Mere possession of a deadly weapon during dacoity is sufficient to convict under Section 397 of the Penal Code, but simultaneous conviction under Sections 395 and 412 for the same act of dacoity is impermissible.

A. M. BHATTACHARJEE, J.

( 1 ) MY learned brother Nandi, J. has held in his judgment to be delivered now that there is nothing on record to justify our intervention in revision in respect of the order of conviction passed against and the sentence imposed upon the accused-petitioner under Section 395/397 of the Penal Code condemning him to suffer rigorous imprisonment for seven years. I agree with him and also share his sense of shock and dismay at the fact that by the time we could find time in 1989 to hear this Revisional application filed in this Court in 1982, the petitioner had to fully serve out the sentence of seven years rigorous imprisonment.

( 2 ) BUT suppose we ruled otherwise and held that the revision was to be allowed and the orders of conviction and the resultant sentence were to be quashed? Who was then to compensate the accused for all the agony and strain suffered by him under an unlawful order of conviction and sentence?

( 3 ) IT is true that under our Code of Procedure, an order of conviction and sentence are not automatically suspended during any appeal or revision against such order. It is also equally true that under our Code, setting aside of conviction and sentence by the higher Court does not, by itself, entitle the accused to any compensation. Section 250 of the Code only provides for some sort of compensation when a Magistrate discharges or acquits an accused in a case triable and tried by the Magistrate. But that is a compensation for accusation without reasonable cause. But I am on a different question, the question being when the accused had to suffer a long term imprisonment under an order of conviction, though subsequently set aside on appeal or revision, only because of the inordinate delay made by the higher Court in disposing of the proceeding pending before it, is he entitled to be compensated under the Code and, if so, by whom ? Even if we can extend the principles of Section 250 to acquittal by the higher Courts in appeal or revision, such acquittal may very often be on the ground that the accusation is not proved or on some other ground, and not necessarily on a finding "that there was no reasonable ground for making the accusation" as envisaged in Section 250.

( 4 ) AS pointed out by the Supreme Court in Hussainara Khatoon, AIR 1979 SC 1360 at pp. 1364-65: (1979 Cri LJ 1036 at pp. 104041), it is a crying shame, a sad reflection on our legal and Judicial system and our Institution that a criminal appeal or revision takes about seven years for disposal, when delay of even one year is bad enough. As pointed out therein further, and also in a series of later decisions, there can be no doubt that speedy, i. e. reasonably expeditious trial, and here trial would obviously mean the continuance of a criminal prosecution in all the stages, before the first as well as all successive higher Courts, is an integral and essential part of the fundamental right to life and liberty enshrined in Art. 21 of the Constitution. Have we not in this case, by taking about seven years to hear and dispose of this Criminal Revision. For no fault of the accused, or even the prosecution, denied the accused this fundamental right?

( 5 ) IN Rudul Sah, AIR 1983 SC 1086: (1983 Cri LJ 1644), the Supreme Court came down with heavy hands and mulct the State in payment of compensation for detaining the petitioner illegally in the prison for a long number of years even after he was acquitted after a full-dressed trial. We could not do so in this case, even if we allowed the revision, as the delay has not been occasioned by the Executive Government, but is solely due to our unreasonable and unjustifiable inaction. True, so long the majority decision of the nine-Judge Bench of the Supreme Court in Naresh Sridhar Mirzakar (AIR 1967 SC 1 would stand, the Judiciary may not be regarded to be a "state" within the meaning of Article 12 in Part III of the Constitution. But notwithstanding this decision, can we escape condemnation if

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