Period of Incarceration of Accused cannot be a Ground for Granting Bail u/s. 389 Cr.P.C. [Case Law]

Criminal Procedure Code, 1973 - S. 389 - Suspension of sentence pending the appeal; release of appellant on bail - The period of incarceration of the accused cannot be a ground for granting bail where the grant of bail is forbidden in law.

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Hon'ble Anil Kumar,J. & Hon'ble Sanjay Harkauli,J.

Order Date : 04.05.2018

Crl. Misc. Application No.124973 of 2017

In re; Case :- CRIMINAL APPEAL No. - 403 of 2015

Appellant :- Bholu Respondent :- State Of U.P.

Counsel for Appellant :- Mayank Pandey,Abdul Fazal Jaffrey,Kashif Haider,Manju Gupta,Manjusha Kapil,Nadeem Mazhar,Rajeev Sonker Counsel for Respondent :- Govt. Advocate,Rajesh Mishra

O R D E R 

(Per Anil Kumar, J. ) 

Heard Ms. Manju Gupta, learned counsel for the appellant and Ms. Roohi Siddiqui, learned Additional Government Advocate for the State on the second bail application moved on behalf of the appellant.

Ms. Manju Gupta, learned counsel for the accused-appellant submits that in the present case an F.I.R. dated 2.9.2008 was lodged against Sohan Lal, Kallu, Bholu and two unknown persons. During investigation, police had submitted charge-sheet against Vijay Kumar Gupta and Mohit Mishra however has not submitted charge-sheet against Sohan Lal and Kallu . She also submits that during trial Mohit Misra alias Golu was declared juvenile and on the same set of evidence, appellant has been convicted whereas co-accused/Vishal Gupta alias Chhotey has been acquitted Learned counsel for the appellant while pressing the second bail application of the appellant/ Bholu submits that the accused appellant is in jail for last about nine years , so taking into consideration the said facts as well as the law laid down by Hon’ble the Apex Court in the cases of Kaushal Singh Vs. State of U.P. passed in S.LP. [Crl.] No. 2356 of 2010, Pujari Yadav and others Vs. State of U.P. passed in S.L.P. [Crl] No. 7040 of 2016, Bhajan Lal Vs. State of U.P. reported in [2016] 3 JIC 918 ( All), Smt Akhtari Bai Vs. State of M.P reported in 2001 [2] JIC 163 SC, Takht Singh and others Vs. State of M.P. reported in [2001]10 Supreme Court Cases 463, Kamal Vs. State of Haryana reported in 2004(13) SCC 52 and also in the case of Fazal Vs. State of U.P. reported in (2012) 3 SCC ( Cri) 270 wherein Hon’ble the Apex Court has held that if the applicant is in jail for a long time and when there is no likelihood that appeal may be listed for hearing the appeal in near future, the bail may be granted on the ground of period of incarceration.

Accordingly it is submitted by learned counsel for the appellant that in the present case accused appellant is in jail for the last about nine years and this appeal is not likely to be heard in near future due to pendency of heavy docket and taking into consideration Article 21 of the Constitution of India as well as the law laid down by Hon’ble the Supreme Court in th case of Hussain and another Vs. Union of India , 2017 (1) JIC 939 (SC) the appellant is entitled for bail .

Ms. Roohi Siddiqui, learned A.G.A. while opposing the prayer bail of the accused appellant submits that period of incarceration in jail cannot be a ground to grant the bail of the accused-appellant , the same shall be considered on merit looking into the nature of offence which has been committed by the accused appellant.

She further submits that on the basis of material on record, trial court came to the conclusion that accused appellant has committed two murders and one murder which has been committed by the accused appellant is brutal one. This Court after considering the findings recorded by the court rejected the first bail application of the appellant vide order dated 21.11.2017, the relevant portion of the order is quoted below: 

“Submission of learned counsel for the appellant is that on the same set of evidence, appellant has been convicted whereas other co-accused has been acquitted. Learned counsel for the appellant has placed reliance upon a judgment reported in 2015 (2) JIC 422 SC: Hari Shanker V State of U.P. but we find that the said judgment is not applicable in the facts and circumstances of the present case. The point involved in the present case is as to whether on the same set of evidence, appellant has been convicted and other co-accused have been acquitted.

Having gone through the record, we find that accused-appellant continued to drink wine and thereafter committed brutal murder of the deceased.

