TMI Blog2002 (4) TMI 962X X X X Extracts X X X X X X X X Extracts X X X X ..... hich, 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 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. 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 devi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rges, 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 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 who noticed the common ground that the appeals in the High Court were allowed by the learned Judge thereat without issuing notice to the accused and upon this ground alone, of want of notice, the appeals hereat could be allowed and the appeals before the High Court restored to file for fresh disposal after notice to the accused but it was felt that a question arose in these appeals which was likely to arise in many more and therefore the appeals should be heard on their merits. In the order dated September 19, 2000, the Bench of three learned Judges stated: The question is whether the earlier judgments of this court, principally, in Common Cause Vs. Union of India (1996 (4) SCC 33), Common Cause Vs. Union of India (1996(6) SCC 775), Raj Deo Sharma Vs. State of Bihar (1998(7) SCC 507) and Raj Deo Sharma (II) Vs. State of Bihar 1999 (7) SCC 604), would ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be constituted at an early date . On 20.2.2002 the Court directed, Common Cause , the petitioner in the two Common Cause cases which arose out of writ- petitions under Article 32 of the Constitution, heard and decided by this Court as public interest litigations, to be noticed. Common Cause has responded and made appearance through counsel. We have heard Shri Harish Salve, the learned Solicitor General appearing for Attorney General for India, Mr. Ranjit Kumar, Senior Advocate assisted by Ms. Binu Tamta, Advocate for the appellants, Mr. Sanjay R. Hegde and Mr. Satya Mitra, Advocates for the respondents, Mr. S. Murlidhar, Advocate for Common Cause and such other Advocates General and Standing Counsel who have chosen to appear for the States. We shall briefly refer to the five decisions cited in the order of reference as also to a few earlier decisions so as to highlight the issue posed before us. The width of vision cast on Article 21, so as to perceive its broad sweep and content, by seven-Judge Bench of this Court in Mrs. Maneka Gandhi Vs. Union of India Anr., (1978) 1 SCC 248, inspired a declaration of law, made on February 12, 1979 in Hussainara Khatoon an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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 submissions made by proponents included that 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 proceedings 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, heard elaborate arguments. The Court, it its pronouncement, formulated certain propositions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not fixing any such outer limit ineffectuates 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 basis. During the course of its judgment also the Constitution Bench made certain observations which need to be extracted and reproduced:- But then 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? 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 partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and the accused to be discharged on lapse of more than two years on account of non-serving of summons to the accused or for any other reason whatsoever. Category (ii) : Cases under IPC or any other law for the time being in force : The Court directed that in the following sub-categories if the trial has not commenced and the period noted against each sub- category has elapsed then the case shall be closed and the accused shall be discharged or acquitted Nature of the cases Period of delay i.e. trial not commenced for Cases compoundable with the permission of the Court More than two years Cases pertaining to offences which are non-cognizable and bailable More than two years Cases in connection with offences punishable with fine only and are not of recurring nature More than one year Cases punishable with imprisonment upto one year, with or without fine More than one year Cases pertaining to offences punishable with imprisonment upto three years with or without fine More than two years The period of pendency was directed to be calculated from the date the accused are summoned to appear in Court. The Division Bench, vide direction 4, specified certain categories of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Special Judge for passing appropriate orders in the light of its judgment. Vide para 17, the three-Judge Bench issued five further directions purporting to be supplemental to the propositions laid down in A.R. Antulay. The directions need not be reproduced and suffice it to observe that by dividing the offence into two categories those punishable with imprisonment for a period not exceeding 7 years and those punishable with imprisonment for a period exceeding 7 years, the Court laid down periods of limitation by reference to which either the prosecution evidence shall be closed or the accused shall be released on bail. So far as the trial for offences is concerned, for the purpose of making directions, the Court categorized the offences and the nature and period of delay into two, which may be set out in a tabular form as under:- Nature of offence Nature and period of delay Offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not Completion of two years from the date of recording the plea of the accused on the charges framed, whether the prosecution has examined all the witnesses or not within the said period of tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his judgment, to avert 'possibility of miscarriage of justice', added a rider to the directions made in Raj Deo Sharma (I) that an additional period of one year can be claimed by the prosecution in respect of prosecutions which were pending on the date of judgment in Raj Deo Sharma (I) and the Court concerned would be free to grant such extension if it considered it necessary in the interest of administration of criminal justice. M. Srinivasan, J. in his separate judgment, assigning his own reasons, expressed concurrence with the opinion expressed and the only clarification ordered to be made by K.T. Thomas, J. and placed on record his express disagreement with the opinion recorded by M.B. Shah, J. M.B. Shah, J. in his dissenting judgment noted the most usual causes for delay in delivery of criminal justice as discernible from several reported cases travelling upto this Court and held that the remedy for the causes of delay in disposal of criminal cases