The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed in our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision , till itconsummates into a finality. Speedy trial is sine-qua-non of Article 21 of the Constitution. [1]
Amendments to the Indian Evidence Act, 1872 , so as to provide that in the prosecution of a police officer for an alleged offence of having caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period of police custody, the court may presume that the injury was caused by the police officer having the custody of that person during that period unless the police officer proves to the contrary. [2]
The Supreme Court has directed that in order to make the administration of criminal justice effective, vibrant and meaningful, the Union of India, the State Government and all concerned authorities must take necessary steps immediately so
-------------------------------------------------------------------------------[1]-"Lallan Chaudhary v. State of Bihar", AIR 2006 S C 3376.
[2]- Law Commission of India , 113th Report.
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that the important constitutional right of the accused of a speedy trial does not remain only on papers or is a mere formality. The appellant further submitted that repeated filing of challans by the respondents without any sanction had caused immense mental, physical and emotional stress and harassment for more than 26 years. The appellant also sought relief on the ground that it was the right of every citizen to seek speedy trial. Continuation of further proceedings against the appellant is contrary to the basic spirit of Article 21 and consequently, the impugned judgment is liable to be set aside. [1]
In U.S., it was recognized that the Sixth Amendment guarantee of the right to a speedy trial is essential to protect at least three basic demands of criminal justice: (1) to prevent undue and oppressive incarceration prior to trial, (2) to minimize anxiety and concern accompanying public accusation, and (3) to limit the possibilities that long delay will impair the ability of an accused to defend himself.[2]
In India several amendments have been incorporated in Code of Criminal Procedure, 1973 so as to ensure that no person shall be deprived of his life or personal liberty except according to procedure established by law and other Criminal Laws are also amended for safeguarding citizens' basic human rights guaranteed as fundamental rights in our Constitution. Apex Court has held that speedy trial is a fundamental right under Article 21.
-------------------------------------------------------------------------------[1] "Moti Lal Saraf v. State of J. and K.", AIR 2007 S C 56.
[2] Smith v. Hooey (1969) 393 US 374, 21 L Ed 2d 607, 89 S Ct 575.
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Almost 58 years ago, the Supreme Court was inaugurated on 28th of January, 1950. On the morning of the inauguration, the First Attorney General for India, Mr. M.C. Setalvad while welcoming the Judges of the Supreme Court said that :--
"We hope and trust that this Court will play a great and singular role and establish itself in the consciousness of the Indian People." In his response, the first Chief Justice of the Supreme Court of India, Shri Justice Harilal J. Kania said that this Court will declare and interpret the law of the land, and with the tradition of the judiciary in the country, "it would work in no spirit of formal or barren legalism" and that within the limits prescribed, the Supreme Court would be able to make its substantial contribution. We have a sense of pride and feel satisfied to note that the Supreme Court has endeavoured to act in harmony with the spirit of the times and values and norms it had set for itself with the aid of Article 21 of the Constitution of India, specially in the administration of criminal justice. The Supreme Court has successfully risen to meet the challenges from time to time in the administration of criminal justice system. Once the Supreme Court has sounded the grim warning that the criminal justice system had been subverted, with witnesses being manipulated and trials being hijacked with judges and "handicapped witnesses" have no protection from the prosecution agencies. This is adversely affecting administration of criminal justice system.
The speedy trial is an integral part of Article 21 of the Constitution. In the instant case, in the last twenty six years, not even a single prosecution witness had been examined. It was urged that for more than one reasons, the prosecution, in the instant case, cannot be permitted to continue. The proceedings taken by the respondents against the appellant were clearly an abuse of process of law. The Apex Court had repeatedly emphasized that the speedy trial is implicit in the spectrum of Article 21 of the Constitution.
Judge has to play an important role in discharging his judicial function to achieve the ends of justice. For this purpose ample discretionary powers have entrusted with every judge. Justice H. R. Khanna once observed that we need persons on the bench who can weigh things in the balance with supreme impartiality, ....whom nothing can sway, neither mob frenzy, nor the views of the powers that be, persons with resolute hearts, whose allegiance is to justice and to nothing else. Timidity of minds will goes together with the office of a judge. Therefore , in the temple of justice[court] there shall always be vindication of law and the triumph of truth.
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Justice Krishna Iyer remarked, "Our justice system even in grave cases, suffers from slow motion syndrome which is lethal to 'fair trial' whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time.
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[1]"State (N. C. T. of Delhi) v. Navjot Sandhu"AIR 2005 S C 3820 .
[2] [ Babu Singh v. State of UP,], 1978 Cri LJ 651.
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The Apex Court held in the case of Antulay [1]that the right to aspeedy trial was a part of fair, just and reasonable procedure implicit in Article 21 of the Constitution. The Apex Court, in this case, observed that each case had to be decided on its own facts. In this case, the Apex Court further observed that it was not advisable and feasible to fix an outer time limit for conclusion of the criminal proceedings. even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by the Supreme Court in Maneka Gandhi case.[2]
Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be "reasonable, fair and just". If a person is deprived of his liberty under a procedure which is not "reasonable, fair or just", such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release.
