Wednesday, July 29, 2009
Saturday, June 13, 2009
Significant Principles of Criminal Justice.
The criminal justice system in India beginning with the year of 1978, marched towards new dimension when the Apex Court held in Maneka Gandhi case[1]that the procedure established by law contemplated by Article 21 must answer the test of reasonableness. Procedure must be ''right, just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. Article 21 forbids deprivation of personal liberty except in accordance with the procedure established by law and curtailment of personal liberty to such an extent as to be a negation of it would constitute deprivation. Provision of free legal aid to a prisoner who is indigent or disabled from securing legal assistance where the ends of justice call for such service is State's responsibility under Art.21 for securing fair trial.[2] Interpretation of Article 21 reached its hight when the doctrine of minimum rationality was also treated as part of Article 21 by the Supreme Court, when S. 303 of the IPC was struck down saying that it violates Art. 21.[3]
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[1] "Maneka Gandhi v. U.O.I., AIR 1978 S C 597.
[2] "Madhav Hayawadanrao Hoskot v. State of Maharashtra", AIR 1978 SC 1548.
[3] Mithu v. State of Punjab, AIR 1983 SC 473.
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2 Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society.[1] Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law.[2] Ordinarily, a bail application , in case where terrorist activity is alleged, which involves the security of the State should be rejected. Article 21 has no role in such cases.
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[1] "Rajesh Ranjan Yadav v. CBI", AIR 2007 SC 451.
[2] "Zahira Habibullah Sheikh v. State of Gujarat", AIR 2006 SC 1367.
[3] Afzal Khan v. State of Gujarat, [2007] 9 SCC 387.
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3 The Courts dealing with cases of women prisoners whose children are in prison with their mothers are directed to give priority to such cases and decide their cases expeditiously.[1] Speedy trial is sine-qua-non of Article 21 of the Constitution but, when grave miscarriage of justice, is committed by the Police , the ground of delay of disposal of cases or otherwise would not scuttle the miscarriage of justice. Similarly, the accused themselves would be liable to be blamed for the delay, if any.[2]
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 when the person was in the 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. The onus to prove the contrary must be discharged by the police official concerned.[3]
The Supreme Court has adopted new approach with the aid of Article 21 in case of right against solitary confinement, right to legal aid, right to speedy trial, right to fair trial, right against bar-fetters, right against handcuffing, right against delayed execution, right against delayed execution, right against custodial violence, etc.
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[1] "R. D. Upadhaya v. State of A.P.", -AIR 2006 SC 1946.
[2] "Lallan Chaudhary v. State of Bihar", AIR 2006 S C 3376.
[3] Law Commission of India , 113th Report.
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4 It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. If, the Court is satisfied for reasons to be recorded that in spite of the existence of prima-facie case there is a need to release such persons on bail where fact situations require it to do so, bail may be granted. If an application for enlargement on bail is once rejected, is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the Courts can do so.[1] Liberty is the most precious of all the human rights. It has been the founding faith of the human race for more than 200 years. Both the American Declaration of Independence, 1776 and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man.
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[1]-"Kalyan Chandra Sarkar v. Rajesh Ranjan" AIR 2005 SC 921.
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5 A mere perusal of Section 151 of the Cr. P.C. makes it clear that the conditions under which a police officer may arrest a person without an order from a Magistrate and without a warrant, have been laid down in Section 151. The detention thereafter is not under Section 151 of the Code of Criminal Procedure but under the relevant provision of the Code or any other law for the time being in force as the case may be. Section 151, therefore, only provides for arrest of a person to prevent the commission of a cognizable offence by him. The provision by no stretch of imagination can be said to be either arbitrary or unreasonable or infringing upon the fundamental rights of a citizen under Articles 21 and 22 of the Constitution of India.[1]
Section 151 of the Cr. P.C. itself makes provision for the circumstances in which an arrest can be made under that Section and also places a limitation on the period for which a person so arrested may be detained. The guidelines are inbuilt in Section 151 of the Code of Criminal Procedure itself. A provision cannot be held to be unreasonable or arbitrary and, therefore, unconstitutional, merely because the authority vested with the power may abuse his authority. Abusing authorities may be punished in case of the violation of the statutory provisions of law. Article 21 of the Constitution of India proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. Even Article 20 and clauses (1) and (2) of Article 22 are born out of a concern for human liberty.
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[1]"Ahmed Noormohmed Bhatii v. State of Gujarat", AIR 2005 SC 2115.
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6 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 that the important constitutional right of the accused of a speedy trial does not remain only on papers or is a mere formality.[1] This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country.[2]
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.[3] In India several amendments have been incorporated in Cr. P. C., 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.
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[1]"Moti Lal Saraf v. State of Jammu and Kashmir", AIR 2007 SC 56.
[2] "Bablu v. State of Rajasthan", AIR 2007 S C 697.
[3] Smith v. Hooey (1969) 393 US 374, 21 L Ed 2d 607, 89 S Ct 575.
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7 The Supreme Court laid down the principle that when fundamental rights are violated a citizen has right and remedy of seeking compensation in addition to file suit for torturous damages. The defence of sovereign is not available to the State. The repeated questioning of the family members of alleged accused, either at their houses or by calling them to the Police Station was part of investigation process and cannot, per se, be considered as harassment or violation of Article 21. If the Police report shows that there is prima facie evidence about suspects and some of his relatives being illegally detained in Police Station and subjected possibly to third degree methods, to extract information regarding the whereabouts of accused, such claims may be exaggerated and many a time false also. It is quite probable that the allegations against Police were levelled and/or exaggerated to avoid enquiries by the Police in regard to Joginder.[1]
It is thus now well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under section 357 of Code of Criminal Procedure.[2]
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[1] "Sube Singh v. State of Haryana", AIR 2006 SC 1117.
[2]- Ibid.
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8 Cases where violation of Article 21 involving custodial death or torture is established, compensation may be granted. Where there is no independent evidence of custodial torture, neither medical evidence about any injury or disability, resulting from custodial torture, nor any mark/scar, it may not be prudent to accept claims of human right violation, by persons having criminal records in a routine manner for awarding compensation. Courts should, protecting the fundamental rights of those who are illegally detained or subjected to custodial violence, should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable Police to discharge their duties fearlessly and effectively. It should be borne in mind that every arrest and detention does not lead to custodial torture.[1]
In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, courts may award compensation in a proceeding under Article 32 or 226. However, before awarding compensation, the Court will have to pose to itself the following questions : (a) Whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of a magnitude to shock the conscience of the court, (c) whether the custodial torture alleged has resulted in death or torture is supported by medical report or visible marks or scars or disability.[2]
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[1]"Sube Singh v. State of Haryana", AIR 2006 S C 1117.
