Full Judgment Text
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CASE NO.:
Appeal (crl.) 535 of 2000
PETITIONER:
P. RAMACHANDRA RAO
Vs.
RESPONDENT:
STATE OF KARNATAKA
DATE OF JUDGMENT: 16/04/2002
BENCH:
CJI, R.C. Lahoti, N. Santosh Hegde, Ruma Pal & Arijit Pasayat
JUDGMENT:
WITH
Crl.Appeal Nos. 536/2000, 537/2000, 538/2000, 539/2000, 540/2000,
541/2000 & 542/2000.
J U D G M E N T
R.C. Lahoti, J.
No person shall be deprived of his life or his personal liberty
except according to procedure established by law declares 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 meaningfully. 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 the country in
holding the right to speedy trial a manifestation of fair, just and
reasonable procedure enshrined in Article 21. Speedy trial, again,
would encompass within its sweep all its stages including
investigation, inquiry, trial, appeal, revision and re-trial in short
everything commencing with an accusation and expiring with the final
verdict the two being respectively the terminus a quo and terminus
ad quem __ of the journey which an accused must necessarily
undertake once faced with an implication. The constitutional
philosophy propounded as right to speedy trial has though grown in
age by almost two and a half decades, the goal sought to be achieved
is yet a far-off peak. Myriad fact-situations bearing testimony to
denial of such fundamental right to the accused persons, on account of
failure on the part of prosecuting agencies and executive to act, and
their turning an almost blind eye at securing expeditious and speedy
trial so as to satisfy the mandate of Article 21 of the Constitution have
persuaded this Court in 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. In its
zeal to protect the right to speedy trial of an accused, can the Court
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devise and almost enact such bars of limitation though the Legislature
and the Statutes have not chosen to do so __ is a question of far-
reaching implications which has led to the constitution of this Bench
of seven-Judge strength.
In Criminal Appeal No.535/2000 the appellant was working as
an Electrical Superintendent in the Mangalore City Corporation. For
the check period 1.5.1961 to 25.8.1987 he was found to have amassed
assets disproportionate to his known sources of income. Charge-sheet
accusing him of offences under Section 13(1)(e) read with Section
13(2) of the Prevention of Corruption Act, 1988 was filed on
15.3.1994. The accused appeared before the Special Court and was
enlarged on bail on 6.6.1994. Charges were framed on 10.8.1994 and
the case proceeded for trial on 8.11.1994. However, the trial did not
commence. On 23.2.1999 the learned Special Judge who was seized
of the trial directed the accused to be acquitted as the trial had not
commenced till then and the period of two years had elapsed which
obliged him to acquit the accused in terms of the directions of this
court in Raj Deo Sharma Vs. State of Bihar (1998) 7 SCC 507
(hereinafter, Raj Deo Sharma-I). The State of Karnataka through the
D.S.P. Lokayukta, Mangalore preferred an appeal before the High
Court putting in issue the acquittal of the accused. The learned Single
Judge of the High Court, vide the impugned order, allowed the appeal,
set aside the order of acquittal and remanded the case to the Trial
Court, forming an opinion that a case charging an accused with
corruption was an exception to the directions made in Raj Deo
Sharma-I as clarified by this Court in Raj Deo Sharma (II) Vs. State
of Bihar (1999) 7 SCC 604. Strangely enough the High Court not
only condoned a delay of 55 days in filing the appeal against acquittal
by the State but also allowed the appeal itself __ both without even
issuing notice to the accused. The aggrieved accused has filed this
appeal by special leave. Similar are the facts in all the other appeals.
Shorn of details, suffice it to say that in all the appeals the accused
persons who were facing corruption charges, were acquitted by the
Special Courts for failure of commencement of trial in spite of lapse
of two years from the date of framing of the charges and all the State
appeals were allowed by the High Court without noticing the
respective accused persons.
