Chapter. 2 Speeding Up The Wheels Of Criminal Justice System: A Human Rights Approach

“The wheel of justice, or the dharmachakra, is the logo of the Supreme Court of India,

which depicts the 3rd Century BC lion capital built by Emperor Ashoka, with an

inscription from the ancient and sacred Rig Veda, ‘yadho dharmasthadho jayah’,

meaning ‘victory is where justice reigns’.”1

Exploitation and domination by the powerful was a global phenomenon. And

man’s urge for plundering resources and exploiting fellow beings brought the

world community into war after war. The frequent wars brought with them

untold miseries for the weak and the meek and the whole human race was in

great turmoil. And it is only during such calamities as wars and disasters that

man becomes aware of his existence and the need for peaceful coexistence and

prosperity. The urge for peace prompted the people the world over to unite

for world peace, as the alternative was the devastating destruction of the

human race as a whole. It is interesting to note that it was after the world

wars that the world community floated international bodies with the primary

objective of achieving peace and prosperity. It was after World War I that the

League of Nations was attempted to be established in 1920. Again it was after

World War II that the United Nations was established in 1945.2

It was after the establishment of the UNO that the efforts to have a declaration

of human rights bore fruits. In 1948 the Universal Declaration of Human

Rights came to be adopted by the General Assembly of the United nations.

Every recital of the Preamble signifies the strong desire of the United Nations

to achieve common understanding of human rights and freedoms by all

1 The logo was adopted on January 28, 1950, when the court was first set up in the

Chamber of Princes, within the Parliament building in New Delhi, just two days after India became a republic.

2 . Criminal Justice Edited by Dr. K.I.Vibhute First Edition, 2004 p.n. 97

66

nations. The target of the Convention is the human race as a whole

irrespective of race, caste, creed, religion or region.

Article 3 declares3: ‘Everyone has the right to life, liberty and security of

persons.’ Article 5 states: ‘No one shall be subjected to torture or to cruel,

inhuman or degrading treatment or punishment.’ Article 8 declares:

‘Everyone has the right to an effective remedy by the competent national

tribunals for acts violating the fundamental rights granted him by the

constitution or by law.’ Article 9 stipulates: ‘No one shall be subjected to

arbitrary arrest, detention or exile.’

Article 10, 11 and 12 specifically address questions that are quite relevant for

our Criminal Justice System. Article 10 states: ‘Everyone is entitled in full

equality to a fair and public hearing by an independent and impartial

tribunal, in the determination of his rights and obligations and of any criminal

charge against him.’4

Article 11 lays down the fundamental principles of Anglo-Saxon

jurisprudence thus:

“(1) Everyone charge with a penal offence has the right to be presumed

innocent until proved guilty according to law in a public trial at

which he has had all the guarantees necessary for his defence.

(2) No one shall be held guilty of any penal offence on account of any act

or omission which did not constitute a penal offence, under national

or international law, at the time when it was committed. Nor shall a

heavier penalty be imposed than the one that was applicable at the

time the penal offence was committed.”

Article 125 has directed relevance to search and seizure. It lays down:

3 Universal Declaration of Human Rights,1948 4 Criminal Justice Edited by Dr. K.I.Vibhute First Edition, 2004 p.n. 98 5 Universal Declaration of Human Rights,1948

67

“No one shall be subjected to arbitrary interference with his privacy, Family, home or

correspondence, nor to attacks upon his honour and reputation. Everyone has the

right to the protection of the law against such interference or attacks.”

The purpose of the Universal Declaration was setting of norms. They are

general obligations that could be used for creating public opinion and an

environment conducive to the development of legally binding norms.

In fact after the Declaration was made the General Assembly of the UN has

come up with the International Covenant on Civil and Political Rights and

International Covenant on Economic, Social and Cultural Rights in 1966. Both

came into force in 1976.

The various Articles in the International Covenant on Civil and Political

Rights echo the principles enunciated in the Universal Declaration of Human

Rights. It is heartening to note that most of the fundamental principles of

criminal jurisprudence are seen reflected in the various Articles.

While Article 6 speaks about right to life and the need for abolition of the

death penalty, Article 7 strongly prohibits employment of torture or cruel and

unusual punishment. Article 9 in its every word proclaims that there should

be no illegal arrest, illegal detention and the fundamental requirement of

producing the arrested before a judicial magistrate without delay. It also

speaks about the need for compensating the infraction of right to liberty.

Article 10 lays down that the persons who are lawfully denied liberty should

be treated with dignity. It also say that the aim of imprisonment should be

rehabilitation. Article 14 consists of a package of procedural rights for persons

accused of crime. Presumption of innocence is held sacrosanct under this

Article. This Article also embodies vital principles like the protection against

double jeopardy, appellate rights, right to compensation for illegal

punishment, etc. Article 15 constitutes principle against the retroactivity of

criminal provisions.

68

Generally speaking, the International Covenant on Economic, Social and

Cultural Rights does not directly deal with the criminal justice system. In fact

it urges upon member States to make the individual economically socially and

culturally strong.6

2.1 Criminal Justice System in India In India, the administration of criminal justice system follows the Anglo-

Saxon-adversarial pattern. It has four vital units, namely, the police,

prosecution, judiciary and correctional institutions. These components are

supposed to work in a harmonious and cohesive manner with close co-

ordination and cooperation in order to produce desired results more

effectively, fairly and quickly. Moreover, the success or failure of the

administration of criminal justice depends upon the efficacy of these allied

units.

However, it is a common perception that administration of criminal justice in

our country is deteriorating day by day and laymen are losing faith in the

entire system due to obvious reasons. It is, therefore, repeatedly felt that there

is an urgent need to review the entire criminal justice system, especially

investigation of crime by the police and the prosecuting machinery due to

which conviction rate are declining at a very rapid pace. This has also been

attributed to the lack of continuous and effective co-ordination amongst the

law enforcement agencies, i.e. the police, magistracy, judiciary an correctional

administration in general, and the police and prosecuting agencies in

particular.7

(a) Police and Prosecution

Police, being a front-line segment of the criminal justice system, have a very

vital role to play in providing justice to needy persons. They are the ones who

arrest culprits and assist courts in discharging their judicial functions

effectively. The police have to facilitate the courts for conviction of the real

6 Criminal Justice Edited by Dr. K.I.Vibhute First Edition, 2004 p.n. 99. 7 . Ibid p.n. 142.

69

culprits in order to maintain and enhance the faith of the people in the

administration of criminal justice.

It has been observed that the Code of Criminal Procedure, overhauled in 1973,

has widened the gap between two vital units, namely, the police and the

prosecution at the operational as well as organizational levels. This has led to

a state of frustration and ambiguity. It has also been considered a sorry state

of affairs in the sense that the police and the prosecution are two sides of the

same coin as the police functioning has a direct bearing on the success or

failure in the prosecution of criminal cases in courts. The police have a very

vital role in marshalling facts, while the prosecution has a very crucial role in

effective presentation of the facts before the courts during trial proceedings.

The National Police Commission, in its fourth Report, has also observed that

the ultimate success of police investigations depends upon the efficiency of

the prosecuting agencies in presenting the evidence in courts in a convincing

and effective manner. It calls for a good measure of cooperation and

interaction between the investigating officers and prosecutors.

It has been observed since long that in most of the States, police are facing

serious problems of proper coordination and cooperation with the

prosecution due to their casual approach in dealing with cases in the courts,

want of adequate follow-up action of cases on their part and also due to the

lack of proper legal advice available to the investigation officers on

complicated legal matters which come up during investigation. The

prosecuting officers are not properly scrutinizing charge-sheeted cases before

putting them in court for trial. Consequently, the defence in such cases takes

advantage of negligence on the part of the prosecuting agencies in securing

acquittals despite the facts on record indicating prima facie guilt. This is

evident from the official data which reveals that the conviction rate has been

constantly declining. The Law Commission of India in its 14th Report8 has

8. Law commission of India: Fourteenth Report : Reform of Judicial Administration

(Government of India, New Delhi, 1958

70

also pointed out that defective investigation, delayed investigation and

the lack of legal assistance at the investigation stages often result in

acquittal.9

IPC Cases For Investigation and their Disposal by Police10

696155

1138588

1692060

2075718223737922468452169268

2303354236565824470632626687

2752687

586279

894354

1335994

164948717705111792730

16976641760022179654718096321967142

2065148

0

500000

1000000

1500000

2000000

2500000

3000000

1961 1971 1981 1991 2001 2002 2003 2004 2005 2006 2007 2008

The above figure shows that in 1961, 696155 cases were registered with the

police in which disposal was done on the part of the police only in 586279

cases, leaving pending 109876 cases at the end of the year. In 2001, 2237379

cases were registered with the police in which disposal was done on the part

of the police only in 1770511 cases, leaving pending 466868 cases at the end of

the year. In 2005, 2365658 cases were registered with the police in which

disposal was done on the part of the police only in 1796547 cases, pending

behind 569111 cases at the end of the year. But in 2008, 2752687 cases were

registered with the police in which disposal was done on the part of the police

only in 2065148 cases, pending behind 687539cases at the end of the year. It

seems from the above data that pendency of the cases on the part of the police

is increasing year by year that is not a good sign for the administration of

criminal justice system in our country.

9 Ibid p.n. 143. 10 National Crimes Record Bureau, Crimes in India-2008

71

(b) Non-registration of Cases

Non-registration of cases by the police constitutes one of the most serious

forms of violation of human rights. According to the National Police

Commission (1976), the most important factor responsible for non-registration

of complaints is the anxiety of the political executive in the State Governments

to keep the recorded crime figures low so that they can claim that crimes has

been well controlled and is going down because of the efficient and effective

police administration.

Again, it is noticed that subordinate officers avoid registration of cases on the

plea that the offence in question occurred in the jurisdiction of another police

station. As a result, a complainant is made to run from pillar to post to locate

a particular police station and get the case registered. Under section 154 of

Cr.PC the officer-in-charge of a police station has to register a case and draw

First Information Report (FIR) as soon as a complaint of a cognizable offence

is laid at the police station. There is no scope for non-registration of cases

under the pretext of jurisdictional controversy.11

(c) Arrest : An Arbitrary Approach of The Police

The power of the police to arrest is also often very grossly abused. The

National Police Commission, in its report, has adversely commented upon

abuse of this power by the police and perceived it as one of the prominent

sources of corruption in the police. The Report pointed out that nearly 60 per

cent of the arrests were unnecessary and unjustified. The Commission

estimated that 43.25 per cent expenditure in jails was over such prisoners,

whose detention, in ultimate analysis, was unwarranted and uncalled for.

The Supreme Court in Joginder Kumar v. State of U.P.12, has put clear

restrictions on the powers of police to make arbitrary arrests. The court has

laid down that the police need to contact one of the friends or relatives of an

arrestee who is likely to take interest in his welfare and also to inform the 11. Ibid p.n. 144. 12 (1994) 4 SCC 260: 1994 SCC (Cri.) 1172

72

arrested person of his right. An entry to this effect, it directed, is required to

be made in the station diary. Subsequently, the Apex Court in D.K. Basu v.

State of W.B.13, further streamlined the procedure relating to arrests.

These protections, according to the court of law, flow from Articles 21 and 22

(1) of the Constitution and are to be enforced strictly.

(d) Prisons

The working of prisons in India has been more complex in the fast-changing

social order of our democratic polity where a series of socio-economic

transformations, leading to social maladjustment, have taken place.

Awareness has considerably increased among the people about their

fundamental rights along with their enormous amount of expectations from

the law enforcement machinery including the prison administration.

Consequently new aspirations and value system have emerged in society.

It has been observed that the prison administration in India is encountered

with manifold problems in the changing scenario and has been considered as

a most neglected and disgruntled lot on the part of the State Governments

despite the fact that our jails have enormous potential to produce excellent

goods and respond positively to the correctional philosophy. Jails in India

will undoubtedly be more self-reliant in future if prisoners and prison staff

are relived from managing the unpredictable lot of under trials. Increasing

numbers of drug-traffickers and sexual offenders, along with under trials, in

our overcrowded prisons, are also posing a serious threat to prison

management, prison security and prison discipline. Such a situation,

obviously, makes the reformation and re-socialization of prisoners a difficult

and unattainable task.

The UN Minimum Standard Rules for Treatment of Prisoners (1955) also calls

for proper accommodation and separation of under trials and convicts. The

All-India Jail Manual Committee (1957-59) also suggested for separate

13 (1998) 6 SCC 380: Also see Ashok k. Johari v. State of U.P., (1997) 6 SCC 642).

73

institutions for under trial prisoners. None of these Standard Minimum Rules,

obviously, can be followed if there is overcrowding in prisons.

Our prison administration, like other agencies of our criminal justice system,

needs to be advanced in consonance with the ongoing developmental changes

on economic fronts, especially when our jails are getting a very limited, rather

very negligible, financial assistance form State Governments. ‘Prisons’ being a

State subject, the Central Government has a lot of administrative, legislative

and financial limitations to contribute effectively to prisons reforms in Indian

especially when a State Government exhibits an indifferent attitude in this

direction. It is now high time, as recommended by the All-India Jail Reforms

Committee (1980-83), to put ‘prisons’ in the Concurrent List of the Seventh

Schedule of the Constitution to boost prison reforms in India and to relieve

them from financial crunches.

It is not a secret that our existing prisons are overcrowded and the prison

population is dominated by a large chunk of under trails. And the prominent

factors associated with the overcrowding are:

an unpredictable number of under trials;

sudden influx of prisoners involved in petty offences;

shortage of authorized accommodations and other amenities in prisons;

lack of perspective prison-planning;

imbalance in the functional aspect of the bail system;

lack of special action in dealing with offenders involved in petty

offences; and

the shortcomings of our premature release mechanisms (like probation

and parole).