[2]- Ibid.
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9 Where there is no evidence of custodial torture of a person except his own statement, and where such allegation is not supported by any medical report or other corroboration evidence, or where there are clear indications that the allegations are false or exaggerated fully or in part, courts may not award compensation as a public law remedy under Article 32 or 226. [1] A trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined as to whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.[2] The Supreme Court has laid down that rule of law means decisions should be made by application of known principles and rules and in general such decisions should be predictable.
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[1] "Sube Singh v. State of Haryana", AIR 2006 S C1117.
[2]"Zahira H. Sheikh v. State of Gujarat", AIR 2006 SC 1367.
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10 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 , with the aid of Article 21 of the Constitution of India. The Supreme Court of India hass innovated new tools and techniques in the light of Article 21 so as to make criminal justice system effective, vibrant, sensitive, practical, impressive, curative, and progressive , not only keeping in view the aspect of accused but also to the society at large.
Free legal services to a prisoner who is indigent or disabled from securing legal assistance, fundamental right to individual liberty, ''right, just and fair" procedure, Supreme Court is the custodian of the right to life and personal liberty, and guardian of the human rights, responsive to the change in Indian society, the Supreme Court has given a liberal interpretation to Article 21 of the Constitution by giving more content, meaning and purpose in these fields. Speedy trial is sine-qua-non of Article 21 of the Constitution. The Supreme Court emphasized that fair trial should be in such a manner in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried has to be eliminated. The Supreme Court has awarded compensation against the State in case of an established infringement of a fundamental right under Article 21, by the State agency.
Tuesday, June 2, 2009
Arrest
Arrest
Mere perusal of Section 151 of the Code of Criminal Procedure makes it clear that the conditions under which a police officer may arrest a person without an order from a Magistrate and without a warrant, have been laid down in Section 151. The detention thereafter is not under Section 151 of the Code of Criminal Procedure but under the relevant provision of the Code or any other law for the time being in force as the case may be. Section 151, therefore, only provides for arrest of a person to prevent the commission of a cognizable offence by him. The provision by no stretch of imagination can be said to be either arbitrary or unreasonable or infringing upon the fundamental rights of a citizen under Articles 21 and 22 of the Constitution of India.[1]
Section 151 of the Cr. P.C. itself makes provision for the circumstances in which an arrest can be made under that Section and also places a limitation on the period for which a person so arrested may be detained. The guidelines are inbuilt in Section 151 of the Code of Criminal Procedure itself. A provision cannot be held to be unreasonable or arbitrary and, therefore, unconstitutional, merely because the authority vested with the power may abuse his authority. But without reasonable ground no one should be arrested.
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[1]- "Ahmed Noormohmed Bhatii v. State of Gujarat", AIR 2005 S C 2115.
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Section 151, therefore, only provides for arrest of a person to prevent the commission of a cognizable offence by him. The provision by no stretch of imagination can be said to be either arbitrary or unreasonable or infringing upon the fundamental rights of a citizen under Articles 21 and 22 of the Constitution of India.[1]
A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first - the criminal or society, the law violator or the law abider; of meeting the challenge which Mr. Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered...."[2]
Liberty is the most precious of all the human rights. It has been the founding faith of the human race for more than 200 years. Both the American Declaration of Independence, 1776 and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man.
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[1] "Ahmed Noormohmed Bhatii v. State of Gujarat" AIR 2005 S C 2115.
[2] Joginder Kumar v. State of U.P. and others (1994) 4 SCC 260.
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The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on December 10, 1948, contains several articles designed to protect and promote the liberty of individual. So does the International Covenant on Civil and Political Rights, 1966. Above all, Article 21 of the Constitution of India.
The Apex Court laid down certain requirements in Joginder Kumar case[1] for effective enforcement of the fundamental rights inherent in Articles 21 and 22(1) of the Constitution of India which require to be recognized and scrupulously protected. These directions are as follow--
"1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
2. The police officer shall inform the arrested person when he is brought to the police station of this right.
3. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with".
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[1]-Joginder Kumar v. State of U.P. and others (1994) 4 SCC 260.
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In D.K. Basu case[1] the Supreme Court has issued requirements to be followed in all cases of arrest and detention till legal provisions are made in that behalf as preventive measures. The requirements laid down are:-
"(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
--------------------------------------------------------------------------------------------------[1] D.K. Basu v. State of West Bengal (1997) 1 SCC 416.
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(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6). An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be examined at the time of his arrest and major and minor injuries, if present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the (sic) Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous police board.
Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. The requirements, referred to above flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries.[1]
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[1] D.K. Basu v. State of West Bengal , (1997) 1 SCC 416.
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Chapter V of the Code of Criminal Procedure, 1973 deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is, therefore, difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system.[1]
Article 21 of the Constitution of India proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. Even Article 20 and clauses (1)
and (2) of Article 22 are born out of a concern for human liberty. As it is often said, one realizes the value of liberty only when he is deprived of it. Verily, liberty along with equality is the most fundamental of human rights and the fundamental freedoms guaranteed by our Constitution. It is the requirement of law that it should try to promote both peace of the society and personal liberty to maintain a balance between them, viz., the balance between the necessity to protect and promote the liberty of the individual and the necessity to maintain peace and law and order in the society.
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[1]"Munshi Singh Gautam v. State of M. P.", AIR 2005 S C 402.
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The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society. Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued.
Lord Denning observed that :--
"A man's liberty of movement is regarded so highly by the Law of England that it is not to be hindered or prevented except on the surest grounds."[1]
The above observation has been quoted with approval by a Constitution Bench decision of the Supreme Court in Maneka Gandhi case.[2] This aspect has been repeatedly emphasized by the Supreme Court in its various decisions to which a reference will be made at the appropriate stage. Indeed, the Court has enunciated several rules and guidelines which the executive should follow before interfering with the liberty of a citizen.
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[1] Ghani vs. Jones (1970) 1 Q.B. 693 (709).
[2] Maneka Gandhi v. Union of India, AIR 1978 SC 597 .
