LODHA, J.—This second bail application of the petitioner convict u/s. 302 IPC has been filed after waiting for a long period of about four years since the rejection of the first bail application. The first bail application was rejected summarily on 26-9-1974. 2. At the threshold of the arguments, I enquired from Mr. Calla whether he intends to raise any objection regarding jurisdiction of the Single Bench hearing this case during vacation. Mr. Calla was fair enough to concede that Rule 63 of the Rajasthan High Court Rules authorises a Single Judge sitting in vacation to hear and decide cases which, according to the High Court Rules, are to be considered by Division Bench. The only rider is that if an Act expressly excludes the jurisdiction of the Single Bench by laying down that the case is to be heard by more than one Judges then the Vacation Judge cannot hear that case sitting in single bench. Admittedly, the present one is not a case of that type. These are the cases of the type where Indian Divorce Act or some other laws provide that a case should be heard by three Judges or so. 3. So far as hearing of the appeals in the High Court in Criminal Cases is concerned, it is regulated only by the High Court Rules, as the Criminal Procedure Code nowhere provides whether a given case should or should not be heard by S.B. or D.B. That being so, I am in agreement with Mr. Calla that in cases where facts and circumstances of the case so warrant, a Single Bench is competent sitting in vacation to hear a criminal appeal for some urgent purpose which normally is to be heard by Division Bench. 4. Mr. Calla, however, points out that an earlier bail application was dismissed on 26-9 74 and, therefore, it would be inexpedient to hear second bail application during vacations as a Vacation Judge sitting in Single Bench. 5. Rule 63 of the Rajasthan High Court Rules reads as under,— "63. (1) Criminal work shall continue to be dealt with during the long vacation by such Judges as may be appointed for the purpose by the Chief Justice. 5. Rule 63 of the Rajasthan High Court Rules reads as under,— "63. (1) Criminal work shall continue to be dealt with during the long vacation by such Judges as may be appointed for the purpose by the Chief Justice. (2) Subject to any general or special order of the Chief Justice, Vacation Judges shall in the absence of the Chief Justice, exercise jurisdiction as the case may be, in connection with the arrangement of listing of cases and other like matters. They may also exercise the original and appellate jurisdiction vested in the Court in any miscellaneous matters or any civil matter connected with relating to or arising out of, the execution of a decree, which may in their opinion require immediate attention. Such jurisdiction may be exercised even in cases which are, under the Rules, cognizable by two or more Judges, unless such case is required by any other law to be heard by more than one Judge." 6. Mr. Purohit appearing on behalf of the petitioner contends that there is great urgency in this matter, because the accused has remained in jail from 30-8-1973 as at no stage bail was granted to him, According to Mr. Purohit, the accused has already undergone six years rigorous imprisonment by inclusion of the remission. This factual position is not denied by Mr, Calla. 7. Mr. Purohit further contends, and rightly so, that this is a case of one of those unfortunate accused in whose cases preparation of the paper-book has not yet commenced. I have checked the record and I found that on 14th July, 1975, the office staged that the paper-book should be prepared as the bail application had been rejected on 26th September, 1974. It is not for me to comment but, as a fact, I cannot help observing that in spite of that nothing has been done so far, even to commence the work of preparation of the paper-book. On enquiry from the office I find that the office of the High Court has got 84 criminal appeals registered in the year 1974 of which the paper-books are required to be prepared and out of which only 14 have been prepared so far. The statistical data shown to me further reveals that in all, 520 paper books are to be prepared. 8. The above data reveals a very unhappy state of affairs. The statistical data shown to me further reveals that in all, 520 paper books are to be prepared. 8. The above data reveals a very unhappy state of affairs. It is a matter of great concern that where liberty of a citizen is concerned, for the want of requisite and sufficient staff, the paper books cannot be prepared even for a period of three or four years and more. 9. There have been cases where the accused remained in jail for four or five years and thereafter they are found innocent by the Court. I happened to decide one of such cases, while sitting in a Division Bench with my Lord the Chief Justice (Mana and others vs. State, D.B. Criminal appeal No. 136 of 1976 decided on 8 5-1978) It is in this background that recently a Division Bench of this Court has considered the second or third bail applications of accused whose bail applications were rejected earlier. One of the examples of such cases is Bachan Dan vs. State (D B. Criminal Appeal No. 4 of 1977), in which case bail was granted by this Court by Honble Chief Justice and Honble D.P. Gupta J. on 12ih of May, 1978. In fact, there have been dozens of such cases in which I happened to be a party while sitting in D. B. with Honble Chief Justice Mr. Honniah, where the consideration that the accused are in jail for last four years or so was taken as sufficient for releasing them on bail on second or third bail applications even in cases where appellants were serving life sentence in murder cases. Examples of some of such case are cited below,— 1. D.B. Cr. Misc. (2nd) Bail Application No. 207 of 1978, Tafasul Hussain vs. State of Rajasthan. 2. D B. Cr. Misc. (3rd) Bail Application No. 200 of 1978, Lahar Nath vs. State of Rajasthan, 3. D B. Cr. Misc. (2nd) Bail Application No. 195 of 1978, Bachan Dan vs. State of Rajasthan. 4. D.B. Cr. Misc. (4th) Bail Application No. 217 of 1978, Oat Singh and others vs. State of Rajasthan. In the instant case, the two salient features pointed out by Mr. D B. Cr. Misc. (2nd) Bail Application No. 195 of 1978, Bachan Dan vs. State of Rajasthan. 