(e) Delay in Disposal of Cases

Article 21 of the Constitution of India, as interpreted by the higher judiciary,

incorporates in its ambit the right to speedy trial. The Supreme Court of India

74

has repeatedly emphasized that the right to speedy trial, even thought it is not

expressly indicated as a fundamental right in the Constitution, is implicit in

the spectrum of Article 21.

Disposal of IPC Cases by Courts during 200814

Disposal, 15.4%

Pendency, 84.6%

IPC Cases For Trial and their Disposal By Courts in 200815

800784 943394

2111791

3964610

62210346464748 6577778

67687136991508

71924517473521

7833842

242592 301869505412

667340931892 981393 959567 957311 1013240 1025689 1052623

1044120

0

1000000

2000000

3000000

4000000

5000000

6000000

7000000

8000000

9000000

1961 1971 1981 1991 2001 2002 2003 2004 2005 2006 2007 2008

14 National Crimes Record Bureau, Crimes in India-2008. 15 Ibid.

75

The above data shows that the institution of the cases year by year is

increasing very rapidly in comparison with the disposal of the cases by the

courts. That is not a good sign for our criminal justice system. Now it is the

paramount need of the hour to adopt the measures by which the institution of

the criminal cases in the traditional courts may be minimized. In this regard

some suggestions have been made in the last chapter of this work.

In view of this contention, there is an immediate need to devise an effective

mechanism to accelerate the disposal of cases as well in courts as one of the

Constitutional obligations in the spirit of Article 21 of the Constitution.

2.2 Speedy Trial: A Judicial Experience

The right to speedy trial is a fundamental right implicit in the guarantee of

Life and Personal Liberty enshrined in Article 21 of the Constitution. Article 21

of the Constitution of India mandate- “No person shall be deprived of his life or

personal liberty except according to the procedure established by law.”

While the 6th Amendment to the US Constitution expressly states that “in all

criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial”, our Constitution does not expressly declare this as a fundamental right.

The right to a speedy trial was first recognized in the first Hussainara Khatoon

case16, wherein the court held that a speedy trial is implicit in the broad sweep

and content of Article 21. In the second Hussainara Khatoon17 case, the

Supreme Court directed that all under trial prisoners against whom charge

sheets had not been filed within the limitation period should be released. In

the third Hussainara Khatoon case18, the Supreme Court observed that the State

could not avoid its constitutional obligation to provide for a speedy trial by

pleading financial or administrative inability. Directions were issued for

taking positive action like setting up new courts, providing more staff and

equipment to courts, appointment of additional judges and other measures

calculated to ensure speedy trial. 16 AIR 1979 SC 1360, 1365: (1980) 1SCCA 81. 17 AIR 1979 SC 1360, 1367: (1980) 1 SCC81. 18 AIR 1979 SC 1369: (1980) 1 SCC 98.

76

Subsequently, the importance of a speedy trial has been repeatedly

emphasized by the Supreme Court in State of Bihar v. Uma Shankar Kotriwal19,

Kadra Pahadiya v. State of Bihar20. Most of decisions until 1992 have been set

guidelines applicable to a speedy trial. Abdual Rehman Antulay v. R.S. Nayak21,

this decision was held to be correct in Ramachandra Rao v. State of Karnataka22.

In the context of Article 21, it was reiterated that a fair, just and reasonable

procedure include the right to a speedy trial. This right encompasses all stages

of trial: investigation, enquiry, trial, appeal, revision and retrial. The court

also emphasized the need for a balance. Sometimes accused himself is

responsible for the delay. Thus, where the accused is responsible for the

delay, the court will not quash the proceedings.

Where the trial court, owing to its insensitivity, delayed the trial of an accused

for over seven years due to the archaic methods it adopted and

correspondingly also denied bail to the accused, the court observed that the

bail application should be hear on merits and disposed of and the same

should not be influenced by the pending criminal trial.

In Mahendra Lal Das v. State of Bihar23 it was held that every delay may not be

taken as causing prejudice to the accused but the alleged delay has to be

considered in the totality of the circumstance and the conspectus of the case.

Right to speedy trial is contained in Article 9 (3) of International Covenants

on Civil and Political Right (ICC PR) provides that:

“Any one arrested or detained on a criminal charge shall be brought promptly

before a Judge or other officer authorized by Law to expresses judicial power

and trial with in a reasonable time or to release.”

It shall not be the general rule that the persons awaiting trial must be detained

in custody but release may be subject to guarantees to appear for trial or any

19 AIR 1981 SC 641 : (1981) 1 SCC 75. 20 AIR 1982 SC 1167: (1983). 21 AIR 1992 SC 1701, 1731: (1992) 1SCC 225. 22 (2002) 4 SCC 578, 603: AIR 2002 SC 1856. 23 (2002) 1 SCC 149, 152: AIR 2001 SC 2989.

77

other stage of the judicial proceeding as and when occasion arise, for

expeditious disposal of the case.

The Right to speedy trial cannot be inferred merely form delay in police

investigations. It will depend on the facts and circumstances of each case. The

right to speedy trial has been interpreted to be a part of the fundamental right

to life and personal liberty. Article 21 requires that a person can be deprived

of his liberty only in accordance with the procedure established by law which

should be a just fair and reasonable. A procedure can not be reasonable fair or

just unless it ensures a speedy trial for determination of the guilt of the person

deprived of his liberty.

The Right to Speedy trial has been developed from Hussainara Khatoon

(1979) to S Rama Krishna V. S Rami Reddy (D) By His Lrs & Ors [2008] (29

April 2008) within about three decades. To understand the concept of speedy

trail we have to examine the facts and decisions of the court as follow:

In Hussainara Khatoon (I) V/s Home Secretary state of Bihar24 a petition of habeas

corpus is filed on behalf of under trial prisoners by a Supreme Court

Advocate. On the basis of a news report that several under trials including

women and children were in prisons in Bihar awaiting their trial for years.

The period of imprisonment already undergone by many of them was more

than the maximum sentence. It was brought to the notice of the Supreme

Court an alarming large number of men, women and children were kept in

prisons for year awaiting trial in courts of law. The offences with which they

were charged were trivial and if proved would not have warranted

punishment for more than a few months perhaps for a year or two. But they

were deprived of their freedom for periods running for three to ten years

without their trial having yet commenced.

The court took a serious note of the situation and observed that it was a

crying shame on the judicial system, which permitted incarceration of men

24 (1980) 1 sec 81.

78

and women for such long periods of time without trials. These persons where

denied human rights and were languishing in jails for years for offences,

which perhaps they might ultimately be found not to have committed.

The court referred to the sixth Amendment to the United States

Constitution, which provides “In all criminal prosecutions the accused shall

enjoy the right to speedy and public trial.”

It is thus a constitutionally guaranteed right in the United States of America.

Article 325 provides that “Every one arrested or detained shall be entitled to

trial within a reasonable time or a release pending trial.”

Thought the right to speedy trial has not been specifically enumerated as a

fundamental right in our constitution but the court held that it is implicit in

the broad sweep and content of Article 21 as interpreted by the court in

Menaka Gandhi v/s Union of India26. The court thus observed-

“No procedure which does not ensure a reasonably quick trial can be regarded as

reasonable fair or just and it would be foul of Article 21. We mean reasonable

expeditious trial is an essential part of the fundamental right to life and liberty,

enshrined in Article 21.”

Reiterating the above view with approval in Hussainara Khatton (II) V/s Home

Secretary, State of Bihar27 the Court held that detention of under trial prisoners

in jail for the period longer than what they would have been sentenced if

convicted was illegal as being in violation of Article 21. The court thus

ordered the release from jail of all those under trial prisoners who had been

jail for longer than what for which they could have been sentenced if they had

been convicted.

In Hussainar Khatoon (III) V/s Home Secretary, State of Bihar28 speedy trial is an

essential ingredient of reasonable fair, and just procedure guaranteed by

25 The European convention of Human Right. 26 (1978) 1 SCC 248. 27 AIR 1979 SC 1369. 28 AIR 1979 SC 1377.

79

Article 21 and it is the constitutional obligation of the state to device such

procedure as would ensure speedy trial to accused.

The state may have its financial constraints and its priorities in expenditure,

but law does not permit any government to deprive its citizens of

constitutional rights on the plea of poverty or administrative inability.

In Raghubir Singh V/s State of Bihar29 the accused persons who were being tried

for waging war against the state filed writ petitions under Article 136 before

the Supreme Court for quashing the proceeding before the special Judge on

the ground of violation of their right to speedy trial under Article 21 of the

constitution.

The Supreme Court reiterated that right to speedy trial was one of the

dimensions of fundamental right to life and liberty. However the question as

to whether in a case the right to speedy trial was infringed would depend on

number of factors relevant for such determination and upon various factors.

The court might consider-

Was there delay?

How long was the delay?

Was the delay inevitable having regarded to the nature of the case, the

sparse availability of legal services and other relevant circumstances?

Was the delay unreasonable?

Was any part of the delay caused by the willfulness or the negligence

of the prosecuting agency?

Was any part of the delay caused by the tactic of the defence?

Was the delay due to cause beyond the control of the prosecuting and

defending agencies?

Did the accused have the ability and the opportunity to assert his right

to a speedy trial?

Was there a likelihood of the accused being prejudiced in his defence?

29 1980 (1) SCC.

80

Irrespective of any likelihood of the accused being prejudiced in his

defence was the very legit of the delay sufficiently prejudicial to the

accused?

Some of these factors have been identified in Barker V/s Wingo30. In the instant

case it was found that delay was caused due to tactics of the accused as they

did assert their right, which was evident form the number of petitions filed

before magistrate and the special judge from time to time. The delay in

investigation and trial was the out come of the nature of the case and general

situation prevailing in the country.

In Sunil Batra (II) V/s Delhi Administration31, it was held that the practice of

keeping under trials with convicts in jails offended the test of reasonableness

in Art. 19 and fairness in Art. 21. The under trials are presumably innocent

until convicted and if they are kept with criminals in jail it violates the test of

fairness of Art. 21

Krishna Iyer, J., delivering the majority judgment held that integrity of

physical person and his mental personality is an important right of a prisoner,

and must be protected from all kinds of atrocities. In that case the petitioner

did not seek his release from the jail because he was undergoing a sentence of

life imprisonment but he want to seek protection from inhuman and

barbarous treatment inflicted upon him in jail. The petitioner was subjected to

physical torture by a warden of the Tihar Jail as means to extract money from

the petitioner.

Batra a convict came to know this act the brought the incident to the

knowledge of the court through a letter. The court converted this letter into a

habeus corpus petition and approved and reiterated the specific guidelines

laid down by this court in Sunil Batra case no. (1) before punishing a prisoner.

The court gave following directions to the central and state Governments and

30 33 L Ed 2d 101. 31 (1980) 3 SCC 488: 1980 SCC (Cri.) 777.

81

the jail authorities:-

1. That the petitioner’s torture was illegal and he shall not be

subjected to any such torture until fair procedure is complied

with.

2. No corporal punishment or personal violence on the petitioner

shall be inflicted.

3. Lawyers nominated by D.M., Session Judge, High Court and the

Supreme Court will be given all facilities to interview, right to

confidential communications with prisoners, Subject to discipline

and security considerations. Lawyers shall make periodical visit

and report the concerned court the result of their visits.

4. Grievance deposit boxes shall be maintained in jails, which shall

be opened by a D.M. and Sessions Judges frequently. Prisoners

shall have access to such boxes.

5. D.M. and sessions judges shall inspect jails once every week, shall

make enquires into grievances and take suitable actions.

6. No solitary or punitive cell, no hard labour or dilatory charge,

denial of privileges and amenities, no transfer to other prison as

punishment shall be imposed without judicial approval of the

sessions judge.

In Hussainara Khatoon (II) V/s Home Secretary, State of Bihar32, the Supreme

Court, holding that orders for the enforcement of the guidelines given in

earlier cases, could not be issued, made a request to the Chief Justices of the

High Courts to undertake a review of such cases in their states and give

appropriate directions where needed to ensure proper and effective

implementation of the guidelines.

In the Uphaar case it is shocking that it took six years to establish that the 59

people died because of criminal negligence on the part of the cinema 32 (1980) 1 SCC 91.

82

management and the Delhi government. It was clear from day one that

nobody would have died had the cinema followed safety rules but because

the wheels of Indian justice move at the pace of our national vehicle - the

bullock cart - it took six years for justice to be done. And, if the Ansal family

and the guilty officials decide to appeal it could be many more years before

justice is really done.

In Jessica Lal’s case the situation is even more tragic because justice may

never be done. She was shot dead in a Delhi bar in full view of several people.

It was on the basis of their statements that the police built their case against

Manu Sharma and he, himself, fled the crime scene and remained on the run

for days, something he would have been unlikely to do had he been innocent.

But, as time went by, witnesses to the murder suddenly became unable to

identify him as the killer so he is already out on bail and will probably remain

free and go on to a long and successful career as a politician.33

In a democracy, the courts belong not to the lawyers and judges but to the

`citizen', as Jerome Frank wrote. Once we accept this democratic dimension of

the Judiciary, the rule of law gains a philosophical elevation. The highest is

not above the law; the humblest is not beneath the law. The true conception of

the administration of justice is that the lowly concern of the least person is of

the highest consideration to the state and the court.34

In Sheila Barse’s case, the court had repeated, in his own words, what five

judges of the Supreme Court had said on the very narrow of independence:

“If the allegations are true, obviously it would be to the benefit of public to

bring these matters into light”.35 Many questions were raised on the verdict of

Bhopal Gas Leakage the answer of which lies with the Judiciary.