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Despite this clear enunciation of the law many people are arrested and sent to the jail on the basis of false and/or frivolous FIRs. It is surprising that the provision for anticipatory bail has been deleted in U.P although it exists in all other States in India, even in terrorist affected States.
In case where the accused persons had appeared before the concerned Magistrates with their learned advocates and on applying for bail were granted bail without being taken into formal custody, which appears to have swayed one of the Benches of the Punjab and Haryana High Court to take a liberal view and to hold that no arrest had actually been effected. The Supreme Court in “State of Haryana and Ors. v. Dinesh Kumar's case[1] held that the said view, in our opinion, is incorrect as it goes against the very grain of Sections 46 and 439 of the Code. The interpretation of "arrest" and "custody" rendered by the Full Bench in Roshan Beevi's case (supra) may be relevant in the context of Sections 107 and 108 of the Customs Act where summons in respect of an enquiry may amount to "custody" but not to "arrest", but such custody could subsequently materialize into arrest.
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Maharashtra Chief Minister Vilasrao Deshmukh said that the decision to arrest Maharashtra Navnirman Sena (MNS) chief Raj Thackeray was not a sudden decision and that nobody was above the law. Oct., 21, 2008.
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[1] State of Haryana v. Dinesh Kumar, AIR 2008 S C 1083.
[2] Roshan Beevi's case, 1984 Cri LJ 134 (Mad) (FB).(Overruled).
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In order to obtain the benefit of bail an accused has to surrender to the custody of the Court or the police authorities before he can be granted the benefit thereunder. In Halsbury's "Laws of England" the term "arrest" has been defined in paragraph 99 in the following terms:-
"99. Meaning of arrest.- Arrest consists in the seizure or touching of a person's body with a view to his restraint; words may, however, amount to an arrest if, in the circumstances of the case, they are calculated to bring, and do bring, to a person's notice that he is under compulsion and he thereafter submits to the compulsion."
The aforesaid definition is similar in spirit to what is incorporated in Section 46 of the Code of Criminal Procedure. The concept was expanded by the Supreme Court in State of Uttar Pradesh vs. Deomen's case wherein it was inter alia observed as follows:-
"Section 46, Cr. P.C. does not contemplate any formality before a person can be said to be taken in custody. Submission to the custody by words of mouth or action by a person is sufficient. A person directly giving a police officer by word of mouth information which may be used as evidence against him may be deemed to have submitted himself to the custody of the Police. ------------------------------------------------------------------------------------------------
[1]Halsbury's "Laws of England"; [ Vol.11 of the 4th Edition ].
[2]State of Uttar Pradesh vs. Deomen, (AIR 1960 SC 1125).
Section 151, therefore, only provides for arrest of a person to prevent the commission of a cognizable offence by him. The provision by no stretch of imagination can be said to be either arbitrary or unreasonable or infringing upon the fundamental rights of a citizen under Articles 21 and 22 of the Constitution of India.[1]
A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first - the criminal or society, the law violator or the law abider; of meeting the challenge which Mr. Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered...."[2]
Liberty is the most precious of all the human rights. It has been the founding faith of the human race for more than 200 years. Both the American Declaration of Independence, 1776 and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man.
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[1] "Ahmed Noormohmed Bhatii v. State of Gujarat" AIR 2005 S C 2115.
[2] Joginder Kumar v. State of U.P. and others (1994) 4 SCC 260.
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The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on December 10, 1948, contains several articles designed to protect and promote the liberty of individual. So does the International Covenant on Civil and Political Rights, 1966. Above all, Article 21 of the Constitution of India.
The Apex Court laid down certain requirements in Joginder Kumar case[1] for effective enforcement of the fundamental rights inherent in Articles 21 and 22(1) of the Constitution of India which require to be recognized and scrupulously protected. These directions are as follow--
"1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
2. The police officer shall inform the arrested person when he is brought to the police station of this right.
3. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with".
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[1]-Joginder Kumar v. State of U.P. and others (1994) 4 SCC 260.
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In D.K. Basu case[1] the Supreme Court has issued requirements to be followed in all cases of arrest and detention till legal provisions are made in that behalf as preventive measures. The requirements laid down are:-
"(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
--------------------------------------------------------------------------------------------------[1] D.K. Basu v. State of West Bengal (1997) 1 SCC 416.
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(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6). An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be examined at the time of his arrest and major and minor injuries, if present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the (sic) Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous police board.
Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. The requirements, referred to above flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries.[1]
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[1] D.K. Basu v. State of West Bengal , (1997) 1 SCC 416.
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Chapter V of the Code of Criminal Procedure, 1973 deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is, therefore, difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system.[1]
Article 21 of the Constitution of India proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. Even Article 20 and clauses (1)
and (2) of Article 22 are born out of a concern for human liberty. As it is often said, one realizes the value of liberty only when he is deprived of it. Verily, liberty along with equality is the most fundamental of human rights and the fundamental freedoms guaranteed by our Constitution. It is the requirement of law that it should try to promote both peace of the society and personal liberty to maintain a balance between them, viz., the balance between the necessity to protect and promote the liberty of the individual and the necessity to maintain peace and law and order in the society.
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[1]"Munshi Singh Gautam v. State of M. P.", AIR 2005 S C 402.
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The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society. Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued.
Lord Denning observed that :--
"A man's liberty of movement is regarded so highly by the Law of England that it is not to be hindered or prevented except on the surest grounds."[1]
The above observation has been quoted with approval by a Constitution Bench decision of the Supreme Court in Maneka Gandhi case.[2] This aspect has been repeatedly emphasized by the Supreme Court in its various decisions to which a reference will be made at the appropriate stage. Indeed, the Court has enunciated several rules and guidelines which the executive should follow before interfering with the liberty of a citizen.
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[1] Ghani vs. Jones (1970) 1 Q.B. 693 (709).
[2] Maneka Gandhi v. Union of India, AIR 1978 SC 597 .
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Despite this clear enunciation of the law many people are arrested and sent to the jail on the basis of false and/or frivolous FIRs. It is surprising that the provision for anticipatory bail has been deleted in U.P although it exists in all other States in India, even in terrorist affected States.
