40 years after rape and murder, Supreme Court asks Calcutta High Court to prioritise convict's appeal

The Supreme Court recently directed the Calcutta High Court to hear on priority an appeal by a 75-year-old lawyer convicted in a case of rape and murder which happened in 1983 [Banamali Choudhury vs State of West Bengal].

In an order passed on September 25, a bench of Justices Abhay S Oka and Pankaj Mithal acknowledged that the apex court should not normally set a specific time schedule for the High Court to decide a case.

However, considering that the trial took forty years to conclude, the top court requested the High Court to prioritize the appeal out of turn.

"Normally, this Court should not issue a direction to a Constitutional Court and for that matter to any court, to fix a time schedule to decide any case. However, this case has a peculiar feature that the trial has taken forty years to conclude. We, therefore, request the High Court to give out of turn priority to the disposal of the appeal in accordance with law," the Court said.

On April 21, 2023, a trial court convicted the appellant for raping and killing his niece in 1983. The trial court drew an adverse inference against him when he refused to provide his semen upon the request of the investigating agency.

The appellant's appeal against this order in the Calcutta High Court was admitted.

Subsequently, he moved an application under section 389(1) of the Code of Criminal Procedure (CrPC) for the suspension of his sentence and bail while his appeal was pending.

He contended that the evidence on record was insufficient to establish incriminating circumstances relied upon by the prosecution and claimed that the trial court relied on statements of hostile witnesses before the Magistrate to arrive at a finding of guilt.

The High Court dismissed the plea on the ground that the appellant's conduct in refusing to provide semen when requested by the investigating agency warranted an adverse inference.

The right against self-incrimination does not extend to refusal of bodily fluids, the High Court said while relying on State of Bombay Vs. Kathi Kalu Oghad.

The Supreme Court determined that due to the delay in the trial, the appellant's age, and the passage of time since the incident, he deserved to be granted bail pending the final disposal of his appeal before the High Court.

"Considering the delay in disposal of the trial, the fact that the occurrence is of the year 1983 and the present age of the appellant, he deserves to be enlarged on bail, pending the final disposal of the appeal before the High Court on appropriate stringent terms and conditions," the Court said.

Accordingly, the Court set aside the order of the High Court and requested it to fix appropriate and stringent terms and conditions on which the appellant would be granted bail while his appeal against his conviction was pending.

Further, the Court noted that the appellant was a lawyer and therefore, was expected to ensure that the Court's order is implemented and the appeal before the High Court is disposed of expeditiously.

Consequently, it directed him not to request adjournments on unreasonable grounds and to cooperate with the High Court for a prompt resolution. The Court also granted the State the liberty to move for cancellation of bail in case the appellant's default causes any delays in the appeal's disposal.

The appellant was represented by Senior Advocate Jayant Sud and advocates Sunil Kumar Sharma, Rana S Biswas, Dinabandhu Choudhary, Ardhendu Ghosh, Aarushi Singh, Shreyash Lalit, Kartik Jasra, Shivam Nagpal and Prannit Stefano.

The State of West Bengal was represented by advocates Sunil Fernandes, Astha Sharma Sanjeev Kaushik, Priyanshi Sharma and Diksha Daddu.

[Read Order]