The Priyadarshini Mattoo case drew celebrity and common people alike in the

quest for justice. There are other high-profile cases pending all over the

33 http://www.hinduonnet.com/thehindu/thscrip/print.pl?file=2003010700561000.htm

&date=2003/01/07/&prd=th& 34 http://iecolumnists.expressindia.com/full_column.php?content_id=23229 35 AIR 1952 SC 148.

83

country and families of victims will draw courage from latest verdict of

Supreme court. But Priyadarshini will not come back. And Chaman Lal

Mattoo has aged while fighting for something that should have come in the

natural course of things.

(a) Concept of the time frame of a speedy trial :

The right of a speedy trial must be begun without unnecessary delay within

the time limits established by law. These time limits can be pushed back by

valid postponements for a variety of reasons and an insane person can receive

a stay of proceedings until declared sane.

The sixth amendment of the U.S constitution guarantees the right to a speedy

trial, U.S. Supreme Court has refused to flesh out this rather vague concept

with a precise time frame, likewise thirty five state constitutions have speedy

trial guarantees, but these provisions apply when the delay has been

extensive.

In India there is no fix time limit by Legislature to complete the trial. The

Supreme Court in some case laid down general direction of expeditious

disposal of cases which is followed by the High Courts. Below are some data

of trial by the subordinate court36:

State/UT District/Session Judge Duration of Trail

Less Than 6 Months

6-12 Months

1-3 Years

3-5 Years

5-10 Years

Over 10

Years

Total (Col 3 To

8) (2) (3) (4) (5) (6) (7) (8) (9)

STATES ANDHRA PRADESH 84 464 1406 947 207 27 3135 ARUNACHAL PRADESH 0 5 12 4 0 0 21

ASSAM 26 113 356 391 210 115 1211 BIHAR 3 48 211 277 639 420 1598 CHHATTISGARH 237 321 427 173 26 2 1186

GOA 4 9 20 8 2 0 43 GUJARAT 84 276 882 533 214 84 2073

HARYANA 26 116 488 229 62 6 927

HIMACHAL PRADESH 7 20 104 43 30 17 221 JAMMU & KASHMIR 96 182 231 256 252 43 1060

JHARKHAND 0 0 244 508 683 249 1684

36 National Crime Records Bureau, Crimes in India-2008.

84

KARNATAKA 218 312 1017 825 229 49 2650 KERALA 1 30 367 522 151 23 1094 MADHYA PRADESH 671 938 1257 732 271 116 3985

MAHARASHTRA 16 232 878 792 625 190 2733 MANIPUR 0 0 0 0 0 0 0 MIGHALAYA 0 0 5 3 5 1 14 MIZORAM 178 60 30 0 0 0 268

NAGALAND 1 2 0 0 0 0 3 ORRISA 1 29 185 363 79 17 674 PUNJAB 45 261 725 524 161 26 1742

RAJASTHAN 131 329 1195 1121 555 208 3539 SIKKIM 0 7 11 0 0 0 18 TAMIL NADU 156 277 778 558 181 82 2032

TRIPURA 32 11 34 30 9 6 122 UTTAR PRADESH 0 305 1840 2754 2748 728 8375

UTTARAKHAND 5 35 217 149 26 1 433 WEST BANGAL 21 205 608 811 700 21 2366 TOTAL (STATES) 2043 4587 13528 12553 8065 2431 43207 UNION TEREITORIES:

A & N ISLANDS 0 0 2 3 13 3 21 CHANDIGARH 0 1 3 3 1 0 8

D & n HAVELI 1 3 16 6 2 0 28 DAMAN & DIU 1 2 6 3 1 0 13 DELHI 0 0 26 88 54 5 173

LAKSHADWEEP 0 0 0 0 0 0 0 PUDUCHERRY 0 3 11 5 4 0 23

TOTAL (UTs) 2 9 64 108 75 8 266

TOTAL (ALL-INDIA) 2045 4596 13592 12661 8140 2439 43473 Sl. No. State/UT Additional Session Judge Duration of Trial

Less Than 6 Months

6-12 Months

1-3 Years

3-5 Years

5-10 Years

Over 10

Years

Total (Col 3 To

8) (1) (2) (10) (11) (12) (13) (14) (15) (16)

STATES 1 ANDHRA PRADESH 165 839 1978 1530 655 28 5195

2 ARUNACHAL PRADESH 0 0 0 0 0 0 0 3 ASSAM 39 161 442 161 268 114 1185 4 BIHAR 97 365 2565 3545 2908 1145 10625 5 CHHATTISGARH 269 293 581 231 31 5 1410

6 GOA 0 1 6 2 2 0 11 7 GUJARAT 34 364 1308 674 263 38 2681 8 HARYANA 102 621 1417 612 238 24 3014

9 HIMACHAL PRADESH 7 34 103 45 42 15 246 10 JAMMU & KASHMIR 81 21 73 41 84 58 358 11 JHARKHAND 0 70 1425 1430 1009 488 4422

12 KARNATAKA 95 288 1153 565 186 27 2314 13 KERALA 7 96 556 1052 346 13 2070

14 MADHYA PRADESH 1506 2334 3217 2275 1279 269 10880

85

15 MAHARASHTRA 222 547 1333 1111 802 262 4277 16 MANIPUR 0 5 1 1 0 2 9

17 MIGHALAYA 0 0 1 5 6 1 13

18 MIZORAM 88 25 8 0 0 0 121 19 NAGALAND 10 17 20 2 0 0 49

20 ORRISA 124 91 529 466 213 65 1488

21 PUNJAB 93 437 978 845 284 17 2654 22 RAJASTHAN 138 725 1397 1197 608 189 4254

23 SIKKIM 0 0 0 0 0 0 0 24 TAMIL NADU 371 507 1082 700 311 65 3036 25 TRIPURA 30 23 72 59 11 3 198

26 UTTAR PRADESH 0 749 3575 4641 3483 2042 14490 27 UTTARAKHAND 8 91 94 108 17 0 318 28 WEST BANGAL 499 640 1465 759 135 40 3538 TOTAL (STATES) 3985 9344 25379 22057 13181 4910 78856 UNION TEREITORIES:

29 A & N ISLANDS 0 0 0 0 0 0 0

30 CHANDIGARH 14 20 39 22 6 0 101 31 D & n HAVELI 0 0 0 0 0 0 0 32 DAMAN & DIU 0 0 0 0 0 0 0 33 DELHI 77 83 549 692 147 124 1672

34 LAKSHADWEEP 0 0 0 0 0 0 0 35 PUDUCHERRY 5 5 22 2 1 0 35 TOTAL (UTs) 96 108 610 716 154 124 1808

TOTAL (ALL-INDIA) 4081 9452 25989 22773 13335 5034 80664

Sl. No. State/UT Chief Judicial Magistrate

Duration of Trial

Less Than 6 Months

6-12 Months

1-3 Years

3-5 Years

5-10 Years

Over 10

Years

Total (Col 3 To 8)

(1) (2) (17) (18) (19) (20) (21) (22) (23)

STATES

1 ANDHRA PRADESH 263 668 2918 1076 355 46 5326

2 ARUNACHAL PRADESH 0 0 0 0 0 0 0

3 ASSAM 411 1032 1497 1366 976 168 5450

4 BIHAR 45 103 567 703 534 92 2044

5 CHHATTISGARH 2057 2418 1699 676 471 136 7457

6 GOA 0 2 0 8 3 0 13

7 GUJARAT 3062 3572 4854 3768 1175 196 16627

8 HARYANA 472 1308 2942 1897 832 66 7517

9 HIMACHAL PRADESH 135 368 840 329 199 56 1927

10 JAMMU & KASHMIR 559 384 385 256 239 52 1875

11 JHARKHAND 16 205 1388 1589 404 240 3842

12 KARNATAKA 1247 2649 5691 3184 1020 95 13886

13 KERALA 73 611 2163 1478 369 25 4719

14 MADHYA PRADESH 7610 6081 8057 3798 1673 667 27886

15 MAHARASHTRA 354 1009 2821 2671 1561 782 9198

16 MANIPUR 26 2 1 0 4 11 44

86

17 MIGHALAYA 0 3 9 20 18 7 57

18 MIZORAM 0 0 0 0 0 0 0

19 NAGALAND 23 31 23 1 0 0 78

20 ORRISA 24 131 1221 885 487 45 2793

21 PUNJAB 327 585 1050 799 408 13 3182

22 RAJASTHAN 2454 3924 5200 4180 2274 401 18433

23 SIKKIM 0 37 117 30 0 0 184

24 TAMIL NADU 283 581 809 566 311 27 2577

25 TRIPURA 35 46 175 47 30 3 336

26 UTTAR PRADESH 75 117 4224 6576 5136 807 16935

27 UTTARAKHAND 52 386 763 350 136 27 1714

28 WEST BANGAL 427 599 976 658 598 51 3309

TOTAL (STATES) 20030 26852 50390 36911 19213 4013 157409

UNION TEREITORIES:

29 A & N ISLANDS 0 1 7 17 10 0 35

30 CHANDIGARH 138 14 45 14 9 3 223

31 D & n HAVELI 5 10 21 18 14 3 71

32 DAMAN & DIU 13 11 79 58 31 27 219

33 DELHI 427 613 400 255 54 5 1754

34 LAKSHADWEEP 0 0 0 0 0 0 0

35 PUDUCHERRY 25 45 42 6 0 0 118

TOTAL (UTs) 608 694 594 368 118 38 2420

TOTAL (ALL-INDIA) 20638 27546 50984 37279 19331 4051 159829

After studying the abovementioned data of the subordinate courts relating to

the completion of trial it seems that very few trials had been completed within

6 months but it is evident from the above data that most of the trials had been

completed in more than three years.

However on the other hand, the Court has to adopt a balancing approach by

taking note on the possible prejudice and disadvantages to be suffered by the

accused by avoidable delay and to determine whether the accused in a

criminal proceeding been deprived of his right of having speedy trial with

unreasonable delay which could be identified by the factors:-

Length of delay;

The Justification for the delay;

The accused’s assertion of his right to speedy trial; and

Prejudice caused to the accused by such delay.

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However the fact of delay is dependent on the circumstances of each case

because reason for delay will vary such as delay in investigation on account of

the widespread ramification of crimes and its designed network either

nationally or internationally the deliberate absence of witness or witnesses,

crowded dockets on the file of the courts etc.

The above observations have to be understood in the backdrop of the issues

involved in that case. The constitutional validity of Terrorist and Disruptive

Activities (Prevention) Act., 1987 (TADA) was questioned and a five judge

Bench was then considering various contention including the possibility of

persons accused of offences under TADA remaining in jail as under trial

prisoners for a long period on account of harsher and more stringent

provisions relating to grant of bail. The observations made by the seven Judge

Bench in A.R Antulay. Hence, the legal position adumbrated by the Court in

A.R. Antulay that the right to speedy trial flows from Article 21 and it

encompasses the stages right from the date of registration of the FIR and

onwards remains unaltered.

In Abdul Rehman Antulay V/s R.S. Nayak37 The petitioner A.R. Antulay was

the Chief Minister of Maharashta from 1980 to January 1982. The

Complainant/respondent R.S. Nayak moved the Governor of Maharashtra by

his application requesting him to grant sanction to prosecute the accused

petitioner as required by Section 638for various offences alleged to have been

committed by him. Without waiting for the Governor’s response on his

application he filed a complaint in the court of Chief Metropolitan Magistrate

Bombay against the accused and some others. His case was that the petitioner

accused was a public servant within the meaning of section 2139 and that he

has committed several offences punishable under section 161, 165 of IPC and

section 5 of Prevention of Corruption Act. 1947 as also under section 383 and

420 of IPC read with section 109 and 120-B of Indian Penal Code.

37 (1995) SCC 326. 38 Prevention of Corruption Act,1947. 39 The Indian Penal Code,1860.

88

The main allegation in this complaint was that the accused had embarked

upon a scheme of aggrandizement involving obtaining of funds from public

in the name of certain trusts and that he was misusing his office for collecting

funds for such trusts. All his activity was characterized as flagrant abuse of

his official position as Chief Minister. Several instances were also cited in

support of the allegations.

The Supreme Court held on the consideration of all the facts and

circumstances of the case that quashing of charges and/or criminal

proceedings at this stage would not be just and proper. However it is directed

that the cases be disposed of expeditiously.

The following propositions emerge, meant to serve as guidelines. These

proposition are not exhaustive it is difficult to foresee all situations. The

propositions are:

1. Fair, just and reasonable procedure implicit in article 21 of the

constitution creates a right in the accused to be tried speedily. Right

to speedy trial is the right of the accused. The fact that a speedy trial

is also in public interest also does not make it any the less the right of

the accused. It is in the interest of all concerned that the guilt or

innocence of the accused is determined as quickly as possible in the

circumstances.

2. Right to speedy trial flowing from Article 21 encompasses all the

stages, namely the stage of investigation, inquiry, trial, appeal,

revision and re-trial. That is how Court has understood this right and

there is no reason to take a restricted view.

3. The concerns underlying the right to speedy trial from the point of

view of the accused are:

a. The period of remand and pre-conviction detention should be as

short as possible. In other words, the accused should not be

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subjected to unnecessary or unduly long incarceration prior to

his conviction.

b. The worry, anxiety, expense and disturbance to his vocation and

peace, resulting form an unduly prolonged investigation,

inquiry or trial should be minimal, and

c. Undue delay may well result in impairment of the ability of the

accused to defend himself, whether on account of death

disappearance or non-availability of witnesses or otherwise.