In case where the accused persons had appeared before the concerned Magistrates with their learned advocates and on applying for bail were granted bail without being taken into formal custody, which appears to have swayed one of the Benches of the Punjab and Haryana High Court to take a liberal view and to hold that no arrest had actually been effected. The Supreme Court in “State of Haryana and Ors. v. Dinesh Kumar's case[1] held that the said view, in our opinion, is incorrect as it goes against the very grain of Sections 46 and 439 of the Code. The interpretation of "arrest" and "custody" rendered by the Full Bench in Roshan Beevi's case (supra) may be relevant in the context of Sections 107 and 108 of the Customs Act where summons in respect of an enquiry may amount to "custody" but not to "arrest", but such custody could subsequently materialize into arrest.
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Maharashtra Chief Minister Vilasrao Deshmukh said that the decision to arrest Maharashtra Navnirman Sena (MNS) chief Raj Thackeray was not a sudden decision and that nobody was above the law. Oct., 21, 2008.
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[1] State of Haryana v. Dinesh Kumar, AIR 2008 S C 1083.
[2] Roshan Beevi's case, 1984 Cri LJ 134 (Mad) (FB).(Overruled).
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In order to obtain the benefit of bail an accused has to surrender to the custody of the Court or the police authorities before he can be granted the benefit thereunder. In Halsbury's "Laws of England" the term "arrest" has been defined in paragraph 99 in the following terms:-
"99. Meaning of arrest.- Arrest consists in the seizure or touching of a person's body with a view to his restraint; words may, however, amount to an arrest if, in the circumstances of the case, they are calculated to bring, and do bring, to a person's notice that he is under compulsion and he thereafter submits to the compulsion."
The aforesaid definition is similar in spirit to what is incorporated in Section 46 of the Code of Criminal Procedure. The concept was expanded by the Supreme Court in State of Uttar Pradesh vs. Deomen's case wherein it was inter alia observed as follows:-
"Section 46, Cr. P.C. does not contemplate any formality before a person can be said to be taken in custody. Submission to the custody by words of mouth or action by a person is sufficient. A person directly giving a police officer by word of mouth information which may be used as evidence against him may be deemed to have submitted himself to the custody of the Police. ------------------------------------------------------------------------------------------------
[1]Halsbury's "Laws of England"; [ Vol.11 of the 4th Edition ].
[2]State of Uttar Pradesh vs. Deomen, (AIR 1960 SC 1125).
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When the question as to what constitutes "arrest" has for long engaged the attention of different High Courts as also the Supreme Court, it may not be altogether unreasonable to expect a layman to construe that he had never been arrested on his appearing before the Court and being granted bail immediately.
The decision of the Supreme Court in Niranjan Singh's case held that Custody, in the context of
When the question as to what constitutes "arrest" has for long engaged the attention of different High Courts as also the Supreme Court, it may not be altogether unreasonable to expect a layman to construe that he had never been arrested on his appearing before the Court and being granted bail immediately.
The decision of the Supreme Court in Niranjan Singh's case held that Custody, in the context of
S. 439, means physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions.[1]
In Delhi, total number of persons arrested for substantive offence is 57,163, the total number of persons arrested under preventive provisions is 39,824. 50% of the persons arrested were arrested for bailable offences. If we take U.P., the number of arrests under the preventive provisions is far above the total number of arrests for substantive offences. While preventive arrests are 4,79,404, the number of arrests for substantive offences are1,73,634. The percentage of persons arrested in bailable offences is 45.13. In Haryana, the % of arrests under bailable provisions is 94%, in Kerala it is 71%, in Assam it is 90%, in Karnataka it is 84.8%, in M.P. it is 89%, in A. P. it is 36.59%.[2]
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[1]Niranjan Singh vs. Prabhakar (AIR 1980 SC 785).
[2] The Law Commission of India, 177th report on “Arrest”.
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Large number of arrests are being made under preventive provisions as well as for bailable offences. It is difficult to believe that in all these arrests for bailable offences, warrants were issued by the magistrates. Indeed an overwhelming percentage of those arrests were by the Police without a warrant.
Under Article 21, no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. Clauses (1) and (2) of Art. 22 afford protection in the matter of arrest and detention in certain cases. Clauses (4), (5) and (6) thereof provide for preventive detention and constitutional safeguards relating thereto. It may not be inappropriate to describe these provisions as forming an exhaustive code, as they deal with life and personal liberty. The intention was to make Art. 22 self-contained in respect of laws on the subject of preventive detention. If the intention of the Constitution was that a law made on the subject of preventive detention had to be tested on the touchstone of reasonableness, then it would not have troubled itself by expressly making provision in Art. 22 about the precise scope of the limitation subject to which such a law could be made.Arts. 21 and 22 are linked up together; while Art. 21 enables the State to deprive a person of his life or personal liberty according to the procedure established by law, Art. 22 prescribes certain procedure in respect of both punitive and preventive detention. They constitute an integrated code in the matter of personal liberty.[1]
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[1] "Kavalappara Kottarathil Kochuni v. State of Madras",AIR 1960 SC 1080.
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Person whose control is taken over by law, whether by an officer with coercive power or on voluntary surrender before Court , is amounts to in custody , as regards to criminal proceedings, for the purpose S.46 and S.439,of Criminal P.C. (2 of 1974).[1] Article 22(1) enjoins that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. They are also meant to effectuate the commandment of Article 20(3) that no person accused of any offence shall be compelled to be a witness against himself. [2]
The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. Respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers. "Rudul Sah case was followed in Bhim Singh [3] and Peoples' Union for Democratic Rights.[4] The increasing powers of the police and the absence of systems of accountability necessitate constant monitoring of torture, executions, disappearances, and indiscriminate firing and mass arrests as means of intimidating non-violent movements. ------------------------------------------------------------------------------------------------
[1] "State of Haryana v. Dinesh Kumar", AIR 2008 S C 1083.
[2] "Mohd. Afzal,v. State (N. C. T. of Delhi), AIR 2005 S C 3820.
[3] Bhim Singh v. State of J and K [1985] (4) SCC 677.
[4] P.U.D.R. v. Police Commissioner, Delhi, [1993]2 SCC 746.
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Article 21 which is one of the luminary provisions in the Constitution of India, 1950 and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The Article mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries. Chapter V of the Code of Criminal Procedure, 1973 deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is, therefore, difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system.[1]
Human dignity is a dear value of our Constitution and international human rights instruments, not to be bartered away for the mere apprehensions entertained by jail officials. Article 21 of the Constitution guarantees the right of personal liberty and thereby prohibits any inhuman, cruel or degrading treatment to any person whether he is a national or a foreigner.
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[1]-"Munshi Singh Gautam v. State of M. P." AIR 2005 S C 402.
