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TMI Blog1991 (12) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... ental rights guaranteed by our Constitution. On the other hand, proponents of the right want us to go a step forward and prescribe a time limit beyond which no criminal proceeding should be allowed to go on. Without such a limit, they say, the right remains a mere illusion and a platitude. Proponents of several view points have put forward their respective contentions. We had the benefit of elaborate arguments addressed by counsel on both sides of the spectrum. A large number of cases have been cited. Different view points have been presented. We shall refer to them at the appropriate stage. First, how these matters have come to be posted before the Constitution Bench. 2. Writ Petition No. 268/87 and a few other criminal appeals came up before a Division Bench when it was urged for the accused that a time limit be fixed for concluding all criminal proceedings. Without such a time limit, it was argued, the guarantee of right to speedy trial will remain a mere platitude. The Division Bench was of the opinion that the said contention "raises a very important constitutional question" which "is likely to arise more often in many cases and that, the decision on the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Samant filed a Writ Petition against the petitioner-accused alleging several acts of abuse of power including many of those alleged in the complaint filed by R.S. Nayak. The Writ Petition was allowed on 12th January, 1982 as a result of which the petitioner resigned from the office of the Chief Minister. 5. Special Criminal Application No. 1742 of 1981 filed by the complainant was dismissed by the High Court on April 12, 1982. Against the order, State of Maharashtra applied to this Court for Special Leave, which was declined on July 28, 1982. On the same day, however, the Governor of Maharashtra granted sanction under Section 6 of 1947 Act in respect of offences set out therein. On this basis the complainant/respondent filed a fresh complaint in the Court of Special Judge, Bombay (created under the Criminal Law Amendment Act, 1952, hereafter referred to as '1952 Act') which was registered as Criminal Case No. 24 of 1982, against the accused and some other persons. The main allegation in this complaint was that the accused had embarked upon a scheme of aggrandisement involving obtaining of funds from public in the name of certain trusts and that he was misusing his office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not think it necessary to discuss it inasmuch as the required notification was already issued by the Government of Maharashtra. 7. Sri R.B. Sule took up the matter and sought to proceed with it. At that stage, the petitioner accused moved two applications before him on 8th July, 1983 : one to discharge him on the ground that the charge against him is groundless and on the further ground that since he was a M.L.A., cognizance of offences without the sanction of the Governor was not valid and the other for postponment of the hearing of the case. The learned Special Judge (Sri R.B. Sule) upheld the first contention of the accused and held that without the sanction of the Governor, the case cannot go on. Accordingly, he discharged the accused. Thereupon, the complainant approached this Court by way of a Special leave Petition as well as a Writ Petition. He also filed a Criminal Revision before the Bombay High Court against the very same order of Sri R.B. Sule, which Revision Application was subsequently transferred to this Court. These matters were heard by a Constitution Bench presided over by D.A. Desai, J. and disposed of on February 16, 1984 (reported in : 1984CriLJ613 ). Meanwhil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the observations made by the Division Bench of Bombay High Court in that behalf. We must reiterate that the entire judgment of the Constitution Bench deals only with the first objection and not with the second. On page 921 of the report, the court merely noticed the observations of the Division Bench of the Bombay High Court with respect to second objection and left it there. 9. In pursuance of the direction given by this Court (in : 1984CriLJ613 ) Special Criminal Case No. 24 of 1982 was assigned to Sri Justice S.N. Khatri of the Bombay High Court. Before the learned Judge, the accused raised an objection that the said Special case can be tried only by a Special Judge appointed by the Government under the 1952 Act and that a Judge of the High Court has no jurisdiction to try it. This and some other objections raised by the accused were rejected by the learned Judge, bound as he was by the aforesaid direction of this Court. The order of Khatri, J. was questioned by the accused in this Court but dismissed on 17th April, 1984 (reported in 1984 (3) S.C.R. 482). Later the proceedings were transferred to D.N. Mehta, J., who framed 21 charges but declined to frame charges under 22 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge and if it did so, to which Special Judge. Be that as it may, the fact remains that no further progress was made in the case. It does not even appear that the case was taken up by any of the Special Judge appointed under the 1952 Act. On 31.5.1989, the respondent complainant filed an application (C.M.P. No. 1946 of 1990) before this Court to treat the evidence received and recorded in Bombay High Court as evidence in