The appeals came up for hearing before a Bench of three
learned Judges who noticed the common ground that the appeals in
the High Court were allowed by the learned Judge thereat without
issuing notice to the accused and upon this ground alone, of want of
notice, the appeals hereat could be allowed and the appeals before the
High Court restored to file for fresh disposal after notice to the
accused but it was felt that a question arose in these appeals which
was likely to arise in many more and therefore the appeals should be
heard on their merits. In the order dated September 19, 2000, the
Bench of three learned Judges stated:
"The question is whether the earlier
judgments of this court, principally, in Common
Cause Vs. Union of India (1996 (4) SCC 33),
Common Cause Vs. Union of India (1996(6) SCC
775), Raj Deo Sharma Vs. State of Bihar (1998(7)
SCC 507) and Raj Deo Sharma (II) Vs. State of
Bihar 1999 (7) SCC 604), would apply to
prosecutions under the Prevention of Corruption
Act and other economic offences.
Having perused the judgments afore-
mentioned, we are of the view that these appeals
should be heard by a Constitution Bench. We take
this view because we think that it may be
necessary to sythesise the various guidelines and
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directions issued in these judgments. We are also
of the view that a Constitution Bench should
consider whether time limits of the nature
mentioned in some of these judgments can, under
the law, be laid down".
On 25th April, 2001 the appeals were heard by the Constitution
Bench and during the course of hearing attention of the Constitution
Bench was invited to the decision of an earlier Constitution Bench in
Abdul Rehman Antulay and Ors.Vs. R.S. Nayak & Anr. (1992) 1
SCC 225 and the four judgments referred to in the order of reference
dated 19th September, 2000 by the Bench of three learned Judges. It
appears that the learned Judges of the Constitution Bench were of the
opinion that the directions made in the two Common Cause cases and
the two Raj Deo Sharma’s cases ran counter to the Constitution
Bench directions in Abdul Rehman Antulay’s case, the latter being
five-Judge Bench decision, the appeals deserved to be heard by a
Bench of seven learned Judges. The relevant part of the order dated
26th April, 2001 reads as under:-
"The Constitution Bench judgement in A.R.
Antulay’s case holds that "it is neither advisable
nor feasible to draw or prescribe an outer time
limit for conclusion of all criminal proceedings".
Even so, the four judgements afore-mentioned lay
down such time limits. Two of them also lay
down to which class of criminal proceedings such
time limits should apply and to which class they
should not.
We think, in these circumstances, that a
Bench of seven learned Judges should consider
whether the dictum afore-mentioned in A.R.
Antulay’s case still holds the field; if not, whether
the general directions of the kind given in these
judgements are permissible in law and should be
upheld.
Having regard to what is to be considered by
the Bench of seven learned Judges, notice shall
issue to the Attorney General and to the Advocates
General of the States.
The papers shall be placed before the
Hon’ble the Chief Justice for appropriate
directions. Having regard to the importance of the
matter, the Bench may be constituted at an early
date".
On 20.2.2002 the Court directed, "Common Cause", the
petitioner in the two Common Cause cases which arose out of writ-
petitions under Article 32 of the Constitution, heard and decided by
this Court as public interest litigations, to be noticed. "Common
Cause" has responded and made appearance through counsel.
We have heard Shri Harish Salve, the learned Solicitor General
appearing for Attorney General for India, Mr. Ranjit Kumar, Senior
Advocate assisted by Ms. Binu Tamta, Advocate for the appellants,
Mr. Sanjay R. Hegde and Mr. Satya Mitra, Advocates for the
respondents, Mr. S. Murlidhar, Advocate for "Common Cause" and
such other Advocates General and Standing Counsel who have chosen
to appear for the States.
We shall briefly refer to the five decisions cited in the order of
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reference as also to a few earlier decisions so as to highlight the issue
posed before us.
The width of vision cast on Article 21, so as to perceive its
broad sweep and content, by seven-Judge Bench of this Court in Mrs.
Maneka Gandhi Vs. Union of India & Anr., (1978) 1 SCC 248,
inspired a declaration of law, made on February 12, 1979 in
Hussainara Khatoon and Ors. (I) Vs. Home Secretary, State of
Bihar (1980) 1 SCC 81, 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. 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 or criminal proceedings, in
any forum whatsoever were enabled, by Hussainara Khatoon(I)
statement of law, in successfully maintaining petitions for 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 (supra), this Court
held that the several 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. 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 this Court by a
Constitution Bench in Abdul Rehman Antulay and Ors. Vs. R.S.
