R. J. SHAH, J. ( 1 ) THIS is a group of petitions wherein the Central question that arises for decision is as under:"whether the fundamental right to a speedy trial enshrined in Art. 21 of the Constitution requires that in the case of capital offences the right to speedy trial should be concretised by fixing any time limit "?in the present group of petitions the petitioners are all life convicts. In Misc. Criminal Application No. 2585 of 1988 the time that is taken between the date of filing of the Criminal Appeal an question and the date of filing of the Criminal Misc. Application is 5 years 2 months and 15 days. In Misc. Criminal Application No. 2598 of 1988 the time that is taken between the date of filing of the Criminal Appeal in question and the date of filing of Misc. Criminal Application is one year and 9 months. So far as other Misc. Criminal Applications are concerned such periods fall within the two aforesaid extremes. ( 2 ) IN all the petitions it has been urged that there should be an outer time-limit to concretise the right to a speedy trial in view of the fundamental rights enshrined in Art. 21 of the Constitution and it it appears to the Court that such an outer limit has passed or will necessarily pass in all these petitions then on that ground alone the petitioners should be released on bail. ( 3 ) IN support of the submissions made in this behalf Mr. K. J. Shethna learned Advocate appearing for many petitioners in the present group has relied on a number of authorities. The first authority on which Mr. Shethna has relied is the one in the case of Anurag Baitha v. State of Bihar AIR 1987 Patna 274 In this judgment there has been a reference tn an earlier Full Bench decision of the Patna High Court in the case of Madheshwardhari Singh and Anr. v. State of Bihar AIR 1986 Patna 324. ( 4 ) THE first aspects to be noted about the Patna decisions is that the learned Chief Justice of Patna High Court was a party to both the decisions. v. State of Bihar AIR 1986 Patna 324. ( 4 ) THE first aspects to be noted about the Patna decisions is that the learned Chief Justice of Patna High Court was a party to both the decisions. In the said 1986 decision all the learned Judges held concurrent views but in the aforesaid 1987 judgment the majority view has been expressed by the learned Chief Justice and N. P. Singh J. whereas the dissenting view is of S. H. S. Abidi J. We are informed at the Bar that a Special Leave Petition has been admitted by the Supreme Court against the aforesaid 1986 decision and the same is pending. ( 5 ) THE short facts in the aforesaid case of Madheshwardhari Singh (supra) were that he was a Class I Government servant and was then Poultry Development Officer under the Animal Husbandry Department of the State of Bihar. Daring 1964-65 he was posted as the Assistant Director Central Poultry Farm Patna and one Satya Narayan Sharma a Store Keeper was his subordinate on the said farm of the basis of a written complaint made by the petitioners successor Syed Jalal Ahmed Assistant Director Central Poultry Farm Patna a first information report dated 20-11-1966 in Gardanibagh Police Station Case No. 32 (11) 1966 was lodged under Secs. 467 409 and 120-B of the I. P. C. In the said first information report Satya Narayan Sharma alone was named as an accused. However with the nature of the allegations made therein a cloud of suspicion was raised against the petitioner as well and the sword of Democles of being Implicated therein hung perilously over his head. It was however not till as long as a passage of 9 years that it finally fell upon him. The police investigation in the case dragged on and on 29-9-1975 the petitioner was also made an accused in the said case. The petitioner had throughout alleged malice and had repeatedly reiterated that that was done in order to jeopardise the career and future promotion of the petitioner. In any event the petitioner was arrested and produced before the Judicial Magistrate Patna and was granted provisional bail on 29-4-1975 which was confirmed on 21 On 30-1-1976. a chargesheet was filed and after cognizance having been taken the case was transferred to Shree P. N. Prasad Judicial Magistrate First Class Patna for disposal. In any event the petitioner was arrested and produced before the Judicial Magistrate Patna and was granted provisional bail on 29-4-1975 which was confirmed on 21 On 30-1-1976. a chargesheet was filed and after cognizance having been taken the case was transferred to Shree P. N. Prasad Judicial Magistrate First Class Patna for disposal. Despite a decade of investigation the proceeding in Court again moved with a speed which is remarkable in its tardiness. In a case in which a chargesheet was filed on 30-1-1976 a last opportunity was given to the prosecution to produce the rest of the witnesses by 19-4-1984 and on that date the trial Court was compelled to close the prosecution case. A revision application preserved against the said order was allowed and despite the said opportunity the prosecution again did not complete the examination of its witnesses and 60 on 1-9-1984 the learned Magistrate was again compelled to close the case of the prosecution. Against this aforesaid second order a revision that was filed was again allowed and the prosecution examined one more witness en 10-1-1985. Thereafter no witness was examined by the prosecution and ultimately the case of the prosecution was closed on 1-5-1985 and the accused-petitioner was examined under Sec. 313 of the Code of Criminal Procedure. On 1 Written notes of arguments were filed on behalf of the petitioner taking an objection that there was no valid sanction for the prosecution a. required under the law. The prosecution then took up the stand that the sanction order was mi sing and time must be given to it for searching the same or for the reconstruction thereof in the event of the same being not traceable. The petitioner opposed such a move Nevertheless the learned Magistrate granted further time and a direction to find out the sanction order and numerous adjournments thereafter followed. Ultimately on 1-10-1985 the petitioner was compelled to file petition before the learned Magistrate claiming that his fundamental right to speedy public trial had been denied to him by the passage of nearly 20 years in investigation and trial. The learned Magistrate rejected that petition compelling the petitioner to knock at the doors of the High Court for quashing the whole proceedings for the blatant violation of the constitutional right of a speedy public trial by the prolongation of the proceedings for nearly 20 years. The learned Magistrate rejected that petition compelling the petitioner to knock at the doors of the High Court for quashing the whole proceedings for the blatant violation of the constitutional right of a speedy public trial by the prolongation of the proceedings for nearly 20 years. ( 6 ) IN the background of the said facts several questions were posed and the same came to be formulated as narrated in the judgment. We are not much concerned in the present group of petitions regarding the first four questions framed by the Patna High Court. The fifth question that was formulated was as under:"whether an outer time limit to concretise the right to a speedy public trial is envisioned by principle or precedent "?the first point to be noted about this decision is that unlike in the present group of cases the case before the Patna High Court was not that of a capital crime. The next aspect to be noted is that unlike in the present group of cases the case before the Patna High Court was full of extraordinary and astonishing facts as narrated in the judgment. Apart from the aforesaid it appears that amongst other things the Full Bench has concluded on the aforesaid question No. 5 as under:"therefore without independently investigating and looking for a date (dead ?) line I would read the judgment in S. Guin v. Grindlays Bank Ltd. AIR 1586 SC 289 as a prescription by the final court of an outer limit of seven years for concluding of the original trial in offences other than the capital ones. (emphasis supplied)" ( 7 ) IN the present group of cases we are not concerned with any such fact situation. As stated hereinabove this is a group of petitions where the offences are capital ones. It is also to be noted that Full Bench itself in paragraph 50 of the judgment has further observed as under:"in both the cases before us the delay is admittedly even far beyond the outer limit of seven years. What indeed is sought to be laid down here is that beyond this period of seven years the continuation of the investigation and trial would bring in the weightiest presumption that the enshrined right of speedy public trial is violated and the prosecution should be halted in its tracts. This would per-se be indicative of prejudice. What indeed is sought to be laid down here is that beyond this period of seven years the continuation of the investigation and trial would bring in the weightiest presumption that the enshrined right of speedy public trial is violated and the prosecution should be halted in its tracts. This would per-se be indicative of prejudice. Thereafter the burden would automatically shift heavily on to the shoulders of the State to show that such grave delay was either entirely the handiwork of the accused himself or was occasioned by such special and exceptional circumstances so as to merit condonation thereof". The aforesaid observations would go to show that even in cases which are not regarding trial of capital offences further aspects regarding condonation of delay will need to be gone into where the fixed time limit of seven years is