In Delhi, total number of persons arrested for substantive offence is 57,163, the total number of persons arrested under preventive provisions is 39,824. 50% of the persons arrested were arrested for bailable offences. If we take U.P., the number of arrests under the preventive provisions is far above the total number of arrests for substantive offences. While preventive arrests are 4,79,404, the number of arrests for substantive offences are1,73,634. The percentage of persons arrested in bailable offences is 45.13. In Haryana, the % of arrests under bailable provisions is 94%, in Kerala it is 71%, in Assam it is 90%, in Karnataka it is 84.8%, in M.P. it is 89%, in A. P. it is 36.59%.[2]
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[1]Niranjan Singh vs. Prabhakar (AIR 1980 SC 785).
[2] The Law Commission of India, 177th report on “Arrest”.
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Large number of arrests are being made under preventive provisions as well as for bailable offences. It is difficult to believe that in all these arrests for bailable offences, warrants were issued by the magistrates. Indeed an overwhelming percentage of those arrests were by the Police without a warrant.
Under Article 21, no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. Clauses (1) and (2) of Art. 22 afford protection in the matter of arrest and detention in certain cases. Clauses (4), (5) and (6) thereof provide for preventive detention and constitutional safeguards relating thereto. It may not be inappropriate to describe these provisions as forming an exhaustive code, as they deal with life and personal liberty. The intention was to make Art. 22 self-contained in respect of laws on the subject of preventive detention. If the intention of the Constitution was that a law made on the subject of preventive detention had to be tested on the touchstone of reasonableness, then it would not have troubled itself by expressly making provision in Art. 22 about the precise scope of the limitation subject to which such a law could be made.Arts. 21 and 22 are linked up together; while Art. 21 enables the State to deprive a person of his life or personal liberty according to the procedure established by law, Art. 22 prescribes certain procedure in respect of both punitive and preventive detention. They constitute an integrated code in the matter of personal liberty.[1]
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[1] "Kavalappara Kottarathil Kochuni v. State of Madras",AIR 1960 SC 1080.
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Person whose control is taken over by law, whether by an officer with coercive power or on voluntary surrender before Court , is amounts to in custody , as regards to criminal proceedings, for the purpose S.46 and S.439,of Criminal P.C. (2 of 1974).[1] Article 22(1) enjoins that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. They are also meant to effectuate the commandment of Article 20(3) that no person accused of any offence shall be compelled to be a witness against himself. [2]
The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. Respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers. "Rudul Sah case was followed in Bhim Singh [3] and Peoples' Union for Democratic Rights.[4] The increasing powers of the police and the absence of systems of accountability necessitate constant monitoring of torture, executions, disappearances, and indiscriminate firing and mass arrests as means of intimidating non-violent movements. ------------------------------------------------------------------------------------------------
[1] "State of Haryana v. Dinesh Kumar", AIR 2008 S C 1083.
[2] "Mohd. Afzal,v. State (N. C. T. of Delhi), AIR 2005 S C 3820.
[3] Bhim Singh v. State of J and K [1985] (4) SCC 677.
[4] P.U.D.R. v. Police Commissioner, Delhi, [1993]2 SCC 746.
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Article 21 which is one of the luminary provisions in the Constitution of India, 1950 and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The Article mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries. Chapter V of the Code of Criminal Procedure, 1973 deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is, therefore, difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system.[1]
Human dignity is a dear value of our Constitution and international human rights instruments, not to be bartered away for the mere apprehensions entertained by jail officials. Article 21 of the Constitution guarantees the right of personal liberty and thereby prohibits any inhuman, cruel or degrading treatment to any person whether he is a national or a foreigner.
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[1]-"Munshi Singh Gautam v. State of M. P." AIR 2005 S C 402.
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Posted by Raghuveer Singh Chundawat.
Saturday, May 30, 2009
Criminal Justice and Art. 21 of the Constitution.
The criminal justice system in India beginning with the year of 1978, marched towards new dimension when the Apex Court held in Maneka Gandhi case[1]that the procedure established by law contemplated by Article 21 must answer the test of reasonableness. Procedure must be ''right, just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. Article 21 forbids deprivation of personal liberty except in accordance with the procedure established by law and curtailment of personal liberty to such an extent as to be a negation of it would constitute deprivation. Provision of free legal aid to a prisoner who is indigent or disabled from securing legal assistance where the ends of justice call for such service is State's responsibility under Art.21 for securing fair trial.[2] Interpretation of Article 21 reached its hight when the doctrine of minimum rationality was also treated as part of Article 21 by the Supreme Court, when S. 303 of the IPC was struck down saying that it violates Art. 21.[3]
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[1] "Maneka Gandhi v. U.O.I., AIR 1978 S C 597.
[2] "Madhav Hayawadanrao Hoskot v. State of Maharashtra", AIR 1978 SC 1548.
[3] Mithu v. State of Punjab, AIR 1983 SC 473.
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2 Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society.[1] Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law.[2] Ordinarily, a bail application , in case where terrorist activity is alleged, which involves the security of the State should be rejected. Article 21 has no role in such cases.
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[1] "Rajesh Ranjan Yadav v. CBI", AIR 2007 SC 451.
[2] "Zahira Habibullah Sheikh v. State of Gujarat", AIR 2006 SC 1367.
[3] Afzal Khan v. State of Gujarat, [2007] 9 SCC 387.
2 Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society.[1] Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law.[2] Ordinarily, a bail application , in case where terrorist activity is alleged, which involves the security of the State should be rejected. Article 21 has no role in such cases.
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[1] "Rajesh Ranjan Yadav v. CBI", AIR 2007 SC 451.
[2] "Zahira Habibullah Sheikh v. State of Gujarat", AIR 2006 SC 1367.
[3] Afzal Khan v. State of Gujarat, [2007] 9 SCC 387.
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3 The Courts dealing with cases of women prisoners whose children are in prison with their mothers are directed to give priority to such cases and decide their cases expeditiously.[1] Speedy trial is sine-qua-non of Article 21 of the Constitution but, when grave miscarriage of justice, is committed by the Police , the ground of delay of disposal of cases or otherwise would not scuttle the miscarriage of justice. Similarly, the accused themselves would be liable to be blamed for the delay, if any.[2]
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 when the person was in the 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. The onus to prove the contrary must be discharged by the police official concerned.[3]
The Supreme Court has adopted new approach with the aid of Article 21 in case of right against solitary confinement, right to legal aid, right to speedy trial, right to fair trial, right against bar-fetters, right against handcuffing, right against delayed execution, right against delayed execution, right against custodial violence, etc.