4. At the same time one cannot ignore the fact that it is usually the

accused who is interested in delaying the proceedings. As is often

pointed out, “delay is a known defence tactic”. Since the burden of

proving the guilt of the accused lies upon the prosecution, delay

ordinarily prejudices the prosecution. Non availability of witnesses,

disappearance of evidence by lapse of time really work against the

interest of the prosecution. Of course, there may be cases where the

prosecution for whatever reason, also delays the proceedings.

Therefore, in every case, where the right to speedy trail is alleged to

have been infringed, the first question to be put and answered is who

is responsible for the delay? Proceedings taken by either party in

good faith, to vindicate their rights and interest, as perceived by

them, cannot be treated as delaying tactics nor can the time taken in

pursuing such proceedings be counted towards delay. It goes

without saying that frivolous proceedings or proceedings taken

merely for delaying the day of reckoning cannot be treated as

proceedings taken in good faith. The mere fact that an

application/petition is admitted and an order of stay granted by a

superior court is by itself no proof that the proceeding is not

frivolous. Very often these stays are obtained on ex-party

representation.

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5. While determining whether undue delay has occurred (resulting in

violation of Right to speedy Trial) one must have regard to all the

circumstances, including nature of concerned prevailing local

concerned, prevailing local conditions and so on what is called, the

systemic delay. It is true that it is the obligation of the state to ensure

a speedy trial and state includes judiciary as well, but a realistic and

practical approach should be adopted in such matters instead of a

pedantic one.

6. Each and every delay does not necessarily prejudice the accused.

Some delays may indeed work to his advantage. However, inordinately

long delay may be taken as presumptive proof of prejudice.” In this context,

the fact of incarceration of accused will also be a relevant fact. The

prosecution should not be allowed to become a persecution. But

when does the prosecution become persecution, again depends upon

the facts of a given case.

7. We cannot recognize or give effect to what is called the ‘demand’ rule.

An accused cannot try himself; he is tried by the court at the behest of

the prosecution. Hence, an accused’s plea of denial of speedy trial

cannot be defeated by saying that the accused did not demand a

speedy trial. If in a given case he did make such a demand and yet he

was not tried speedily, it would be a plus point in his favour but the

mere non asking for a speedy trial cannot be put against the accused.

Even in USA., the relevance of demand rule has been substantially

watered down in so many cases.

8. Ultimately, the court has to balance and weigh the several relevant

factor ‘balancing process’ and determine in each case whether the

right to speedy trial has been denied in a given case.

9. Ordinarily speaking, where the court comes to the conclusion that

right to speedy trial of an accused has been infringed the charges or

the conviction, the nature of the offence and other circumstances in a

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given case may be such that quashing of proceedings may not be in

the interest of justice. In such a case, it is open to the court to make

such other appropriate order including an order to conclude the trial

within a fixed time where the trial is not concluded or reducing the

sentence where the trial has concluded as may be deemed just and

equitable in the circumstances of the case.

10. It is neither advisable nor practicable to fix any time limit for trial of

offences. Any such rule is bound to be qualified and such rule cannot

also be evolved merely to shift the burden of proving justification on

the shoulders of the prosecution. In every case of complaint of denial

of right to speedy trial it is primarily for the prosecution to justify and

explain the delay. At the same time, it is the duty of the court to

weigh all the circumstances of a given case before pronouncing upon

the complaint. The Supreme Court of USA too has repeatedly refused

to fix any such time limit in spite of the Sixth Amendment. Nor do we

think that not fixing any such limit in-effectuates the guarantee of

right to speedy trial.

11. An objection based on denial of right to speedy trial and for relief on

that account, should first be addressed to the High Court. Even if the

High Court entertains such a plea, ordinarily it should not stay the

proceedings, except in a case of grave and exceptional nature. Such

proceedings in High Court must, however, be disposed of on a

priority.

The proposition made in this case is modified in the case of Raj Deo Sharma (I)

V/s State of Bihar40 which has been discussed later in this chapter.

Common Cause a Registered Society V/s Union of India41:-

Common cause a registered society espousing public had asked for certain

general directions in this writ petition, preferred under Article 32 of the 40 (1998) 7 SCC 507: 1998 SCC (Cri.) 1692. 41 (1996) 2 SCC 752.

92

Indian Constitution, with respect to cases pending in criminal courts all over

the country. The directions asked for are:-

a) Quashing of all proceeding against persons accused of offences under

the Motor Vehicles Act. Where the proceedings were initiated more

than one year ago and are still pending in any court of law in the

country;

b) To direct the unconditional release of the accused and dismissal of all

proceedings pending in criminal courts with respect to offences

under the India Penal Code or other penal statues which have been

pending for more than three years from the date of their institution

and for which offences the maximum sentence provided under law is

not more than six months with or without fine. This direction is

sought in respect of all prosecutions whether lodged by police, other

government or agency or by a private complainant;

c) Directing the unconditional release of all the accused and dismissal of

criminal proceeding against persons who have been in police or

judicial custody for a period of more than three years from the date of

their arrest or remand to such custody where the offences alleged are

not punishable with more than seven years with without fine and

d) Directing the unconditional release of the accused and dismissal of

proceedings against persons accused of offences under section 309 of

the Criminal Procedure Code,1973 where the proceedings have been

pending in any court for more than one year form the date of their

institution.

The petitioner has requested that the aforesaid directions should apply not

only to cases pending in courts on the date of the passing of the order but also

the cases executed hereinafter.

The court is of the opinion that the suggestions made are well meaning and

consistent with the spirit underlying part III of the constitution of India and

93

the Criminal Justice system. They deserve serious consideration by this court

and the High Courts in the country. It is a matter of common experience that

in may case where the persons are accused of minor offences punishable for

not more than three years or even less with or without fine, the proceedings

are kept pending for year together. If they are poor and helpless they languish

in jails for long periods because there is no one to bail them out. The very

tendency of criminal proceedings for long periods by itself operates as an

engine of oppression.

Even in case of offences punishable for seven years or less with or without

fine the prosecutions aspect pending for years and years together in Criminal

Courts. In a majority of these cases, whether instituted on police report or by

private complainants, the accused belong to the poorer sections of the society,

who are unable to afforded the advocates and are in jail. Hence they are not

brought to the court on every date of hearing and for that reason also the

cases undergo several adjournments. It is also necessary to ensure that these

criminal prosecutions do not operate as engine of oppression. Accordingly,

the following directions were made:

1. a) Where the offences under IPC or any other law for the time being

in force for which the accused are charged before any Criminal

Court and punishable with imprisonment not exceeding three years

with or without fine and if trials for such offences are pending for

one year or more and the accused concerned have not been released

on bail but are in jail for the period; the Criminal Court concerned

shall release the accused on bail or on personal bond to be executed

by him and subject to such conditions, if any as may be found

necessary in the light of section 437 of the Criminal Procedure

Code.

b) Where the offences under IPC or any other law for the time being in

force for which the accused is charged before any Criminal Court

and is punishable with imprisonment not exceeding five years with

94

or without fine, and if the trials for such offences are pending for

two years or more and the accused concern have not been released

on bail but are in jail for a period of six months or more, the

Criminal Court concerned shall release the accused on bail or on

personal bond to be executed by the accused and subject to the

imposing of suitable conditions, if any in the light of sections

mentioned in point 1(a).

c) Where the offences under IPC or any other law for the time being in

force for which the accused is charged before any Criminal Court is

punishable with seven years or less, with or without fine and if the

trials for such offences are pending for two year and accused

concerned have not been released on bail but are in jail for a period

of one year on more the Criminal Court concerned shall release the

accused on bail or on personal bond to be executed by the accused

and subject to imposing of suitable conditions if any in the light of

section 437 of Criminal Procedure Code.

2. a) Where criminal proceedings are pending regarding traffic

offences in any Criminal Court for more than two years on

account of non serving summons to the accused or for any other

reason whatsoever, the court may discharge the accused and close

the cases.

b) Where the cases pending in Criminal Courts under Indian Penal

Code or any other law for the time being in force and which are

compoundable with permission of the court and if in such cases

trials have still not commenced the Criminal Court shall after

hearing the public prosecutor and other parties represented

before it or their advocates, discharge or acquit the accused as the

case may be and close such cases.

c) Where the cases pending in Criminal Court under IPC or any

other law for the time being in force pertain to offences which are

95

non cognizable and boilable and if such pendency is for more

than two years and if in such cases trials have still not

commenced, the Criminal Court shall discharge or acquit the

accused, as the case may be, and close such cases.

d) Where the cases pending in Criminal Court under IPC or any

other law for the time being in force are pending in connection

with offences which are punishable with fine only and are not of

recurring nature and if such pendency is for more than one year

and if in such cases trials have still not commenced, the Criminal

Court shall discharge or acquit the accused, as the case may be

and close such cases.

e) Where the cases pending in Criminal Courts under IPC of any

other law for the time being in force are punishable with

imprisonment up to one year with or without fine and if such

pendency is for more than one year and if in such cases trials have

still not commenced the Criminal Court shall discharge or acquit

the accused as the case may be and close such cases.

f) Where the cases pending in Criminal Courts under IPC or any

other law for the time being in force are punishable with

imprisonment up to three years with or without fine and if such

pendency is for more than two years discharge or acquit the

accused as the case may be and close such cases.

The above directions shall not apply to cases of offences involving:

a) Corruption, Misappropriation, Cheating whether under the Indian

Penal Code, Prevention of Corruption Act, 1947 or any other

statute,

b) Smuggling, foreign exchange, violation and offences under the

Narcotics Durgs and Psychotropic Substances Act. 1985,

96

c) Essential Commodities Act. 1959, Explosive substances Act. Acts

dealing with environment or any other economic offences,

d) Offences under the Arms Act. 1959, Explosive substances Act, 1908,

Terrorists and Disruptive Activities Act, 1987

e) Offences relating to the Army, Navy and Air Forces,

f) Offences against public tranquility,

g) Offences relating to public servants,

h) Offences relating to Coins and Government Stamp,

i) Offences relating to Elections,

j) Offences relating to giving False Evidence and offences against

public justice,

k) Any other type of offences against the state,

l) Offences under the Taxing Enactment’s and

m) Offences of defamation as defined in section 499 IPC.

These directions are applicable not only to the cases pending on this day but

also to cases, which may be instituted hereafter.

The time limit mentioned regarding the pendency of criminal cases shall not

apply to cases where in such pendency of the criminal proceedings is wholly

or partly attributable to the dilatory tactics adopted by the accused concerned

or on account of any other action of the accused which results in prolonging

the trial. In other words it should be shown that the criminal proceedings

have remained pending for the requisite period by the accused concerned to

get these proceedings disposed of and the delay in the disposal of these cases

is not at all attributable to the accused concerned nor is such delay caused on

account of such accused getting stay of criminal proceedings from higher

court. Accused concerned are not entitled to earn any discharge or acquittal as

per judgment it is demonstrated that the accused concerned seek to take

advantage of their own wrong or any other action of their own resulting in

protraction of trials against them.

97

The phrase “Pendency of trials” and the phrase “non commencement of trial”

shall be construed as under:

(i) In case of trials before the Sessions Court the trials shall be

treated to have commenced when charged are famed under

section 228 of the code of Criminal Procedure 1973 in the case

concerned.

(ii) In case of trials of warrant cases by magistrates if the cases are

instituted upon police reports the trials shall be treated to have

commenced when charges are framed under section 240 of the

Code of Criminal Procedure, 1973 while in trials of warrant

cases by magistrates when cases are instituted otherwise than on

police report such trials shall be treated to have commenced

when charges are framed against the accused concerned under

section 246 of the Code of Criminal Procedure, 1973.

(iii) In cases of trials of summons cases by magistrates the trials

would be considered to have commenced when the accused

who appear or are brought before the magistrate are asked

under section 251 whether they plead guilty or have any defence

to make.

The list of offences to which directions shall not apply, the following

additions shall be made;

(n) Matrimonial offences under Indian Penal Code including Section

498-A or under any other law for the time being in force

(o) Offences under the Negotiable Instruments Act including offences

under Section 138 there of;

(p) Offences relating of Criminal Mis-appropriation of Property of the

complainant as well as offences relating to Criminal Breach of

Trust under the India Penal Code or under any other law for the

time being in force;

98

(q) Offences under section 304-A of the Indian Penal Code or any

offence pertaining to rash and Negligent Acts which are made

punishable under any other law for the time being in force;

(r) Offences affecting the public health, safety, convenience, decency

and morals as listed in chapter XIV of the Indian Penal Code or

such offences under any other law for the time being in force.

It is further directed that is criminal case pertaining to offences mentioned

under the above additional categories (n) to (r) wherein accused are already

discharged or acquitted pursuant to court judgment and they are liable to be

proceeded against for such offences pursuant to the present order and are not

entitled to be discharged or acquitted as aforesaid, the Criminal Court

concerned shall su-moto or on application by the aggrieved parties concerned

shall issue within three months of the receipt of this charificatory order at

their end summons or warrants as the case may be to such discharged or

acquitted accused and shall restore the criminal cases against them for being

proceeded further in accordance with law.

(b) Delay is unreasonable: Some determining factors

Violation of the right to a speedy trial is not established by delay alone, rather,

the determination of whether a case must be dismissed for the lack of speedy

trial requires a balancing test in which the conduct of both the prosecution

and the defence are weighed and the following factors are to be considered:-

a) Length of delay: the length of delay alone does not establish a violation

of the right to a speedy trial. The seven judge in State through CBI V. Dr.