over. As a matter of fact the aforesaid fifth question at the end of the discussion has been answered in paragraph 52 of the judgment as under:"to conclude on this aspect the answer to question No. 5 is rendered in the affirmative and it is held that an outer time limit to concretise the right to speedy public trial is envisioned both by principle and precedent. It is further held that a callous and inordinately prolonged delay of seven years or more (which does not arise from the default of the accused or is otherwise not occasioned by any extraordinary or exceptional reason) in investigation and original trial for offence other than capital ones plainly violate the constitutional guarantee of a speedy public trial under Art. 21". In view of all the aforesaid it is clear that even in cases of investigation and trial of offences other than capital ones it has not been laid down as an absolute proposition that if seven years have passed from the date of arrest and the original trial has not concluded then the affected person should be released at once as the constitutional guarantee of a speedy public trial under Art. 21 of the Constitution has been violated. ( 8 ) THIS brings us to the aforesaid 1987 Patna decision. Here the facts were that the first information report against the petitioner and others was registered at Garkha Police Station Garkha on 22-7-1982 on charges of murder and other offences. ( 8 ) THIS brings us to the aforesaid 1987 Patna decision. Here the facts were that the first information report against the petitioner and others was registered at Garkha Police Station Garkha on 22-7-1982 on charges of murder and other offences. The petitioner was arrested soon thereafter and the petitioner and others were committed to trial before the Court of Sessions. Petitioner was finally convicted for offences under Sec. 302 read with Secs. 34 and 333 of the I. P. C. as also under Sec. 27 of the Arms Act and was sentenced to life imprisonment on the capital charge and for two years and one year respectively on the minor charges though the sentences were to run concurrently. Throughout the trial the petitioner was declined bail and remained in custody. Criminal Appeal No. 15t of 1985 came to be preferred by the petitioner along with his co-accused and the same case up for admission before the Division Bench on 21-2-1985. The petitioner was not granted bail. More than a year thereafter the petitioner renewed his prayer for bail on the ground that his appeal could not be possibly listed for hearing and disposal for a considerable period. The matter came up before the Division Bench which poignantly noticed the issue whether continuation in Jail eves after conviction could be authorised for a period too long to have any justification when the appellant was ready for hearing and the Court was primarily responsible for the delay. Noticing the two competing principles appearing to be conflicting namely one which was applied when the prayer for bail was refused on merits and the other had arisen on account of the long incarceration of the petitioner and the inevitable delay in the hearing of the appeal the matter came to be referred to a larger Bench for laying down firm judicial guidelines to be applied in such cases. ( 9 ) IT is in the aforesaid circumstances that the Full Bench of the Patna High Court examined the issues. After examining the issues in the light of several Supreme Court as well as other decisions the view taken by the majority is as under:"to reiterate it must be held that barring exceptions the reasonable period of time for the hearing of substantive appeals on capital charges pending in the High Court must be broadly placed at one year. After examining the issues in the light of several Supreme Court as well as other decisions the view taken by the majority is as under:"to reiterate it must be held that barring exceptions the reasonable period of time for the hearing of substantive appeals on capital charges pending in the High Court must be broadly placed at one year. Once this is so fixed it is plain that on the ratio of Kashmira Singhs ease (supra) an appellant would become entitled to claim bail on the ground of the delay in bearing the appeal itself unless there are cogent grounds for acting otherwise. As was forcefully said in the case aforesaid it is not open to the High Courts to fold their hands and helplessly tell the appellant insisting for the hearing of his appeal that we have admitted your appeal but unfortunately we have no time to hear it for three years as yet and you must remain in jail even though you may later be found innocent. That is what their Lordships called a travesty of justice. Poignantly enough such a travesty has been sought to be strongly advocated on behalf of the State before us. One cannot but reject such a stand. It is right to recall the observations in Kadra Pahadiyas case ( AIR 1981 SC 939 ) that our justice system has become so dehumanised that the lawyers and Judges do not feel a sense of revolt in caging people in jail for years including those during the pendency of substantive appeals. . . . . . . . ". In concrete terms therefore it must be held that it would be sound practice that unless there are cogent grounds for acting otherwise on convicting an appellant on a capital charge perhaps having already been through the mill of a delayed trial would become entitled of favourable consideration for his liberty and grant of bail when even after one year of incarceration and pendency of the appeal the High Court is unable to being it to a final hearing. Indeed I am of the view that so long as the delay in the hearing of such appeals extends to three or four years the persons who are variously convicted en capital charges with the aid of Sec 34 or 149 Penal Code may well be granted bail on the admission of the appeal itself during the pendency of its hearing after such time. It is however made clear that this can apply only to the ordinary run of them in cases and not to the peculiar and exceptionally heinous crimes outlined hereinafter. ( 10 ) HOWEVER the cases of convicts to whom the primal role in the capital crime is attributed and are held guilty on the substantive charge of murder or other capital offences are undoubtedly on a somewhat different footing and the same concession may not be extended to them in routine. However it seems equally impossible that having gone through the mill of a trial extending over two to five years they should still be denied bail and continue in further incarceration for three or four years awaiting the bearing of the appeal. Even in their case:s after the period of one year of the pendency of the appeal the issue would have to be considered on the basic ground of delay in the light of the inability of the Court itself to hear and dispose of the appeal. To my mind barring the peculiarly heinous crimes shocking the very conscience of the society and the Court there will be no alternative but tn extend the concession of bail under this class of cases as well if the insistent claim of the convicts for heating of the appeal cannot be acceded to and their appeals are not adjudicated upon within the reasonable time frame of one year. ( 11 ) A Strong note of caution however must be loudly sounded and the exceptions to the general rule be clearly laid down. Even in Kashmira Singhs case ( AIR 1977 SC 2147 ) their Lordships laid down a rule ordinarily unless there were cogent grounds for acting otherwise. What indeed would be these cogent grounds? Plainly enough no exhaustive definition thereof is either possible or desirable. However it would suffice to say that what has been held bore is only in the context of the ordinary run of the mill cases in capital crimes. What indeed would be these cogent grounds? Plainly enough no exhaustive definition thereof is either possible or desirable. However it would suffice to say that what has been held bore is only in the context of the ordinary run of the mill cases in capital crimes. There is no gainsaying the fact that inevitably all crimes which are visited by capital punishment are brutal and the most seriously frowned upon by the law Nevertheless even herein there is a difference of guest degree where capital crime may further be horrendously brutal in its nature and shocking to the conscience of the Court and society in general. In such a case there is a societal interest involved. Convicts therein would not and in my opinion be ordinarily entitled to such concession of bail once they have been held guilty by the trial Court of such grievous crime. Not only would it be dangerous to enlarge them on bail but it would also hurt the heart and sentiments of the society and the Victims of such crime in particular that convicted criminals of such crimes should still be enjoying their liberty pending the hearing of their appeals because of the Courts inability to dispose them of in reasonable time. Herein therefore the only alternative is that the substantive appeals of this nature for peculiarly heinous crimes where the grant of bail is inappropriate should be listed out of turn and disposed of within the time frame of one year as nearly thereto as would be within the bounds of possibility. ( 12 ) COMING now to the horrendous capital crime which is shocking to the conscience of society it is neither possible nor perhaps desirable to frame an exhaustive categorisation. However a birds eye view of such like crime with particular reference to our own State has per-force to be attempted. Within our State perhaps it would deserve highlighting that multiple and mass murders on caste and tribal considerations which have become the horror of the day appear