Nayan and Ors. (1992) 1 SCC 225, (A.R. Antulay, for short). 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 submissions made by proponents
included that the right to speedy trial flowing from Article 21 to be
meaningful, enforceable and effective ought to be accompanied by an
outer limit beyond which continuance of the proceedings will be
violative of Article 21. It was submitted that Section 468 of the Code
of Criminal Procedure applied only to minor offences but the Court
should extend the same principle to major offences as well. It was
also urged that a period of 10 years calculated from the date of
registration of crime should be placed as an outer limit wherein shall
be counted the time taken by the investigation.
The Constitution Bench, in A.R. Antulay’s case, heard
elaborate arguments. The Court, it its pronouncement, formulated
certain propositions, 11 in number, meant to serve as guidelines. It
is not necessary for our purpose to reproduce all those propositions.
Suffice it to state that in the opinion of the Constitution Bench (i) fair,
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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. Guidelines 8,
9, 10 and 11 are relevant for our purpose and hence are extracted and
reproduced hereunder:-
"(8) 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.
(9) Ordinarily speaking, where the court comes to the
conclusion that right to speedy trial of an accused
has been infringed the charges or the conviction, 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.
(10) 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 not fixing any such outer limit
ineffectuates the guarantee of right to speedy trial.
(11) An objection based on denial of right to speedy
trial and for relief on that account, should first be
addressed to the High Court. Even if the High
Court entertains such a plea, ordinarily it should
not stay the proceedings, except in a case of grave
and exceptional nature. Such proceedings in High
Court must, however, be disposed of on a priority
basis."
During the course of its judgment also the Constitution Bench
made certain observations which need to be extracted and
reproduced:-
"But then speedy trial or other expressions
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conveying the said concept are necessarily
relative in nature. One may ask speedy
means, how speedy? How long a delay is
too long? We do not think it is possible to
lay down any time schedules for conclusion
of criminal proceedings. The nature of
offence, the number of accused, the number
of witnesses, the workload in the particular
court, means of communication and several
other circumstances have to be kept in
mind". (para 83).
".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. We are also not
satisfied that without such an outer limit, the
right becomes illusory". (para 83)
"even apart from Article 21 courts in
this country have been cognizant 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".
(para 65)
[emphasis supplied]
In 1986, "Common Cause"__ a Registered Society, espousing
public causes, preferred a petition under Article 32 of the Constitution
of India seeking certain directions. By a brief order ("Common
Cause" A Registered Society through its Director Vs. Union of
India & Ors. (1996) 4 SCC 32, hereinafter Common Cause (I) ), a
two-Judge Bench of this Court issued two sets of directions: one,
regarding bail, and the other, regarding quashing of trial. Depending
on the quantum of imprisonment provided for several offences under
the Indian Penal Code and the period of time which the accused have
already spent in jail, the undertrial accused confined in jails were
directed to be released on bail or on personal bond subject to such
conditions as the Court may deem fit to impose in the light of Section
437 of Cr.P.C.. The other set of directions directed the trial in
pending cases to be terminated and the accused to be discharged or
acquitted depending on the nature of offence by reference to (i) the
maximum sentence inflictable whether fine only or imprisonment,
and if imprisonment, then the maximum set out in the law, and (ii) the
period for which the case has remained pending in the criminal court.
A perusal of the directions made by the Division Bench shows
the cases having been divided into two categories: (i) traffic offences,
and (ii) cases under IPC or any other law for the time being in force.
The Court directed the trial Courts to close such cases on the
occurrence of following event and the period of delay:-
Category (i) : Traffic Offences:
The Court directed the cases to be closed and the accused to be
discharged on lapse of more than two years on account of non-serving
of summons to the accused or for any other reason whatsoever.
Category (ii) : Cases under IPC or any other law for the time
being in force :
The Court directed that in the following sub-categories if the
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trial has not commenced and the period noted against each sub-
category has elapsed then the case shall be closed and the accused
shall be discharged or acquitted __
Nature of the cases
Period of delay i.e. trial not
commenced for
Cases compoundable with the
permission of the Court
More than two years
Cases pertaining to offences
which are non-cognizable and
bailable
More than two years
Cases in connection with offences
punishable with fine only and are
not of recurring nature
More than one year
Cases punishable with
imprisonment upto one year, with
or without fine
More than one year
Cases pertaining to offences
punishable with imprisonment
upto three years with or without
fine
More than two years
The period of pendency was directed to be calculated from the
date the accused are summoned to appear in Court. The Division
Bench, vide direction 4, specified certain categories of cases to which
its directions would not be applicable. Vide direction 5, this court
directed the offences covered by direction 4 to be tried on priority
basis and observance of this direction being monitored by the High
Courts. All the directions were made applicable not only to the cases
pending on the day but also to cases which may be instituted
thereafter.