The Supreme Court reaffirmed that Right to speedy trial is a concept gaining recognition and importance day by day. [3]
-------------------------------------------------------------------------------[1]Abdul Rehman Antulay v. R. S. Nayak (1992) 1 SCC 225.
[2]Maneka Gandhi v. Union of India [(1978) 1 SCC 248].
[3] Sheela Barse v. Union of India, [1993]4 SCC 204.
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No procedure which does not ensure a reasonably quick trial can be regarded as "reasonable, fair or just" and it would fall foul of Article 21. The Apex Court held that there 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." In a number of cases, the Apex Court on consideration of peculiar facts and circumstance of individual cases had quashed the proceedings.[1]
The Apex Court quashed the proceedings on the ground that any further continuance of the prosecution after lapse of more than six years in the case of the appellant who was merely a trader at the lowest rung of the hierarchy in the Foreign Exchange Division of the Bank is uncalled for, particularly, in view of the complicated nature of the offence charged.[2]
In an another case the Apex Court, quashed the proceedings on the ground of delay in investigation and commencement of trial. The investigation commenced in November 1976 and the case was registered on completion of the investigation in September 1977. Cognizance was taken by the Court in March 1986.[3]
-------------------------------------------------------------------------------[1]"Moti Lal Saraf v. State of Jammu and Kashmir" AIR 2007 SC 56 .
[2] Rakesh Saxena v. State through C.B.I. (1986) Supp. SCC 505.[3] Srinivas Gopal v. Union Territory of Arunachal Pradesh (1988) 4 SCC 36.
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In the case of A. R. Antulay's (case), the Apex Court gave propositions meant to serve as guidelines. The Apex Court held that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. This Court further observed as under:--
"(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 or that it serves the social 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.
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 subjected to unnecessary or unduly long incarceration prior to his conviction;
(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from 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.[1]
The Supreme Court also laid down that the question of delay had to be decided by the Court having regard to the totality of circumstances of an individual case. The Court observed that it must be left to the judicious discretion of the court seized of an individual case to find out from the totality of the circumstances of a given case if the quantum of time consumed up to a given point of time amounted to violation of Article 21, and if so, then to terminate the particular proceedings, and if not, then to proceed ahead. The test is whether the proceedings or trial has remained pending for such a length of time that the inordinate delay can legitimately be called oppressive and unwarranted.
"The right to a speedy trial is not only an important safeguard to prevent undue and oppressive incarceration, to minimize anxiety and concern accompanying the accusation and to limit the possibility of impairing the ability of an accused to defend himself but also there is a societal interest in providing a speedy trial. This right has been actuated in the recent past and the courts have laid down a series of decisions opening up new vistas of fundamental rights. In fact, lot of cases are coming before the courts for quashing of proceedings on the ground of inordinate and undue delay stating that the invocation of this right even need not await formal indictment or charge.
-------------------------------------------------------------------------------[1] Abdul Rehman Antulay v. R. S. Nayak (1992) 1 SCC 225.
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"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 under our Constitution. The 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, inquiry, 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 be averted. The Supreme Court in Hussainara Khatoon (Ist) [1] further observed as under:-- "No procedure which does not 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 trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The Apex Court held that no general guideline can be fixed by the court and that each case has to be examined on its own facts and circumstances. It is the bounden duty of the court and the prosecution to prevent unreasonable delay.===============================================One of the main reasons for the delay in the cases is the adjournment granted by the court on flimsy grounds. Section 309 of Code of Criminal Procedure (Cr. P.C.) deals with the adjournments and power of the court to postpone the hearing.
-------------------------------------------------------------------------------[1] "Hussainara Khotoon v. Home Secretary, State of Bihar, Patna" AIR 1979 S C 1360 .
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The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21. Would he be entitled to be released unconditionally freed from the charge levelled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21." [1] The purpose of right to aspeedy trial is intended to avoid oppression and prevent delay by imposing on the courts and on the prosecution an obligation to proceed with reasonable dispatch.
In case of Motilal saraf[1] the Supreme Court observed that not a single witness has been examined by the prosecution in the last twenty six years without there being any lapse on behalf of the appellant. Permitting the State to continue with the prosecution and trial any further would be total abuse of the process of law. Consequently, the criminal proceedings are quashed.[2] Delaying justice is equal to the denial of justice. Main purpose of this research is to highlight the dynamic approach of the Supreme Court of India dealing with criminal justice system by giving new dimension to the accused, with the aid of Article 21 of the Constitution of India.
-------------------------------------------------------------------------------[1] "Hussainara Khotoon v. Home Secretary, State of Bihar, Patna, AIR 1979 S C 1360.
[2] "Moti Lal Saraf v. State of J. and K.", AIR 2007 S C 56.
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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 strait-jacket 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. 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 good law. The criminal courts 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 case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the courts 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. [1]===============================================The paramount purpose of speedy trial is to safeguard the innocents from undue punishments but prolonged pendency has created an unmountable barrier in that.