to be the first in this category". However a birds eye view of such like crime with particular reference to our own State has per-force to be attempted. Within our State perhaps it would deserve highlighting that multiple and mass murders on caste and tribal considerations which have become the horror of the day appear to be the first in this category". The Patna High Court has expressed a view that in cases of such heinous crimes involving multiple murders and originating from caste tribe or primordial viciousness the convicts cannot possibly claim or be granted bail after a recorded conviction by the trial Court but in event of denial of bail in such cases the petitioners may well insist and claim an out of turn hearing of their appeals and their disposal within the time frame of one year. The second category mentioned by the Full Bench is dacoity coupled with murder where also the same course in the opinion of the Full Bench requires to be adopted. The third category mentioned is rape with murder. The fourth category is that of cases of bride-burning or bride-murder for extortion of dowry. The other categories mentioned are that of terrorist crime daylight bank robbery abduction for ransom followed by murder and indiscriminate use of firearms and bombs in murders disturbing public order. The Full Bench had lastly observed in paragraph 35 of the judgment as under:"35 It bears reiteration that any exhaustive classification of such like horrendous crime is neither possible nor desirable and at best the broad contours therefor can be possibly indicated. Indeed applying the above it would appear that the case of the present petitioner presents yet another category of exceptional crime in which the suspension of sentence during the pendency of appeal would be uncalled for. Indeed applying the above it would appear that the case of the present petitioner presents yet another category of exceptional crime in which the suspension of sentence during the pendency of appeal would be uncalled for. The broad finding arrived at by the trial Court is that the petitioner and his co-accused launched a defiant attack on the law-enforcing agencies itself while attempting to perform their duty and in broad day-light assaulted and murdered a Policeman namely Havildar Prahlad Shukla of the Homeguards and attempted to snatch away their arms and cause injuries to the other members of the police party Law and society have always severely scorned crime directed against persons who are even acting under the colour of their office apart from actually doing so Indeed in may advanced western countries where the death penalty has been otherwise abolished it has nevertheless been retained in the context of the murder of a Policeman. To turn against the administrators of the law and order agency itself and to fatally injure any one of them is a crime which to my mind yet again comes in the category of an exception to the general rules enunciated above. The prayer for bail therefore must be declined for this particular reason". ( 13 ) THE Full Bench however in line with what has been held has directed that the appeal of the petitioner and his co-accused be heard forthwith and be listed before the Criminal Bench subject to part-heard. ( 14 ) ACCORDING to Patna High Court therefore barring exceptions appeal regarding capital crimes should be heard within the reasonable period of one year broadly speaking; and if such appeals are not so heard then the affected persons should be entitled to a favourable consideration regarding bail if such appeals are not likely to be heard for a period of three or four years. The Patna High Court has further held regarding persons who were convicted with the aid of Sec. 34 or Sec. 149 of the I. P. C. that they should be released on bail at the time of admission of such appeals. Regarding persons who have played a prime role. The Patna High Court has further held regarding persons who were convicted with the aid of Sec. 34 or Sec. 149 of the I. P. C. that they should be released on bail at the time of admission of such appeals. Regarding persons who have played a prime role. In capital crimes Patna High Court has held that barring the peculiarly heinous crimes shocking the very conscience of the society and the Court there would be no alternative but to extend the concession of bail under that class of cases as well if the insistent claim of the convicts for hearing of the appeal could not be acceded to and their appeals would not be adjudicated upon within the reasonable time frame of one year. The Patna High Court has ruled that the substantive appeals arising out of peculiarly heinous crimes where the grant of bail would be inappropriate should be listed out of turn and should also be disposed of within the time frame of one year or as nearly thereto as would be within the bounds of possibility. ( 15 ) THERE are some features which do not seem to have been placed for consideration before the Patna High Court at the time of hearing the aforesaid 1986 and 1987 matters. In the first place the delay in hearing the appeals cannot be attributed to Courts alone as if there are no other factors which have occasioned the said delay. It is true that if Courts are vigilant some delay in hearing the appeals can easily be avoided in normal circumstances. Loss of working days however is becoming a normal feature of the day. In a year on several occasions for reasons which may be good bad or indifferent loss of working days result. Passing of resolutions of striking work in Court by Bar Associations is becoming an order of the day. One has also to notice that vacancies are not filled in at the level of the High Court within reasonable time from the dates when such vacancies arise. It is almost a common feature that all High Courts in India are not working with full strength for years. Though more posts are sanctioned regarding High Courts than the existing strength since about two years posts are not filled in for one reason or the other. It is almost a common feature that all High Courts in India are not working with full strength for years. Though more posts are sanctioned regarding High Courts than the existing strength since about two years posts are not filled in for one reason or the other. It cannot be gainsaid that by and large the ratio of capital and other crimes has increased from year to year. Such and other factors are beyond the control of the Courts. Furthermore as has been rightly noticed by the Patna High Court inevitably all crimes which are visited by capital punishment are brutal and the most seriously frowned upon by the law. The Patna High Court however is noticing a difference of great degree between normal capital crime and capital crimes which may be horrendously brutal in its nature and shocking to the conscience of the Court and society in general. According to Patna High Court in the latter category there is a societal interest involved and convicts falling in that category would not ordinarily be entitled to concession of bail once they have been held guilty by the trial Court of such grievous crimes. With regard to this category Patna High Court has also observed that not only it would be dangerous to enlarge them on bail but it would also hurt the heart and sentiments of the society and the victims of such crime in particular on noticing that convicted criminals of such-crimes should still be enjoying their liberty pending the hearing of their appeals because those appeals do not stand a chance of being disposed of within reasonable time. The Patna High Court has therefore noticed that in some cases a societal interest is also involved but the Patna High Court is not going to the extent of saying that almost in all capital crimes societal interest is involved and almost in all cases of capital crimes the sentiments of the victims of such crimes are also relevant considerations when such persons have also been found guilty after affording them full opportunity to defend the case against them. It is not uncommon that the convicts in capital crimes if they are granted bail pending their appeals are likely to jump jail and abscond at least in cases where they have reason to believe that the result of their appeals may not be favourable to them. It is not uncommon that the convicts in capital crimes if they are granted bail pending their appeals are likely to jump jail and abscond at least in cases where they have reason to believe that the result of their appeals may not be favourable to them. Filing of appeals by convicts does not necessarily mean that such appeals would always end in their favour and so care has to be taken in the facts and circumstances of each case of this aspect of the matter; and if that be so it is hardly expedient desirable or possible to lay down a general rule or rules in such matters concerning capital crimes. This may not be taken to mean that the same would be undermining the spirit of Art. 21 of the Constitution. It would only mean that in the background of the spirit of Art. 21 the Courts would weigh all the facts and circumstances of the case including the aspect of delay. Besides if any such one year rule as suggested by the Patna High Court is adopted then situations may arise where it would become almost impossible to attend to the appeals regarding capital crimes within the time limit fixed by any such rule as the same would depend on the workload the availability of working days within the prescribed time limit availability of Courts within such prescribed limit and such other factors. It has also to be considered that inspite of best efforts in the given set of circumstances if such appeals are not heard within