Narayan Waman Nerukar42 and also State of Rajasthan V. Ikbal Hussain43

held that it would be neither advisable, nor judicially permissible to

prescribe an outer time limit for the conclusive powers under Sections

258, 309 and 311 of the Cr. P.C to effectuate the right to a speedy trial. In

42 (2002) 7 SCC 225: AIR 1992 SC 1124: AIR 2002 SC 2977. 43 (2004) 12 SCC 499: (2004) 8 Cr.L.J 369.

99

an appropriate case, directions from the High Court under Section 482,

Cr.P.C and Article 226/227 can be invoked to seek to appropriate relief.

b) Reason for delay: A deliberate attempt by the prosecution to delay the

trial weighs heavily towards a violation of the right to a speedy trial. On

the other hand a valid reason such as missing witness normally will

justify the delay in the absences of prejudice to the accused.

1. If the delay is attributable to willful tactics by the accused, he will

be deemed to have waived his right to a speedy trial.

2. The more fact that the accused is serving a jail sentence in another

state does not justify a delay of his trial on the pending charge. The

prosecution must attempt to have the other state temporarily give

up custody for purpose of trial or the pending charge.

3. To expedite such matters a number of states have enacted the

Uniform Agreement on detains which provides that cases filed

against a prisoner in another jurisdiction must upon request by the

prisoner be tried within 180 days or dismissed.

4. Defendant’s assertion or non assertion of right: A defendant may

any time waive his right to a speedy trial. But it must be shown that

the waiver was knowing and intelligent. It cannot be implied from

his silence.

5. Prejudice to defendant; the nature and amount of prejudice

resulting form the delay must be judged by whether the right to

speedy trial is designed to prevent namely oppressive incarceration,

loss of evidence, accuracy of witness testimony anxiety to the

accused and the like44.

6. Criminal Trial, Prolongation as well as Injustice Caused: There may

be some justification to carry the trial to its logical conclusions in

minor crimes; 44 AIR 1996 SC 1649.

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7. the prolongation of the proceedings leads to patent injustice

hardship and harassment to the accused. The right of speedy trial

cannot be confined or constricted to a particular category of crimes.

It is available to an accused in all offences major or minor and in all

criminal proceedings.

In Raj Deo Sharma V/s State of Bihar45, a case regarding an offence under section

5 (2) & (1) (e) of the Prevention of Corruption Act 1947 was registered against

the petitioner in 1982. A charge sheet was submitted in 1985 by the CBI. The

special judge, CBI took cognizance of the offences in 1986 and issued

summons, in 1987 the petitioner appeared before the court applied for and

issued summons. In 1987, the petitioner appeared before the court, applied

for, and obtained, bail. The charges were framed by the special Judge in 1993.

Three out of forty witnesses were examined by the prosecution till 1995.

The petitioner challenged the order in Supreme Court by a petition. In this

case the delay is entirely use to the fault of the prosecution which has

prejudiced his fundamental right to speedy trial. The prosecution failed to

produce the documents on 48 occasion and failed to produce witnesses on 46

occasions. The legal position adumbrated by the Supreme Court in Abdul

Rehman Antulay case that the right to speedy trial flows from article 21 and

encompasses the stages right from the date of registration of the FIR and

onwards remains unaltered.

The code of Criminal Procedure is comprehensive enough to enable the

Magistrate to close the prosecution if the prosecution is unable to produce its

witness in spite of repeated opportunities. Section 309 (1) Cr.P.C supports the

above view as it enjoins expeditious holding of the proceedings and

continuous examination of witnesses from day to day. The section also

provides for recording reasons for adjourning the case beyond the following

day.

45 (1998) 7 SCC 507: 1998 SCC (Cri.) 1692.

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The constitution bench comprising M.M Punchhi, K.T. Thomas and M. Shri

Nivasan J.J. after deep consideration of the matter proceed supplement the

proposition laid down by the constitution bench in Antulay Case with the

following directions

(i) In case where the trial is for an offence punishable with

imprisonment for a period not exceeding seven years, whether the

accused is in jail or not the court shall close the prosecution evidence

on completion of a period of two years from the date of recording the

plea of the accused on the charges framed whether the prosecution

has examined all the witness or not within the said period and the

court can proceed to the next step provided by law for the trial of the

case.

(ii) In such case mentioned above, if the accused has been in jail for a

period of not less than one half of the maximum period of

punishment prescribed for the offence, the trial court shall release the

accused on bail forth with on such conditions as it deems fit.

(iii) If the offence under trial is punishable with imprisonment for a

period exceeding seven years, whether the accused is in jail or not,

the court shall close the prosecution evidence on completion of three

years from the date of recording the plea of the accused on the charge

framed whether the court can proceed to the next step provided by

law for the case unless for very exceptional reasons to be recorded

and in the interest of justice the court considers it necessary to grant

further time to the prosecution to adduce evidence beyond the

aforesaid time limit.

(iv) But if the inability for completing the proceedings within the

aforesaid period is attributable to the conduct of the accused in

protracting the trial, no court is obliged to close the prosecution

evidence within the aforesaid period in any of the cases covered by

clauses (I) to (iii).

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(v) Where the trial has been stayed by orders of the court or by operation

of law, such time during which the stay was in force shall be

excluded from the aforesaid period for closing the prosecution

evidence.

The above directions will be in addition to and without prejudice to the

directions issued by this Court in “Common Cause” A Registered Society v.

Union of India46.

In Raj Deo Sharma (II) V/s State of Bihar47 a three Judge Bench of the Supreme

Court in 1998 issued certain directions for effective enforcement of the right to

speedy trial flowing from Article 21 of the Constitution as recognized by a

five Judge bench of the Supreme Court in Abdul Rehman Antulay V. R.S.

Nayak48. Relevant among such directions for the present purpose are as under:

Directions:

(i) In cases where the trial is for an offence punishable with

imprisonment for a period not exceeding three years the court shall

close the prosecution evidence on completion of a charge framed

whether prosecution has examined all the witnesses or not, within

the said period and the court can proceed to the next step provided

by law for the trial of the case.

(ii) If the offence under trial is for an offence punishable with

imprisonment for a period not exceeding seven years the court shall

close the prosecution evidence on completion of three years form

the date of recording the plea of the accused on the charge framed

whether the prosecution has examined all the witnesses or not

within the said period and the court can in exceptional reasons to

be recorded and in the interest of justice the court considers it

46 (1996) 2 SCC 752. 47 (1999) 7 SCC 604: 1999 SCC (CRI.) 1324. 48 AIR 1998 SC 3281.

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necessary to grant further time to the prosecution to adduce

evidence beyond the aforesaid time limit.

(iii) But if the inability for completing the prosecution evidence within

the aforesaid period is attributable to the conduct of the accused in

protracting the trial, no court is obliged to close the prosecution

evidence within the aforesaid period in any of the cases covered by

clauses (i) to (iii).

(iv) Where the trial has been stayed by orders of the court or by

operation of aforesaid period for closing the prosecution evidence.

The present petition was filed by the Central Bureau of Investigation for

clarification (and also for some modification) of the above direction by stating:

(1) That the said directions are only prospective and

(2) That the time taken by the Court on account of its inability to carry

on day to day trial due to pressure of work should be excluded.

In Mahendra Lal Das V/s State of Bihar49 (Sethi, J.) The appellant who, at the

relevant time, was an Executive Engineer, Public Engineering Department,

Mechanical Division, Ranchi, has prayed for quashing of the FIR registered in

1988 against him under section 5 (2) read with section 5 (1) (e) of the

Prevention of Corruption Act 1947 wherein it was alleged that the appellant

was in possession of disproportionate assets to the extent of Rs. 50,600. The

FIR was sought to be quashed mainly on the ground that despite expiry of

over 12 years, the respondent State had not granted the sanction which

amounted to the violation of his right of life and liberty as enshrined in

Article 21 of the constitution of India. The petition, filed by the appellant, was

dismissed and the order impugned on the ground that mere delay in granting

the sanction has not prejudiced the appellant in any manner particularly

when he is already on anticipatory bail.

49 (2002) SCC 149

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FIR in the Vigilance Thana Division and District, Patna, alleging that the

appellant while holding different posts during the years 1961-62 to 1982-83

acquired disproportionate assets by misusing his official position and

adopting corrupt means. During investigation, the appellant gave details of

his income and expenses, on the basis of which the Investigating Officer

concluded that the appellant was in possession of a huge amount as

unaccountable money. As no prosecution was launched against him appellant

till the year 2000, he moved the High Court for quashing the proceedings and

his prayer was rejected vide the order impugned.

It is true that interference by the court at the investigation stage is not called

for. However, it is equally true that the investigating agency cannot be given

the latitude of protracting the concluding of the investigation without any

limit of time. Supreme Court in Abdul Rehman Antulay V/s R.S. Nayak while

interpreting the scope to Article 21 of the constitution held that every citizen

has a right to speedy trial of the case pending against him. The speedy trail

was considered also in public interest as it serves the social interest also. It is

in the interest of all concerned that guilt or innocence of the accused is

determined as quickly as possible in the circumstance; The right to speedy

trial encompasses all the stages namely stage of investigation enquiry trial

appeal, revision and retrial. While determining the alleged delay the court has

to decide each case on its facts having regard to all attending circumstance

including nature of offense number of accused and witnesses, the work load

of the court concerned prevailing local conditions etc.

Every delay may not be taken as causing prejudice to the accused but the

alleged delay has to be considered in the totality of the circumstance and the

general conspectus of the case. Inordinate long delay can be taken as a

preventive proof of prejudice.

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2.3 International Perspectives

The Covenant on Civil and Political Rights, 1966 recognizes the right of the

accused to be tried without undue delay. Article 149 (3) (a) of the covenant

states as follows:

“In the determination of any criminal charge against the accused, everyone

shall be entitled to the following minimum guarantees in full equality:

(a)……………

(b)…………...

(c) To be tried without undue delay”

On account of having ratified the covenant, India, like other signatories to the

Covenant, assumed a legal obligation to enforce the international

commitment.

The concept of speedy trials is also enshrined in Article 3 of the European

Convention on Human Rights.

Everyone arrested or detained……shall be entitled to trial within a reasonable

time or to release pending trial.”

(a) United States Of America

In U.S. the right to speedy trial is guaranteed by the constitution. Sixth

Amendment to the American Constitution provides as follows:

“In all criminal prosecutions, the accused shall enjoy right to a speedy and

public trial, by an impartial jury.”

In pursuance of this guarantee Speedy trial Act was enacted in 1974. The

object of the Act as state in its introduction is to assist in reducing crime and

danger of recidivism by requiring speedy trials and by strengthening the

supervision over persons released pending trial and for other purposes50. The

primary focus of the Act was not concretization of the guarantee provided in 50 Bridges George S., “The Speedy Trial Act of 1974: Effects of Delays in Federal Criminal

Litigation”, (1982) 73 j, Crim. L. & C. p. 50.

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the constitution, but reduction in crimes committed by the defendants. The

Speedy Trial Act thus introduced the concept that a public right to speedy

trial exists independent of accused’s sixth amendment rights.

Opinions have been expressed by a number of scholars with regard to the

effect of the statute in ensuring speedy justice. Julie Vennard pointed out that

limits eliminated “stalling strategies” on the attorneys; both prosecutors and

defense counsels undertake more rigorous investigation and preparation of

their cases and it also led to a variety of favorable developments in court

administration51. George Bridges compliance during the implementation

opines that improvements in compliance during the implementation wee

partly realized through application of the Act’s provision for excluded time;

courts and litigants therefore achieved less with respect to the speedy trial

goal52.

The scope of the right to speedy trial and consequences thereof has been

considered by the Supreme Court of America in a number of cases. It is thus

desirable to study some of the landmark cases. In Barker v. Wingo53 the court

laid down what came to be known as the balancing test. The court observed

that the balancing act requires the conduct of both the prosecution and the

defendant to be weighted.

The court identified some of the factors which they should assess in

determining whether a particular defendant has been deprived of his right or

not. The four factors to be identified are as follow: length of delay, the reason

for the delay, the defendant’s assertion of his right and the prejudice to the

defendant. In United States v. Anderson54, the court held that only a reasonable

delay on account of a missing witness will be considered appropriate; a

criminal prosecution cannot be left pending indefinitely because of the

disappearance of the witness. Other justified causes for delay are the

51 Vennard, Julie, “Court Delay and Speedy Trial Provisions”, 1985 Crim. L.R. p. 73 52 Op. cit. Vennard Juile, “Court Delay and Speedy Trial Provisions”, 1985 Crim. L.R. p. 77. 53 33 L Ed 2d 101. 54 471 F. 2d 201 (5th Cir. 1973).

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incompetence of the accused said Supreme Court in United States exrcl. Little v.

Twomeny55. In Strunk v. United States56 it was held that an accused’s right to a

prompt inquiry into criminal charges is fundamental and the duty of the

charging authority is to provide a prompt trial. In this case the court was of

the opinion that the accused’s right to speedy trial was denied but without

quashing the charges it directed merely that the sentence awarded to the

accused should be reduced by the period of unconstitutional delay.

(b) United Kingdom

In England, the right of the accused to expeditious trial found its first

expression in the Habeas Corpus Act. 1679. Section 6 of the Act provided for

release on bail or discharge of persons detained on accusation of high treason

or felony in the courts of Sessions, if indictment could not take place in the

second term after committal57. Assizes Act, 1889 and Magistrate’s Court’s

Act, 1952 limit pre-conviction custody of the accused. Some steps to regulate

and limit the actual duration of the prosecution process was made in the

Crown Court Rules and Indictment Rules, which are statutory regulations,

issued if 1982 and 1983. Under these rules, the bill of indictment is to be

prepared within 28 days of committal and the trial is to commence within 8

weeks of committal. Both these limits may be extended by the court.