the Court of Special Judge. No orders were passed on this application until 1991, when it was tagged on to this matter before us. Meanwhile, an advocate of Bombay, Sri More, filed a writ petition in the Bombay High Court in March, 1990, being Writ Petition (Crl.) No. 281 of 1990 for a direction to the Government of Maharashtra to designate a Special Judge to try the said Special Case No. 24 of 1982. To this Writ Petition, petitioner-accused was impleaded as the first respondent while R.S. Nayak (complainant) and the State of Maharashtra were impleaded as respondents 2 and 4 respectively. The Writ Petition came up before a Division Bench on 23.4.1990 and was disposed of with a direction. It would be appropriate to extract the relevant portion of the order to bring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the statement of the learned Advocate General, the relief sought in the petition no longer survives and the rule earlier issued stands discharged. Pursuant to the above direction, the Government of Maharashtra issued a notification dated 19.6.1990 designating a Special Judge to try the case. 11. Meanwhile, on 14.6.1990, petitioner filed this writ petition under Article 32 of the Constitution to quash Criminal Case No. 24 of 1982 on the ground of violation of his fundamental right to speedy trial. On 16.9.1991, the Special Judge issued notices both to the complainant and the accused to appear before him for further steps. On 7.10.1991, bailable warrants were issued to the petitioner accused and on 11.10.1991, he was granted bail. FACTS IN W.P. NO. 268/87: Sri L.N. Misra, the then Union Minister for Railways died in a bomb blast at the railway station, Samastipur on 2nd January, 1975. Investigation was taken up immediately by the Bihar State Police. On 10th January, 1975, C.B.I. took over the investigation, but Bihar C.I.D. continued to be associated with the investigation. In the first week of February, 1975, two persons, Arun Kumar Misra and Arun Kumar Thakur were arreste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement, retracted his confession while in Patna jail. There is a good amount of controversy with respect to the circumstances in which he retracted his confession viz., whether it was done voluntarily or under pressure of the officers of the Government of Bihar. Be that as it may, a situation arose where the C.B.I. and the Bihar C.I.D. were freely trading charges of false implication against each other. The C.B.I. seems to have felt that it cannot prosecute its case properly at Patna and, therefore, the Attorney General of India moved this Court for transferring the case to Delhi. This court, without going into the truth or otherwise of the allegations on the basis of which transfer was sought, ordered transfer. After such transfer, the learned Chief Metropolitan Magistrate, Delhi committed the case to Sessions on 2 Sections 1980. The case was made over to Sri D.C. Aggarwal, Additional Sessions Judge, Delhi. The accused was produced before him in March, 1980. Charges were framed in January, 1981 and trial commenced. 15. First few dates of hearing were taken up by miscellaneous applications including applications for bail and validity of the charges framed. Case had to be adjou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the stage of committal, may be relevant at the stage of trial and their supply to the accused may be considered at the stage of trial. The prosecution says that all the documents asked for by accused have been supplied to them at the stage of trial. In November, 1981, Sri D.C. Aggarwal, Additional Sessions Judge was transferred to Sales Tax Tribunal. One, Sri S.M. Aggarwal was posted in his place. The accused-petitioner says that inspite of Sri D.C. Aggarwal going to Sales Tax Tribunal, the prosecution sought to proceed with this case before him alone and refused to proceed before the succeeding Judge, Sri S.M. Aggarwal, notwithstanding the notification dated 9.12.1988 issued by the High Court designating Sri S.M. Aggarwal as the Judge competent to try the said case. Petitioner says that on 17th December, 1981, the said case was transferred to Sri D.C. Aggarwal (Sales Tax Tribunal) by the learned Sessions Judge at the instance of the prosecution, which action was challenged by the petitioner by way of writ petition. The matter ultimately reached this Court which directed that the case be withdrawn from Sri D.C. Aggarwal and assigned to another Sessions Judge at Delhi. There ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the case. At this stage, the petitioner was yet to give his reply to learned Attorney General. The petitioner requested that since he is not in a position to represent his case properly he may be given the assistance of Sri Ram Jethmalani as Amicus Curiae. At our request, Sri Jethmalani graciously agreed to assist the court as amicus curiae and continued his arguments on facts. He brought several facts to our notice which according to him vitiate the entire proceedings and call for quashing of the proceedings by this Court. We shall refer to them at the appropriate stage. 