the prescribed time limit set by such rule then are such convicts to be released on bail in an uniform manner because a prescribed rule has not been followed ? It seems to us that if such a rule was to be prescribed then in the present day circumstances it would fail to get the desired results and if we may say so the remedy will prove to be worst than the disease. It seems to us that if such a rule was to be prescribed then in the present day circumstances it would fail to get the desired results and if we may say so the remedy will prove to be worst than the disease. ( 16 ) REFERENCE was made to the case of State of Punjab v. Kailash Nath 1988 (4) Judgments Today (SC) 502 for the purpose of pointing out that in all criminal prosecutions the right to a speedy public trial is now an inalienable fundamental right of the citizen under Art. 21 of the Constitution and it extends to all criminal proceedings for all offences generally irrespective of their nature. A glance at the said decision would show that the submission was made on the basis of the aforesaid Madheshwardhari singhs case (supra ). In this very decision however it has been noted by the Supreme Court iself that special leave has been granted against the said decision and that its correctness was thus sub-judice. The Supreme Court has proceeded further to observe that it is always open to quash a prosecution on the ground of unexplained unconscionable delay in investigation and prosecution on the facts of a given case. This decision gives an indication that the Supreme Court in the case before it also was not prepared to lay down any principle of general application on the delay aspect. Apart from that? this Supreme Court decision is not considering any matter concerning a capital crime. ( 17 ) IN the case of Kashmira Singh v. The State of Punjab AIR 1977 SC 2147 in paragraph 3 of the judgment the facts of the case have been adverted to. The appellant before the Supreme Court after serving out the sentence of six months rigorous imprisonment for the offence under Sec. 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 Sec. 302 and sentenced to life imprisonment he surrendered before presenting his petition for special leave to appeal to the Supreme Court. Since then the appellant was in jail and the total period thus passed in jail upto that date was about 4 years. Since then the appellant was in jail and the total period thus passed in jail upto that date was about 4 years. The appeal was of 1974 and it was not likely to come up for hearing for at least another two years since Supreme Court was then hearing appeals preferred in the year 1972. The Supreme Court has then observed that from the fact that Supreme Court had granted to the appellant special leave to appeal against his conviction showed that in the opinion of the Supreme Court he had prima facie a good case to consider and in the circumstances it would be highly unjust to detain the appellant in jail any longer during the hearing of the appeal. The appellant therefore was ordered to be released on bail. It is to be noticed that even in such a case the Supreme Court has not laid down any general rule. The Supreme Court has also noticed the facts before it in the particular case and has then thought it fit to release the person on bail. No assistance therefore can be derived from this decision by the petitioners in the present group on the issue in question. ( 18 ) IN the case of State of Rajasthan v. Balchand AIR 1977 SC 2447 the petitioner had moved for bail having surrendered after leave was granted to the State to file an appeal against the acquittal by the High Court. The judgment clearly shows that the facts and circumstances of the case have been taken into consideration and that general rule as is suggested by the Patna High Court has been spelt out by the Supreme Court in this decision. The Supreme Court has also observed in the said case as under:"the basic rule may perhaps be tersely put as bail not jail except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from Court. We do not intend to be exhaustive but only illustrative. (emphasis supplied) 3 It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. . We do not intend to be exhaustive but only illustrative. (emphasis supplied) 3 It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. . . " ( 19 ) MR. Shethna has also referred to the decision in the case of Babu Singh and Ors. v. The State of Uttar Pradesh AIR 1978 SC 527 . In this case all the petitioners were charged with an offence of murder under Sec. 302 I. P. C. but all of them were acquitted by the Sessions Court as early as 4/11/1972 The State successfully appealed against the acquittal and the High Court reversing the findings of the Sessions Court held all the petitioners guilty and sentenced them all to life imprisonment. That judgment was pronounced on 20-5-1977. The Petitioners Nos. 1 to 5 had suffered sentence in some measure having been imprisoned for about 20 months. The sixth petitioner has been on bail in the Sessions Court and had been free during the pendency of the appeal. The first application for bail had been rejected by the Supreme Court and second application for bail was before the Supreme Court after the first application for bail had been rejected before about six months. It is to be noted that in this decision also no general rule regarding fixing of any time limit for hearing of such appeals has been spelt out by the Supreme Court. This judgment shows that the Supreme Court has examined the facts and circumstances of the case before the Supreme Court. In paragraph 21 of the judgment the Supreme Court has observed as under:"realism is a component of humanism which is the heart of the legal system. We come across cases where parties have already suffered 3 4 and in one case (the other day it was unearthed) over 10 years in prison. These persons may perhaps be acquitted difficult to guess. If they are the injustice of innocence long in rigorous incarceration inflicted by thee protraction of curial processes is an irrevocable injury. And. taking a pragmatic view while life imprisonment may in law last a whole life in practice it hardly survives ten years thanks to rules of remission. Thus at the worst. If they are the injustice of innocence long in rigorous incarceration inflicted by thee protraction of curial processes is an irrevocable injury. And. taking a pragmatic view while life imprisonment may in law last a whole life in practice it hardly survives ten years thanks to rules of remission. Thus at the worst. the prisoner may have to serve some more years and at the best law is vicariously guilty of dilatory deprivation of citizens liberty a consummation vigilantly to be vetoed. So a circumstance of some consequence when considering a motion for bail is the period in prison already spent and the prospect of the appeal being delayed for hearing having regard to the suffocating crowd of dockets pressing before the few Benches (emphasis supplied"the aforesaid observations of the Supreme Court would go to show that the delay is a relevant factor in each such case but it has not been laid down by the Supreme Court that an the consideration of delay alone and without considering the facts and circumstances of a given case the Court should on a general principle either release the person on bail even in the case of a capital crime or the appeal is required to be taken out of turn on the basis of general rule regarding a prescribed period during which such an appeal must be heard. ( 20 ) THOUGH Mr. Shethna has referred to the decision in the case of Bhagirathsinh Jadeja v. State of Gujarat AIR 1984 SC 372 : [1984 (1) GLR 332 (SC)] we do not consider it necessary to refer to the same as the said case would have no beating on the question before us. The Supreme Court has itself observed that ordinarily the Supreme Court would not be inclined to interfere with the orders either granting or refusing to grant bail to an accused person either facing a Criminal trial or whose case after conviction is pending in appeal. The Supreme Court however had considered the case before it grad held that was not a case where bail was granted or refused but the order granting the bail by the learned Sessions Judge was set aside by the High Court adopting an approach which did not commend to the Supreme Court. It is also to be noticed that it was a case regarding offence under Sec. 307 of the I. P. C. . It is also to be noticed that it was a case regarding offence under Sec. 307 of the I. P. C. . ( 21 ) MR. A. D. Shah learned Advocate for some of the petitioners has adopted the submissions made by Mr. Shethna and has also invited our attention to the case of Sheela Barse v. Union of India AIR 1986 SC 1773 . A petition under Art. 32 of the Constitution was filed praying for the release of the children below the age of 16 years detained in jails within different States of the country; production of complete information of the children in jails; information as to the existence of juvenile Courts; homes and schools and for a direction that the District Judges should visit jails or sub-jails within their jurisdiction to ensure that the children were properly looked after when in custody as also for a direction to the State Legal Aid Boards to appoint duty Counsel to ensure availability of legal protection for the children as and when they were involved in criminal cases and were proceeded against. In such a petition the Supreme Court has directed that where a complaint is filed or first information report is lodged against a child below the age of 16 years for an offence punishable with imprisonment of not more than seven years