Holding

When a criminal appeal remains pending for more than five years for reasons not attributable to the convict, the convict is entitled to bail and the conviction may be kept in suspension.

Summary

The appellant, convicted of murder and sentenced to life imprisonment, filed an appeal that remained pending in the Madhya Pradesh High Court for many years without being listed for hearing. The High Court rejected her bail application, prompting a petition before the Supreme Court. The Court held that speedy trial is a fundamental right under Article 21 of the Constitution and that a prolonged, non‑attributable delay of more than five years in disposing of a criminal appeal confers a right on the convict to seek bail, with the conviction and sentence to be kept in suspension. It directed High Courts to set up regular or special benches to ensure disposal of appeals within five years and allowed the appellant’s release on bail, considering her age, infirmity, and the welfare of her young child. The appeal was allowed, and the order of conviction was set aside pending the appeal.

Issues considered

Does a prolonged delay in the disposal of a criminal appeal, for reasons not attributable to the accused, create a right to bail under Article 21?
Can a conviction and sentence be kept in suspension when an appeal remains pending beyond five years?
Are High Courts obligated to constitute regular or special benches to dispose of criminal appeals within a five‑year period?
Should the appellant be granted bail considering her age, infirmity, and the need to care for her child?

Legislation cited

Constitution of Indias. Article 21

Subjects

speedy trialright to bailArticle 21delay in criminal appealslife imprisonmentsuspension of sentencehigh court vacanciesregular benchescriminal appeal disposalbail pending appeal

Judgment

I

A AKHTARIBI
v.
-+--
STATE OF M.P.

MARCH 22, 200 I

B [K.T. THOMAS AND R.P. SETHI, JJ.]

Constitution of India, 1950: Article 21.

Speedy Trial-Right to-Bail-Grant of-Guidelines-Accused sentenced
to life imprisonment-Appeal unlikely to be heard in the near future-Bail
c application rejected by High Court-Held : Prolonged delay in trial and
appeals confers a right on the accused to apply for bail-Convicts may be
released on bail ifappeals not disposed ofwithin 5 years-High Courts directed
to constitute regular and special Benches for disposal of appeals-On facts, -t...:
accused released on bail by keeping sentence in suspension.
D
The appellant was sentenced to life imprisonment for the murder of
her daughter-in-law. The appeal filed by the appellant was pending before
the High Court and not listed for bearing till date. The appellant's bail
application was rejected by the High Court. Hence this appeal.

On behalf of the appellant it was contended that the appeal was
.I"""
E
unlikely to be heard in the near future in the normal course.

Allowing the appeal, the Court

HELD : To have speedy justice is a fundamental right, which Dows
F from Article 21 of the Constitution. Prolonged delay in disposal of the
trials and thereafter appeals in criminal cases, for no fault of the accused,
confers a right upon him to apply for bail. Appeal being a statutory right,
the trial court's verdict does not attain finality during pendency of the
appeal and for that purpose his trial is deemed to be continuing despite
conviction. Due to huge vacancies in the High .Court the accused in crimi·
G nal cases are languishing in the jails for no fault of theirs. In the absence of
prompt action under the Constitution to fill up the vacancies, it is incum- •
bent upon the High Courts to find ways and means by taking steps to _,..(....;
ensure the disposal of criminal appeals, particularly such appeals where
the accused are in jails, that the matters are disposed of within a specified
H period not exceeding 5 years in any case. Regular Benches to deal with the
626
AKHTAR! BI v. STATE [SETHI, J.] 627

-t criminal cases can be set up where such appeals are listed for final dis- A
posal. Ir an appeal is not disposed of within the aforesaid period of 5 years,
for no fault of the convicts, such convicts may be released on bail on such
conditions as may be deemed fit and proper by the Court. In computing
the period of 5 years, the delay for any period, which is requisite in
preparation or the record and the delay attributable to the convict or his
B
counsel can be deducted. There may be cases where even after the lapse or
5 years the convicts may, under the special circumstances or the case, be
held not entitled to bail pending the disposal or the appeals filed by them. It
is, therefore, appropriate to direct the appellant's release on bail by keep·
ing the sentence awarded to her in suspension. (628-E-H; 629-A-C]
c
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 320
of 2001.
~

>-
From the Judgment and Order dated 10.7.2000 of the Madhya Pradesh
High Court in Cd.A. No. 708 of 1997.
D
K.K. Mohan and Ms. loon Choudhary for the Appellant.

Ms.· Vibha Dutta Makhija and Uma Nath Singh for the Respondent .
...
-;... The Judgment of the Court was delivered by E
SETHI, J. Leave granted.

For the murder of her daughter-in-law, Prem Bai, the appellant was
tried with others and after the conclusion of the trial, sentenced to impris-
onment for life vide judgment of the court dated 27th February, 1997. The F
appeal filed by her is pending in the High Court of Madhya Pradesh and not
listed for hearing till date. Her prayer for grant of bail, pending disposal of
the appeal, on the grounds of infirmity and old age has been rejected by the
High Court vide the order impugned in this appeal.