18. SUBMISSION IN W.P. NO. 833/90. Mr. P.P. Rao, learned Counsel appearing for the petitioner-accused in W.P. No. 833/90 urged the following contentions : (i) Right to speedy trial flows from Article 21, as held by several decisions of this Court; (ii) To make the right to speedy trial meaningful, enforceable and effective, there ought to be an outer limit beyond which continuance of the proceedings will be violative of Article 21. This court has prescribed such an outer limit in the case of children below the age of 16 years; a similar rule must also be evolved for general application as has been done b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the complainant (R.S. Nayak) while not disputing the proposition that Right to speedy trial is implicit in Article 21 of the Constitution, submitted that the conduct of the accused in this case disentitles him to any relief. According to him, it was the duty of the High Court of Bombay to have sent the record to the appropriate Special Judge pursuant to the judgment of the Seven-Judge Bench in April, 1988. The High Court took no such step. No notice was also received by the complainant from the Special Court Ordinarily, he pointed out, when a case is remanded from a higher court to the trial court, the latter issues notices to the parties to appear before it on a date specified. In this case, however, no such notices were issued. He also submitted that in view of Sri Sule ceasing to be the Special Judge, the Government was bound to notify one of the Special Judges at Bombay as the Judge competent to try this case; this was not done and, therefore, no Special Judge was seized of the matter. In such a situation the complainant could not be found fault with for not proceeding with the trial. He submitted that until Sri More filed a writ petition and the Bombay High Court gave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispose of this appeal as well alongwith the aforesaid two writ petitions- he confined himself mainly to questions of law. His submissions are to the following effect : 1. The Constitution makers were aware of the Sixth Amendment provisions in the Constitution of the U.S.A. providing in express terms the right of an 'accused' to be tried speedily. Yet this was not incorporated in the Indian Constitution. So long as Gopalan v. State of Madras held the field in India, only such speedy trial was available as the provisions of the CrPC made possible. No proceeding could ever be quashed on the ground of delay. On a proper grievance being made, or suo moto, court could always ensure speedy trial by suitable directions to the trial court including orders of transfer to a court where expeditious disposal could be ensured. 2. With the decision of this Court in Maneka Gandhi, Article 21 received a new content. Procedure relating to punishment of crime must be fair, just and reasonable. Hoosein Ara Khatoon and later decisions have spelt out a so-called 'Right to Speedy Trial' from Article 21. It is both a convenient and self-explanatory description. But it does not follow tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actions or proceedings. (D) Delay caused by legitimate actions of the prosecutor e.g., getting a key witness who is kept out of the way or otherwise avoids process or appearance or tracing a key documents or securing evidence from abroad. 7. Delay is usually welcomed by the accused. He postpones the delay of reckoning thereby. It may impair the prosecution's ability to prove the case against him. In the meantime, he remains free to indulge in crimes. An accused cannot raise this plea if he has never taken steps to demand a speedy trial. A plea that proceedings against him be quashed because delay has taken place is not sustainable if the record shows that he acquiesced in the delay and never asked for a expeditious disposal. In India the demand rule must be rigorously enforced. No one can be permitted to complain that speedy trial was denied when he never demanded it. 8. The core of 'Speedy Trial' is protection against incarceration. An accused who has never been incarcerated can hardly complain. At any rate, he must show some other very strong prejudice. The right does not protect an accused from all prejudicial effects caused by delay. Its core concern is impairme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 78, when this Court granted bail. The petitioner's incarceration from 21.1.1977 (the date of grant of bail by Delhi High Court) upto 30.3.1978, is illegal and unconstitutional. It vitiates the entire proceedings. 2. From the date of filing of the charge-sheet in December, 1975 till the case was transferred to Delhi in 1979, prosecution has been totally negligent in proceeding with the case. It has not explained what was it doing these three years-part of which period, the petitioner was imprisoned illegally. 3. The prosecutor is under an obligation to supply not only the documents relied upon by him but also all those documents which may be favourable to the accused as well. This obligation flows from Rule 16 of the Rules framed under the Advocates Act and from the very nature of the office and duties attaching to the office of prosecutor. Rule 16 aforesaid prohibits the prosecutor from suppressing the material favourable to the accused. 4. One Sri Ahuja was the main investigating officer for the C.B.I. It was he who had interrogated Arun Kumar Misra and Arun Kumar Thakur and got the confession of Arun Kumar Thakur recorded on 21st February, 1975. According to this confessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... frame-up. 5. The delay occasioned by the prosecution insisting upon prosecuting the accused only before Sri D.C. Aggarwal, (the delay is of three months), though short, indicates the prosecutorial malovolence. This vitiates the prosecution case and is an additional ground for quashing the proceeding. 