the investigation shall be completed within a period of three months from the date of filing of the complaint or lodging of the first information report and if the investigation is not completed within that period the case against the child must be treated as closed. It was further directed that if within three months the chargesheet was filed against the child in case of an offence punishable with imprisonment of not more thin seven years the case must be tried and disposed of within a further period of six months at the outside and the said period should be inclusive of the time taken up in committal proceedings if any. It has also been observed that the Supreme Court was firmly of the view that every State Government must take necessary measures for the purpose of setting up adequate number of Courts appointing requisite number of Judges and providing them the necessary facilities. It has also been observed that the Supreme Court was firmly of the view that every State Government must take necessary measures for the purpose of setting up adequate number of Courts appointing requisite number of Judges and providing them the necessary facilities. The Supreme Court however has observed that in the case before them they were not concerned with the question of speedy trial for an accused who is not a child below the age of 16 years and that was a question which might have to be considered in some other case where the Supreme Court might be called upon to examine as to what is reasonable length of time for a trial beyond which the Court would regard the right to speedy trial as violated. It is therefore clear that such questions which arise in this ground of petitions have not been dealt with by the Supreme Court in the said decision. ( 22 ) ANOTHER decision cited by Mr. A. D. Shah is the case of Natbar Parida v. State of Orissa AIR 1975 SC 1465 . The Supreme Court was here considering Sec. 309 along with proviso of the Criminal Procedure Code 1973 The Supreme Court in that connection observed that the command of the Legislature in proviso (a) was that the accused person must be released on bail if he was prepared to and does furnish bail and could not be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. The Supreme Court has further observed that in serious offences of criminal conspiracy murders dacoities robberies by inter. State gangs or the like it might not be possible for the police in the circumstances as they do exist in the various parts of our country to complete the investigation within the period of 60 days. Yet the intention of the Legislature seems to be to grant no discretion to the Court and to make it obligatory for it to release the accused on bail. Yet the intention of the Legislature seems to be to grant no discretion to the Court and to make it obligatory for it to release the accused on bail. It has further been provided in proviso (a) that the accused released on bail under Sec. 167 would be deemed to be so released under the provisions of Chapter XXXIII and for the purpose of that Chapter and that that may empower the Court releasing him on bail if it considers necessary so to do and to direct that such person be arrested and committed to custody as provided in sub-sec. (5) of Sec. 437 occurring in Chapter XXXIII. The Supreme Court has also observed as under:"it is also clear that after the taking of the cognizance the power of remand is to be exercised under Sec 309 of the New Code. But if it is not possible to complete the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be a paradise for the criminals but surely it would not be so as some times it is supposed to be because of the Courts. It would be so under the command of the Legislature". In the first place the aforesaid observations take care of situation which is different from the present one. Secondly it was a question of interpreting the legislative intent behind a provision which was spelt out by the Legislature itself. Thirdly it would seem that the Supreme Court has not quite approved of the said Legislative intent though it has clearly brought out the Legislative intent behind the provision in question. It would seem that the Supreme Court was not approving of any general rule divorced from the facts and circumstances of any case. Be that as it may since there is no such provision to be construed in the present group of petitions there is no question of legislative intent in the present group of cases though we are concerned with Art. 21 of the Constitution. The said decision will therefore not have much hearing on the present group of cases. ( 23 ) MR. Qureshi learned Advocate appearing for some of the petitioners has relied on the decision in the case of Kadra Pahadiya and Ors. The said decision will therefore not have much hearing on the present group of cases. ( 23 ) MR. Qureshi learned Advocate appearing for some of the petitioners has relied on the decision in the case of Kadra Pahadiya and Ors. v. State of Bihar AIR 1981 SC 939 . This was a case where four young boys had been in Pakud sub-jail in Santhal Praganas for a period of about eight years without their trial having made any progress. The observations made by the Supreme Court in this case go to show that the Supreme Court found it shocking that such a thing could have happened despite their decision in Hussainara Khatoons case ( AIR 1979 SC 1360 ) where they had criticised the shocking state of affairs and had hoped that after the anguish expressed and the severe strictures passed by the Supreme Court the justice system in the State of Bihar would improve and no one would be allowed to be confined in jail for more than a reasonable period of time which the Supreme Court thought should not and could not exceed one year for a sessions trial. The Supreme Court had pointed out in Hussainara Khatoons case that speedy trial was a fundamental right of an accused implicit in Art. 21 of the Constitution and that they noticed in the case before them that fundamental right had merely remained a paper promise and had been grossly violated. The Supreme Court had therefore given appropriate directions for the conduct of the case before the Sessions Court. In the light of what we have observed hereinabove the ratio of this decision cannot advance the case of the present group of petitioners any further. ( 24 ) MR. Qureshi has also invited our attention to the case of Hussainara Khatoon and Ors. v. Home Secretary State of Bihar Patna AIR 1979 SC 1360 . Here also the Supreme Court was dealing with the case of under-trials on the basis of the information contained in the newspaper cuttings in the issues of Indian Express 8 and 9/01/1979 which had been incorporated in the writ petition. The Supreme Court had found that alarmingly large number of men and women including children are behind prison bars for years awaiting trial in Courts of law. The Supreme Court had found that alarmingly large number of men and women including children are behind prison bars for years awaiting trial in Courts of law. The Supreme Court has also considered the aspect of delay and speedy trial and has observed as under:"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 contents of Art. 21 as interpreted by this Court in Maneka Gandhi v. Union of India (AIR 1978 sec. 5 (7 ). We have held in that case that Art. 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 or just such deprivation would be violative of his fundamental right under Art. 21 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 Art. 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 Art. 21. The question which would however arise is as to what would be the consequence it 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 Art. 21. The question which would however arise is as to what would be the consequence it 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 Art. 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 Art. That is a question we shall have to consider when we hear the writ petition on merits on the adjourned date. But one thing is certain and we cannot impress it too strongly on the State Government that it is high time that the State Government realised its responsibility to the people in the matter of administration of justice and set up more Courts for the trial of cases. We may point out that it would not be enough merely to establish more Courts but the State Government would also have to man them by competent Judges and whatever is necessary for the purpose of recruiting competent Judges such as improving their conditions of service would have to be done by the State Government if they want to improve the system of administration of justice and make it an effective instrument for reaching justice to the large masses of people for whom justice is to-day a meaningless and empty word. (emphasis supplied)"the aforesaid decision therefore was taking care of a situation where under-trials had been imprisoned for a long number of years. Even here as the aforesaid observations show the question was kept open. Apart from that the Supreme Court was not considering in the said case the plight of persons such as the present petitioners. ( 25 ) MR. J. M. Panchal learned Additional Public Prosecutor for the respondent has submitted that it would be inexpedient and dangerous to lay down any general rule in matters such as the present. The fundamental right under Art. 21 of the Constitution also cannot mean that any such common rule has to be laid down. To begin with he has invited our attention to certain pertinent remarks made by a Division Bench of this Court in the case of Jadeja Ajitsinh Natubha and Ors. The fundamental right under Art. 21 of the Constitution