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[1] "R. D. Upadhaya v. State of A.P.", -AIR 2006 SC 1946.
[2] "Lallan Chaudhary v. State of Bihar", AIR 2006 S C 3376.
[3] Law Commission of India , 113th Report.
3 The Courts dealing with cases of women prisoners whose children are in prison with their mothers are directed to give priority to such cases and decide their cases expeditiously.[1] Speedy trial is sine-qua-non of Article 21 of the Constitution but, when grave miscarriage of justice, is committed by the Police , the ground of delay of disposal of cases or otherwise would not scuttle the miscarriage of justice. Similarly, the accused themselves would be liable to be blamed for the delay, if any.[2]
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 when the person was in the 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. The onus to prove the contrary must be discharged by the police official concerned.[3]
The Supreme Court has adopted new approach with the aid of Article 21 in case of right against solitary confinement, right to legal aid, right to speedy trial, right to fair trial, right against bar-fetters, right against handcuffing, right against delayed execution, right against delayed execution, right against custodial violence, etc.
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[1] "R. D. Upadhaya v. State of A.P.", -AIR 2006 SC 1946.
[2] "Lallan Chaudhary v. State of Bihar", AIR 2006 S C 3376.
[3] Law Commission of India , 113th Report.
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4 It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. If, the Court is satisfied for reasons to be recorded that in spite of the existence of prima-facie case there is a need to release such persons on bail where fact situations require it to do so, bail may be granted. If an application for enlargement on bail is once rejected, is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the Courts can do so.[1] Liberty is the most precious of all the human rights. It has been the founding faith of the human race for more than 200 years. Both the American Declaration of Independence, 1776 and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man.
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[1]-"Kalyan Chandra Sarkar v. Rajesh Ranjan" AIR 2005 SC 921.
4 It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. If, the Court is satisfied for reasons to be recorded that in spite of the existence of prima-facie case there is a need to release such persons on bail where fact situations require it to do so, bail may be granted. If an application for enlargement on bail is once rejected, is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the Courts can do so.[1] Liberty is the most precious of all the human rights. It has been the founding faith of the human race for more than 200 years. Both the American Declaration of Independence, 1776 and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man.
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[1]-"Kalyan Chandra Sarkar v. Rajesh Ranjan" AIR 2005 SC 921.
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5 A mere perusal of Section 151 of the Cr. P.C. makes it clear that the conditions under which a police officer may arrest a person without an order from a Magistrate and without a warrant, have been laid down in Section 151. The detention thereafter is not under Section 151 of the Code of Criminal Procedure but under the relevant provision of the Code or any other law for the time being in force as the case may be. Section 151, therefore, only provides for arrest of a person to prevent the commission of a cognizable offence by him. The provision by no stretch of imagination can be said to be either arbitrary or unreasonable or infringing upon the fundamental rights of a citizen under Articles 21 and 22 of the Constitution of India.[1]
Section 151 of the Cr. P.C. itself makes provision for the circumstances in which an arrest can be made under that Section and also places a limitation on the period for which a person so arrested may be detained. The guidelines are inbuilt in Section 151 of the Code of Criminal Procedure itself. A provision cannot be held to be unreasonable or arbitrary and, therefore, unconstitutional, merely because the authority vested with the power may abuse his authority. Abusing authorities may be punished in case of the violation of the statutory provisions of law. Article 21 of the Constitution of India proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. Even Article 20 and clauses (1) and (2) of Article 22 are born out of a concern for human liberty.
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[1]"Ahmed Noormohmed Bhatii v. State of Gujarat", AIR 2005 SC 2115.
5 A mere perusal of Section 151 of the Cr. P.C. makes it clear that the conditions under which a police officer may arrest a person without an order from a Magistrate and without a warrant, have been laid down in Section 151. The detention thereafter is not under Section 151 of the Code of Criminal Procedure but under the relevant provision of the Code or any other law for the time being in force as the case may be. Section 151, therefore, only provides for arrest of a person to prevent the commission of a cognizable offence by him. The provision by no stretch of imagination can be said to be either arbitrary or unreasonable or infringing upon the fundamental rights of a citizen under Articles 21 and 22 of the Constitution of India.[1]
Section 151 of the Cr. P.C. itself makes provision for the circumstances in which an arrest can be made under that Section and also places a limitation on the period for which a person so arrested may be detained. The guidelines are inbuilt in Section 151 of the Code of Criminal Procedure itself. A provision cannot be held to be unreasonable or arbitrary and, therefore, unconstitutional, merely because the authority vested with the power may abuse his authority. Abusing authorities may be punished in case of the violation of the statutory provisions of law. Article 21 of the Constitution of India proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. Even Article 20 and clauses (1) and (2) of Article 22 are born out of a concern for human liberty.
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[1]"Ahmed Noormohmed Bhatii v. State of Gujarat", AIR 2005 SC 2115.
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6 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 that the important constitutional right of the accused of a speedy trial does not remain only on papers or is a mere formality.[1] This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country.[2]
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.[3] In India several amendments have been incorporated in Cr. P. C., 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.
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[1]"Moti Lal Saraf v. State of Jammu and Kashmir", AIR 2007 SC 56.
[2] "Bablu v. State of Rajasthan", AIR 2007 S C 697.
[3] Smith v. Hooey (1969) 393 US 374, 21 L Ed 2d 607, 89 S Ct 575.
6 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 that the important constitutional right of the accused of a speedy trial does not remain only on papers or is a mere formality.[1] This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country.[2]
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.[3] In India several amendments have been incorporated in Cr. P. C., 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.
_____________________________________________________
[1]"Moti Lal Saraf v. State of Jammu and Kashmir", AIR 2007 SC 56.
[2] "Bablu v. State of Rajasthan", AIR 2007 S C 697.
[3] Smith v. Hooey (1969) 393 US 374, 21 L Ed 2d 607, 89 S Ct 575.