24. The learned Attorney General, who appeared for the C.B.I., submitted in the first instance that this Court should not lay down any parameters or guidelines concerning the right to speedy trial. According to him, the CrPC contains enough provisions which serve as guidelines for ensuring a speedy trial. He requested that the cases placed before this Bench be disposed of on merits without laying down any general propositions. He submitted that Section 482 of the CrPC is an adequate remedy. It can be invoked by an accused who has been denied a speedy trial. He says that the High Court has power to quash criminal proceedings if such a course is found necessary to secure the ends of justice. Unjustifiable delay in concluding a Criminal case does amount to abuse of process of court and can be quashed under the said provision. He took us through the entire proceedings of this case, both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ares inter alia that 'in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial'. This is in addition to the Fifth Amendment which inter alia declares that "no person shall....be deprived of life", which corresponds broadly to Article 21 (and Clause 1 of Article 31, since deleted). This omission and the holding in A.K. Gopalan v. State of Madras: 1950CriLJ1383 probably explains why this right was not claimed or recognised as a fundamental right flowing from Article 21 so long as Gopalan held the field. Once Gopalan was over-ruled in R.C. Cooper (1970 S.C. 564) and its principle extended to Article 21 in Maneka Gandhi (1978 S.C. 597) Article 21 got unshackled from the restrictive meaning placed upon it in Gopalan. It came to acquire a force and vitality hitherto unimagined. A burst of creative decisions of this Court fast on the heels of Maneka Gandhi gave a new meaning to the Article and expanded its content and connotation. While this is not the place to enumerate all those decisions, it is sufficient to say that the opinions of this Court in Hussainara Khatoon cases decided in the year 1979, declaring that right to speedy trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fundamental right conferred by Article 21 such law in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article. This proposition can no longer be disputed after the decisions in R.C. Cooper's case, Shambhu Nath Sarkar's case and Haradhan Sahai's case. Now, if a law depriving a person of 'personal liberty' and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation, ex hypothesi it must also be liable to be tested with reference to Article 14. The learned Judge pointed out the integral connection between Articles 14 and 21 in the following words : Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non- arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consequence of quashing of charges/trial? That question we shall consider separately but what is of significance is, this decision does establish the following propositions : (1) Right to speedy trial is implicit in the broad sweep and content of Article 21. (2) That unless the procedure prescribed by law ensure a speedy trial it cannot be said to be reasonable, fair or just. Expeditious trial and freedom from detention are part of human rights and basic freedoms and that a judicial system which allow incarceration of men and women for long periods of time without trial must be held to be denying human rights to such under trials. Learned counsel for the accused particularly relied upon the following passage from the opinion of Bhagwati, J. There is also one other infirmity of the legal and judicial system which is responsible for this gross denial of justice to the under trial prisoners and that is the notorious delay in disposal of cases. It is a bad reflection on the legal and judicial system that the trial of an accused should not even commence for a long number of years. Even a delay of one year in the commencement of the trial is bad enough; how must worse could it be whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State appealed to this Court. This Court was inclined to agree with the State that the first ground given by the High Court may not be sustainable, but it affirmed the decision of the High Court on the second ground. This court observed : We cannot lose sight of the fact that the trial has not made much headway even though no less than 20 years have gone by. Such protraction itself means considerable harassment to the accused not only monetarily but also by way of constant attention to the case and repeated appearances in court, apart from anxiety. It may well be that the respondents themselves were responsible in a large measure for the slow pace of the case inasmuch as quite a few orders made by the trial Magistrate were challenged in higher courts, but then there has to be a limit to the period for which criminal litigation is allowed to go on at the trial stage. In this view of the matter, we do not consider the present case a proper one for our interference inspite of the fact that we feel that the allegations disclose the commission of an offence which we regard as quite serious. 