Considering the facts and circumstances of the case and also the finding recorded by the trial court, we do not find any good ground to release the applicant on bail.

Accordingly, bail application of applicant-Bholu is rejected.” 

Learned A.G.A. further submits that in the judgment of Hon’ble Apex Court in the case of Hussain and another (supra) in para 27 has laid down the certain guidelines which has to be taken into consideration by the court while considering the bail application, same reads as under:- 

“26. Judicial service as well as legal service are not like any other services. They are missions for serving the society. The mission is not achieved if the litigant who is waiting in the queue does not get his turn for a long time. Chief Justices and Chief Ministers have resolved that all cases must be disposed of within five years which by any standard is quite a long time for a case to be decided in the first court. Decision of cases of undertrials in custody is one of the priority areas.

There are obstructions at every level in enforcement of right of speedy trial – vested interests or unscrupulous elements try to delay the proceedings. Lack of infrastructure is another handicap. Inspite of all odds, determined efforts are required at every level for success of the mission. Ways and means have to be found out by constant thinking and monitoring.

Presiding Officer of a court cannot rest in the state of helplessness. This is the constitutional responsibility of the State to provide necessary infrastructure and of the High Courts to monitor the functioning of subordinate courts to ensure timely disposal of cases. The first step in this direction is preparation of an appropriate action plan at the level of the High Court and thereafter at the level of each and every individual judicial officer.

Implementation of the action plan will require serious efforts and constant monitoring.

27. To sum up: 

(i) The High Courts may issue directions to subordinate courts that – 

(a) Bail applications be disposed of normally within one week; 

(b) Magisterial trials, where accused are in custody, be normally concluded within six months and sessions trials where accused are in custody be normally concluded within two years; 

(c) Efforts be made to dispose of all cases which are five years old by the end of the year; 

(d) As a supplement to Section 436A, but consistent with the spirit thereof, if an undertrial has completed period of custody in excess of the sentence likely to be awarded if conviction is recorded such undertrial must be released on personal bond. Such an assessment must be made by the concerned trial courts from time to time; 

(e) The above timelines may be the touchstone for assessment of judicial performance in annual confidential reports.

(ii) The High Courts are requested to ensure that bail applications filed before them are decided as far as possible within one month and criminal appeals where accused are in custody for more than five years are concluded at the earliest; (iii) The High Courts may prepare, issue and monitor appropriate action plans for the subordinate courts; (iv) The High Courts may monitor steps for speedy investigation and trials on administrative and judicial side from time to time; (v) The High Courts may take such stringent measures as may be found necessary in the light of judgment of this Court in Ex. Captain Harish Uppal Vs. Union of India, (2003) 2 SCC 45.” 

Accordingly , learned A.G.A. submits that looking into the nature of the crime which was committed by accused appellant, the second bail application of the accused-appellant may be rejected.

We have heard learned counsel for the parties and gone through the records for the purpose of considering the application for bail moved on behalf of the accused-appellant in S.T. No.1110 of 2009.

Under the Code of Criminal Procedure, Section 389 expressly and specifically deals with suspension of sentence pending appeal and release of appellant on bail. It states; 

“Section 389”- Suspension of sentence pending the appeal; release of appellant on bail:- (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also if he is in confinement, that he be released on bail, or on his own bond.

(2) The power conferred by this section on a Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall-- (i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

Hon’ble the Apex Court in the case of State of Haryana vs. Hasmat 2004 SCC (Crl.) 1757 while considering the provisions of Section 389 Cr.P.C. held as under :- 

“Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.

The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the period the accusedrespondent was granted parole.” 

In the case of Siddartha Vashisht (Supra), Hon’ble the Apex Court held as under :- 

“Bare reading of the above provision makes it clear that during the pendency of appeal, an appellate court is empowered to suspend sentence on the appellant by releasing him on bail. Such action, however, can be taken only after affording opportunity to the Public Prosecutor in case of offence punishable with death or imprisonment for life or imprisonment for ten years or more and after recording reasons in writing.” 