Abovesaid directions in Common Cause-I were made on May
1, 1996. Not even a period of 6 months had elapsed, on 15.10.1996,
Shri Sheo Raj Purohit __ a public-spirited advocate addressed a Letter
Petition to this Court, inviting its attention to certain consequences
flowing from the directions made by this Court in Common Cause (I)
and which were likely to cause injustice to the serious detriment of the
society and could result in encouraging dilatory tactics adopted by the
accused. A two-Judge Bench of this court, which was the same as had
issued directions in Common Cause (I), made three directions which
had the effect of clarifying/modifying the directions in Common
Cause (I). The first direction clarified that the time spent in criminal
proceedings, wholly or partly, attributable to the dilatory tactics or
prolonging of trial by action of the accused, or on account of stay of
criminal proceedings secured by such accused from higher courts
shall be excluded in counting the time-limit regarding pendency of
criminal proceedings. Second direction defined the terminus a quo,
i.e. what would be the point of commencement of trial while working
out ’pendency of trials’ in Sessions Court, warrant cases and
summons cases. In the third direction, the list of cases, by reference
to nature of offence to which directions in Common Cause (I) would
not apply, was expanded.
In Raj Deo Sharma (I), an accused charged with offences
under Sections 5(2) & 5 (1) (e) of the Prevention of Corruption Act,
1947 came up to this Court, having failed in High Court, seeking
quashing of prosecution against him on the ground of violation of
right to speedy trial. Against him the offence was registered in 1982
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and chargesheet was submitted in 1985. The accused appeared on
24.4.1987 before the Special Judge. Charges were framed on
4.3.1993. Until 1.6.1995 only 3 out of 40 witnesses were examined.
The three-Judge Bench of this Court, which heard the case, set aside
the order passed by the High Court and sent the matter back to the
Special Judge for passing appropriate orders in the light of its
judgment. Vide para 17, the three-Judge Bench issued five further
directions purporting to be supplemental to the propositions laid down
in A.R. Antulay. The directions need not be reproduced and suffice it
to observe that by dividing the offence into two categories those
punishable with imprisonment for a period not exceeding 7 years and
those punishable with imprisonment for a period exceeding 7 years,
the Court laid down periods of limitation by reference to which either
the prosecution evidence shall be closed or the accused shall be
released on bail. So far as the trial for offences is concerned, for the
purpose of making directions, the Court categorized the offences and
the nature and period of delay into two, which may be set out in a
tabular form as under:-
Nature of offence
Nature and period of delay
Offence punishable with
imprisonment for a period
not exceeding seven years,
whether the accused is in
jail or not
Completion of two years from the date
of recording the plea of the accused on
the charges framed, whether the
prosecution has examined all the
witnesses or not within the said period
of two years
Offence punishable with
imprisonment for a period
exceeding seven years,
whether the accused is in
jail or not
Completion of three years from the
date of recording the plea of the
accused on the charge framed, whether
the prosecution has examined all the
witnesses or not within the said period
The consequence which would follow on completion of two or
three years, as abovesaid, is, the Court directed, that the trial Court
shall close the prosecution evidence and can proceed to the next step
of trial. In respect of the second category, the Court added a rider by
way of exception stating __ "Unless for very exceptional reasons to be
recorded and in the interest of justice, the Court considers it necessary
to grant further time to the prosecution to adduce evidence beyond the
aforesaid time limit" (of three years). The period of inability for
completing prosecution evidence attributable to conduct of accused in
protracting the trial and the period during which trial remained stayed
by orders of the court or by operation of law was directed to be
excluded from calculating the period at the end of which the
prosecution evidence shall be closed. Further, the Court said that the
directions made by it shall be in addition to and without prejudice to
the directions issued in Common Cause (I) as modified in Common
Cause (II).