At the time of preliminary hearing on 1.12.2000, the learned Senior G
Coonse! Shri Anoop G. Chaudhary submitted that the position in the
·-...... "· Madhya Pradesh High Court regarding criminal appeals pending before the
Division Bench was that as on that day appeals of 1989-1990 have only been
taken up. The appeal filed by the appellant, being an appeal of 1997, there
was no reasonable chance for its being brought on Board. Distressed by such H
628 SUPREME COURT REPORTS [2001] 2 S.C.R.
A a situation allegedly prevailing in the High Court, we called for the report 1-
of the Registrar of the Madhya Pradesh High Court (Jabalpur) as to the
position of the criminal appeals pending before the Division Bench and the
possibility of this 1997 appeal to be heard in the near future. Vide his reply
dated 23rd January, 2000, the Registrar has intimated as under:
B "! am to inform you that as per the practice prevalent in the High
Court of Madhya Pradesh cases are listed for final hearing seniority-
wise. Accordingly, at present at the Main Seat at Jabalpur, Criminal
Appeals instituted in the year 1989 and 1990 are being listed before
the Division Bench (Criminal), sitting regularly. However, some times
c courts do allow applications for early hearing. In that case even
Criminal Appeals instituted in the later years are heard. As such
Criminal Appeal No. 708/97 is unlikely to be heard in near future in
the normal course, unless an application for early hearing is moved
by a party and allowed by the court."
1 -
D From the report of the Registrar it appears that even if an application
for early hearing is filed, there is no surety that such an appeal would be
heard at an early stage apparently on the ground that many such applications
must have been filed and the appeals directed to be listed for early hearing.
#

To have speedy justice is a fundamental right which flows from Article ~
E 21 of the Constitution. Prolonged delay in disposal of the trials and thereafter
appeals in crimincl cases, for no fault of the accused, confers a right upon
him to apply for bail. This Court, has time and again, reminded the executive
of their obligation to appoint requisite number of judges to cope with the ever
increasing pressure on the existing judicial apparatus. Appeal being a statu-
F tory right, the trial court's verdict docs not attain finality during pendency
of the appeal and for that purpose his trial is deemed to be continuing despite
conviction. It is unfortunate that even from the existing strength of the High
Courts huge vacancies are not being filled up with the result that the accused
in criminal cases are languishing in the jails for no fault of theirs. In the
absence of prompt action under the constitution to fill up the vacancies, it
G is incumbent upon the high courts to find ways and means by taking steps
to ensure the disposal of criminal appeals, particularly such appeals where
the accused are in jails, that the matters are disposed of within the specified ,. ~'

period not exceeding 5 years in any case. Regular benches to deal with the ·
criminal cases can be set up where such appeals be listed for final disposal.
H We feel that if an appeal is not disposed of within the aforesaid period of
AKHTAR! BI v. STATE [SETHL J.] 629
5 years, for no fault of the convicts, such convicts may be released on bail A
on such conditions as may be deemed fit and proper by the Court. In
computing the period of 5 years, the delay for any period, which is requisite
in preparation of the record and the delay attributable to the convict or his
counsel can be deducted. There may be cases where even after the lapse of
5 years the convicts may, under the special circumstances of the case, be held
B
not entitled to bail pending the disposal of the appeals filed by them. We
request the Chief Justices of the High Courts, where the criminal cases are
pending for more than 5 years to take immediate effective steps for their
disposal by constituting regular and special benches for that purposes.

However, in the instant case without commenting on the merits of the c
case but keeping in view the allegations made against the appellant coupled
with the fact that she is old and infirm, we feel it appropriate to direct her
release on bail by keeping the sentence awarded to her in suspension. We
have further been persuaded to take such a course in view of the fact that
during the pendency of the trial wife of Hasru, the son of the appellant and
co-accused with her, has died while giving birth to a male child, who under D
the compulsion of circumstances was also kept in jail to be looked after by
the appellant till he attained the age of three years. Now the said child has
been sent out as the jail authorities did not permit the child to remain with
the appellant after attaining the age of three years. Keeping the appellant
further in jail is likely to deprive the said child of the parental love, affection E
and care which he needs at this stage. There is no law by which such a
child can alsci be directed to be kept with the appellant in jail. Depriving
the appellant from looking after the child would not only be against the
interests of the child but against the interests of the society as well.

In the circumstances of the case we allow this appeal by setting aside F
the order impugned with a direction that the order of conviction and
sentence passed against her shall be kept in abeyance and she be released
on bail on furnishing personal bond with two sureties in the amount and
to the satisfaction of the trial court.
G
v.s.s. Appeal allowed.