-------------------------------------------------------------------------------[1]-"Balbir Singh v. State of Delhi", AIR 2007 SC 2397.
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Such time-limits cannot and will not by themselves be treated by any court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the court to terminate the same and acquit or discharge the accused. It is well settled now that a judgment of court can never be challenged under Article 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21. The only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court. But it will not be open to the Supreme Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the death sentence will not be just and proper. [1]
Pandit. Jawaharlal Nehru, while addressing members of the Punjab High Court on the inauguration of its new building in Chandigarh, on March 19, 1955,said, that “Justice in India should be simple, speedy and cheap.
-------------------------------------------------------------------------------[1]-"Gurmeet Singh v. State of U. P, AIR 2005 S C 3611.
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The Apex Court has also extended the meaning of Articles 14, 19 & 21 of the Constitution of India in case of Jagdish Saran and ors.[1] The Apex Court has expanded the meaning of Article 21 of the Constitution and granted various rights pertaining to personal liberty. A litigant has a fundamental right for speedy trial of his case, because, speedy trial, as held by the Supreme Court in Hussainara Khatoon'scase held that it is an integral and essential part of the fundamental right to life and liberty enshrined in Art. 21.[2] The ideal situation is to have criminal proceedings completed swiftly. But the ideal is far from practical attainment due to a variety of reasons. If one has to abide by the ideal alone, then any period of delay is enough to axe down the criminal proceedings. In Seeta Hemchandra Shashittal case[3] the Apex Court made the following observations:--
"This Court has emphasised, time and again, the need for speeding up the trial as undue delay in culminating the criminal proceedings is antithesis to the Constitutional protection enshrined in Article 21 of the Constitution.===============================================The pendency of criminal cases in subordinate courts is around 1.32 crores and the effective strength of judges is 12,177.==============================================[1] Jagdish Saran and others. v. Union of India (1980) 2 SCC 768. [2] Hussainara Khatoon v. Home Secretary, State of Bihar (1980) 1 SCC 81.
[3] Seeta Hemchandra Shashittal v. State of Maharashtra, [2001] 4 SCC 525.
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Nonetheless the Court has to view it from pragmatic perspectives and the question of delay cannot be considered entirely from an academic angle. In other words, the High Court and this Court, when approached by accused to quash proceedings on the ground of delay, must consider each case on its own facts. Unfortunately the delay has so permeated in our legal system that at all levels tardiness has become the leitmotif. Such a malady has been judicially reprobated and efforts have been made to curtail the delay which has developed as a systemic canker."[1]
An appeal is allowed by the Apex Court where cause of the delay was mostly due to the accused either because they challenged the various orders passed or because they were not present in the Court and hence proceedings could not be continued on many occasions. Causes attributable to the prosecution or even to the Court are comparably much less as to permit the accused to take advantage of the delay in registering progress of the proceedings. Apex Court directed the trial Court to proceed with the case and complete the prosecution evidence within six months from the date on which the accused would appear before the trial Court. The accused was instrumental in causing the delay, then so much of the period would be debited from the time-frame fixed by the Court.[2]===============================================The number of under trials in criminal cases awaiting legal justice in the courts is 1.44 crores. Of these over two lakhs are in prison.
------------------------------------------------------------------------------- [1]Seeta Hemchandra Shashittal v. State of Maharashtra, [2001]4 SCC 525.
[2] "State of Bihar v. Baidnath Prasad", AIR 2002 S C 64.
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No person shall be deprived of his life or his personal liberty except according to procedure established by law - declared Article 21 of the Constitution. Life and liberty, the words employed in shaping Article 21, by the Founding Fathers of the Constitution, are not to be read narrowly in the sense drearily dictated by dictionaries; they are organic terms to be construed meaningful. Embarking upon the interpretation thereof, feeling the heart-throb of the Preamble, deriving strength from the Directive Principles of State Policy and alive to their constitutional obligation, the Courts have allowed Article 21 to stretch its arms as wide as it legitimately can. The mental agony, expense and strain which a person proceeded against in criminal law has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself have persuaded the constitutional courts of country in holding the right to speedy trial a manifestation for 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 re-trial - in short everything commencing with an accusation and expiring with the final verdict - the two being respectively the terminus a quo and terminus ad quem - of the journey which an accused must necessarily undertake once faced with an implication.===============================================On an average, courts are able to dispose off 19 per cent of pending cases every year.
================================================================
The constitutional philosophy propounded as right to speedy trial has though grown in age by almost two and a half decades, the goal sought to be achieved is yet a far-off peak. Myriad fact-situations bearing testimony to denial of such fundamental right to the accused persons, on account of failure on the part of prosecuting agencies and executive to act, and their turning an almost blind eye at securing expeditious and speedy trial so as to satisfy the mandate of Article 21 of the Constitution have persuaded this Court in devising solutions which go to the extent of almost enacting by judicial verdict bars of limitation beyond which the trial shall not proceed and the arm of law shall lose its hold.[1]
The width of vision cast on Article 21, so as to perceive its broad sweep and content, by seven-Judge Bench of the Apex Court in Mrs. Maneka Gandhi [2] , inspired a declaration of law, made on February 12, 1979 in Hussainara Khatoon and Ors. (1) v. Home Secretary, [3] that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty, except according to procedure established by law; that such procedure is not some semblance of a procedure but the procedure should be "reasonable, fair and just", and therefrom flows, without doubt, the right tospeedy trial.____________________________________________________[1]-"P. Ramachandra Rao v. State of Karnataka",AIR 2002 SC 1856.