also cannot mean that any such common rule has to be laid down. To begin with he has invited our attention to certain pertinent remarks made by a Division Bench of this Court in the case of Jadeja Ajitsinh Natubha and Ors. v. State of Gujarat [1980] XXI GLR 571 That was a case where after a trial the accused was convicted under Sec. 302 read with Sec. 34 of the I. P. C. and was sentenced to imprisonment for life on 16-1-1980 The Division Bench was considering the request for bail in such a matter. The said request was considered to be a very strange and unprecedented request made by four convicts who had been convicted and sentenced as aforesaid for having caused the death of the Sarpanch of village Jakhotra. While rejecting the application it was pointed out that the accused were not even enlarged on bail during the trial. The Division Bench ruled that it would be extremely incongruous to release them on bail on principle or policy; that argument rooted in sympathy was altogether misconceived and fraught with danger that the Court had also to consider the impact on society; and that the Court could not be oblivious of the feelings and sentiments of the members of the family of the deceased. The Division Bench has also observed as under (at page No. 572 of GLR): Would a window whose husband is murdered not feel that there is no law in the society and no justice in the world ? Would there not be a general feeling in the society that the Courts are unduly lenient and sympathetic towards criminals guilty of serious offence and that their own lives are in peril ? What would be the effect on the inhabitants of a town who see a murderer non-chalently stalking on the public streets after being found guilty by a competent Court ?"would the respect for the law enforcement machinery survive) One of the purposes of punishment is that it must have deterrent effect. Unless punishment is meted out swiftly in case offender is found guilty and citizens at large see him suffering the punishment this object cannot be achieved. Unless punishment is meted out swiftly in case offender is found guilty and citizens at large see him suffering the punishment this object cannot be achieved. In fact when for years after the commission of the crime the offeners are not meted out the punishment respect for law and order and the morale of the citizens (not to speak of the investigating agency) suffers a slump. Some may feel (whatever you do you do not have to go to jail and are emboldened to commit crimes. Others may feel that the criminals can escape going to jail and a. sense of insecurity arises. And a punishment which is ultimately given effect to several years after the perpetration of the crime perhaps after it is forgotten serves no purpose. And let us think of the aftermath. When the appeal is heard after say 3 years would it not be harsh to send him back to jail once again after a lapse of 5 years ? One year or one and a half year in jail as undertrial prisoner a period of respite for 3 years on bail and again a return to jail. His life would be disrupted his family and business affairs will be in a mass. Again he himself would be running a grave risk. The near relatives of the murdered man seeing that the law enforcement machinery is not visibly functioning may take law in these own hands and seek retribution by killing him It his happens in several cases. It can happen more often. Under the circumstances it would not be legal or proper to enlarge convicts undergoing a life sentence on bail notwithstanding the fact that theoretically speaking the High Court does possess the power. It is not being done so far for good and valid reasons no sound principle and policy. It Cannot be done now in the name of sympathy. Sympathy for one (convict) may mean lack of sympathy for another (tear-shedding relatives of the murdered man) In the name of humane approach for the convicts we cannot exhibit lack of sensitivity for the feelings and sentiments of the we-ping relatives of the victim". It Cannot be done now in the name of sympathy. Sympathy for one (convict) may mean lack of sympathy for another (tear-shedding relatives of the murdered man) In the name of humane approach for the convicts we cannot exhibit lack of sensitivity for the feelings and sentiments of the we-ping relatives of the victim". The aforesaid observations point in the direction that it would neither be expedient nor desirable nor within the sweep of Art. 21 to lay down any uniform time-bound prescribed limit in the case of persons such as the present petitioners ( 26 ) MR. Panchal has next invited our attention to the minority judgment in the case of Anurag Baitha v. State of Bihar (supra ). S. H. S Abidi J. has observed with great respect and regret that he was not able to agree with the majority view that if an appeal was not disposed of within a period of one year the appellant should be considered for release on bail on the ground of delay in the disposal of the appeal even though on merits he was not entitled to the grant of bail. In this dissenting judgment it has been pointed out that detention is of two kinds one preventive and second sportive. Preventive detention is not based on rational evidence but is on suspicion. Preventive detention is not by way of punishment at all. The power of such preventive detention has been recognised as a necessary evil and is tolerated in a free society in the larger interest and security of the State and maintenance of public order. It is a drastic power to detain a person without trial and there are many countries where it is not allowed to be exercised except in times of war or aggression. But our constitution does recognise the existence of this power but it is hedged in by various safeguards set out in Arts. 21 and 22 of the Constitution. Article 21 lays down restrictions on the powers of preventive detention In the exercise of this power the Preventive Detention Act and the other detention laws have been framed. A glance and persual of the same would show that everywhere delays have been forbidden and expeditious disposal of the proceeding is the theme but inspite of these things no period has been fixed. A glance and persual of the same would show that everywhere delays have been forbidden and expeditious disposal of the proceeding is the theme but inspite of these things no period has been fixed. No definite time has been allowed when a representation is to be dealt with. No hard and fast rule has been provided and every matter has to be dealt with as expeditiously as possible and every case has to be examined no Its won merits and demerits and fact and circumstances. What is pertinent to be noted about this aspect is that even in the case of preventive detention where the framers of the Constitution have taken great care in providing safeguards they have not provided to lay down any definite time limit regarding those safeguards but has chosen to leave the said aspect to by dealt with in the facts and circumstances of the case and on the merits of the case. ( 27 ) IS the aforesaid dissenting judgment a view has also been endorsed that law deals with the facts of life; that in law as in life those are no invariable absolutes; and that neither life nor law can be reduced to mere deposit formulae. In the said dissenting judgment it has also been observed that if the ground of delay is the consideration without keeping in view the merits of the case in the case of non-shocking cases then why there should be no consideration of delay in the case of those persons in respect of whom conscience is shocked The purpose of posing the said question is to emphasise that there cannot be any despotic formulae fixing a period of one year for the aforesaid purpose. It has also been rightly pointed out in paragraph 66 of the said judgment as under:"the main question is what is the measurable distance of time. It is true that a person who has been accused in an offence and whose liberty is invaded starts suffering incarceration from the day the invasion on his innocence is made. This is 90 not only in heinous crimes but also in lesser crimes. It is true that a person who has been accused in an offence and whose liberty is invaded starts suffering incarceration from the day the invasion on his innocence is made. This is 90 not only in heinous crimes but also in lesser crimes. But when an offence is committed and law is violated prosecuting agency attacks the innocence and gathers evidence and presents before the Court the entire matter and the Court after applying its judicial mind and with giving full hearing to the parties concerned to present their cases to the best of their capacity comes to a judicial finding about the guilt of the accused and the Court after considering the matters on merits and the interest of the parties concerned including the society and the State considers that it is not a not case to grant bail then by fixing despotic period of one year without any basis or criteria without looking to the conditions of the Court and the alarming decrease in the number of Courts and with the best possible efforts of the Government including the head of the judiciary to provide the judicial system with proportionate and proper paraphernalia will be to set at night the considerations at the time of refusing suspension of sentence and grant of bail". ( 28 ) IT has also been pointed out in the said dissenting judgment and a word of caution has been added that if a period of one year is fixed for the disposal of the appeals then in the event of inability of the Court to dispose of the appeals on account of the reasons beyond its control would be giving a lever even to those persons who