4. D.B. Cr. Misc. (4th) Bail Application No. 217 of 1978, Oat Singh and others vs. State of Rajasthan. In the instant case, the two salient features pointed out by Mr. Purohit are that the accused has remained in jail since 30th August, 1973 and further that the preparation of the paper-book has not yet commenced, makes it a case of an exceptional nature there urgent consideration is warranted. 10. Mr. Calla, being conscious of this position, did not point out any other exceptional features of this case to oppose the bail application in this case except that the case should be considered by the Division Bench. 11. Having considered the above exceptional features, I am of the opinion that it would be inexpedient to throw the accused, who is in jail for the last four or five years, from pole to pillar and pillar to pole. I am further of the opinion that in cases where appellants have remained in jail for about five years or more without any fault on their part, they should be granted bail unless of course, any exceptional feature is shown against them. The recent trend of judgements of the Honble Supreme Court tends to show that the law on bails is assuming new dimensions. Honble Justice Krishna Iyer in the State of Rajasthan vs. Balcnand (1) has put the law on bail in the following manner— "The basic rule may perhaps be tersely put as bail, not jail except where thereare circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or imtimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court. We do not intend to be exhaustive but only illustrative." Justice Iyer again in Babu Singh vs. State of U.P. (2) acting as watch dog of the liberty of these unfortunate accused, who remained rotting in jails for a number of years and who are to be told later on that they are innocent; emphasised the need of liberal considerations for bail by taking and of the high premises built by founding fathers for the liberty of people enshrined in Article 21 of the constitution. I cannot do better then extracting what he has said in that case, in a classical tone which would act as a land-mark in the history of criminal jurisprudence, so far as consideration relating to matters of bail are concerned,— "Personal liberty deprived when bail is refused is too precious a value of our constitutional system recognised under Art. 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially; with lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamantal, suffering lawful eclipse only in terms of procedure established by law. So deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution." 12. Emphasising that a person should not be kept in jail for punitive purposes, Honble Justice Iyer observed: — "Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for bi-focalinterests of justice to the individual involved and society affected. Criteria germane to exercise of bail is discretionary." Honble Justice Bhagwati in Kashmira Singh vs. State of Punjab (3) in a prega. made approach to the law of bails traced out the history why the earlier practice was evolved for refusing bail. Justice Bhagwati observed that the practice not to release on bail a person who has been sentenced to life imprisonment was evolv-ed in the High Court and in the Supreme Court on 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 with in 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 Honble Justice Bhagwati pointed out that it has become essential that the practice which the Supreme Court has been following in the past must be reconsidered and as long as the Supreme 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 seting otherwise release the accused on bail. The Supreme Court further observed in this case that the very fact that special leave has been granted to the accu3ed against his conviction show that in the opinion of the Supreme Court he has prima facie a good case to be considered and, therefore, it will be highly unjust to detain him in jail during the hearing of the appeal. Honble Justice Bhagwati observed as follows: — "It would indeed be travesty of justice to keep a person in jail for a period 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 conceivable 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? 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 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 cognent 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." 13. The law of bails travelling from early 1930s when in 1931 Mukerji and Boys JJ of the Allahabad High Court dealing with a conspiracy case laid down in Emperor vs. Butchinson(4) that bail is a rule and refusal is an exception, to 1970s have assumed new dimensions. As observed above, by the recent judgements of the Supreme Court mentioned above, more particularly, the classic dictum of Hanble Justice Iyer so beautifully expressed in Balchands case (supra) that the basic rule may perhaps be tersely put as "bail", not "jail", is for liberalising the judicial approach or attitude towards the cases even where the accused-appellant are under-going life imprisonment. The delay in disposing of cases and the mounting arrears, have shakened common mans confidence in getting speedy justice. It is well established maxim of law that "justice delayed is justice denied" and it is more so in the case of an unfortunate prisoner in jail. 14. In view of the above facts and circumstances, I am of the opinion that the present case is one of exceptional cases where the accused has already undergone and remained in jail for a period office years or even more than that, if remissions are included, and yet his fate is hanging in uncertainty would it be advisable to keep him in jail for an indefinite time till the case is decided as the elementary requirement of paper book has not been commenced so far. I fail to appreciate why a prisoner should suffer for it. 15. It is true that sec. I fail to appreciate why a prisoner should suffer for it. 15. It is true that sec. 437 Cr.P.C. creates a bar for releasing an accused on bail by the Magistrate court in case there are reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life. The discretion of the High Court under Sec. 439 Cr.P.C. sub-clause (1) is much wider being untrammelled and unfettered by the considerations governing section 437 Cr.P.C. The main anxiety of the courts is to see that the accused should not fly from justice. The gravity and seriousness of the offence is undoubtedly a circumstance to be considered but in case of unexplained extraordinary delay in disposal of cases, that consideration alone of seriousness of crime cannot out way the basic consideration that the accused should not be kept in jail for long periods without deciding his case either in trial court or in appeal. 