[2]-Maneka Gandhi v. Union of India and Anr., (1978) 1 SCC 248.
[3]- Hussainara Khatoon and Ors. (1) v. Home Secretary, State of Bihar (1980) 1 SCC 81.
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The Court said - "No procedure which does not 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 trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21". Many accused persons tormented by unduly lengthy trial in any forum whatsoever were enabled, by Hussainara Khatoon (I)[1] statement of law, in successfully maintaining petitions of quashing of charges, criminal proceedings and/or conviction, on making out a case of violation of Article 21 of the Constitution. Right to speedy trial and fair procedure has passed through several milestones on the path of constitutional jurisprudence. In Maneka Gandhi[2], the Apex Court held that fundamental rights guaranteed by Part III required to be read as components of one integral whole and not as separate channels. The reasonableness of law and procedure, to withstand the test of Articles 21, 19 and 14, must be right and just and fair and not arbitrary, fanciful or oppressive, meaning thereby that speedy trialmust be reasonably expeditious trial as an integral and essential part of the fundamental right of life and liberty under Article 21.===============================================The accumulation of vacancies in the benches =140 against the approved strength of 668 judges in high courts.
-------------------------------------------------------------------------------[1] Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar (1980) 1 SCC 81.
[2] Maneka Gandhi v. Union of India and Anr., (1978) 1 SCC 248.
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Several cases marking the trend and development of law applying Maneka Gandhi and Hussainara Khatoon (I) principles to myriad situations came up for the consideration of the Apex Court by a Constitution Bench in (A.R. Antulay). [1] The proponents of right tospeedy trial strongly urged before this Court for taking one step forward in the direction and prescribing time limits beyond which no criminal proceeding should be allowed to go on, advocating that unless this was done, Maneka Gandhi and Hussainara Khatoon (I) exposition of Article 21 would remain a mere illusion and a platitude. Invoking of the constitutional jurisdiction of this Court so as to judicially forge two termini and lay down periods of limitation applicable like a mathematical formula, beyond which a trial or criminal proceeding shall not proceed, was resisted by the opponents submitting that the right to speedy trial was an amorphous one something less than other fundamental rights guaranteed by the Constitution. The right to speedy trial flowing from Article 21 to be meaningful, enforceable and effective ought to be accompanied by an outer limit beyond which continuance of the proceeding will be violative of Article 21. It was submitted that Section 468 of the Code of Criminal Procedure applied only to minor offences but the Court should extend the same principle to major offences as well. It was also urged that a period of 10 years calculated from the date of registration of crime should be placed as an outer limit wherein shall be counted the time taken by the investigation.
- . The Constitution Bench, in A.R. Antulay's case,the Supreme Court, formulated certain propositions, 11 in number, meant to serve as guidelines. Suffice it to state that in the opinion of the Constitution Bench that:-- (i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily; (ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and re-trial; (iii) who is responsible for the delay and what factors have contributed towards delay are relevant factors. Attendant circumstances, including nature of the offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on - what is called the systemic delays must be kept in view, (iv) each and every delay does not necessarily prejudice the accused as some delays indeed work to his advantage. Ultimately, the court has to balance and weigh the several relevant factors - 'balancing test' or 'balancing process' - and determine in each case whether the right to speedy trial has been denied in a given case.
- ------------------------------------------------------------------------- [1] Abdul Rehman Antulay and ors. v. R.S. Nayak and Ors. [1992] 1 SCC 225.
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It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to 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 outer time-limit in spite of the Sixth Amendment. Nor do we think that nor fixing any such outer limit ineffectuates the guarantee of right to speedy trial.
The speedy trial or other expressions conveying the said concept - are necessarily relative in nature. One may ask - speedy means, how speedy? How long a delay is too long?
The Supreme Court has rightly observed that “We do not think it is possible to lay down any time schedules for conclusion of criminal proceedings. The nature of offence, the number of accused, the number of witnesses, the workload in the particular courts, means of communication and several other circumstances have to be kept in mind". It is neither advisable nor feasible to draw or prescribe an outer time-limit for conclusion of all criminal proceedings. It is not necessary to do so for effectuating the right to speedy trial. Apart from Article 21of the Constitution, courts in India have been cognizance of undue delays in criminal matters and wherever there was inordinate delay or where the proceedings were pending for too long and any further proceedings were deemed to be oppressive and unwarranted, they were put an end to by making appropriate orders".