In the case of Angana and another vs. State of Rajasthan (2009) 3 SCC 767 after placing the following judgment ; 

“Takht Singh v. State of M. P., (2001) 10 SCC 463 : 2003 SCC (Crl.) 800; Kashmira Singh vs. State of Punjab, (1977) 4 SCC 291 : 1977 SCC (Crl.) 559; Babu Singh vs. State of U.P. (1978) 1 SCC 579: 1978 SCC (Crl.) 133; Emperor vs. H. L. Hutchinson, AIR 1931 All 356; Bhagwan Rama Shinde Gosai vs. State of Gujarat, (1999) 4 SCC 421; 1999 SCC (Crl.) 553; Suresh Kumar vs. State (NCT of Delhi), (2001) 10 SCC 338 : 2002 SCC (Crl.) 1043 and Kishori Lal vs. Rupa, (2004) 7 SCC 638 : 2004 SCC (Crl.) 2021; Vasant Tukaram Pawar vs. State of Maharastra, (2005) 5 SCC 281 : 2005 SCC (Crl.) 1052 ; Sidhartha Vashisht vs. State (NCT of Delhi), (2008) 5 SCC 230 : (2008) 2 SCC (Crl.) 571; Gomti vs. Thakurdas, (2007) 11 SCC 160 : (2008) 1 SCC (Crl.) 644,” 

Hon’ble the Apex Court has held as under : 

“In Kishori Lal Vs. Rupa and Others, (2004) 7 SCC 638, this Court has indicated the factors that require to be considered by the courts while granting benefit under Section 389 in cases involving serious offences like murder etc., it is useful to refer to the observations made therein. They are :- 

“4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accusedrespondents were on bail.” 

Hon’ble the Apex Court in the case of Shyam Narain Pandey vs. State of Uttar Pradesh (2014) 8 SCC 909 held as under :- “

It has been consistently held by this Court that unless there are exceptional circumstances, the appellate court shall not stay the conviction, though the sentence may be suspended. There is no hard and fast rule or guidelines as to what are those exceptional circumstances. However, there are certain indications in the Code of Criminal Procedure, 1973 itself as to which are those situations and a few indications are available in the judgments of this Court as to what are those circumstances.

It may be noticed that even for the suspension of the sentence, the court has to record the reasons in writing under Section 389(1) Cr.PC. Couple of provisos were added under Section 389(1) Cr.PC pursuant to the recommendations made by the Law Commission of India and observations of this Court in various judgments, as per Act 25 of 2005. It was regarding the release on bail of a convict where the sentence is of death or life imprisonment or of a period not less than ten years. If the appellate court is inclined to consider release of a convict of such offences, the public prosecutor has to be given an opportunity for showing cause in writing against such release. This is also an indication as to the seriousness of such offences and circumspection which the court should have while passing the order on stay of conviction. Similar is the case with offences involving moral turpitude. If the convict is involved in crimes which are so outrageous and yet beyond suspension of sentence, if the conviction also is stayed, it would have serious impact on the public perception on the integrity institution. Such orders definitely will shake the public confidence in judiciary. That is why, it has been cautioned time and again that the court should be very wary in staying the conviction especially in the types of cases referred to above and it shall be done only in very rare and exceptional cases of irreparable injury coupled with irreversible consequences resulting in injustice.” 

Under our Constitution, speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by Hon’ble Supreme Court in the case of Maneka Gandhi v. Union of India, AIR 1978 Supreme Court 597 wherein it has been held that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be reasonable, fair and just.

If a person is deprived of his liberty under a procedure which is not 'reasonable', fair and just, such deprivation would be violative of his fundamental right under Article 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 Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.

The question which would, however, arise is as to what would be consequence, if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21.

Would he be entitled to be released unconditionally freed from the charge levelled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21. (See Kadra Pehadiya and Ors. v. State of Bihar, AIR 1981 Supreme Court 939) Deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21.

Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters.

Thus, speedy trial is a fundamental right implicit in the broad sweep and content of Article 21 of the Constitution of India. The aforesaid Article 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.

If a person is deprived of his liberty under a procedure which not reasonable, fair, or just, such deprivation would be violative of his fundamental right under Article 21 of the Constitution of India. It has also been emphasized by Hon’ble the Apex Court that the procedure so prescribed must ensure a speedy trial for determination of the guilt of such person. It is conceded that some amount of deprivation of personal liberty cannot be avoided, but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt.

Hon’ble the Apex Court in the case of Kashmir Singh v. State of Punjab, AIR 1977 SC 2147 held as under : 

"The appellant contends in this application that pending the hearing of the appeal he should be released on bail. Now, the practice in this Court as also in many of the High Courts has been not to release on bail a person who has been sentenced to life imprisonment for an offence under Section 302 of the Indian Penal Code.