31. In Khadra Paharia v. State of Bihar : AIR1981SC939 , this Court re- affirmed the princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitling the Court to raise a presumption that the accused had been prejudiced there will be no justification to quash the conviction on the ground of delayed trial only. The Court then examined the facts of the case before it in the light of the said principles and found that the accused himself was responsible for a fair part of the delay and that he has also been unable to establish how he was prejudiced in the conduct of his defence on account of delay. Th court also took into consideration the nature of offence, namely an economic offence which jeopardises the economy of the country and held that it is not a case which calls for interference. Accordingly, it set aside the judgment of the High Court. In the course of his judgment, Chinnappa Reddy, J., noted that "delay is a known defence tactic" and also that where the prosecution has a weak case, it may resort to same tactic with a view to keep the prosecution pending as long as possible. He observed : Denial of speedy trial may with or without proof of something more lead to an unavoidable inference of prejudice and denial of justice. It is prejudice to a man to be detained without trial. It is prejudice to a ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency of the Criminal Appeal for six years before the High Court itself a regrettable feature of this case. In addition to it, the order directing re-trial has resulted in serious prejudice to the appellants. We are of the view that having regard to the nature of the acts alleged to have been committed by the appellants and other attendant circumstances, this was a case in which the High Court should have directed the dropping of the proceedings in exercise of its inherent powers under Section 482, Criminal Procedure Code even if for some reason it came to the conclusion that the acquittal was wrong. A fresh trial nearly seven years after the alleged incident is bound to result in harassment and abuse of judicial process. It is significant to notice that the nature of the offence appears to have mainly weighed with the Court in directing that the proceedings ought not to be continued any further. 35. In Sheela Barse and Ors. v. Union of India and Ors. : [1986]3SCR562 , a Division Bench comprising Bhagwati and R.N. Misra, JJ. re-affirmed that the "right to speedy trial is a fundamental right implicit in Article 21 of the Constitution" and observed "the consequence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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? Irrespective of any likelihood of prejudice in the conduct of his defence, was the very length of the delay sufficiently prejudicial to the accused? Some of these factors have been identified in Barker v. Wingo (supra). A host of other questions may arise which we may not be able to readily visualise just now. The question whether the right to a speedy trial which forms part of the fundamental right to life and liberty guaranteed by Article 21 has been infringed is ultimately a question of fairness in the administration of criminal justice even as 'acting fairly' is of the essence of the principles of natural justice (In re. H.K. 1967 (1) All ER 226 and a 'fair and reasonable procedure' is what is contemplated by the expression 'procedure established by law' in Article 21 (Maneka Gandhi). The approach adopted by the learned Judge in this case is practically the same as was adopted by him in Champalal Punjaji Shah (supra) to wit, right the speedy trial &qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5(2) read with Section 5(1) (e) of the Prevention of Corruption Act was registered in March, 1984. He was placed under suspension but then it was revoked in September, 1984 and he was reinstated in service. In July, 1985, the government cancelled its earlier order and called upon the respondent to show cause why he should not be retired from service. The respondent challenged the said notice before the Central Administrative Tribunal which was upheld. The Special Leave Petition presented to this Court was dismissed in view of the fact that respondent had already retired from service on attaining the age of superannuation. After all this, the Anti- corruption Bureau re-started the criminal proceedings in 1987-88 whereupon the respondent approached the High Court for quashing the said proceedings on the ground of delay. The High Court quashed the same accepting the ground urged. This court affirmed. Of course, while doing so, it took care to observe that while examining the plea of delay in completing the investigation, the court should have regard to all the relevant circumstances and that it is not possible to formulate any inflexible guidelines or rigid principles of uniform appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le it is incumbent on the court to see that no guilty person escapes, it is still more its duty to see that justice is not delayed and accused persons are not indefinitely harassed. The scales, the court observed, must be held even between the prosecution and the accused. In the facts of that case, the court refused to order trial on account of the time already spent and other relevant circumstances of that case. In Veerbhadra v. Ramaswamy Naickar : 1958CriLJ1565 , this Court refused to send back proceedings on the ground that already a period of five years has elapsed and it would not be just and proper in the circumstances of the case to continue the proceedings after such a lapse of time. Similarly, in Chajju Ram v. Radhey Sham [1971] S.C.R. 172, the court refused to direct a re-trial after a period of 10 years having regard to the facts and circumstances of the case. In State of U.P. v. Kapil Deo