are convicted of heinous offences and very soakage to the society and the Court to approach for bail. Besides there would be a further controversy as to which is a very shocking and heinous crime as for one it may be very shocking but for the other it may not be so and the categorisation and classification of such cases will further entail the delay in the disposal of the appeal itself. ( 29 ) LASTLY we endorse what has been stated in the said dissenting judgment in paragraph 75. ( 29 ) LASTLY we endorse what has been stated in the said dissenting judgment in paragraph 75. The relevant observations are as follows:"75 The Courts have been the guardian of the Constitution and sentinels of the rights and liberties of the citizens and they have been guarding the same through the judicial process. They have looked to the interest of the Citizens even if there is no specific provision for the same as it is apparent from the cases decided by the Courts specially the Supreme Court from time to time and they have tried to protect the interest of the society as the aim of laws to harmonise the social interest and that is why the Courts have administered justice even without law but on other considerations quite within the ambit of law and Constitution. Though the Courts have power to fix any period as has been done in the case of Sheela Barse v. Union of India (AIR 1986 SC 1771) (supra) but the Courts have also refrained from doing so unless there are adequate provisions for the same. flow far the provisions for the early disposal of cases and the appeals are looking have been mentioned from time to time by the Courts and that is the reason why in the ease of Kashmira Singh ( AIR 1977 SC 2147 ; and later on in Sheela Barse the Courts have refrained from fixing period and so in the case of appeals against conviction on capital charges it will be prudent reasonable and in consonance with the lacking and waiting conditions of the Courts that the resort should be had to the rules of the Court which provided far the expeditious disposal of the appeals of the persons in jail aid giving them preference over those who are outside the jail; rather then fixing the despotic period of one year in those cases in which the conscience is not shocking and denying the period of one year to those in cases in which conscience of the society is shocked. So if the rules are strictly followed then it is possible that the appeals of all the convicts who are not entitled to bail on merits whether shocking to conscience or not will be disposed of within a period of even less than one year. So if the rules are strictly followed then it is possible that the appeals of all the convicts who are not entitled to bail on merits whether shocking to conscience or not will be disposed of within a period of even less than one year. One cannot forget that this is a society consisting not only of the criminals alone but innocent and law abiding and law fearing people also whose interest is also to be safeguarded side by side and the interest of the criminals who have been convicted in accordance with law". ( 30 ) MR. Panchal has also pointed out from certain observations made in the case of State of Punjab v. Kailash Nath 1988 (4) Judgments Today (SC) 502) that correctness of the aforesaid judgment in the case of Maheshwardhari Singh and Anr. v. State of Bihar AIR 1986 Patna 324 is sub-judice special leave has been granted by the Supreme Court. He has also pointed out that it is always open to quash a prosecution on the ground of unexplained unconscionable delay in investigation and prosecution on the facts of a given case. The Supreme Court here also has not leaned in favour of providing any such uniform rule. ( 31 ) MR. Panchal has also rightly painted out relying on the judgment in the case of Mithilesh Kumari and Anr. v. Prem Behari Khare (1989 (1) Judgments Today (SC) 275) that the delay in disposal of an appeal cannot be termed an action of the Court. In view of all the aforesaid it is clear that such delay occurs on account of factors beyond the control of the Courts. ( 32 ) IN the case of V. K. Agrawal v. Vasantraj Bhagwanji Bhatia and Ors. AIR 1988 SC 1106 : [1988 (2) GLR 1227 (SC)] the facts were that 20 years had elapsed since the date of the seizure of gold which was oh 15 1968 That however was not considered to be a ground fat not proceeding further with the matter inasmuch as the offence in question was a serious economic offence which undermined the entire economy of the Nation. It has also been pointed that the delay occasioned in the working of the judicial system by the every increasing workload cannot be the ground for justifying the delay. It has also been pointed that the delay occasioned in the working of the judicial system by the every increasing workload cannot be the ground for justifying the delay. This case also gives and indication that the Supreme Court was not considering even a delay of 20 years to be such delay as providing a ground for not proceeding further with the matter in question. ( 33 ) MR. Panchal has also invited our attention to the case of A. R. Antulay v. R. S. Nayak and Anr. AIR 1988 SC 1531 and has pointed out that in the said case it was submitted on behalf of the appellant that the appellant had suffered a great wrong for over 61 years; that he had undergone trials and proceedings because of the mistakes of the Court and so the appellant should be made not to suffer more; and that political battles must be fought in the political areas. Learned Counsel for the appellant had relied on several authorities but had strongly relied on the observations of the Supreme Court in the case of Suk Das v. Union Territory of Arunachal Pradesh AIR 1986 SC 991 . In this case the appellant was a Government servant and was tried and convicted to suffer imprisonment for two years for offences under Sec. 506 read with Sec. 34 I. P. G. On appeal the High Court held that the trial was not vitiated since no application for legal aid was made by him. On appeal the Supreme Court quashed the conviction and considered the question whether the appellant would have to be tried in accordance with law after providing legal assistance to him on the facts of the said case it was felt by the Supreme Court that in the interests of justice the opulent should be reinstated in service without back wages and accordingly directed that no trial should take place. It was therefore submitted on behalf of the appellant in the said case that in the interest of justice the appellant before the Supreme Court should not be tried again. The Supreme Court however did not agree with the said submissions and ultimately pointed out as under:"yet we must remind ourselves that purity of public life in one of the cardinal principles which must be upheld as a matter of public policy. The Supreme Court however did not agree with the said submissions and ultimately pointed out as under:"yet we must remind ourselves that purity of public life in one of the cardinal principles which must be upheld as a matter of public policy. Allegations of legal infractions and criminal infractions must be investigated in accordance with law and procedure established under the Constitution. Even if he has been wronged if he is allowed to be left in doubt that would cause more serious damage to the appellant. Public confidence in public administration should not be eroded any further. One wrong cannot be remedied by another wrong". ( 34 ) ASSUMING for the sake of argument that a period need to be fixed for the disposal of the appeals concerning life convicts and such period is fixed would it not have on element of arbitrariness 7 A glance at the provisions of the Code of Criminal Procedure would show that a discretion is vested in the High Court for releasing the appellant on bail. Apart from the question whether that discretion would be curtailed or not by fixation of any such time limit it may be that such a period may not be prescribed by every High Court in the country in an identical manner and the situation might be that an accused in one State will be in advantageous positions than the accused similarly placed in another State. It would therefore seem that ally exercise in the direction of fixing a time l imit will still contain an element of arbitrariness in this view of the matter also. ( 35 ) THE Supreme Court while considering the effect of delay in disposal of the mercy petitions under Art. 72 or 161 or delay in the execution of the death sentence in the case of Smt. Triveniben v. State of Gujarat 1989 (1) SCC 678 : [1989 11) GLR 622 (SC)] had all occasion to consider Art. 21 of the Constitution of India and after referring to various judgments of the High Courts and also those of the Supreme Court it has observed that the delay in judicial proceedings should not be the ground for computing the sentence of death to that of sentence of imprisonment for life. It is observed that Art. 21 which has received a creative connotation demands that any procedure which takes away the life and liberty of persons must be reasonable just and fair. This procedural fairness is requited to be observed at every stage and till the last breath or the life. The petitioners were asserting before the Supreme Court for life imprisonment instead of sentence for death solely on the ground of prolonged delay in the execution. The Supreme Court observed (at page No. 647 para 68 of GLR):". . . The delay which is sought to be relied upon by the accused consists of two parts. The first part covers the time taken in the judicial proceeding. It is the time that the parties have spent for trial appeal further appeal and review. The second part takes into its fold