Raj Deo Sharma (I) came up once again for consideration of
this Court in Raj Deo Sharma Vs. State of Bihar (1999) 7 SCC
604, hereinafter Raj Deo Sharma (II). This was on an application
filed by Central Bureau of Investigation (CBI) for clarification (and
also for some modification) in the directions issued. The three-Judge
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Bench which heard the matter consisted of K.T. Thomas, J. and M.
Srinivasan, J. who were also on the Bench issuing directions in Raj
Deo Sharma (I) and M.B. Shah, J. who was not on the Bench in Raj
Deo Sharma (I). In the submission of CBI the directions of the Court
made in Raj Deo Sharma (I) ran counter to A.R. Antulay and did not
take into account the time taken by the Court on account of its
inability to carry on day to day trial due to pressure of work. The CBI
also pleaded for the directions in Raj Deo Sharma (I) being made
prospective only, i.e., period prior to the date of directions in Raj Deo
Sharma (I) being excluded from consideration. All the three learned
Judges wrote separate judgments. K.T. Thomas, J. by his judgment,
to avert ’possibility of miscarriage of justice’, added a rider to the
directions made in Raj Deo Sharma (I) that an additional period of
one year can be claimed by the prosecution in respect of prosecutions
which were pending on the date of judgment in Raj Deo Sharma (I)
and the Court concerned would be free to grant such extension if it
considered it necessary in the interest of administration of criminal
justice. M. Srinivasan, J. in his separate judgment, assigning his own
reasons, expressed concurrence with the opinion expressed and the
only clarification ordered to be made by K.T. Thomas, J. and placed
on record his express disagreement with the opinion recorded by M.B.
Shah, J.
M.B. Shah, J. in his dissenting judgment noted the most usual
causes for delay in delivery of criminal justice as discernible from
several reported cases travelling upto this Court and held that the
remedy for the causes of delay in disposal of criminal cases lies in
effective steps being taken by the Judiciary, the Legislature and the
State Governments, all the three. The dangers behind constructing
time-limit barriers by judicial dictum beyond which a criminal trial or
proceedings could not proceed, in the opinion of M.B. Shah, J., are (i)
it would affect the smooth functioning of the society in accordance
with law and finally the Constitution. The victims left without any
remedy would resort to taking revenge by unlawful means resulting in
further increase in the crimes and criminals. People at large in the
society would also feel unsafe and insecure and their confidence in the
judicial system would be shaken. Law would lose its deterrent effect
on criminals; (ii) with the present strength of Judges and infrastructure
available with criminal courts it would be almost impossible for the
available criminal courts to dispose of the cases within the prescribed
time-limit; (iii) prescribing such time-limits may run counter to the
law specifically laid down by Constitution Bench in Antulay’s case.
In the fore-quoted thinking of M.B. Shah, J. we hear the echo of what
Constitution Bench spoke in Kartar Singh Vs. State of Punjab
(1994) 3 SCC 569, vide para 351, "No doubt, liberty of a citizen must
be zealously safeguarded by the courts; nonetheless the courts while
dispensing justice in cases like the one under the TADA Act, should
keep in mind not only the liberty of the accused but also the interest of
the victim and their near and dear and above all the collective interest
of the community and the safety of the nation so that the public may
not lose faith in the system of judicial administration and indulge in
private retribution."
At the end M.B. Shah, J. opined that order dated 8.10.1998
made in Raj Deo Sharma (I) requires to be held in abeyance and the
State Government and Registrars of the High Courts ought to be
directed to come up with specific plans for the setting up of additional
courts/special courts (permanent/ad hoc) to cope up with the pending
workload on the basis of available figures of pending cases also by
taking into consideration the criteria for disposal of criminal cases
prescribed by various High Courts. In conclusion, the Court directed
the application filed by the CBI to be disposed of in terms of the
majority opinion.