The question is whether this practice should be departed from and if so, in what circumstances. It is obvious that no practice, however sanctified by usage and hallowed by time, can be allowed to prevail if it operates to cause injustice. Every practice of the Court must find its ultimate justification in the interest of justice. The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within i reasonable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period.

The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would, indeed, be travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified ? Would it be just at all for the Court to tell a person : "We have admitted your appeal because we think you have a prima facie case, but unfortunately, we have no time to hear your appeal for quite a few years, and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent"? What confidence would such administration of justice inspire in the mind of the public ? It may quite conceivably happen, and it has, in fact, happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a Judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal ? Would it not be an affront to his sense of justice ? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it ? It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and as long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in case where special leave has been granted to the accused to appeal against his conviction and sentence." 

In the case of Akhtari Bi’s (Smt.) vs. State of M. P. [2JJ]; (2001) 4 SCC 355, Hon’ble the Apex Court has held as under :- 

“To have speedy justice is a fundamental right which flows from Article 21 of the Constitution. Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers a right upon him to apply for bail. This Court has, time and again, reminded the executive of their obligation to appoint requisite number of judges to cope with the everincreasing pressure on the existing judicial apparatus.

Appeal being a statutory right, the trial court's verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction. It is unfortunate that even from the existing strength of the High Courts huge vacancies are not being filled up with the result that the accused in criminal cases are languishing in the jails for no fault of theirs. In the absence of prompt action under the constitution to fill up the vacancies, it is incumbent upon the high courts to find ways and means by taking steps to ensure the disposal of criminal appeals, particularly such appeals where the accused are in jails, that the matters are disposed of within the specified period not exceeding 5 years in any case. Regular benches to deal with the criminal cases can be set up where such appeals be listed for final disposal. We feel that if an appeal is not disposed of within the aforesaid period of 5 years, for no fault of the convicts, such convicts may be released on bail on such conditions as may be deemed fit and proper by the Court. In computing the period of 5 years, the delay for any period, which is requisite in preparation of the record and the delay attributable to the convict or his counsel can be deducted. There may be cases where even after the lapse of 5 years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the disposal of the appeals filed by them. We request the Chief Justices of the High Courts, where the criminal cases are pending for more than 5 years to take immediate effective steps for their disposal by constituting regular and special benches for that purposes." 

In the case of Takht Singh' and others vs. State of M.P. [2JJ]; (2001) 10 SCC 463, Hon’ble the Apex Court has held as under :- 

"1. Leave granted.

2. The appellants have been convicted under Sections 302/149 I.P.C by the learned Sessions Judge and have been sentenced to imprisonment for life. Against the said conviction and sentence their appeal to the High Court is pending. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year.

After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. The appeal is disposed of accordingly." 

A Division Bench of this Court after taking into consideration the following cases : 

“Akhtari Bi (Smt) Vs. State of M.P.[2JJ.] (2001) 4 SCC 355; , Surinder Singh Alias Shingara Singh vs. State of Punjab[2 JJ.] (2005) SCC (Cri) 1674; P.Ramachandra Rao vs. State of Karnataka [5 JJ.] (2002) (4) SCC 578 ; Babu Singh and others vs. State of U.P.[2JJ.] (1978)1 SCC 579 ; Takht Singh and others Vs. State of M.P.[2JJ.] (2001) 10 SCC 463; Special Leave to Appeal (Crl) No.2356 of 2010, Kushal Singh vs. State of U.P.[2JJ.] and , Fazal vs. State of Uttar Pradesh [2JJ.] (2012) 3 SCC (Cri)270=(2012)5 SCC 752.” 

By order dated 14.03.2018 in Criminal Appeal No.1233 of 2014 “Sarvesh vs. State of U. P.” has held as under :- 

“The law on the issue of suspension of sentence in view of long custody period, wherein the appeal is not likely to be heard in near future appears to be clear from the above noted judgments.

From the above noted judgments of Hon'ble Supreme Court of India it becomes evident that right to speedy trial is enshrined in Article 21 of the Constitution of India.

Speedy trial would include investigation, enquiry, trial, appeal, revision and retrial etc. i.e. everything commencing with the accusation against the accused, and expiring with the final verdict of the last court.

It has further been held in law that 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 Article 21 of the Constitution of India. The procedure so prescribed must ensure speedy trial for determination of the guilt of such person. Some amount of deprivation of personal liberty cannot be avoided, but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 of the Constitution of India would receive a jolt.