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7 The Supreme Court laid down the principle that when fundamental rights are violated a citizen has right and remedy of seeking compensation in addition to file suit for torturous damages. The defence of sovereign is not available to the State. The repeated questioning of the family members of alleged accused, either at their houses or by calling them to the Police Station was part of investigation process and cannot, per se, be considered as harassment or violation of Article 21. If the Police report shows that there is prima facie evidence about suspects and some of his relatives being illegally detained in Police Station and subjected possibly to third degree methods, to extract information regarding the whereabouts of accused, such claims may be exaggerated and many a time false also. It is quite probable that the allegations against Police were levelled and/or exaggerated to avoid enquiries by the Police in regard to Joginder.[1]
It is thus now well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under section 357 of Code of Criminal Procedure.[2]
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[1] "Sube Singh v. State of Haryana", AIR 2006 SC 1117.
7 The Supreme Court laid down the principle that when fundamental rights are violated a citizen has right and remedy of seeking compensation in addition to file suit for torturous damages. The defence of sovereign is not available to the State. The repeated questioning of the family members of alleged accused, either at their houses or by calling them to the Police Station was part of investigation process and cannot, per se, be considered as harassment or violation of Article 21. If the Police report shows that there is prima facie evidence about suspects and some of his relatives being illegally detained in Police Station and subjected possibly to third degree methods, to extract information regarding the whereabouts of accused, such claims may be exaggerated and many a time false also. It is quite probable that the allegations against Police were levelled and/or exaggerated to avoid enquiries by the Police in regard to Joginder.[1]
It is thus now well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under section 357 of Code of Criminal Procedure.[2]
-------------------------------------------------------------------------------
[1] "Sube Singh v. State of Haryana", AIR 2006 SC 1117.
[2]- Ibid.
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8 Cases where violation of Article 21 involving custodial death or torture is established, compensation may be granted. Where there is no independent evidence of custodial torture, neither medical evidence about any injury or disability, resulting from custodial torture, nor any mark/scar, it may not be prudent to accept claims of human right violation, by persons having criminal records in a routine manner for awarding compensation. Courts should, protecting the fundamental rights of those who are illegally detained or subjected to custodial violence, should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable Police to discharge their duties fearlessly and effectively. It should be borne in mind that every arrest and detention does not lead to custodial torture.[1]
In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, courts may award compensation in a proceeding under Article 32 or 226. However, before awarding compensation, the Court will have to pose to itself the following questions : (a) Whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of a magnitude to shock the conscience of the court, (c) whether the custodial torture alleged has resulted in death or torture is supported by medical report or visible marks or scars or disability.[2]
_____________________________________________________
[1]"Sube Singh v. State of Haryana", AIR 2006 S C 1117.
[2]- Ibid.
8 Cases where violation of Article 21 involving custodial death or torture is established, compensation may be granted. Where there is no independent evidence of custodial torture, neither medical evidence about any injury or disability, resulting from custodial torture, nor any mark/scar, it may not be prudent to accept claims of human right violation, by persons having criminal records in a routine manner for awarding compensation. Courts should, protecting the fundamental rights of those who are illegally detained or subjected to custodial violence, should also stand guard against false, motivated and frivolous claims in the interests of the society and to enable Police to discharge their duties fearlessly and effectively. It should be borne in mind that every arrest and detention does not lead to custodial torture.[1]
In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, courts may award compensation in a proceeding under Article 32 or 226. However, before awarding compensation, the Court will have to pose to itself the following questions : (a) Whether the violation of Article 21 is patent and incontrovertible, (b) whether the violation is gross and of a magnitude to shock the conscience of the court, (c) whether the custodial torture alleged has resulted in death or torture is supported by medical report or visible marks or scars or disability.[2]
_____________________________________________________
[1]"Sube Singh v. State of Haryana", AIR 2006 S C 1117.
[2]- Ibid.
---------------------------------------------------------------------------
9 Where there is no evidence of custodial torture of a person except his own statement, and where such allegation is not supported by any medical report or other corroboration evidence, or where there are clear indications that the allegations are false or exaggerated fully or in part, courts may not award compensation as a public law remedy under Article 32 or 226. [1] A trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined as to whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.[2] The Supreme Court has laid down that rule of law means decisions should be made by application of known principles and rules and in general such decisions should be predictable.
-------------------------------------------------------------------------------
[1] "Sube Singh v. State of Haryana", AIR 2006 S C1117.
[2]"Zahira H. Sheikh v. State of Gujarat", AIR 2006 SC 1367.
9 Where there is no evidence of custodial torture of a person except his own statement, and where such allegation is not supported by any medical report or other corroboration evidence, or where there are clear indications that the allegations are false or exaggerated fully or in part, courts may not award compensation as a public law remedy under Article 32 or 226. [1] A trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined as to whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.[2] The Supreme Court has laid down that rule of law means decisions should be made by application of known principles and rules and in general such decisions should be predictable.
-------------------------------------------------------------------------------
[1] "Sube Singh v. State of Haryana", AIR 2006 S C1117.
[2]"Zahira H. Sheikh v. State of Gujarat", AIR 2006 SC 1367.
------------------------------------------------------------------------------
10 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 , with the aid of Article 21 of the Constitution of India. The Supreme Court of India has innovated new tools and techniques in the light of Article 21 so as to make criminal justice system effective, vibrant, sensitive, practical, impressive, curative, and progressive , not only keeping in view the aspect of accused but also to the society at large.
Free legal services to a prisoner who is indigent or disabled from securing legal assistance, fundamental right to individual liberty, ''right, just and fair" procedure, Supreme Court is the custodian of the right to life and personal liberty, and guardian of the human rights, responsive to the change in Indian society, the Supreme Court has given a liberal interpretation to Article 21 of the Constitution by giving more content, meaning and purpose in these fields. I tried to highlighted these aspects in this research work.
10 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 , with the aid of Article 21 of the Constitution of India. The Supreme Court of India has innovated new tools and techniques in the light of Article 21 so as to make criminal justice system effective, vibrant, sensitive, practical, impressive, curative, and progressive , not only keeping in view the aspect of accused but also to the society at large.
Free legal services to a prisoner who is indigent or disabled from securing legal assistance, fundamental right to individual liberty, ''right, just and fair" procedure, Supreme Court is the custodian of the right to life and personal liberty, and guardian of the human rights, responsive to the change in Indian society, the Supreme Court has given a liberal interpretation to Article 21 of the Constitution by giving more content, meaning and purpose in these fields. I tried to highlighted these aspects in this research work.
Posted by.....Raghuveer Singh Chundawat.