Section 22 of the Prosecution of Offenders Act, 1985 enables the Secretary of

State to prescribe custodial and overall time limit, in respect of preliminary

stages of trial. “Preliminary Stage” means, in crown court, proceedings prior

to taking of evidence for the prosecution58.

The actual time limit has to be prescribed by the Secretary of State through

delegated legislation. The consequence of non-adherence to overall time limits

55 477 F. 2d 767 (7th Cir. 1973). 56 37 L Ed 2d 56. 57 Pai, Mahesh T., “Delay in Criminal Justice System: Common Cause Evaluated: 1996

(Sept-Dec) 20 C.U. L.R. p. 400. 58 Prosecution of Offences Act, section 22 (11).

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is acquittal.59 According to the provisions now in force, the maximum period

of custody between the accused’s first appearance and the commencement of

the summary trial is 56 days.60 While in case of offences triable on indictment

exclusively, the maximum period of custody between the accused’s fist

appearance and the time when the court decides whether or not to commit the

accused to the Crown Court for trial is 70 days.61

The Privy Council, while dealing with the question of delay in trial expressly

affirmed the principles laid down by the Supreme Court of the America in

Barker v. Wingo.62 In Bell v. Director of Prosecution, Jamica,63 the Privy Council

expressed the desirability of applying the same criteria as laid down in Barker

v. Wingo64 to any constitution, written or unwritten, which protects an

accused from oppression by delay in criminal proceedings.

(c) Indian Scenario

The Constitution of India imposes restrictions on the attention of any person

by the police beyond 24 hours without the authority of a magistrate. Article 22

(2), which imposes such restriction, thus seeks to prevent illegal detention of

people and ensure a prompt action on the part of police. Besides imposing

this restriction at the stage when an accused, for the first time, comes in

contact with the criminal justice system. It does not explicitly provide for

expeditious conduct of subsequent proceedings. But this requirement has

been read as implicit in Article 21 of the constitution. Article 21 of the

Constitution provides as follows:

“No person shall be deprived of his life or personal liberty except according to

procedure established by law”.

59 Halsbury laws of England, 4th ed., reissue vol. 11(2) para 855. 60 Ibid. 61 Ibid. para 852. 62 Supra n. 4. 63 (1985) 2 All ER 585. 64 Supra n.4.

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(i) Statutory Provisions

The procedure for criminal trial as provided in The Code of Criminal

Procedure lays down a number of provisions aimed at curtailing the delay in

the investigation and trial of offences. Section 157 (1) of Cr. P.C. requires the

officer-in-charge of a police station to send forthwith the report of the

commission of an offences to the concerned magistrate. Perusal of section

167(1) Cr. P.C. indicates that the investigation is expected to be completed

within 24 hours of arrest of the accused. In case it appears that the

investigation cannot be completed within 24 hours and the allegation against

the accused is well founded, the investigation officer has to forward the diary

entries along with the accused to the magistrate in order to seek further

custody of the accused by 15 days, which can further be extended to 60 or 90

days depending upon the gravity of offence.65 The accused becomes entitled

to be released on bail on the expiry of the period of 60 or 90 days as the case

may be.

If in a case triable by a magistrate as a summons case, the investigation is not

conclude within six months from the date on which the accused was arrested

the magistrate is required to stop further investigation into the offences66. The

investigation is allowed to go on beyond six months only if the investigation

officer satisfies the magistrate that for special reasons and in the interest of

justice the continuation of investigation is necessary.67

Certain state governments, particularly the government of West Bengal have

amended section 167 to the effect that if investigation is not completed within

the prescribed time fame, the magistrate will not take cognizance of such

offences.

Section 173 (1) of Cr. P.C. requires the police officer to complete the

investigation “without unnecessary delay” and forward the report to the

65 The Code of Criminal Procedure, 1973, section 167 (2), 66 The Code of Criminal Procedure, 1973, section 167 (5). 67 Ibid.

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magistrate “as soon as it is completed”. Further section 207 requires that a

copy of documents like the police report, F.I.R., statements recorded u/s 161

(3) except those portions for which request for exclusion is made, confessions

and statements u/s 164 or any other documents or relevant extract thereof is

to be given free of cost to the accused “without delay”. Section 208 requires

that where, in a case instituted otherwise than on a police report, it appears to

the Magistrate issuing process under section 204 that the offence is triable by

the court of session the Magistrate shall without delay furnish to the accused

free of cost, a copy of statements and confession recorded under sections 200,

202, 161 or 164 of the Code of Criminal Procedure 1973.

All the abovementioned provisions in Cr.P.C. pertain to the stage of

investigation into an offence. These provisions, besides laying down in broad

terms, , certain limits subject to which investigation is to be carried out, also

put limits upon detention pending investigation. Section 468 Cr. P.C. also in a

way impose a time limit for completion of investigation as it debars courts

taking cognizance of certain minor offences after expiry of certain period of

limitation68. Section 469 marks that the period of limitation commences from

the date of offence, or the first on which such offence comes to the knowledge

of aggrieved person.

Section 309 of Cr. P.C mandates expeditious conduct of trial. In particular it

requires that when the examination of witnesses has once begun, the same

shall be continued from day-to-day until all the witnesses in attendance have

been examined, unless the court finds the adjournment of the proceeding

beyond the following day to be necessary for reasons to be recorded. Thought

the Code recognizes the power of the court to adjourn the proceedings from

time to time after the cognizance of the offence is taken or after

commencement of the trial after recording reasons for doing so69, yet it

68 The period of limitation prescribed in section 468 Cr. P.C. is as follows: Six months, if the

offence is punishable with fine only; One year if the offence is punishable with imprisonment for a term not exceeding one year; Three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

69 The Code of Criminal Procedure, 1973 section 309 (2).

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provides that when witnesses are in attendance, no adjournment or

postponement shall be granted, without examining them, except for special

reasons to be recorded in writing70, No adjournment is to be granted for the

purpose only of enabling the accused person to show cause against the

sentence proposed to be imposed on him71. Further the terms on which an

adjournment or postponement may be granted include, in appropriate cases,

the payment of costs by the prosecution or the accused72.

Section 437 (6) of the code provides that if the trial of a person accused of a

non bailable offence is not concluded within a period of sixty days from the

date fixed for taking evidence, such person is to be released on bail if he is in

custody.

In addition to this provision which directly provides for expeditious conduct

of trial, there is another provision which aim at achieving the same end e.g.

section 353 (1) provides that the judgment in every trial in every court of

original jurisdiction shall be pronounced in open court by the presiding

officer immediately after the termination of the trial or at some subsequent

time of which notice shall be given to the parties or then-pleaders. Thus the

provision clearly requires the judgment to be pronounced soon after the

completion of the trial so that there is no delay in the pronouncement of the

same.

The perusal of these provisions enshrined in Cr. P.C. thus indicates that the

code does impose certain checks on the time that is taken by the investigating

authority to complete investigation and also contains direction for the

purpose of speedy completion of criminal trials.

(ii) Judicial Pronouncements

The deep rooted malady of violation of human rights of the victims as well as

the accused has been brought to the notice of the Apex Court in piece-meal

70 Id. Section 309 (2) proviso 2nd para. 71 Id. Section 309 (2) proviso 3rd para. [ 72 Id. Section 309 Explanation 2.

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manner and the apex Court has also given appropriate directions to the

Government for protection of human rights of the aggrieved party in various

judicial pronouncements. The Apex Court cannot remain oblivious of the

social needs and requirements for protection of human rights of all concerned

by restoring the credibility of the criminal justice system73. It is really the

poor, starved and mindless millions who need the court’s protection for

securing to themselves the enjoyment of human rights74.

The fundamental rights guaranteed in Part III of the constitution of India

cover substantially the wide spectrum of rights enshrined in U.N. Charter and

International Covenants to which India is a signatory. The right to life, liberty

and security of person guaranteed in International Treaties (Article 3 of

Universal Declaration of Human Rights, 1948; Articles 6 & 9 of International

Covenant on Civil and Political Rights, 1966), is enforceable as fundamental

rights under Article 21 of the Indian Constitution. The right to speedy trial

incorporated in International Covenant was not protected as a fundamental

right under the Constitution till Justice P.N. Bhagwati75 in his judicial activism

and zeal to humanize criminal jurisprudence, pointed out that speedy trial

was implicit in broad sweep content of Article 21 of the constitution. The logic

behind recognizing speedy trial as the fundamental right was that the

inordinate delay in trial of criminal cases was responsible for gross denial of

justice to the under trial prisoners and as such the procedure which denied

speedy trial to the accused could not be just, fair and reasonable. The court

proceeded further to hold that the court could enforce this right by issuing

necessary directions to the state to fulfill its obligation to ensure this right to

the accused, and that the state could not be permitted to deny this human

right on the ground that the state had no adequate financial resources. The

Supreme Court has expanded the scope of human rights by a plethora of

judicial pronouncements. By land mark judgment in Francis Coralie Mullin’s 73 S.K. Awasthi and R.P.Kataria; Law relating to protection of human rights, millennium

Ed. (2000) p. 791. 74 Keshvanandi Bharti v. State of Kerala, 1973 SC 1461. 75 Article 14 of International Covenant on Civil and Political Rights,1966.

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case76 the Supreme Court has held that the right to life protected under Article

21 of the Constitution cannot be restricted to mere animal existence, but it also

includes within its broad matrix the right to live with basic human dignity.

According to the Law Commission of India77, a criminal case should be

disposed of within Six months from the date of filing police report or

complaint. There may not be a single criminal court in the country where the

human rights of the accused for speedy trial have not been violated.

The trial judge is the lynchpin of our judicial system. The trial judge who is

shaky in professional understanding, imperfect in moral resolution and

undue conciliatory in personality will inevitably be over-powered and

overborne by aggressive and strong willed lawyers. The Law Commission has

reiterated bright young law graduate in judiciary by all India competitive

examination train them and give them pay scales and amenities of Indian

Administrative Services and promotional avenue up to the highest court of

the country78.

Expeditious administration of criminal justice can avoid the problem of huge

arrears and heavy backlog of pending file in various courts of the country.

Long delay has also the effect of defeating justice in some cases. As a result of

such delay the possibility can not be ruled out of loss of important evidence

because of the fading of memory or death of witness. It has also the effect of

defeating justice in some cases.

Hon’ble Justice K.T.Thomas and Justice R.P.Sethi of Apex Court, observed,

“Witnesses tremble on getting summons from courts in India, not because

they fear examination or cross-examination in the courts but because of the

fear that they might not be examined at all for several days. It is high time that

the trial courts should regard witnesses as guests invited for helping such

courts with their testimony for reaching judicial findings. 76 Francis Coralie Mullin v. Union Territory of Delhi, (1981) 1 SSC 608 : 1981 Cr.LJ 212. 77 17th Report of Law Commission of India, Page 49, Nov. 1978 78 14th Report of Law Commission of India, Vol. 1, P.181-185 (Sep. 1958); 78th Report of

the Law Commission of India (Nov. 1986).

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All judicial officers should be vigilant enough in carrying out the order of the

Hon’ble Apex Court that a witness if present must be examined on that day.”

Former Chief Justice of India Justice S.P.Bharucha blamed various state

governments for pendency in cases, said- “The states are not interesting in

spending money on the judiciary as litigant were not vote bank for them. The

states were under an obligation to secure justice for citizens which was most

often breached. This was evident from the strength of prisons which are

already over crowded with under trials awaiting justice.”

Prof. Upendra Baxi stated, that the delay in administration of criminal justice

also affected the jail. He said the size of under trial prisoners in many states

normally more than double the population of convicts undergoing

punishment. In some states people have under trial for periods exceeding four

to ten years, affecting of punishment in cases of eventual conviction is no

answer to the problem.

Justice V.S. Malimath, the Chairman of the committee on reforms of criminal

justice system has said, “The long delays in deciding the cases by court and

poor rate of conviction are contributing to an increase in crimes. The maladies

of criminal justice system were inordinate delay in disposal of cases and poor

rate of conviction. As a result crime has become a profitable business.”

The Paramount purpose of criminal justice is the protection of innocent and

punishment to the offenders. A victim for securing this end has to come to

criminal courts. But prolonged pendency of cases has created an

insurmountable barrier in the dispensation of criminal justice. This has cast a

serious repercussion on the public at large. They had lost their faith in the

present system of criminal justice administration. Huge numbers of criminal

cases pending for years together are creating unbearable mental and

economic pressure on the litigant of criminal justice system.

It is of paramount importance to reform the problem of delay at the earliest

and provide justice to citizens of this country in a reasonable time. It is

imperative so that the faith of the society in the justice delivery system can be

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maintained. In a country like ours where people consider, the judges only

second to God, efforts should be made to strengthen that belief of common

man. Delay in disposal of cases facilitates the people to raise eyebrows some

time genuinely which, if not checked, may shake the confidence of the people

in the judicial system. A time has come when the judiciary itself has to assert.

For preserving its stature, respect and regards for the attainment of the rule of

law. For the people, of a few, the glorious and glittering name of the judiciary

can not be permitted to be made ugly. It is the policy and purpose of the law,

to have speedy justice for which efforts are required to be made to come to the

expectations of the society of ensuring speedy untainted and unpolluted

justice79.