Shukla : 1972CriLJ1214 , 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. It is, thus, clear that even apart from Article 21 courts in this country have been cognizant of undue delays in crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It would be appropriate to notice certain observations of the court with respect to the right to speedy trial. We are referring to this case in some detail for the reason that this decision has not only been followed in subsequent decisions of the United States Supreme Court but has also been approved by the Privy Council, as we shall presently point out. The relevant observations of the court may be set out in their own words : The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition too, the interests of the accused.... A second difference between the right to speedy trial and the accussed's other constitutional rights is that deprivation of the right may work to the accussed's advantage. Delay is not an uncommon defense tactic. As the time between the commission of the crime and trial lengthens, witnesses may become unavailable or their memories may fade.... De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accussed's interest in a speedy trial is specifically affirmed in the Constitution. 44. In Strunk v. United States, 37 Law Edn. 2nd 56 it was held that an accussed's right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial. It was observed that the desires or convenience of the accused or other individuals are of little relevance and make no difference to the prosecutor's obligation to ensure a prompt trial. The main question considered in this case was whether the violation of the said guarantee entails dismissal of the charges. It was held that dismissal of charges is the only possible remedy where a speedy trial has been denied. Indeed, in this case, the court of appeals was also of opinion that the accused's right to speedy trial was denied but it did not quash the charges but directed merely that the sentence awarded to the accused should be reduced by the period of unconstitutional delay. (The matter was taken to appellate court after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... District Court dismissed the indictment in May, 1983 on the ground of violation of the aceussd's right to speedy trial. The matter was, ultimately, brought to the Supreme Court where a majority of Judges (5 : 4) held that the time during which the defendants were neither under indictment nor subject to any official restraint and where the delays were caused on account of interlocutory appeals, cannot be counted towards delay and do not entitle the accused to any relief on that basis. The minority, however, held that though the indictment against the defendant was dismissed and they were unconditionally released, their case remained on the trial court's docket and that the time taken for appeals in their case was patently unreasonable. For the said delay, the prosecution ought to suffer and not the accused. We do not think it necessary to refer to the reasoning of this case in any detail since it, besides affirming the Barker principles in all respects, mainly deals with the question whether the time taken in prosecuting interlocutory appeals should or should not count towards delay, particularly where the accused are released unconditionally during that period. Besides th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said case. According to the petitioner, this was done mala fide and with a view to jeopardise his career and prospects of promotion. Be that as it may, he was arrested and produced before the Magistrate who granted him provisional bail on 20th April, 1975 which was confirmed later on. On 30th January, 1976, a charge-sheet was filed against the petitioner. Proceedings thereafter went on at a very leisurely pace. Charges were framed in July, 1977. Inspite of directions of the court, prosecution did not examine the witnesses in quick succession but in driblets. Finding that the prosecution was not heeding its orders nor was adducing evidence, the learned Magistrate closed the prosecution case in April, 1984. It is necessary to point out that between July, 1977 (when the charges were framed against him) and April, 1984 (when the learned Magistrate closed the prosecution case) only about 9 out of the 40 witnesses cited were examined. Aggrieved by the trial court's order closing its case, the prosecution preferred a revision which was allowed directing the Magistrate to give an opportunity to the prosecution. Even so, the prosecution did not avail of the opportunity. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and exceptional reasons), in the context of reversal of a clean acquittal on a capital charge, would be per se prejudicial to the accused and would plainly violate the constitutional guarantee of a speedy trial under Article 21. The other findings of the Full Bench are to the following effect : 1. the right to speedy trial applies not only to major crimes but to minor offences as well; 2. it takes in its fold not only the proceedings in court but also the preceding police investigation; 3. the provisions of the CrPC and the Bihar Police Manual not only embody the spirit of a speedy public trial but, in fact, epitomise it by express provisions mandating speedy and expeditious disposal within specified time limits. There is no conflict between Article 21 and the provisions of the Code. The more important principle enunciated in this