The Apex Court held that for two reasons we hold such bars of limitation uncalled for and impermissible: first, because it tantamount to impermissible legislation - an activity beyond the power which the Constitution confers on judiciary, and secondly, because such bars of limitation fly in the face of law laid down by Constitution Bench in A.R. Antulay's case and, therefore, run counter to the doctrine of precedents and their binding efficacy.[1] Hence, the Apex Court has not found it appropriate not to fix any particular time limit to decide cases.===============================================Accumulation of vacancies in subordinate courts IS 2000 against 15000 sanctioned posts As on January 2005.
----------------------------------------------------------------------------------------- --------- By way of Judicial reforms and e-governance, aim of speedy justice may be achieved.
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Prescribing periods of limitation at the end of which the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused, and further, making such directions applicable to all the cases in the present and for the future amounts to legislation, which, in our opinion, cannot be done by judicial directives and within the arena of the judicial law-making power available to constitutional courts, howsoever liberally we may interpret Articles 32, 21, 141 and 142 of the Constitution. The dividing line is fine but perceptible. Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature.
Binding directions can be issued for enforcing the law and appropriate directions may issue, including laying down of time limits or chalking out a calendar for proceedings to follow, to redeem the injustice done or for taking care of rights violated, in a given case or set of cases, depending on facts brought to the notice of Court. This is permissible for judiciary to do. But it may not, like legislature, enact a provision akin to or on the lines of Chapter XXXVI of the Code of Criminal Procedure, 1973.The dictum in A.R. Antulay's case is correct and still holds the field. The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay's case, adequately take care of right to speedy trial.[1]
-------------------------------------------------------------------------------[1]- "P. Ramachandra Rao v. State of Karnataka", AIR 2002 SC 1856.
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The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket 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. It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The criminal courts 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)[1], Raj Deo Sharma Case (I) [2]and Raj Deo Sharma (II) [3] and it could not have been so prescribed or drawn and are not good law. At the most the periods of time prescribed in those decisions can be taken by the courts 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's case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. The Apex court observed that It is the constitutional obligation of the State to dispense speedily justice, more so in the field of criminal law, and paucity of funds or resources is no defence to denial of right to justice emanating from Articles 21. [4] [1]-Common Cause v. Union of India, AIR 1996 SC 1619. [2]-Raj Deo Sharma v. State of Bihar, AIR 1998 SC 3281. [3]-Raj Deo Sharma v. State of Bihar, AIR 1999 SC 3524. [4]-"P. Ramachandra Rao v. State of Karnataka", AIR 2002 SC 1856.
It is the constitutional obligation of the State to dispense speedily justice, more so in the field of criminal law, and paucity of funds or resources is no defence to denial of right to justice emanating from Articles 21, 19 and 14 and the Preamble of the Constitution as also from the Directive Principles of State Policy. It is high time that the Union of India and the various States realize their constitutional obligation and do something concrete in the direction of strengthening the justice delivery system.[1] In case of “I. R. Coelho” the Apex Court held that--
“Article 21 is the heart of the Constitution.”[2]
Where an offence is punishable with imprisonment up to seven years, mere fact that investigation of offences consumed a period of four years, cannot be a ground to quash criminal proceedingspending against appellants. The Supreme Court has also keep in mind social ordering hence denied to quash criminal proceedings pending against appellants. Court has to maintain balance between social ordering and personal liberty.
-------------------------------------------------------------------------------Now “Plea- Bargaining” has been introduced as one of the important tools for importing speed justice.===============================================
[1] "P. Ramachandra Rao v. State of Karnataka",AIR 2002 SC 1856.
[2] “I. R. Coelho v. State of T. N.” , [2007]2 SCC 1.
[3] "Seeta Hemchandra Shashittal v. State of Maharashtra", AIR 2001 SC 1246 .
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This Court has emphasised, time and again, the need for speeding up the trial as undue delay in culminating the criminal proceedings is antithesis to the Constitutional protection enshrined in Article 21 of the Constitution. Nonetheless the Apex Court is of the view that the question of delay cannot be considered entirely from an academic angle. The Court must consider each case on its own facts. Unfortunately the delay has so permeated in our legal system that at all levels tardiness has become the leitmotif. Such a malady has been judicially reprobated and efforts have been made to curtail the delay which has developed as a systemic canker. For the first time the Code of Criminal Procedure provided periods for completing investigation in regard to offences punishable with sentences up to imprisonment not exceeding three years. Provisions have been incorporated in Chapter 36 of the Code imposing a legal bar on the Court to take cognizance of such offences after the lapse of the period of limitation fixed in respect of different categories of offences the punishment of which does not exceed the aforesaid limit. However, the offences relating to corruption were among those excluded from the purview of such periods of limitation.Section 258, and 309 contemplates speedy trial.
Trial courts must frame charges timely so as to begin trials without delay. After recording evidence for the prosecution courts must have to got examine the accused without further delay.===============================================Total pending cases in the Supreme Court were 30,000, in high courts over 33.79 lakh and in subordinate courts over 2.35 crore.