16. The introduction of section 438 Cr.P.C. for granting anticipatory bail and of section 167(2) (a) Cr.P.C. providing that the accused would be entitled to bail in case challan is not presented within a period of sixty days after his arrest only go to show that the Parliament in its wisdom have thought it proper that there should be some liberal consideration in the matters of bail at least from two important points of view, namely, abnormal delay in police ivesti-gation and the possibility of abuse and misuse of the provisions of arrest during investigation. Section 438 and 167(2) (a) of the Code of Criminal Procedure read as under,— "438. (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court of the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including— (i) a condition that the person ... (ii).... .... .... .... .... (iii).... .... .... .... .... (iv).... .... .... .... .... (ii).... .... .... .... .... (iii).... .... .... .... .... (iv).... .... .... .... .... (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1)." "167(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not excending fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that— (a) the Magistrate may authorise detention of the accused person, otherwise than in custody of the police; beyond the period of fifteen days if he is satisfied that adequate ground exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days, and on the expiry of the said period of sixty days, the accused person shall be released on bail if he is prepared to and does furnish bail; and every person released on bail under this section shall be deemed to to so releases under the provisions of Chapter XXXIII for the purposes of that Chapter......" The delay in disposal of the appeal, as has happened in the present case, only militates against the spirit of the principles of fair and speedy justice to accused too. That being so, I am of the opinion that the Court should, as it has done in the cases mentioned above where Division Bench of this court invariably, leaving aside a few cases, far and few between, released the accused on bail during appeals where they have remained in jail for a period of about five years while undergoing sentence for imprisonment for life unless of course some exceptional reason is there. 17. Immediate steps should also be taken by this court and the State agencies who can assist this court in early disposal of cases to get the paper-books prepared atleast within a maximum period of six months from the date of the receipt of the record in the case. I may mention that the Honble Chief Justice did issue directions that all the paper books be prepared before 1st July when he was informed of the similar situation in the first week of this month in a bench to which I was also a party. It is unfortunate that noting substantial has been done so far by the administrative staff of this court to implement and carry out the above important directions (though verbal) of the Honble Chief Justice. 18. The faith of the people in the judicial system should not be allowed to be shaken, if the judiciary is to continue to play an important and vital role under the Constitution. A study of the arrears of cases in which the accused in jail, reveal that in the area covered by the seat of the High Court at Jodhpur, 477 appeals; are pending disposal. Out of them at least 21 are such in which the accused are in jail during appeal for more than six year?, and if the period as under-trial prisoner is added, as is required to be added under the new Cr.P.C., their period of jail life would be about 10 years of even more, without getting the final decision of appeal There are 35 appeals in which the accused have remained in jail for more then five years, 77 appeals of more then four years, 79 of more then three years, 114, of more then two years and 151 appeals of more then 1 year. The fact that 1972 appeals in which the accused are in jail have not yet been decided only compels us to have a thorough rethinking on the system of judicial working so that methods for giving prompt and speedy justice to the accused in jail can be thought of. 19. It is true, that it is primarily for the legislature and the executive wing of the State to take some effective steps in this direction, but even so, we sitting in the courts, talking about the liberty of the people, cannot remain silent spectators only, and the least which can be done at our end is to bring it to the notice of all concerned, so that remedial measures can be taken before it becomes too late. I am sure that the administrative wing of the court would chalk out some immediate programme for preparation of the paper books which are about 520 as mentioned above only in the area of the High Court seat and almost equa number may be in Jaipur Banch. The problem of want of fundi or staff should not come in their way as the State functionaries should also provide all that is needed for strengthening the hands of judiciary for speedy disposal of cases and clearing up the arrears. 20. In view of the above facts and circumstances, I am of the opinion that this is one of those exceptional cases where urgent consideration is required. 21. I, therefore, order that the petitioner Surta be released on bail during the pendency of his appeal, provided he furnishes two surety bonds of Rs. 5000/-each and a personal bond of Rs, 10,000/-, to the satisfaction of the trial court, with a stipulation to appear in this court on 10 7-1978 and on all subsequent dates of hearing or whenever called upon to do so. Mr. R.L. Purohit appearing on behalf of the petitioner has voluntarily undertaken that his client would personally present in the police station, within whose jurisdiction he resides, on 1st and 15th of every month during the pendency of his appeal. Let this undertaking voluntarily given by Mr. R.L. Purohit be incorporated in the bail and the surety bonds.