decision relates to the question whether a time-limit should be prescribed to effectuate the said right. After an elaborate examination of several decisions of this Court including Sheela Barse, and of the American Supreme Court, the learned Judge came to the following conclusion : ....an outer limit to concretise the right to speedy public trial is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the sense the expression has been defined in Clause (3) (a) of Article 13 of the constitution) in Article 21 has to answer the test of reasonableness and fairness inherent in Articles 19 and 14. In other words, such law should provide a procedure which is fair, reasonable and just. Then alone, would it be in consonance with the command of Article 21. Indeed, wherever necessary, such fairness must be read into such law. Now, can it be said that a law which does not provide for a reasonably prompt investigation, trial and conclusion of a criminal case is fair, just and reasonable? It is both in the interest of the accused as well as the society that a criminal case is concluded soon. If the accused is guilty, he ought to be declare so. Societal interest lies in punishing the guilty and exoneration of the innocent but this determination (of guilt or innocence) must be arrived at with reasonable dispatch-reasonable in all the circumstances of the case. Since it is the accused who is charged with the offence and is also the person whose life and/or liberty is at peril, it is but fair to say that he has a right to be tried speedily. Correspondingly, it is the obligation of the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, fraud, forgery, sedition, acquisition of disproportionate assets by public servants, cases of corruption against high public servants and high public officials take longer time for investigation and trial. Then again, the work-load in each court, district, region and State varies. This fact is too well-known to merit illustration at our hands. In many places, requisite number of courts are not available. In some places, frequent strikes by members of the Bar interferes with the work-schedules. In short, it is not possible in the very nature of things and present day circumstances to draw a time limit beyond which a criminal proceeding will not be allowed to go. Even in the U.S.A., the Supreme Court has refused to draw such a line. Except for the Patna F.B. decision under appeal, no other decision of any High Court in this country taking such a view has been brought to our notice. Nor, to our knowledge, in United Kingdom. Wherever a complaint of infringement of right to speedy trial is made the court has to consider all the circumstances of the case including those mentioned above and arrive at a decision whether in fact the proceedings have been pending for an unjustifiably lon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . But we do not think that that is the only order open to court. In a given case, the facts-including the nature of offence-may be such that quashing of charges may not be in the interest of justice. After all, every offence-more so economic offences, those relating to public officials and food adulteration-is an offence against society. It is really the society-the state-that prosecutes the offender. We may in this connection recall the observations of this Court in Champalal Punjaji Shah. In cases, where quashing of charges/convictions may not be in the interest of justice, it shall be open to the court to pass such appropriate orders as may be deemed just in the circumstances of the case. Such orders may, for example, take the shape of order for expedition of trial and its conclusion within a particular prescribed period, reduction of sentence where the matter comes up after conclusion of trial and conviction, and so on. 54. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 a frivolous. Very often these stays obtained on ex-parte representation. 5. While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of 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. 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. As has been observed by Powell, J. in Barker "it cannot be said how long a delay is loo long in a system where justice is supposed to be swift but deliberate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 U.S.A. too as repeatedly refused to fix any such outer time limit inspite of the Sixth Amendment. Nor do we think that not fixing any such outer 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 basis. 55. Now let us examine the facts in writ petition No. 833 of 1990 in the light of the above principles. It is true that Special Case No. 24 of 1982 instituted in 1982 is still pending in the y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was that the case had now to be tried by the Special Judge. But which Special Judge? asks the counsel for the complainant. Sri Sule, who was previously designated under a notification issued under Section 7(2) of 1952 Act ceased to be a Judge. There was no other notification designating any other Judge to try this case. Without a notification under Section 7(2), may be neither of the two Special Judges at Bombay was competent to take up the matter. In fact, that was the petitioner's objection taken in 1982, upon which there was no pronouncement either by the High Court or this Court in view of the notification issued by the Government of Maharashtra pending the proceedings before High Court. The Bombay High Court