NGO says 657 criminal appeals are pending for decades.

Nearly 17 years ago, 47-year-old RTO officer Chetan Prakash (name changed) was caught by the Anti-Corruption Bureau (ACB) for accepting a bribe of Rs 50 on a national highway outside Mumbai. He was convicted for the offence in 2000, and was released on bail. But, his appeal against the conviction filed before the Bombay High Court is pending since 2004.

Prakash’s appeal is just one of hundreds of such appeals pending before the Bombay High Court. Legal eagles and retired judges point out several reasons for the huge backlog of pending appeals, including need for more judges, unavailability of adequate free aid lawyers, shortage of police personnel to transport undertrials, and lack of priority in the judicial system in taking up appeals.

According to Daksh, a Bengaluru-based NGO, 657 criminal appeals are pending before the High Court at present. While actor Salman Khan’s appeal against his conviction in the 2002 hit-and-run case was disposed off in seven months, many others continue to await their turn.

In July 2015 while the HC was hearing Mr Khan’s appeal against his conviction, a woman filed a petition highlighting how her incarcerated husband and several other convicts have been languishing in jail for years without bail and struggle to ensure that their appeals are heard. She submitted that her husband was convicted in a murder case in 2009 and he had urged for bail, but the plea had been rejected.

In September 2015, the HC dismissed the petition stating, “It does not require a lot of imagination to infer that the attempt of the petitioner appears to delay the hearing of a criminal appeal of 2015 filed by a ‘celebrity’. The writ petition, cannot, therefore, be treated as bonafide and is dismissed.”

The court also said, “The court has the discretion to issue necessary direction for early listing of a criminal appeal which may not be in accordance with the date of filing. Such discretion is exercised by the court concerned depending on the facts and circumstances of each case and such judicial discretion cannot be taken away in exercise of writ jurisdiction under Article 226 (every HC shall have all the powers to direct and order) of the Indian Constitution.”

Case studies

In 1988, Ashok Namdar (name changed ) was working as a government employee and was arrested by the ACB for accepting a bribe of Rs 100. He apparently accepted Rs 50 for his colleague. He was convicted under the Prevention of Corruption Act. Out on bail, he filed an appeal at the HC in 1998. In 2005, the HC said since the appeal was pending since 1998, it should be placed for final hearing in January 2006. Due to his pending criminal appeal, the septuagenarian has still not received his pension. The hearing on the appeal, meanwhile, has been adjourned to end of January 2016.

Hearing dates

While both these men are out on bail, an undertrial at the Taloja jail has not been produced before the HC on 22 hearing dates since 2010 when he was first lodged at the jail. On learning that the undertrial was never produced in the last five years, an annoyed HC bench recorded, “Non-production of undertrial prisoners on the dates of hearing of the cases appears to be quite common and routine. This is not proper. The undertrials remain in prison because they are not granted bail. The undertrial prisoners are required to be produced before the court by the police who are employed for that purpose”.

Another case is of a 27-year-old man, who was in love with a girl, faced a rape charge from the girl’s family and was convicted by the lower court. Though the couple is now married, his appeal against the conviction is still pending at the High Court since 2009.

Expert comments

Citing reasons for delay in hearing the cases and suggesting ways to deal with it, retired judges of the Bombay High Court and top criminal lawyers share their views.

Justice A R Joshi, who recently retired from the High Court, said, “When the accused is out on bail and the appeal is kept pending, parties may not be interested in going after it and taking up the matter expeditiously. And even though the convict is in jail, the reasons for delay range from lawyers not being present in court to unavailability of free aid lawyers for their representation. This causes a huge problem of pendency.”

Criminal lawyer Majeed Memon, who is also a Rajya Sabha MP and a member on the standing committee on Law and Justice, said, “The deficiency of number of judges and inadequate infrastructure lead to the delays. The Constitution of India and various governments in power have been repeatedly assuring the common people for ‘speedy and inexpensive justice’ which does not seem to be materialising on the ground.”

Former Chief Justice of the Bombay High Court, Mohit Shah also echoed Mr Memon. Mr Shah said, “Apart from less number of judges, the other problem is that people move HC for final appeals. They had already spent so much time and money at the trial court and after that for bail applications that they do not have anything left to fight it out at HC. This issue needs to be addressed by the lawyers, litigants and the courts.”

Incentives for lawyers

Senior counsel Shirish Gupte said, “There are two things that need to be done to tackle the menace of pendency. Firstly, appointments of more number of judges at the HC, and young lawyers have to be incentivised to take up judgeship. Secondly, in our country, litigation is increasing disproportionately so the right to appeal has to be curbed. Appeals in petty offences, for instance, traffic offences can be easily curbed and should be curbed.”

Senior counsel Amit Desai said, “The present strength of the judiciary is a serious issue. The sanctioned strength stands at 94, but there are just 59 judges in the High Court. Second challenge is concerning old appeals. In many instances, the parties are no longer available, and therefore fresh notices have to be issued and a mechanism has to be put in place for handling them swiftly.” Mr Desai added, “The accused who are in custody should be given priority.”