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The Supreme Court has considered the facts and observed that we have to analysis this case to find out whether the delay involved in the investigation have impaired the fundamental rights of the appellants which is enshrined in Article 21 of the Constitution. Viewing the investigation in this case from a realistic angle it has spread over to a period of four years i.e. from June, 1986 to July, 1990. The Assistant Commissioner of Police attached to the ACB who has sworn to an affidavit before the High Court in answer to the averment contained in the writ petition, has stated that the case involved voluminous records as well as a large number of properties which are situated at various places and that hundreds of documents regarding shares, debentures, fixed deposits and receipts pertaining to hundreds of companies were also to be scrutinized. According to him such a heavy work turned out to be a time consuming job........The offence alleged against the appellant is punishable with imprisonment up to seven years. These aspects were highlighted by us for the purpose of satisfying ourselves that criminal proceedings pending against the appellants cannot be quashed on the mere ground that the investigation consumed a period of four years.[1]Unreasonably long delay in investigation and trial violates right of speedy trial under Art. 21 of the Constitution, but court should look at the matter with a realistic and practical approach having regard to the each case. Court held that period of 2 years taken by Govt. is not unreasonably long so as to violet Art. 21.
-------------------------------------------------------------------------------[1]- "Seeta Hemchandra Shashittal v. State of Maharashtra", AIR 2001 SC 1246.
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Speedy justice is a fundamental right which flows from Article 21 of the Constitution. Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers a right upon him to apply for bail. This Court, has time and again, reminded the executive of their obligation to appoint requisite number of judges to cope with the ever increasing pressure on the existing judicial apparatus. [1]
Suggestions for speedy justice
It is unfortunate that even from the existing strength of the High Courts and subordinate courts huge vacancies for the post of judges are not being filled up with the result that the accused in criminal cases are languishing in the jails for no fault of theirs. In the absence of prompt action under the Constitution to fill up the vacancies, it is incumbent upon the High Courts to find ways and means by taking steps to ensure the disposal of criminal appeals, where the accused are in jails, that the matters are disposed of within the specified period not exceeding 5 years in any case. Appeal being a statutory right, the trial Court's verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction.
Government has to place special emphasis on professionalism in investigation and prosecution as well protection to citizens.=======================================[1]- "Akhtari Bi v. State of M. P.", AIR 2001 S C 1528.
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Regular benches to deal with the criminal cases can be set up where such appeals be listed for final disposal. If an appeal is not disposed of within the aforesaid period of 5 years, for no fault of the convicts, such convicts may be released on bail on such conditions as may be deemed fit and proper by the Court. In computing the period of 5 years, the delay for any period, which is requisite in preparation of the record and the delay attributable to the convict or his counsel can be deducted. There may be cases where even after the lapse of 5 years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the disposal of the appeals filed by them.
When witnesses are present in Court for examination the advocate concerned has a duty to see that their examination is conducted. Witnesses who come to the Court, on being called by the Court, do so as they have no other option, and such witnesses are also responsible citizens who have other work to attend for eking out livelihood. They cannot be treated as less respectables to be told to come again and again just to suit the convenience of the advocate concerned. If the advocate has any unavoidable inconvenience it is his duty to make other arrangements for examining the witnesses who is present in Court. Seeking adjournments for postponing the examination of witnesses who are present in Court even without making other arrangements for examining such witnesses is a dereliction of advocate's duty to the Court as that would cause much harassment and hardship to the witnesses. Such dereliction if repeated would amount to misconduct of the advocate concerned. Legal profession must be purified from such abuses of the Court procedures.
Lawyers have no right to go on strike or give a call for boycott, not even on a token strike. lawyers holding Vakalats on behalf of their clients cannot not attend Courts in pursuance to a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequences by the Association or the Bar Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. In a case of Corruption 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 by the Supreme Court holding that 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.[1]
In cases of corruption the amount involved is not material butspeedy 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 to be dealt with swiftly, promptly and without delay.
-------------------------------------------------------------------------------[1]-"Mahendra Lal Das v. State of Bihar", AIR 2001 SC 2989 .
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As and when delay is found to have been caused during the investigation, inquiry or trial, the concerned appropriate authorities 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 a lever to pressurise and harass the accused as is alleged to have been done to the appellant in this case. Such delay should be avoided by monitoring each case by superior authorities. The inordinate, unexplained and negligent delay in pronouncing the judgment is alleged to have actually negatived the right of appeal conferred upon the convicts under the provisions of Code of Criminal Procedure. Such a delay is not only against the provisions of law but in fact infringes the right of personal liberty guaranteed by Article 21 of the Constitution of India. Any procedure or course of action which does not ensure a reasonable quick adjudication has been termed to be unjust. [1] The inordinate, unexplained and negligentdelay in pronouncing the judgment is stated to be contrary to the maxim "Actus Curiae Neminem Gravabit", that an act of the Court shall prejudice none. The prevalence of such a practice and horrible situation in some of the High Courts in the country has necessitated the desirability of considering the effect of such delay on the rights of the litigant public. Though reluctantly, yet for preserving and strengthening the belief of the people in the institution of the judiciary, we have decided to consider this aspect and to give appropriate directions.
