S.S.SANDHAWALIA, J.

1. The inherent quest for certainty and uniformity in the law, even in the discretionary arena of the grant or refusal of bail in substantive appeals on capital charges pending in the High Court has in essence necessitated this reference to the Full Bench.

2. More than four years ago the first information report against the petitioner and others was registered at Garkha Police Station, Garkha, on the 22nd July, 1982. on charges of murder and other offences. The petitioner was arrested soon thereafter and following the somewhat expeditious investigation the prosecution filed the charge sheet against the petitioner and his co-accused who were then committed to trial before the Court of Session. He was finally convicted for offences under Sections 302 read with S.34 and 333 IPC as also under S.27 of the Arms Act and was sentenced to life imprisonment on the capital charge and for two years and one yeas, respectively, on the charges though the sentences were to run concurrently. Throughout the trial, the petitioner was declined bail and remained in custody.

3. Criminal Appeal No. 151 of 1985 (Anurag Baitha V/s. State of Bihar) was then preferred by the petitioner along with his co-accused which came up for admission before the Division Bench on the 21st Feb., 1985. Whilst the two co-appellants were granted bail, the petitioner was declined the concession primarily on the ground that he was the main assailant to whom the primal role in the crime had been attributed. More than a year thereafter, whilst the petitioner was in continued incarceration, he renewed his prayer for bail primarily on the ground that his appeal could not lie possibly listed for hearing and disposal for a considerable time as yet. The matter came up before a Division Bench to which my learned Brother Abidi, J. was a party, which poignantly noticed the issue whether continuation in jail even after conviction could be authorised for a period too long to have any justification when the appellant is ready for hearing and the Court is primarily responsible for the delay. Noticing the two competing principles appearing to be conflicting, namely, one which is applied when the prayer for bail is refused on merits and the other has arisen on account of the long incarceration of the petitioner and the inevitable delay in the hearing of his appeal, the matter was referred to a larger Bench for laying down firm judicial guidelines to be applied in such cases. This is how the matter is before us now.

4. At the very threshold it must be said that though I have devoted deep and anxious consideration to the issues herein, it is my fond hope that the ratio of this judgement may prove to be truly ephemeral and at the earliest be relegated to the dead past. As is manifest, the issues herein arise entirely because of inevitable but nevertheless grave delays in the hearing of appeals in capital offences within this Court. The moment such appeals can be heard with just expedition as they should be, the question herein would obviously evaporate into the thin air. With some justifiable pride, it is to be recalled that right till the close of the year 1983 even murder appeals preferred in the year 1972 and well beyond a decade were still pending disposal. Fortunately these delays have been eliminated in their entirety within the jurisdiction of the Ranchi Bench of this Court where appeals filed in the current year itself are now being listed and disposed of. But for the fact that the Court has remained crippled by the absence of full one third of its sanctioned strength and as many as thirteen vacancies on this Bench have existed, there would have been no question of any delays in such hearings. This, however, was not to be. Yet hopefully the identical position of wiping out all delays at the Patna Bench itself would be reached well within the next year. However, there is no gainsaying the fact that as of today 1983 murder appeals only can be listed (barrin