lies in effective steps being taken by the Judiciary, the Legislature and the State Governments, all the three. The dangers behind constructing time-limit barriers by judicial dictum beyond which a criminal trial or proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... country is poor judge-population-ratio. Law Commission of India in its 120th Report on Manpower Planning in Judiciary (July 1987), based on its survey, regretted that in spite of Article 39A added as a major Directive Principle in the Constitution by 42nd Amendment (1976), obliging the State to secure such operation of legal system as promotes justice and to ensure that opportunities for securing justice are not denied to any citizen several reorganisation proposals in the field of administration of justice in India have been basically patch work, ad hoc and unsystematic solutions to the problem. The judge-population-ratio in India (based on 1971 census) was only 10.5 judges per million population while such ratio was 41.6 in Australia, 50.9 in England, 75.2 in Canada and 107 in United States. The Law Commission suggested that India required 107 judges per million of Indian population; however to begin with the judge strength needed to be raised to five-fold, i.e., 50 judges per million population in a period of five years but in any case not going beyond ten years. Touch of sad sarcasm is difficult to hide when the Law Commission observed (in its 120th Report, ibid) that adequate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for trial; (v) strikes by members of Bar; and (vi) counsel engaged by the accused suddenly declining to appear or seeking an adjournment for personal reasons or personal inconvenience. It is common knowledge that appointments of public prosecutors are politicized. By convention, government advocates and public prosecutors were appointed by the executive on the recommendation of or in consultation with the head of judicial administration at the relevant level but gradually the executive has started bypassing the merit based recommendations of, or process of consultation with, District and Sessions Judges. For non- service of summons/orders and non-production of undertrial prisoners, the usual reasons assigned are shortage of police personnel and police people being busy in VIP duties or law and order duties. These can hardly be valid reasons for not making the requisite police personnel available for assisting the Courts in expediting the trial. The members of the Bar shall also have to realize and remind themselves of their professional obligation legal and ethical, that having accepted a brief for an accused they have no justification to decline or avoid appearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 cases, the High Courts have exercised their jurisdiction under Section 482 of Cr.P.C. 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. The Constitution Bench in A.R. Antulay's case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting to an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted. Legislation is that source of law which consists in the declaration of legal rules by a competent authority. When judges by judicial decisions lay down a new principle o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. On the other hand if courts have to rely on their own knowledge or research it is bound to be selective and subjective. Courts also have no means for effectively supervising and implementing the aftermath of their orders, schemes and mandates. Moreover, since courts mandate for isolated cases, their decrees make no allowance for the differing and varying situations which administrators will encounter in applying the mandates to other cases. Courts have also no method to reverse their orders if they are found unworkable or requiring modification . Highlighting the difficulties which the courts are likely to encounter if embarking in the fields of legislation or administration, the learned author advises the Supreme Court could have well left the decision- making to the other branches of government after directing their attention to the problems rather than itself entering the remedial field . The primary function of judiciary is to interpret the law. It may lay down principles, guidelines and exhibit creativity in the field left open and unoccupied by Legislation. Patrick Devlin in 'The Judge' (1979) refers to the role of the Judge as lawmaker and states that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and expansion of the meanings of open-textured expressions such as 'due process of law', 'equal protection of law', or 'freedom of speech and expression' is a legitimate judicial function, the making of an entirely new law..through directionsis not a legitimate judicial function. (p.250). 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 layin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of an accused's right of speedy trial may result in a decision to dismiss the indictment or in reversing of a conviction, went on to state, Of course, no length of time is per se too long to pass scrutiny under this principle nor the accused is called upon to show the actual prejudice by delay of disposal of cases. On the other hand, the court has to adopt a balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceeding has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factors (1) length of delay, (2) the justification for the delay, (3) the accused's assertion of his right to speedy trial, and (4) prejudice caused to the accused by such delay. (para 92). For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (as modified in Common Cause (II) ) and Raj Deo Sharma (I) and (II), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions. (6) 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. We hope and trust that the Governments shall act. We answer the questions posed in the orders of reference dated September 19, 2000 and April 26, 2001 in the abovesaid terms. The appeals are allowed. The impugned judgments of the High Court are set aside. As the High Court could not have condoned the delay in filing of the appeals and then allowed the appeals without noticing the respective accused-respondents before the High Court, now the High Court shall hear and decide the appeals afresh after noticing the accused-respondent before it in each of the appeals and consistently with the principles of law laid down hereinabove. Before we may part, we would like to make certain observations ex abundanti cautela : Firstly, we have dealt with the directions made by this Court in Commo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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