-------------------------------------------------------------------------------[1]- "Anil Rai v. State of Bihar", AIR 2001 S C 3173.
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The judgments must be pronounced in time and time should be prescribed for pronouncement of judgment. It has been held time and again that justice should not only be done but should also appear to have been done. Similarly whereas justice delayed is justice denied, justice withheld is even worst than that. Once the entire process of participation in justice delivery system is over and only thing to be done is the pronouncement of judgment, no excuse can be found to further delay for adjudication of the rights of the parties, particularly when it affects any of their rights conferred by the Constitution under Part- III. Unreasonable delay in delivery of a judgment unless explained by exceptional or extraordinary circumstances, is highly undesirable even when written arguments are submitted. Justice, must not only be done but must\ manifestly appear to be done."
The Supreme Court in various cases [1] has in unambiguous terms, held that "the right of speedy trial to be part of Article 21 of the Constitution of India". For the High Courts, no period forpronouncement of judgment is contemplated either under the Civil Procedure Code or the Criminal Procedure Code, but as the pronouncement of the judgment is a part of justice dispensation system, it has to be without delay.
-------------------------------------------------------------------------------[1]-Hussainara Khatoon v. Home Secretary, State of Bihar, ( 1980) 1 SCC 81, Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 98, A. R. Antulay v. R. S. Nayak, (1992) 1 SCC 225, Kartar Singh v. State of Punjab, (1994) 3 SCC 569, Raj Deo Sharma v. State of Bihar, ( 1998) 7 SCC 507, Raj Deo Sharma (II) v. State of Bihar, (1999) 7 SCC 604 and Akhtari Bi v. State of M.P., (2001) 4 SCC 355.
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In a country like ours where people consider the judges only second to God, efforts be made to strengthen that belief of the common man. Delay in disposal of the cases facilitates the people to raise eye-brows, sometime 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 fault of a few, the glorious and glittering name of the judiciary cannot be permitted to be made ugly. It is the policy and purpose of law, to have speedy justice for which efforts are required to be made to come to the expectation of the society of ensuring speedy, untainted and unpolluted justice.
In conference of Chief Ministers and Chief Justices of High Courts, held at New Delhi, on 8th April, 2007, the Prime Minister remarked the most important issue is that of “Pendency” and backlog of cases in courts. It is a matter of concern that there are huge arrears of more than 2.5 crores of cases in courts. Over 2/3rd of these are criminal cases. Unless the rate of disposal improves, the backlog would keep mounting. Therefore, there is an urgent need to improve the throughput of cases. An important factor causing pendency is number of vacancies that presently remain unfilled in the subordinate judiciary. Courts can consider more than one shift. Fast Track Courts are another answer to speedy justice and eliminating pendency of huge cases. Cases should be decided for imparting justice not for the sake of its disposal. Secondly, plea bargaining procedure must be utilised as a better option for quick disposal of cases. In fact, the untiring service of fear and flavorless Indian judiciary is doing commendable job under odd circumstances.
Some of the remedies that can ensure speedy justice
Cutting down the number of adjournments, reducing the time for arguments, keeping a check on review petitions/ frivolous petitions, stopping lawyers extending cases and so on.
Punishments should be very stringent and the implementing authorities should be tough so that crime comes down automatically.
Lawyers should encourage out of court settlements/Compromise.
In case a lawyer looses a certain number of cases, his license should be suspended for sometime so that lawyers refrain from taking up frivolous cases.
Government officials should be made personally liable for lapses so that cases against the government are reduced.
While the problem of delay looks daunting, it can be dealt with, by having more fast track courts, making judicial services more attractive thereby attracting good lawyers and filling up all vacancies at various courts. We should also not resort to extra-ordinary speed of cases by whatever means. While justice delayed is justice denied, similarly, ‘justice hurried is justice buried’. Therefore, sufficient, reasonable and due hearing of every cases with consideration of its circumstances is the necessary requirement of natural justice and balance of convenience.
An Indian court Chandigarh has delivered a guilty verdict within ten days of murder charges being framed, a record speed for delivering justice in a nation known for prolonged judicial delays. A district court in northern India found Sunil Kumar guilty of brutally killing his wife, Kiran on February 17 after just three hearings. Kumar was convicted on the basis of the statement of his eight-year-old son, who said he saw his father hitting his mother with a rod. The case drew front-page attention in national newspapers because the Indian judicial system is notoriously slow and cases go on for years; decades in worst cases. Take, for instance, the cinema hall tragedy in the national capital over a decade ago. In 1997, the famous Uphaar Cinema in a posh south Delhi neighbourhood caught fire broke due to a short circuit leaving 59 people dead and 103 injured. It took 10 years before a trial court pronounced judgment, convicting 12 people, including the owners of the theater, millionaire brothers Sushil and Gopal Ansal, for negligence, causing death and not ensuring safety of the theater. The long delays in dispensing justice have seriously eroded the faith of the public in the country's legal system. Many say that only fools approach courts as the only beneficiaries are the lawyers.