The practice not to release on bail a person who has been sentenced to life imprisonment so long as his conviction and sentence are not set aside is on the premise that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for a 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 5 or 6 years for an offence which is ultimately found not to have been committed by him. The court, in such circumstances can never compensate him for his incarceration. In case of such long incarceration the acquittal would to some extent be meaningless.

It has been held that in the matter of suspending the sentence pending appeal the court should consider the following guidelines vis. unless a life convict has undergone 5 years imprisonment, he should not be released on bail. In a given case, however, having regard to the evidence on record and reasoning of the court convicting the accused, the High Court in an appeal may be persuaded and justified in granting bail to the appellant even while admitting his appeal.

Period of 5 years would be reduced to four years for females and minors.

These guidelines shall not be applicable in cases where the very grant of bail is forbidden in law. The Hon'ble Supreme Court of India has clarified that the above noted periods be considered as guidelines and should not be understood to have laid down an invariable rule to be observed with mathematical precision.

There may be cases where even after lapse of 5 years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the disposal of the appeals filed by them.

Above extracted portions from judgements also indicate that the Hon'ble Supreme Court of India in a number of cases without adverting to the facts of the case, or reasons for conviction, suspended the sentence solely on the ground that appellant had already been in jail for three years and three months, varying up to 8 years. In these orders the only reason assigned for grant of bail and suspension of sentence under Section 389 Criminal Procedure Code is the period under gone by the life convict.

The Hon'ble Supreme Court of India has particularly held that antecedent of a persons are required to be taken into account so that concession of bail is not abused. The likelihood of the bailee committing serious offence while on bail is required to be considered. From the above it is evident that it has been consistently held that while considering a motion for bail, the period already spent in prison and the prospect of the appeal being delayed for hearing, in view of large pendency, is a relevant criteria. It is in these circumstances we are required to consider the delay that is likely to be caused in hearing and disposal of the appeal.

Learned counsel for the State has not drawn attention of the Court towards any fact or circumstance that would indicate that the applicant is a habitual offender. Learned State counsel has not drawn attention of the Court towards any fact or circumstance, which would indicate past record of the applicant to suggest that he is likely to commit serious offence while on bail.

Considering the long period of incarceration and the fact that the present appeal is not likely to be listed for hearing for decades, we hereby allow the application.

Applicant-appellant Sarvesh S/o Ramu is directed to be released on bail to the satisfaction of the Chief Judicial Magistrate, Sitapur.” 

In the light of the above said facts, although High Court has got power under Section 389 Cr.P.C. for suspension of sentence pending appeal and release of appellant on bail taking into consideration the period of incarceration of an accused-appellant when there is no likelihood that the present appeal may be listed for hearing in near future but no straight-jacket formula can be laid down only for grating bail on the ground of period of incarceration.

The said power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences but such power must be exercised with great circumspection and caution.

The court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examine whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it.

The court additionally, must record in writing, its reasons for granting such relief and discuss in detailed the background of the appellant, the nature of the crime, manner in which it was committed, etc. and the evidence which has been produced by the prosecution in order to prove that crime has been committed by the accused-appellant and in what manner, the same has been dealt by the trial court while passing the judgment of conviction.

In the case when the accused are old aged person or suffering from serious medical ailment, his bail application be considered on the ground of period of his incarceration vis-a-vis the crime committed by him for which he has sent to jail.

The period of incarceration of the accused-appellant cannot be a ground for granting his bail where the grant of bail is forbidden in law.

Now rebutting to the facts of the case it is not in dispute that first bail application of accused appellant was rejected by this Court on 21.11.2017 after considering his role in commission of crime as well as the findings recorded by the trial court.

In the instant matter learned counsel for the accused-appellant has only pressed second bail application on the point of period of incarceration which is of nine years of jail and no other point has been argued.

Further, while rejecting the first bail application of the accusedappellant, this Court has taken into consideration the findings recorded by the learned trial court as well as the fact that role of the accusedappellant is distinguishable from the co-accused Vishal Gupta alias Chhotey, who has been acquitted by learned trial court. Hence, looking into the facts and circumstances of the case on the point of incarceration in jail of nine years , we do not find any good ground to allow the second bail application of the accused-appellant.

Accordingly, the second bail application of the appellant/ Bholu is rejected.