26 Sep 2023 5:13 AM GMT
The Supreme Court on Monday (September 25) granted bail to a septuagenarian convicted of raping and murdering his niece in view of the extraordinary delay of 40 years in the completion of the trial. The court also directed the high court to give ‘out-of-turn’ priority to his appeal.A bench of Justices Abhay S Oka and Pankaj Mithal was hearing an appeal against a May 2023 order of the...
The Supreme Court on Monday (September 25) granted bail to a septuagenarian convicted of raping and murdering his niece in view of the extraordinary delay of 40 years in the completion of the trial. The court also directed the high court to give ‘out-of-turn’ priority to his appeal.
A bench of Justices Abhay S Oka and Pankaj Mithal was hearing an appeal against a May 2023 order of the Calcutta High Court refusing to suspend the convict’s sentence. Noting, in particular, an adverse inference drawn by the convicting court on the basis of the appellant’s refusal to share his semen sample with the investigating agency, a division bench of the high court rejected the bail plea after holding that the conviction was not ‘perverse’.
During yesterday’s hearing, the apex court, on the other hand, pulled up the West Bengal government for the undue delay in the completion of the trial. The bench also expressed surprise at the convict being sent to custody after 40 years since the incident, even while his appeal is pending in the high court –
“The incident is from 1983. The accused was on bail throughout. After 40 years, he is sent to custody, when his appeal is pending…Is State not concerned with the fact that the trial took 40 years?”
“This is a fit case where this court may direct the high court to take it up immediately,” Advocate Sunil Fernandes said, appearing for the state government. At the same time, he strongly opposed the idea of releasing the accused on bail. He pointed out that the trial had progressed till the stage of final arguments between 1983 and 1988, but at that juncture, the accused moved an application under Section 311 of the Code of Criminal Procedure seeking the introduction of new evidence in the form of a purported suicide note of the victim. The trial court dismissed the application noting that the suicide note was neither in the first information report (FIR), nor did it find any mention in the charge-sheet. Against this, he filed an appeal in the high court.“From 1988 to 2018 – for 30 years – the trial could not proceed after a stay order was passed,” Fernandes told the bench.
In response, Justice Oka pointed out that by not applying for the stay to be vacated, the State had contributed to the delay. Accepting that the state government was partially blameworthy, Fernandes argued that the accused could not be allowed to “derive the benefit of the system”. After the Supreme Court, in its 2020 Asian Resurfacing ruling, directed all stay orders on civil or criminal proceedings to be vacated automatically after six months unless extended by a speaking order, the public prosecutor moved an application to vacate the stay in this matter, the counsel informed the bench. “That application itself took four years to adjudicate,” he exclaimed.
“But this is not his fault,” Senior Advocate Jayant K Sud protested on behalf of the convict.
On being asked about the non-production of the purported suicide note, Fernandes said, “He did not produce the suicide note, but filed an application seeking a direction to the investigating officer to produce it. But it could not be produced because there was no such note. The trial court dismisses it holding that it was a fictional application meant solely to prolong the trial.”
The counsel further argued –
“It’s a gruesome act. The accused strangulated his niece after raping her and then burnt her body. For 40 years, he has benefitted. It’s a system at the end of the day. A part of the blame lies with the State. But he is not innocent. He is a direct beneficiary of the 34-year delay. He has now been sentenced for life but has only spent five months in jail. Either he is asking for bail on medical grounds, in which case, his medical reports do not support his claim; or he is asking to be released on bail on merits. But how can he be asked to be released on bail on the merits of the matter after only spending five months in jail when he has been awarded a life sentence?”
The bench stressed that there was no rule prescribing a specific period of incarceration before being eligible for bail. Justice Oka also declined the West Bengal government’s request for two weeks’ time to file a counter-affidavit in response to the bail plea, pointing out that all relevant material had already been placed on record before the trial court. The judge observed –
“On first principles, all throughout the trial, he was out on bail. We are not dealing with who is responsible for the delay. But after 40 years, his appeal is admitted. Pending appeal, should he remain in jail? The State itself did not move for the stay to be vacated?”
Fernandes argued that there was a ‘crucial difference’, since the appellant had now been sentenced to life imprisonment. “He was out on bail when he was not convicted. Now, he has been convicted.” Once again, he suggested that the high court be directed to expeditiously dispose of the appeal.
“This is a situation created by the system,” Justice Oka remarked.
“Therefore, he cannot be allowed to benefit from that,” Fernandes argued.
Despite the counsel’s protestations, the apex court ultimately ordered in favour of the appellant. While allowing his appeal, the bench pronounced –
“Leave granted. The occurrence is of 1983. There are reasons and reasons why the trial was delayed. The trial came to an end with an order of conviction in April 2023. The appellant was out on bail throughout. His present age is about 75 years. His appeal has been admitted for final hearing. Considering the delay in the disposal of the trial and the fact that the occurrence is of 1983, the appellant deserves to be enlarged on bail pending the hearing of the appeal on appropriate stringent terms and conditions. By setting aside the impugned order, we request the high court to fix appropriate stringent terms and conditions on which the appellant can be enlarged on bail, pending the final disposal of the appeal. Normally, this court should not issue a direction to a constitutional court or for that matter, any court, to give out-of-turn priority to any case. However, this case has peculiar features. The trial has taken 40 years. We, therefore, direct the high court to give out-of-turn priority to the disposal of the appeal in accordance with law.”
Banamali Choudhury v. State of West Bengal | Special Leave Petition (Criminal) No. 10043 of 2023
Citation : 2023 LiveLaw (SC) 836
Click here to read the order