The Asian Legal Resource Centre (ALRC), a non-governmental organisation, in a written statement to the National Human Rights Commission, said: “A decade of waiting is not much time in deciding a case in India. It is equally applicable to civil and criminal trials.” According to Law Minister HR Bharadwaj, the Supreme Court has approximately 48,800 pending
cases while the High Courts across the country have a backlog of nearly 3.9 million cases. " Supreme Court lawyer and leading civil rights activist Prashant Bhushan said. "This country only lives under the illusion that there is a judicial system."
Law Minister, H. R. Bharadwaj attributed 29 reasons for the huge backlog of cases, including long-winded judgments, un-punctual judges and vacancies. "We are grappling with the problem of pendency. I have no power to tell a judge to write a short judgment or this or that," he said, adding, "A judge and his judicial conviction determines a judgment. I can't whisper in his ear. A judge is left to function on his own." With pressure mounting for speedy justice, the government has initiated various steps, including setting up of fast-track courts; evening courts, 'Lok Adalats', or courts set up by legal services committees to amicably settle cases between two parties, and conciliation and mediation centers. While these measures have helped to some extent in the speedy disposal of justice, they have still not made a dent on the huge backlog of cases because of thousands of new cases being filed every day. In that background, the Chandigarh judge has indeed set a record. It is a ray of hope for thousands of victims and a warning for those who exploit the loopholes in criminal justice system," a local criminal lawyer NK Nanda, was quoted as saying in The Times of India. But more such speedy judgments are needed if people's faith in the country's judicial system is to be restored.
Where has Article 21’s guarantee of speedy justice gone?
The slow paced judicial system has become a matter of serious national concern. We are today seeing justice in slow motion. The tragedy of the system is that the slow process itself punishes all those who come in contact with it – the winner as well as the loser.The Supreme court through its pronouncements have endeavoured for speedy justice, and specially in criminal cases the case should be decided as early as possible, in some states, the honb’le high courts seeks the figures of cases in which charge sheet was sent to court and the trial has not commenced within 6 months, but just see the reality i guess it takes at least 6 months to frame charges against the accused, and then go on years together for the trial, by then either witness die or turn hostile, we becomes helpless due o mounting pendency.
Of course there is need for speedy trial of the cases. But casting liability on the Judges only is not a good approach towards the solution. The judge is the only person who generally does not make any delay. But he can't help to change the mindset of others. If the concern authorities make some rules and discipline for all others, the problem will definitely be vanished.
-------------------------------------------------------------------------------In Delhi evening courts are functioning for cheque bounce cases and Summary cases and officers are assigned duties for this in rotation to work from 5 to 7 p. m.
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The Supreme Court has held in Raghubir Singh's case [1] that speedy trial is one of the dimensions of fundamental right to life and liberty under article 21.
Delay Leads To Mental Anguish: In hussainara khatoon v. State of Bihar which formed the basis of the concept of the Speedy Trial, it was held that where under trial prisoners have been in jail for duration longer than prescribed, if convicted, their detention in jail is totally unjustified and in violation to fundamental rights under article 21. Inordinate delays violates article 21 of the constitution: for more than 11 yrs the trial is pending without any progress for no faults of the accused-petitioner. Expeditious rights is a basic right to everybody and cannot be trampled upon unless any of the parties can be accused of the delay. Delay in trial unnecessarily confers a right upon the accused to apply for bail.
In the case P. Ram Chandra Rao v. State of Karnataka , the court overruled decision of Raj Deo Sharma and common cause and held that no time bound direction for completing a trial can be issued by a High Court. (III) Article 21 Of The Constitution. Though there are no specific provisions for speedy trial, by judicial interpretation, the Supreme Court has held article 21 of the constitution confers the right on the accused.
The negative image of the police in the mind of the ordinary citizen is due to the high incidence of arbitrary arrests and custodial abuse – even for minor offences. More often than not, it is poorer people who are more likely to be arrested, detained and mistreated – even in the course of routine investigations. Independent studies indicate that up to 60% of arrests made in our country are needless since the detained persons do not prove to be useful for the purpose of investigation or trial. Such a state of affairs exists even though theD.K. Basu judgment laid down clear guidelines to regulate powers of arrest and detention. [1]
However, undue delays in investigations, framing of charges and the conduct of trials is another problem where the blame is to be shared by the judiciary. These delays of course contribute to an increase in the population of ‘under-trials’ who face additional risks arising out of contact with hardened criminals, while in custody.
The Supreme Court has also passed some orders laying down the conditions under which a Station House Officer (S.H.O.) has an obligation to file a FIR and conduct a prompt investigation.[2]
-------------------------------------------------------------------------------[1] D.K. Basu v. State of West Bengal, AIR 1997 SC 610. [2]Prakash Singh v. Union of India, [2006]3 SCC (Cri.) 417.
Posted by Raghuveer Singh Chundawat.