the time utilised by the executive in the exercise of its prerogative clemency". About the time taken be the Court for disposal of the case it is observed (at page No. 647 of GLR):"70 Mr. Parasaran learned Advocate General has altogether a different approach and in my opinion very rightly. He argued that the time spent by the Courts in judicial proceedings was intended to ensure a fair trial to the accused and cannot be relied upon by the same accused to impeach the execution of the death sentence. The relevant provision in the Indian Penal Code the Criminal Procedure Code the Evidence Act and the Rules made by the High Courts and the Supreme Court governing the trial appeal execution of sentence etc. were all highlighted. According to learned Attorney General these provisions are meant to examine the guilt or innocence of the accused and to have an appropriate sentence commensurate with the gravity of the crime. They constitute reasonable procedure established by law. "71 I entirely agree. The time taken in the judicial proceedings by way of trial and appeal was for the benefit of the accused. It was intended to ensure a fair trial to the accused and to avoid hurry-up justice. The time is spent in the public interest for proper administration of justice. If there is inordinate delay in disposal of the case the trial Court while sentencing or the appellate Court while disposing of the appeal may consider the delay and the cause thereof along with the other circumstances. The time is spent in the public interest for proper administration of justice. If there is inordinate delay in disposal of the case the trial Court while sentencing or the appellate Court while disposing of the appeal may consider the delay and the cause thereof along with the other circumstances. The Court before Sentencing is bound to hear the accused. If the Court awards death sentence notwithstanding the delay in disposal of the case there cannot be a second look at the sentence save by way of review. There cannot be a second trial on the validity of the sentence based on Art. 21. The execution which is impugned is execution of judgment and not apart from judgment. If the judgment with the sentence awarded is valid and binding it fails to be executed in accordance with law since it is a part of the procedure established by law. Therefore if the delay in disposal of case is not a mitigating circumstance for laser sentence it would be in my opinion wholly in appropriate to fall back upon the same delay to impeach the execution". While categorically expressing the view that fixing the period of limitation would be arbitrary the Supreme Court observed (at page No. 648 para 72 of GLR):". . . If the delay in passing the sentence cannot render the execution unconstitutional the delay subsequent thereof cannot also render it unconstitutional. Much less any fixed period of delay could be held to make the sentence inexecutable. It would be arbitrary to fix any period of limitation for execution on the ground that it would be a denial of fairness in procedure under Art. 21. With respect I an enable to agree with the view taken in Vatheeswaran case on this aspect". ( 36 ) THE sum total of the aforesaid discussion is that it is not possible to hold that the fundamental right to a speedy trial enshrined in Art. 21 of the Constitution requires that in the case of capital offence the right to speedy trial should be concretised by fixing any time limit. We therefore answer the question which has arisen for decision in the negative. ( 37 ) BEFORE we part with this group of cases it is necessary to record that Mr. A. D. Shah learned Advocate who appears on behalf of the applicants in Misc. Criminal Applications Nos. We therefore answer the question which has arisen for decision in the negative. ( 37 ) BEFORE we part with this group of cases it is necessary to record that Mr. A. D. Shah learned Advocate who appears on behalf of the applicants in Misc. Criminal Applications Nos. 2118 and 2356 of 1988 has stated that even though other grounds have been urged in each of the aforesaid two petitions regarding the grant of bail he does not want those other goods to be decided in these applications and he wants his applications also to be decided only on the ground of delay in principle as well as on the ground of delay on facts which are peculiar to the petitioners and that liberty be reserved for him to file applications for bail on those other grounds. Similarly Mr. Anandjiwala for Mr. M. C. Trivedi in Misc. Criminal Application No. 2592 of 1988 and Mr. Anandjiwala for Mr. S. M. Shah in Misc. Criminal Applications Nos. 2705 and 2706 of 1988 has made a statement that even though other grounds have been urged in each of the petitions regarding the 8 of bail he does not press those other grounds to be decided in the present applications and he also wants his applications to be decided only on the ground of delay in principle as well as on the ground of delay on facts which are peculiar to the petitioners and liberty be reserved for him to file applications for bail on those other grounds. ( 38 ) IN all the matters of Mr. K. J. Shethna the prayer for bail asked for on the ground of delay alone in principle as well as on the facts of each of the individual cases. ( 39 ) IN view of all the aforesaid all the aforesaid petitions fail and are hereby dismissed. Rule in each of the aforesaid petitions is discharged. ( 40 ) IT is however clarified that it will be open to each of the petitioners to pray for bail if each individual petitioner wants to do so on all grounds available to the petitioner including the ground of delay on the special facts of his case. Rule in each of the aforesaid petitions is discharged. ( 40 ) IT is however clarified that it will be open to each of the petitioners to pray for bail if each individual petitioner wants to do so on all grounds available to the petitioner including the ground of delay on the special facts of his case. It is further clarified that aspect of delay in each of the aforesaid petitions on the special facts of each case has to be considered along with the other grounds made out for the purpose of bail by each of the present petitioners. It is also clarified that the present group of petitions are only decided on the basis that fundamental right to a speedy trial enshrined in Art. 21 of the Constitution does not require that in the case of capital offences the right to speedy trial should be concretised by fixing any time limit and also that by fixing any despotic period of one year without any basis or criteria without looking to the conditions of the Court and the alarming decrease in the number of Courts and such other factors would set at naught the considerations at the time of refusing suspension of sentence and grant of bail. CHAUHAN J. While agreeing with my learned brother I would like to add one more aspect which in my view requires consideration . ( 41 ) THE Code of Criminal Procedure has made sufficient provisions for releasing the accused persons on bail in certain circumstances. Sections 437 and 439 of the Code of Criminal Procedure specifically provide for releasing on bail the accused suspected of the commission of the offence. The accused against whom there are reasonable grounds for believing to be guilty of offence punishable with death or imprisonment for life should not be released on bail by Court other than the High Court or the Court of Sessions as provided under sub-sec. (1) of Sec. 437 of the Code of Criminal Procedure and the High Court or the Court of Sessions may release such accused person in exercise of power under Sec. 439 of the Code of Criminal Procedure. For releasing the undertrial accused persons on bail the High Court or the Court of Sessions is vested with the discretionary power. (1) of Sec. 437 of the Code of Criminal Procedure and the High Court or the Court of Sessions may release such accused person in exercise of power under Sec. 439 of the Code of Criminal Procedure. For releasing the undertrial accused persons on bail the High Court or the Court of Sessions is vested with the discretionary power. In case of convicted persons the appellate Court may pending any appeal by the convicted person for the reasons to be recorded in writing order that the execution of the sentence be suspended and the appellant may be released on bail or on his own bond. The Code of Criminal Procedure has therefore laid down specific procedure and vested discriminatory power in the High Court to which the Appeal is preferred to admit the appellant on bail. Reasonable and fair procedure is prescribed by the Code. The Code does not provide releasing on bail the appellant on the ground of delay in the disposal of the Appeal. Prescribing any time limit for the disposal of appeal and in case period of limitation expiring creating the right of the appellant to be admitted to the bail would certainly limit the judicial discretion vested in the High Court under Sec. 389 of the Code of Criminal Procedure. The discretion vested in the Court is required to be exercised judiciously in the light of the facts and circumstances of each case which may in certain circumstances include the inordinate delay in the disposal of the appeal the nature of offence quantum of sentence etc. In my view the discretion vested in the High Court should not be circumscribed or limited by fixing the time limit for the disposal of the Appeal. Considering the facts and circumstances of the particular case the High Court may hold that under delay in disposal has violated fundamental right of fair and reasonable procedure guaranteed in Art. 21 of the Constitution of India. Application dismissed. .