The Indian Criminal Justice System is expected to provide the maximum

sense of security to the people at large and deal with crimes and criminals

effectively, quickly and legally. The entire existence of the orderly society

depends upon speedy justice as prolonged trial causes untold harassment to

the victims, accused, and witnesses and in turn to the society at large. For a

victim, one can imagine the suffering if the accused is acquitted after

inordinate delay. Many a times inordinate delay contributes to acquittal of

guilty persons either because the evidence is lost or because of lapse of time

or the witnesses do not remember all the details or do not come forward to

give evidence due to threats, inducement or sympathy. On the other hand, for

the accused, undergoing trial and languishing in jail for years pending trial

can itself be a harrowing experience. In this whole process, trauma faced by

the witnesses to come to the court for deposition from time to time can not be

undermined. Prolonged trials also result in fading away of memory of these

witnesses. Speedy trial though recognized as an essential feature of right to

fair trial has so far remained a distant reality in our criminal justice system.

Speedy justice is an assurance extended to a citizen under the ambit of “right

to life” guaranteed under Article 21 of our Constitution. It is the best way to

79 Anil Rai v. State of Bihar AIR 2001 S.C. 3173.

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restore peoples’ faith in the administration of justice and in the rule of law.

Delay is always known defense tactics. We can not ignore the fact that it is

usually the accused who is interested in delay the proceedings since the

burden of proving the guilty of the accused lies upon the prosecution. Delay

ordinarily prejudices the prosecution. In many cases the prosecution also

delayed the proceedings.

The courts’ concern about the problem of delay in trial finds reflection in their

judgments. In Agha Nazar Ali Sultan Mohammed v. Emperor80, the court

ordered.

“The trial of this case, the delay of which is now beyond all reason, must be continued

by the magistrate from day to day…………..”

The court again in Mahander v. State of Hyderabad81, the Supreme Court refused

to remand the case back to the trial court for fresh trial because of delay of five

years between the commission of the offence and the final judgment of

Supreme Court. In its judgment the court observed:

“We are not prepared to keep persons-who were on trial for their lives till indefinite

suspense because trial judges omit to do their duty………..we have to draw a nice

balance between conflicting rights and duties…………..while it is incumbent on us to

see that the guilty do not escape, it is even more necessary to see that persons accused

of crimes are not indefinitely harassed………… while every reasonable latitude must

be given to those concerned ‘with the detection of crime and entrusted with

administration of justice, limits must be place on the lengths to –which they may go.”

In Veerabadran Chettiar v. E.V. Ramaswami Narcker82 the Supreme Court

reversed the concurrent finding on the basis of which the trial court had

refused to take cognizance of the complaint but still did not allow the matter

to proceed on the ground that it had become “Stale”. In Chajoo Ram v. Radhey

80 AIR 1958 SC 1032. 81 AIR 1971 SC 1367. 82 (1972) 3 SCC 504.

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Shyam83 delay in trial was one of the factors on the basis of which the court

dropped the further proceedings. In State of Uttar Pradesh v. Kapil Deo Shukla84

though the court found the acquittal of the accused unsustainable, it refused

to order a remand or direct a trial after a lapse of 20 years.

The Apex Court in Hussainara Khatoon vs. Home Secretary, State of Bihar85

proved to be a high water marks in the development of speedy trial

jurisprudence. A writ of habeas corpus was filed on behalf of men and

women languishing in jails in the state of Bihar awaiting trial. Some of them

had been in jail for a period much beyond what they would have spend had

maximum sentence been imposed on them for the offence of which they were

accused. Alarmed by the shocking revelations made in the writ petitions and

concerned about the denial of the basic human rights to those “victims of

callousness of the legal and judicial system”, Supreme Court went on to give a

new direction to the Constitutional jurisprudence. In doing so the court

heavily relied on its decision in an earlier case in which the court gave a very

progressive interpretation to Article 21 of the Constitution. Article 21 confers

a fundamental right on every individual not to be deprived of his life or

personal liberty except according to procedure established by law. The Court

in Maneka Gandhi v. Union of India86 held that such procedure as required

under Article 21 has to be “fair, just and reasonable” and not “arbitrary,

fanciful or oppressive”. Taking this interpretation to its logical end, Bhagwati

J., in Hussainara’s case said

“………procedure prescribed by law for depriving a person of his liberty

cannot be reasonable, fair or just unless that procedure ensures a speedy trial

for determination of the guilt of such person. No procedure which does not

ensure a reasonably quick trial can be regarded as ‘reasonable, fair or just’ and

83 (1980) 1 SCC 81. 84 (1978) I SCC 248. 85 (1979) I.S.C.R. 514-15; See also H.M. Seervai; Constitutional law of India, 4th edi. Vol. p.

1167. 86 (1978) 1 SCC248.

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it would fall foul of Article 21. Thee can therefore be no doubt that speedy

trial, and by speedy trial we mean reasonably expeditious trial, is an integral

and essential part of the fundamental right to life and liberty enshrined in

Article 21”

Bhagwati J, also added that the state cannot be permitted to deny the

constitutional right to speedy trial on the ground that the state has no

adequate financial resources to incur the necessary expenditure needed for

improving the administrative and judicial apparatus with a view to ensuring

speedy trial. As far as the question of consequences of violation of the right to

speedy trial is concerned, it was raised but left unanswered by the court.

In Charles Sobhraj v. Supt, Centrl jail, Tihar87, The Krisna Iyer while repeating

the judgment pronounced in Batra’s case observed: “whenever Fundamental

rights are flouted or Legislative protection ignored, to any prisoner’s

prejudice, this courts writ will run, breaking through stone walls and iron

walls, to right the wrong and restore the rule of law. Then the parrot cry of

discipline will not deter security, will not scare, discretion, will not dissuade

the judicial process”.

In T.V. Vatheeswaran v. State of Tamil Nadu88 the court again reiterated the

significance of the right to speedy trial. In S. Guisus v. Grindlyas bank Ltd.89, the

accused persons were acquitted by the trial court whereupon an appeal was

filed before the High Court which allowed it after a period of six years and

remanded the case for retrial. Reversing the decision of the High Court, The

Supreme Court held that the pendency of criminal appeal for six years before

the High Court is itself a regrettable feature of this case and a fresh trial nearly

seven years after the alleged incident is bound to result in harassment and

abuse of judicial process.

87 (1981) 1 SCC 85. 88 (1986) 3 SCC 632. 89 Supra n. 32.

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The Court in Sheela Barse v. Union of India90, addressed the question left

unanswered in Hussainara’s case and held as follows:

“The right to speedy trial is a right implicit in Article 21 of the Constitution

and the consequence of violation of this right could be that the prosecution

itself would be liable to be quashed on the ground that it is in breach of the

fundamental right”.

This case specifically deal: with the procedure to be followed in mattes where

accused was less than 16 years of age. The court held that where a juvenile is

accused of an offence punishable with imprisonment of 7 years or less,

investigation was to be completed within 3 months of the filing of F.I.R or else

the case was to be closed. Further all proceedings in respect of the matter had

to be completed within further six months of filing of the charge-sheet.

Rakesh Saxena v. State through C.B.I.91, the court quashed the proceedings on

the ground that any further continuance of the prosecution after lapse of more

than six years is uncalled for. In Sinivas Gopal v. Union Territory of Arunachal

Pradesh92, the court quashed the proceedings against the accused on the

ground of delay investigation and commencement of trial. In T.J. Stephen v.

Parle Botling Co. (P) Ltd.93, the court disallowed recommencement of the

prosecution after a lapse of twenty years on the ground that it would not be in

the interest of justice.

On the basis of the test laid down in State of Maharashtra v. Champalal Punjaji

Shah94 the court in Diwan Naubat Raj v. State through Delhi Administration95,

refused to quash the proceedings as it found that the accused himself was

mainly responsible for delay of which he was complaining.

In every case, where right to speedy trial is alleged to have been infringed, the

first question to be put and answered is who is responsible for the delay? 90 (1986) 3 SCC 596: 1986 SCC (Cri.) 337. 91 1988 Supp SCC 458. 92 Supra n. 36. 93 (1989) 1 SCC 297. 94 (1990) 2 SCC 3440. 95 (1992) 1 SCC 225.

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Proceeding taken by either party in good faith, to vindicate their party in

good faith, to vindicate their rights and interest, as perceived by them, cannot

be taken as delaying tactic nor can the time taken in pursuing such

proceedings be counted towards delay.

While determining whether undue delay has occurred one must have regard

to all the circumstances, including nature of offence, number of accused and

witnesses, the workload of the court concerned, prevailing local conditions

and so on.

Accused’s plea of denial of speedy trial cannot be defeated by saying that the

accused did at no time demand a speedy trial. The court has to balance and

weigh the several relevant factors-balancing test-and determine in each case

whether the right: of speedy trail has been denied in a given case.

Charge or conviction is to be quashed if the court comes to the conclusion that

right to speedy trial of an accused has been infringed. But this is not the only

course open. It is open to the court to make such other appropriate order-

including an order to conclude the trial within a fixed time where the trial is

not concluded or the sentence where the trial has concluded-as may be

deemed just and equitable in the circumstances of the case. It is neither

advisable nor practicable to fix any time limit for trial of offences. Not fixing

any such outer limit in effectuates the guarantee of right to speedy trial.

An objection based on denial of right to speedy trial and for relief on that

account should fist be addressed to the High Court. Even if the High Court

entertains such a plea, ordinarily it should not stay the proceedings, except in

a case of grave and exceptional nature. Such proceedings in High Court must

be disposed of on a priority basis. The Supreme Court has laid down great

importance on speedy trials of criminal offences and has emphasized:

“It is implicit in the broad sweep and content of Article 2115. A fair trial

implies speedy trial. No procedure can be reasonable, fair or just unless that

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procedure ensures a speedy trial for determination of the guilt of such

persons.”

The Supreme Court has observed:

“No procedure which doesn’t ensure a reasonably quick trial can be regarded

as reasonable, fair or just and it would fall foul of Article 21. There can,

therefore be no doubt that speedy trial and by speedy trial we mean reasonably

expeditious is an integral and essential part of the Fundamental Right to Life

and Liberty enshrined in Article21”

The Supreme Court has emphasized and re-emphasized this preposition

again and again. In Kartar Singh v. State of Punjab96, the court has observed:

“The Concept of speedy trial is read into Article 21 as an essential part of the

Fundamental Right to Life and Liberty guaranteed and preserved in our

Constitution. This right to speedy trial begins with the actual restraint

imposed by arrest and consequent incarceration and continues at all stages,

namely, the stage of investigation, enquiry, trial appeal and revision so that

any possible prejudice that may result from impermissible and avoidable delay

from the time of the commission of the offence till it consummates into a

finality, can averred”

The guidelines laid down in Antualy’s case were adhered to in a number of

cases which came to be considered by the court subsequently. But a different

note was struck in “Common Cause” a registered society through its director v.

Union of India97. In this case the court directed release of under trials on bails if

the trials on bail if the trial is going on for a certain period and the accused has

been in prison for a certain period of time. It also directed acquittal or

discharge of an accused where for an offence punishable with imprisonment

for a certain period, the trial had not begun even after a lapse of the whole or

2/3rd of that period. But the court excluded certain economic and other

offences from its application those cases where the pendency of criminal

96 (1994)3 SCC 569, 638: 1994 SCC (Cri) 899. 97 (1996) 2 SCC 752.

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proceedings was wholly or partly attributable to the dilatory tactics adopted

by the accused or on account of any other action on part of the accused which

resulted in prolonging the trial. The court also explained the expressions,

“pendencey of trial” and “non commencement of trial”

The initiative taken by the court in “Common Cause” case was taken ahead

by the court in R.D. Upadhyay v. State of Andhra Pradesh98. In this case the court

gave directions with respect to the under trials languishing in Trials jail.

Direction were given for nomination of special judges for disposing of cases

of murder. The cases were directed to be disposed of within a period of six

months. The court also gave directions of release of under trials on bail.

Another attempt was made to concretize the right to speedy trial in Raj Deo

Sharma v. State of Bihar99. In this case, the court directed closure of prosecution

evidence on completion of two years in cases of offences punishable with

imprisonment for period not exceeding 7 years and on completion of 3 years

in cases of offences punishable with imprisonment for period exceeding 7

years. But again the effect of this judgment was whittled down in the

subsequent clarification order. In the clarification order it was laid down that

the following periods could be excluded from the limit prescribed for

completion of prosecution evidence in Raj Deo Sharma (1).

Period of pendency of appeal or revision against interim orders, if

any preferred by the accused to protract the trial;

Period of absence of Presiding officer in the trial court;

Period of three months in case the office of public prosecutor falls vacant (for

any reason other than expiry of tenure).

In cases of corruption the amount involved is not material but speedy justice

is the mandate of the constitution being in the interests of the accused as well

as that of the society. Cases relating to corruption are be dealt with swiftly 98 (2001) 4 SCC 355. 99 (1998) 7 SCC 507: 1998 SCC (Cri.) 1692.

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promptly and without delay. As and when delay is found to have been

caused during the investigation, inquiry or trial, the appropriate authorities

concerned are under an obligation to find out and deal with the persons

responsible for such delay. The delay can be attributed either to the

connivance of the authorities with the accused or used as to pressurize and

harass the accused as is alleged to have been done to the appellant in this

case. The appellant has submitted that due to registration to the case and

pendency of the investigation he lost his chance of promotion to the post of

Chief Engineer. It is common knowledge that promotions are withheld when

proceedings with respect to allegations of corruption are pending against the

incumbent. The appellant has further alleged that he has been deprived of the

love, affection and the society of his children who were residing in a foreign

country as on account of the pendency of the investigation he could not afford

to leave country.

Keeping in view the peculiar facts and circumstances of the case court are

inclined to quash the proceedings against the appellant as permitting further

prosecution would be a travesty of justice and a mere ritual or formality so far

as the prosecution agency is concerned, and unnecessary burden as regards

the court.

