of appeal instituted Allowed Partially allowed Dismissed 1990 321 136 19 166 1991 282 120 47 115 1992 268 90 26 152 1993 294 59 23 209 1994 361 94 09 251 1995 458 63 07 147 1996 489 25 03 35 1997 549 13 -- 20 1998 513 -- -- 04 1999 288 -- -- -

10. It appears to us that some appeals of 1994 still remain to be decided. We are, however, informed by the learned Counsel that these appeals are amongst those, which have been put up for re-hearing or have been remanded from the Supreme Court. These appeals can for the moment be ignored. We, however, find that even from the year 1995 onwards, the backlog is enormous. To take one example, of 458 appeals filed in the year 1995, i. e. four years earlier, only 217 have been decided and 211 are still pending. For the year, 1996 i. e. 3 years earlier, of the 489 appeals that have been filed, only 63 have been disposed of and 426 are pending. Taking note of the fact that a Sessions trial would ordinarily take about two years for its completion, the appellants of the year 1995 would have already completed about six years of their sentence. Mr. Ghai has, to highlight this aspect, filed Crl. Misc. No. 22069 of 1999 alongwith Annexure PA/1 giving a list of 44 appeals in his office wherein the appellants have already undergone between 5 and 7 years of their sentence. It will be evident that from the year 1995 up to date, about 2000 appeals have been filed but the disposal rate has been wholly unsatisfactory. What is perhaps more alarming, is the fact that the apprehensions expressed by the Supreme Court in Kashmir Singhs case (supra) with regard to the number of conviction appeals that have been allowed wholly or in part, have been proved to be right. The table, quoted above, is clearly reflective of this situation. It will be seen that between the years 1990-92, the acquittal rate in whole or in part was almost 50% but after a noticeable drop on the year 1993-94, there is again a perceptible rise starting from 1996 onwards.

11. The question that arises is -- how do we return the lost years to those, who are ultimately acquitted and how do we assuage their feelings of debasement, despair and frustration that have undoubtedly accompanied their period of unjustified incarceration It is this situation that needs our serious consideration and it is to the plight of such prisoners that we must address ourselves.

It is in this background, that Mr. R. S. Ghai has raised two arguments, in the course of the hearing. He has first pointed out that it was imperative that an outer limit of three years in custody in all should be provided and detention thereafter should entitle an accused to bail irrespective of the merits of the case. He has in addition prayed that a direction should be issued that (if not two) atleast one Division Bench should be constituted exclusively for the hearing of Criminal Division Bench appeals as in the present scenario (with 241 appeals of the year 1995 still pending) even these appeals are not likely to be heard for atleast another two to three years.

12. Mr. Tulsi, the learned Counsel in Crl. Writ Petition No. 1650 of 1996 and Crl. Writ Petition No. 1739 of 1997, has pointed out that the petitioners in these two cases, who had been convicted by Courts Martial, had completed almost 9 and 6 years of their life sentences and they ought to be treated in the manner as those, who have been convicted by the normal hierarchy of Criminal Courts.

13. Mr. Ram Avtar Singh, the learned Additional Advocate General, Haryana, broadly concurring with Mr. Ghais argument, has, however, pointed out that it was appropriate that the accused be released on bail after having completed atleast 3 years of the sentence after conviction on account of the fact that if the entire period of 3 years was to be counted from the date of arrest, the accused would be tempted to delay the trial and thereby tamper with the evidence.

14. Mr. Randhawa, the learned Deputy Advocate General, Punjab, has, however, produced before us a circular dated July 8, 1991, issued by the Department of Home Affairs and Justice, dealing with the question of premature release, which has identified the nature of offences and the period of imprisonment to be actually undergone by the prisoners under those headings. In this table, the crimes have been divided into five categories i. e. A to E, with A and B detailing the most serious crimes, whereas E being the least of them. It has been urged that this circular with suitable modifications could perhaps form the basis for the issue of guidelines by this Court as to the manner in which the bails ought to be granted to those prisoners, whose appeals cannot be heard expeditiously.

15. We have heard the learned Counsel for the parties and have gone through the various documents on record. We too are of the opinion that as there appears no likelihood of an early hearing of the appeals of those undergoing a sentence of life imprisonment, certain guidelines for the release of such prisoners on bail ought to be framed. We do agree with Mr. Randhawa that the nature of the crime would to some extent determine the guidelines for this purpose. We have, therefore, chosen to accept the categorisation of crimes given in the Punjab Government circular referred to above. The categorisation as also the actual imprisonment and imprisonment with remission qua each category is reproduced below :

(Periods in years)

A B C D e For convicts Convicts who Convicts who have Other life convicts Other life whose death have been been imprisoned for Imprisoned for life convicts.