A perception of the causes for delay at the trial and in
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conclusion of criminal proceedings is necessary so as to appreciate
whether setting up bars of limitation entailing termination of trial or
proceedings can be justified. The root cause for delay in dispensation
of justice in our country is poor judge-population-ratio. Law
Commission of India in its 120th Report on Manpower Planning in
Judiciary (July 1987), based on its survey, regretted that in spite of
Article 39A added as a major Directive Principle in the Constitution
by 42nd Amendment (1976), obliging the State to secure such
operation of legal system as promotes justice and to ensure that
opportunities for securing justice are not denied to any citizen several
reorganisation proposals in the field of administration of justice in
India have been basically patch work, ad hoc and unsystematic
solutions to the problem. The judge-population-ratio in India (based
on 1971 census) was only 10.5 judges per million population while
such ratio was 41.6 in Australia, 50.9 in England, 75.2 in Canada and
107 in United States. The Law Commission suggested that India
required 107 judges per million of Indian population; however to
begin with the judge strength needed to be raised to five-fold, i.e., 50
judges per million population in a period of five years but in any case
not going beyond ten years. Touch of sad sarcasm is difficult to hide
when the Law Commission observed (in its 120th Report, ibid) that
adequate reorganisation of the Indian judiciary is at the one and at the
same time everybody’s concern and, therefore, nobody’s concern.
There are other factors contributing to the delay at the trial. In A.R.
Antulay’s case, vide para 83, the Constitution Bench has noted that in
spite of having proposed to go on with the trial of a case, five days a
week and week after week, it may not be possible to conclude the trial
for reasons, viz. (1) non-availability of the counsel, (2) non-
availability of the accused, (3) interlocutory proceedings, and (4)
other systemic delays. In addition, the Court noted that in certain
cases there may be a large number of witnesses and in some offences,
by their very nature, the evidence may be lengthy. In Kartar Singh
Vs. State of Punjab (1994) 3 SCC 569 another Constitution Bench
opined that the delay is dependent on the circumstances of each case
because reasons for delay will vary, such as (i) delay in investigation
on account of the widespread ramifications of crimes and its designed
network either nationally or internationally, (ii) the deliberate absence
of witness or witnesses, (iii) crowded dockets on the file of the court
etc. In Raj Deo Sharma (II), in the dissenting opinion of M.B. Shah,
J., the reasons for delay have been summarized as, (1) Dilatory
proceedings; (2) Absence of effective steps towards radical
simplification and streamlining of criminal procedure; (3) Multi-tier
appeals/revision applications and diversion to disposal of
interlocutory matters; (4) Heavy dockets; mounting arrears; delayed
service of process; and (5) Judiciary, starved by executive by neglect
of basic necessities and amenities, enabling smooth functioning.
Several cases coming to our notice while hearing appeals,
petitions and miscellaneous petitions (such as for bail and quashing of
proceedings) reveal, apart from inadequate judge strength, other
factors contributing to the delay at the trial. Generally speaking, these
are: (i) absence of, or delay in appointment of, public prosecutors
proportionate with the number of courts/cases; (ii) absence of or
belated service of summons and warrants on the accused/witnesses;
(iii) non-production of undertrial prisoners in the Court; (iv) presiding
Judges proceeding on leave, though the cases are fixed for trial; (v)
strikes by members of Bar; and (vi) counsel engaged by the accused
suddenly declining to appear or seeking an adjournment for personal
reasons or personal inconvenience. It is common knowledge that
appointments of public prosecutors are politicized. By convention,
government advocates and public prosecutors were appointed by the
executive on the recommendation of or in consultation with the head
of judicial administration at the relevant level but gradually the
executive has started bypassing the merit based recommendations of,
or process of consultation with, District and Sessions Judges. For non-
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service of summons/orders and non-production of undertrial prisoners,
the usual reasons assigned are shortage of police personnel and police
people being busy in VIP duties or law and order duties. These can
hardly be valid reasons for not making the requisite police personnel
available for assisting the Courts in expediting the trial. The members
of the Bar shall also have to realize and remind themselves of their
professional obligation __ legal and ethical, that having accepted a
brief for an accused they have no justification to decline or avoid
appearing at the trial when the case is taken up for hearing by the
Court. All these factors demonstrate that the goal of speedy justice
can be achieved by a combined and result-oriented collective thinking
and action on the part of the Legislature, the Judiciary, the Executive
and representative bodies of members of Bar.