In P. Ramachandra Rao V. State of Karnataka100 the appellant was working as an

Electrical Superintendent in Manager City Corporation. For the check period

1961 to 1987, he was found to have amassed assets disproportionate to his

known sources of income. Charge-sheet accusing him of offenses under

Section 13 (1) (e) read with Section 13 (2) of the Prevention of Corruption Act,

1988 was filed in 1994. The accused appeared before the Special Court and

was enlarged on bail. Charges were framed in 1994 and the case proceeded

for trial in 1994. In 1999 the learned Special Judge who seized the trial and

directed the accused to be acquitted as the trial had not commenced till then

and the period of two years had elapsed which obliged him to acquit the

100 2002 Cri.LJ 2547.

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accused in terms of the directions of this Court in Raj Deo Sharma V. State of

Bihar. The state of Karnataka through the DSP Lokayukta, Mangalore

preferred an appeal before the High Court putting in issue the acquittal of the

accused. The learned Single Judge of the High Court, vide the impugned

order, allowed the appeal. Set aside the order of acquittal and remanded the

case to the trial court forming an opinion that a case charging an accused with

corruption was exception to the directions made in Raj Deo Sharma (I) as

clarified by his court in Raj Deo Sharma (II) V. State of Bihar Strangely enough

the High Court not only condoned a delay of 55 days in filing the appeal

against acquittal by the state but also allowed the appeal itself both without

even issuing notice to the accused. Similar are the facts in all the other

appeals. Shorn of details suffice it to say that in all the appeals the accused

persons who were facing corruption charges were acquitted by the Special

Court for failure of commencement of trial in spite of lapse of two year from

the date of framing of the charges and all the state appeals were allowed by

the High Court without noticing the respective accused persons.

The appeals came up for hearing before a bench of three learned Judges. In all

the appeals the accused persons who were facing corruption charges under

the Prevention of Corruption Act, were acquitted by the Special Courts for

failure of commencement of trial in spite of lapse of two years from the date

of framing of the charges in terms of the directions of the Supreme Court in

Common Cause A Registered Society V/s union of India (I) Common Cause

A Registered Society V/s union of India (II) and Raj Deo Sharma V/s State of

Bihar (I) and Raj Deo Sharma (II) V/s State of Bihar. All the appeals were

allowed by High Court without issuing notice to the respective accused

persons. A three judge Bench of the Supreme Court took the view that the

questions in the appeals were whether the aforesaid decisions of the Court

would apply to the prosecutions under the Prevention of Corruption Act and

other economic offences and whether time limits of the nature mentioned in

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some of these judgment can, under the law be laid down and that the same

should be considered by a Constitution Bench.

The Constitution Bench Judgment in A.R. Antulay case holds that it is neither

advisable no feasible to draw or prescribe an outer time limit for conclusion of

all criminal proceedings even so the four judgments aforementioned lay

down such time limits. Two of them also lay down to which class of criminal

proceedings such time limits should apply and to which class they should

not.

In these circumstances the Court opined that a seven Judge Bench should

consider whether the dictum aforementioned in A.R. Antualy case still holds

field, if not whether the general directions of the kind given in these

judgments are permissible in law and should be upheld.

The Dictum in A.R. Antulay case is correct and still holds the field. The

positions emerging from Article 21 of Constitution and expounding the right

to speedy trial laid down as guidelines in A.R. Antulay case adequately take

care of right to speedy trial. However the guidelines laid down in A.R.

Antulay case are not exhaustive but only illustrative. They are not intended to

operate as hard and fast rules or to be applied like a straitjacket formula. Their

applicability would depend on the fact situation of each case. It is difficult to

foresee all situations and no generalization can be made.

The decisions given in Common Cause Case and Raj Deo Sharma Cases run

counter to that extent to the dictum of the Constitution Bench in A.R. Antulay

case and therefore cannot be said to be good law to the extent they are in

breach of the doctrine of precedents. The well settled principle of precedents

which has crystallized into a rule of law is that a Bench of lesser strength is

bound by the view expressed by a bench of larger strength and cannot take a

view in departure on in conflict there from.

Prescribing periods of limitation at the end of which the trial court would be

obliged to terminate the proceedings and necessarily acquits or discharge the

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accused and further. Making such directions applicable to all the cases in the

present and for the future amounts to legislation which cannot be done by

judicial directives and within the arena of the judicial law making power

available to constitutional courts howsoever liberally Articles 32, 21, 141 and

142 of the constitution may be interpreted.

Thus, it is neither advisable nor feasible nor judicially permissible to draw or

prescribe an outer limit for conclusion of all Criminal Proceedings. The time

limits or bars of limitation prescribed in the several directions made in

Common Cause (I) Raj Deo Sharma (I) and Raj Deo Sharma (II) could not

have been so prescribed or drawn and are not obliged to terminate trial or

criminal proceedings merely on account of lapse of time as prescribed by the

directions made in Common Cause Case (I) Raj Deo Sharma Cases (I) and (II).

At the most the periods of time prescribed in those decisions can be taken by

the court seized of the trial or proceedings to act as reminders when they may

be persuaded to apply their judicial mind to the facts and circumstances of the

case before them and determine by taking into consideration the several

relevant factors as pointed out in A.R. Antulay case and decide whether the

trial or proceedings have become so inordinately delayed as to be called

oppressive and unwarranted. Such time limits cannot and will not by

themselves be treated by any court as a bar to further continuances of the trial

or proceedings and as mandatory obligation of the court to terminate the

same and acquit or discharge the accused.

The Criminal Courts should exercise their available powers such as those

under sections 309, 311 and 258 of the Code of Criminal Procedure to

effectuate the right to speedy trial. A watchful and diligent trial judge can

prove to be a better protector of such right than any guidelines. In

appropriate cases, inherent power of the High Court under section 482 can be

invoked to make such orders, as may be necessary to give effect to any order

under such orders, as may be necessary to give effect to any order under the

Code of Criminal Procedure or to prevent abuse of the process of any court,

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under Section 482 can order under the Code of Criminal Procedure or to

prevent abuse of the process of any court or otherwise to secure the ends of

justice. The power is wide and, if judiciously and consciously exercised can

take care of almost all the situations where interference by the High Court

becomes necessary on account of delay in proceedings or for any other reason

amounting to oppression or harassment in any trial inquiry or proceedings. In

appropriate case the High Courts have exercised their jurisdiction under

Section 482 CrPC for quashing of first information report and investigation

and terminating Criminal Proceedings if the case of abuse of process of law

was clearly made out, such power can certainly be exercised on a case being

made out of breach of fundamental right conferred by Article 21 of the

Constitution.

It is however made clear here that only the directions made by the Supreme

Court in Common cause case (I) and (II) and Raj Deo Sharma cases (I) and (II)

regarding trial of cases have been dealt with. The directions made in those

cases regarding enlargement of accused persons on bail are not the subject

matter of this reference or these appeals. Secondly while deleting the

directions made respectively by two and three Judges Benches of the Supreme

Court in the cases under reference no departure has been made from the law

as to speedy trial and speedy conclusion of criminal proceedings of whatever

nature and at whatever nature and at whichever stage before any authority or

the court. Thirdly, the bars of limitation are being deleted here on the twin

grounds that it amounts to judicial legislation which is not permissible and

because they run counter to the doctrine of binding precedents. The larger

question of powers of the Supreme Court to pass orders and issue directions

in public interest or in social action litigations, Specially by reference to

Article 32, 141, 142 and 144 of Constitution is not the subject matter of the

reference before the Court and this judgment should not be read as an

interpretation of those articles of the Constitution and laying down, defining

or limiting the scope of the powers exercisable there under by the Supreme

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Court. And lastly, it is clarified that this decision shall not be a ground for

reopening a case proceedings by setting aside any such acquittal or discharge

as is based on the authority of Common cause and Raj Deo Sharma cases and

which has already achieved finality and reopen the trial against the accused

therein.

Let us consider some famous or rather in famous cases which took media

attention and made entire nation waiting for the verdict. The first case being

on Bombay (mumbai) serial blast. The blast that rocked mumbai was

unprecedented . For first time a metro city of India was targeted by serial

blast. It killed 250 people and injured 700 people. The attack is believed to be

carried out by d-company and tiger memom is chief accused who is still

absconding. It took 13 years for court to reach judgment of the case. 129

people were arrested , out of which 100 were found guilty.

Recently another highly covered case's judgment has come. The tragic Bhopal

gas verdict has found all 8 accused to be guilty. Deadly methyl isocyanate gas

leak from the Union Carbide plant on December 2nd and 3rd in 1984.It killed

thousands . The chairman of union Carbide Corporation of the US , Mr

Warren Anderson has been declared absconding while one of accused died

during trial. 25 years for verdict in case which killed thousands of people of

India.

Ruchika Girhotra Case made headlines few months back. It outraged the

nation seeing powerful police personnel getting away with small

imprisonment after 19 years of the criminal offense. He molested ruchika who

was minor at that time. He used all his might to make life difficult for ruchika

and her family. Ruchika committed suicide while her family was ruined.

Active media made sure the case reaches drawing room of every Indian , this

brough immense pressure on administration and rocked parliament too.

Currently rathore has been given 1.5 years of prison and cbi is looking

forward to file case for abatement of suicide. It took 19 years for friends of

ruchika and her family to get justice.

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An honorable judge has once said that with current volume of cases pending ,

it would take another 300 years for judges to give verdict. Justice delayed in

justice denied goes the saying and Indian Law ministry has to coordinate with

judiciary system to make sure faster justice is delivered.

It is not only difficult but impossible to foresee and enumerate all possible

situations arising to provide in advance solutions with any hard and fast rules

of universal application for all times to come. It is well known that where

there is right, there should be a remedy. In what exceptional cases not

normally visualized or anticipated by law, what type of an extraordinary

remedy must be devised or designed to solve the issue arising would

invariably depend upon the gravity of the situation, nature of violation and

efficacy as well as utility of existing machinery and the imperative need or

necessity to find a solution even outside that ordinary framework or avenue

of remedies to avert any resultant damage beyond repair or redemption to

any person. Apparently, alive to such possibilities only even the Supreme

Court in A.R. Antulay case has chosen to decline the request of fixation of any

period of time limit for trial of offences not on any total want or lack of

jurisdiction in the Supreme Court but for the reason that it is neither advisable

or practicable to fix any such time limit and that the non fixation does not in-

effectuate the guarantee of right to speedy trial.

The prospects and scope to achieve the desired object of a speedy trial even

within the available procedural safeguards and avenues provided of

obtaining relief have also been indicated in the said decision as well as in the

judgment delivered by learned R.C. Lahoti, J. I am of the firm opinion that the

Supreme Court should never venture to disown its own jurisdiction on any

area or in respect of any matter or over any authority or person when the

constitution is found to be at state and the fundamental rights of

citizens/persons are under fire to restore them to their position and uphold

the Constitution and the rule of law for which the Supreme Court has been

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established and constituted with due primacy and necessary powers

authority and jurisdiction both express and implied.

The Supreme Court held in the decision the mental agony, expense and stain

which coupled with delay may result in impairing the capability or ability of

the accused to defend himself have persuaded the constitutional courts of the

country in holding the right to speedy trial a manifestation of fair, just and

reasonable procedure enshrined in Article 21. Speedy trial again would

encompass within its sweep all its stages including investigation, inquiry,

trial, appeal, revision and retrial. It is the constitutional obligation of state to

dispence speedy Justice more so in the field of criminal law and paucity of

fund or resources is no defences to denial of right to justice emanating from

Article 21, 19 and 14 and also from the directive principle of state policy.

Though the concept of human rights has been an integral part of our social

values, tradition and ethos, the contemporary changes in socio-cultural and

economic life have made it imperative to have a fresh look at human rights.

The institution of criminal justice has evolved not only to protect human

rights of those endangered by anti-social elements but also to restore the

human dignity of those who have gone out of the prescribed social order. The

Apex Court of our country has fully established that a person who violates

law does not become non-person and he continues to be entitled to all human

rights within the limitation of legal provisions. Indeed, India is second to

none in terms of thinking in this regard as manifested repeatedly by the

Supreme Court but there still remains a wide gap, as identified in preceding

paras, between ‘expectations’ and ‘reality’ which needs to be bridged at the

earliest.

Obviously, any proposed mechanism for the preservation of human rights of

persons who come in conflict with the law needs to look into their basic needs

and to strive to revive human beings from within human beings in both police

as well as judicial custody. Seen from this angle, it is distressing to note that

all enlightened thinking garneted at various fori is yet to be translated into

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action. Various issues of the correctional justice system, warranting an urgent

attention, are required to be formulated in a uniform central law dealing with

police as well as prisons with suitable amendments in the relevant procedural

laws. Such a legislative move would really go a long way in initiating

meaningful human rights initiatives and in streamlining the entire

administration of correctional justice in a uniform manner throughout the

country.

There is now an increasing awareness all over the country that the objectives

of reinstating human rights of the persons who come in conflict with law

cannot be achieved without protecting the human rights of those who

‘manage’ them. Towards this, an action plan will have to be designed to

update the status of the functionaries of law enforcement agencies within g

the ambit of human rights initiatives by addressing, among others, the need to

create an independent national cadre and to rationalize their services

conditions and professional growth and development through quality

training at various levels.

This is an appropriate occasion to remind the Union of India and the State

Governments of their constitutional obligation to strengthen the judiciary

quantitatively and qualitatively by providing requisite funds manpower and

infrastructure. They must do something concrete in the direction of

strengthening the justice delivery system.

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