Sentence has imprisoned for life for offences for for offences for been commuted life for offences which death is a which the death to life for which death penalty but crimes penalty is not a imprisonment. is a punishment are not considered punishment and and have heinous have committed committed heinous crimes.

heinous crime.

Actual Impris- Actual Impris- Actual Impris- Actual Impris- Actual Imprisimpris-

onment impris- onment impris- onment impris- onment impris- onment onment. with onment. with onment. with onment. with onment. with reins- remis- remis- remis- remission.

sion. sion. sion. sion.

Results:14 20 12 18 10 14 10 14 81/2 14 Females 10 14 8 12 8 12 81/2 12 6 10 /minors

16. Columns B and D pertain to heinous crimes, the same are reproduced below :

"a. Heinous crimes with reference to column B of 1 (1) above are defined as follows -

(i) Offence under Section 302 alongwith Section 347 of the I. P. C. i. e. murder with wrongful confinement of extortion.

(ii) Section 302 with Section 375 i. e. murder with rape.

(iii) Offence under Section 396 (sic) of IPC i. e. dacoity with murder.

(iv) Offence under Section 302 alongwith offences under the Terrorist and Disruptive Activities (Prevention) Act, 1987.

(v) Offence under Section 302 alongwith offence under the Untouchability (Offences) Act, 1955.

(vi) Offence under Section 302 where murder has been committed in connection with any dispute over dowry and this is indicated in the judgment of the Trial Court.

(vii) Offence under Section 302 where the victim is a child under age of 14 years.

(viii) Any conviction under Section 120-B of the I. P. C.

Heinous crimes with reference to column d of the revised policy are defined as follows (i) Offence under Section 304 (B) of the IPC, i. e. a dowry death.

(ii) Offence under Section 304 along with Section 347 of the IPC, i. e. culpable homicide with wrongful confinement for extortion.

(iii) Offence under Section 304 with Section 375, i. e. culpable homicide with rape.

(iv) Offence under Section 304 along with offence under the Terrorist and Disruptive Activities (Prevention) Act, 1987.

(v) Offence under Section 304 where culpable homicide has been committed in connection with any dispute on dowry and this is indicated in the judgment of the Trial Court.

(vi) Offence under Section 304 where the victim is a child under the age of 14 years.

(vii) Any conviction under Section 120-B of the IPC i. e. for criminal conspiracy in connection with the above crimes.

17. We refrain from issuing any general guidelines for prisoners, who stand convicted of offences, which find mention in category B and direct that their matters should be left to the decision of the Judges to whom an application for bail is made. We, however, order that the appeals filed by such prisoners in which bail is denied should be accorded priority in hearing.

Our experience, however, tells us that the largest number of appeals are covered by categories C, D and E and it is these categories, which are our primary concern. We are firmly of the view that these prisoners are entitled to some consideration. We do appreciate that category d also deals with heinous crimes pertaining to a great social evil but in the light of the fact that in prosecutions under Section 304-B, the net is often cast far and wide by the complainant (and very often unjustifiably so), this category must also be included in our decision. We, therefore, direct that life convicts, who have undergone atleast five years of imprisonment of which at least three years should be after conviction, should be released on bail pending the hearing of their appeals should they make an application for this purpose. We are also of the opinion that the same principles ought to apply to those convicted by the Courts Martial and such prisoners should also be entitled to release after seeking a suspension of their sentences. We further direct that the period of five years would be reduced to four for females and minors, with at least 2 years imprisonment after conviction. We, however, clarify that these directions shall not be applicable in cases where the very grant of bail is forbidden by law. We are cognisant of the fact that the time-frame looked at in isolation can have no obvious rationale but it stems from an attempt to balance the interest of the prisoners with the interest of the State and the complainant.

We also find precedent for our view from the observations of the Supreme Court in Kashmir Singhs case, wherein it was observed that if an appeal could not be heard for five or six years, the prisoner could well be entitled to be released on bail.

18. We are, however, unable to accept Mr. Ghais argument with regard to a direction for the constitution of a Division Bench for the hearing of criminal appeals only. We are of the opinion that the framing of a roster and the allocation of work to Judges of the High Court is a matter, which is entirely the prerogative of the Chief Justice and any attempt on our part to impinge upon this authority would amount to a sacrilege.

19. We further direct that the copies of this judgment be supplied free of cost to the Inspector General of Prisons for the States of Punjab and Haryana as also of the Union Territory of Chandigarh for onward transmission to the jail/sub-jails under their control, for further information to all prisoners.

20. The matter is disposed of accordingly.