Monday, May 18, 2009
Speedy Justice
Speedy justice
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 it Speedy trial consummates into a finality, can be averted. Speedy trial is sine-qua-non of Article 21 of the Constitution. Similarly, the accused themselves would be liable to be blamed for the delay, if any.[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 that the important constitutional right of the accused of a speedy trial does not remain only on papers or is a mere formality.[3]
------------------------------------------------------------------------------- ---------------
[1]-"Lallan Chaudhary v. State of Bihar", 2006
[2]- Law Commission of India , 113th Report.
[3] "Moti Lal Saraf v. State of J. and K.", 2007
------------------------------------------------------------------------------------------------
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: (a) to prevent undue and oppressive incarceration prior to trial, (b) to minimize anxiety and concern accompanying public accusation, and (c) to limit the possibilities that long delay will impair the ability of an accused to defend himself.[1]
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.
Speedy trial as read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. 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. [2]
------------------------------------------------------------------------------- --------------
[1] Smith v. Hooey (1969) 393 US 374, 21 L Ed 2d 607, 89 S Ct 575.
[2]"State (N. C. T. of Delhi) v. Navjot Sandhu"AIR 2005 S C 3820 .
----------------------------------------------------------------------------------- -----------
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.
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.
The Apex Court held in the case of Antulay [1]that the right to a speedy 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.
------------------------------------------------------------------------------------------------
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 it Speedy trial consummates into a finality, can be averted. Speedy trial is sine-qua-non of Article 21 of the Constitution. Similarly, the accused themselves would be liable to be blamed for the delay, if any.[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 that the important constitutional right of the accused of a speedy trial does not remain only on papers or is a mere formality.[3]
------------------------------------------------------------------------------- ---------------
[1]-"Lallan Chaudhary v. State of Bihar", 2006
[2]- Law Commission of India , 113th Report.
[3] "Moti Lal Saraf v. State of J. and K.", 2007
------------------------------------------------------------------------------------------------
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: (a) to prevent undue and oppressive incarceration prior to trial, (b) to minimize anxiety and concern accompanying public accusation, and (c) to limit the possibilities that long delay will impair the ability of an accused to defend himself.[1]
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.
Speedy trial as read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. 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. [2]
------------------------------------------------------------------------------- --------------
[1] Smith v. Hooey (1969) 393 US 374, 21 L Ed 2d 607, 89 S Ct 575.
[2]"State (N. C. T. of Delhi) v. Navjot Sandhu"AIR 2005 S C 3820 .
----------------------------------------------------------------------------------- -----------
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.
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.
The Apex Court held in the case of Antulay [1]that the right to a speedy 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.
------------------------------------------------------------------------------------------------
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] 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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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] 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.
-----------------------------------------------------------------------------------------------
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.
-----------------------------------------------------------------------------------------------
"(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.
-----------------------------------------------------------------------------------------------
"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.
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 .
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 .
-----------------------------------------------------------------------------------------------
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 a speedy 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 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 a speedy 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.
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[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.
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The paramount purpose of speedy trial is to safeguard the innocents from undue punishments but prolonged pendency has created an unmountable barrier in that.
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[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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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.
"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.
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The pendency of criminal cases in subordinate courts is around 1.32 crores and the effective strength of judges is 12,177.
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[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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[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]
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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.
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[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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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]
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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.
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[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.
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.
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ON an average, courts are able to dispose off 19 per cent of pending cases every year.
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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 to speedy 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 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 to speedy 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 trial must be reasonably expeditious trial as an integral and essential part of the fundamental right of life and liberty under Article 21.
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The accumulation of vacancies in the benches =140 against the approved strength of 668 judges in high courts.
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[1] Hussainara Khatoon and Ors. (1) 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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The accumulation of vacancies in the benches =140 against the approved strength of 668 judges in high courts.
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[1] Hussainara Khatoon and Ors. (1) 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 to speedy 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.
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[1] Abdul Rehman Antulay and ors. v. R.S. Nayak and Ors. [1992] 1 SCC 225.
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Where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order - including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded as may be deemed just and equitable in the circumstances of the case.
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.
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Accumulation of vacancies in subordinate courts IS 2000 against
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.
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[1] Abdul Rehman Antulay and ors. v. R.S. Nayak and Ors. [1992] 1 SCC 225.
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Where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order - including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded as may be deemed just and equitable in the circumstances of the case.
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.
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Accumulation of vacancies in subordinate courts IS 2000 against
15000 sanctioned posts As on January 2005.
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By way of Judicial reforms and e-governance, aim of speedy justice may be achieved.
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]
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[1]- "P. Ramachandra Rao v. State of Karnataka", AIR 2002 SC 1856.
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----------------------------------------------------------------------------------------- ----
By way of Judicial reforms and e-governance, aim of speedy justice may be achieved.
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]
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[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]
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[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 .
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[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 .
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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 proceedings pending 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.
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Article 21 is the heart of the Constitution.[2]
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Now “Plea- Bargaining” has been introduced as one of the important tools for importing speed justice.
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 proceedings pending 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.
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Article 21 is the heart of the Constitution.[2]
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Now “Plea- Bargaining” has been introduced as one of the important tools for importing speed justice.
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[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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[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.
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Total pending cases in the Supreme Court were 30,000, in high courts
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.
================================================
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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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.
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[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.
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 but speedy justice is the mandate of the Constitution being in the interests of the accused as well as that of the society. Cases relating to corruption are to be dealt with swiftly, promptly and without delay.
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[1]-"Mahendra Lal Das v. State of Bihar", AIR 2001 SC 2989 .
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 but speedy justice is the mandate of the Constitution being in the interests of the accused as well as that of the society. Cases relating to corruption are to be dealt with swiftly, promptly and without delay.
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[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 negligent delay 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.
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[1]- "Anil Rai v. State of Bihar", AIR 2001 S C 3173.
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 negligent delay 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 for pronouncement 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.
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[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.
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 for pronouncement 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.
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[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.
------------------------------------------------------------------------------------------------
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. The existing criminal justice delivery system has partially failed to satisfy the society in maintaining law and order and rendering timely justice.
The Supreme Court has held in Raghubir Singh v. State of Bihar, 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 undertrial 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 the D.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]
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[1] D.K. Basu v. State of West Bengal, AIR 1997 SC 610.
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. The existing criminal justice delivery system has partially failed to satisfy the society in maintaining law and order and rendering timely justice.
The Supreme Court has held in Raghubir Singh v. State of Bihar, 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 undertrial 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 the D.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]
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[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.
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Raghuveer Singh CHUNDAWAT.
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