too did not send the file to either of the Special Judges. That such a notification was necessary, was also the view of the Government of Maharashtra, as would be evident from the statement of the learned Advocate-General (made on instructions) before the High Court in writ petition (crl.) No. 281 of 1990 disposed of on 23.4.1990. The Government of Maharashtra actually issued the notification on 19.6.1990 designating a Special Judge as the Judge competent to try this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... April, 1988 and June, 1990 cannot be treated as delay caused by the complainant. It is true that after the judgment of Seven-Judge Bench of this Court in April, 1988, the complainant did not himself move the Government of Maharashta to designate a Special Judge for the case but waited till another person, an advocate, did so. (Of course, when asked by the High Court, he expressed his readiness to go on with the prosecution). It is also true that even after the Government issued the notification dated 19.6.90, he does not appear to have moved in the matter till about September, 1991, but this conduct of his must be weighed against the following circumstances : (a) the nature of the offences, with which the accused-petitioner is charged are quite serious. 79 charges were framed by the Bombay High Court earlier including those under the Prevention of Corruption Act and abuse of power on the basis of the material produced by the complainant. It is true that all that has come to nought with the holding that the very transfer of the case to High Court was incompetent. But the above fact is relevant for the limited purpose of showing the nature of the offences with which the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pril, 1988, and the issuance of notification under Section 7(2) of Criminal Law Amendment act only in June, 1990. (The present writ petition was filed in the same month). e) The petitioner has never been incarcerated-not even for a day. It is also not clearly established how this delay has prejudiced his case. In ground No. 10 of his writ petition, he merely stated that six persons whom he wanted to examine at the trial have expired. He has named six persons including Mrs. Indira Gandhi, Naval Tata, Pesi Tata and Vasantdada Patil. He has, however, not elaborated which of them was proposed to be examined on what aspect? Mrs. Indira Gandhi and Pesi Tata died even before April, 1988. The other four have no doubt died after April, 1988, but it is not clearly shown how the same has caused him prejudice. As a matter of fact, both Mrs. Indira Gandhi and Sri Vasantdada Patil were cited as complainant's witnesses (Sl. Nos. 106 and 114 respectively in the list of witnesses appended to complaint). On a consideration of all the facts and circumstances of the case balancing process-we are of the opinion that this is not a fit case for quashing the criminal proceedings. The proper directio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was arrested in July, 1975 for two offences (the case of attempt to murder Chief Justice Ray and L.N. Misra murder case) the accused was never informed that he was implicated in the latter offence. He was never produced in Patna court till December, 1976 and extension of remand was obtained from time to time without producing him before the Patna court and without even informing him. He pointed out that on the expiry of 90 days from the date of his arrest the petitioner had earned a right to be released under Section 167 Cr.P.C. inasmuch as the charge-sheet was not filed within that period. Even after the accused-petitioner obtained bail from Delhi High Court in the criminal appeal, he could not be enlarged on bail because of his implication in L.N. Misra murder case. The learned Counsel says that the period of incarceration subsequent to grant of bail by Delhi High Court was illegal. Certain other alleged illegalities are also pointed out. We do not, however, think it proper to pronounce upon the correctness or otherwise of the said aspect in this writ petition. If indeed, any such illegalities have been committed, we are sure that they will be taken into consideration by the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t may, the fact remains that a major part of the trial is over. The petitioner has been released on bail by this Court as far back as 13th March, 1978. A proper disposal of the case alone will bring out the truth. Thus, on a consideration of circumstances appearing for and against, we are of the opinion that quashing of the charges and/or criminal proceedings at this stage would not be just and proper. The proper order to make in this case is to request the Delhi High Court to dispose of Criminal Revision No. 191 of 1986 as early as possible, preferably within a period of two months from the date of copy of this order is communicated to it. After the Criminal Revision Petition is disposed of, the trial Judge will take up the matter and proceed with it with as much expedition as possible in the circumstances and preferably on a day-to-day basis.
57. Writ Petition No. 833 of 1990 and Writ Petition No. 268 of 1987 are accordingly dismissed with the directions aforementioned. Criminal Appeal No. 126 of 1987 preferred by State of Bihar against the judgment of the Full Bench of the Patna High Court is also dismissed for the reasons hereinbefore. X X X X Extracts X X X X X X X X Extracts X X X X
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