Is it at all necessary to have limitation bars terminating trials
and proceedings? Is there no effective mechanisms available for
achieving the same end? The Criminal Procedure Code, as it stands,
incorporates a few provisions to which resort can be had for
protecting the interest of the accused and saving him from
unreasonable prolixity or laxity at the trial amounting to oppression.
Section 309, dealing with power to postpone or adjourn proceedings,
provides generally for every inquiry or trial, being proceeded with as
expeditiously as possible, and in particular, when the examination of
witnesses has once begun, the same to be continued from day to day
until all the witnesses in attendance have been examined, unless the
Court finds the adjournment of the same beyond the following day to
be necessary for reasons to be recorded. Explanation-2 to Section 309
confers power on the Court to impose costs to be paid by the
prosecution or the accused, in appropriate cases, and putting the
parties on terms while granting an adjournment or postponing of
proceedings. This power to impose costs is rarely exercised by the
Courts. Section 258, in Chapter XX of Cr.P.C., on Trial of Summons-
cases, empowers the Magistrate trying summons cases instituted
otherwise than upon complaint, for reasons to be recorded by him, to
stop the proceedings at any stage without pronouncing any judgment
and where such stoppage of proceedings is made after the evidence of
the principal witnesses has been recorded, to pronounce a judgment of
acquittal, and in any other case, release the accused, having effect of
discharge. This provision is almost never used by the Courts. In
appropriate cases, inherent power of the High Court, under Section
482 can be invoked to make such orders, as may be necessary, to give
effect to any order under the Code of Criminal Procedure or to prevent
abuse of the process of any Court, or otherwise, to secure the ends of
justice. The power is wide and, if judiciously and consciously
exercised, can take care of almost all the situations where interference
by the High Court becomes necessary on account of delay in
proceedings or for any other reason amounting to oppression or
harassment in any trial, inquiry or proceedings. In appropriate cases,
the High Courts have exercised their jurisdiction under Section 482 of
Cr.P.C. for quashing of first information report and investigation, and
terminating criminal proceedings if the case of abuse of process of
law was clearly made out. Such power can certainly be exercised on a
case being made out of breach of fundamental right conferred by
Article 21 of the Constitution. The Constitution Bench in A.R.
Antulay’s case referred to such power, vesting in the High Court (vide
paras 62 and 65 of its judgment) and held that it was clear that even
apart from Article 21, the Courts can take care of undue or inordinate
delays in criminal matters or proceedings if they remain pending for
too long and putting to an end, by making appropriate orders, to
further proceedings when they are found to be oppressive and
unwarranted.
Legislation is that source of law which consists in the
declaration of legal rules by a competent authority. When judges by
judicial decisions lay down a new principle of general application of
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the nature specifically reserved for legislature they may be said to
have legislated, and not merely declared the law. Salmond on
Principles of Jurisprudence (12th Edition) goes on to say "we must
distinguish law-making by legislators from law-making by the courts.
Legislators can lay down rules purely for the future and without
reference to any actual dispute; the courts, insofar as they create law,
can do so only in application to the cases before them and only insofar
as is necessary for their solution. Judicial law-making is incidental to
the solving of legal disputes; legislative law-making is the central
function of the legislator" (page 115). It is not difficult to perceive the
dividing line between permissible legislation by judicial directives and
enacting law the field exclusively reserved for legislature. We are
concerned here to determine whether in prescribing various periods of
limitation, adverted to above, the Court transgressed the limit of
judicial legislation.
Bars of limitation, judicially engrafted, are, no doubt, meant to
provide a solution to the aforementioned problems. But a solution of
this nature gives rise to greater problems like scuttling a trial without
adjudication, stultifying access to justice and giving easy exit from the
portals of justice. Such general remedial measures cannot be said to
be apt solutions. For two reasons we hold such bars of limitation
uncalled for and impermissible : first, because it tantamounts 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.
In a monograph "Judicial Activism and Constitutional
Democracy in India", commended by Professor Sir William Wade,
Q.C. as a "small book devoted to a big subject", the learned author,
while recording appreciation of judicial activism, sounds a note of
caution "it is plain that the judiciary is the least competent to
function as a legislative or the administrative agency. For one thing,
courts lack the facilities to gather detailed data or to make probing
enquiries. Reliance on advocates who appear before them for data is
likely to give them partisan or inadequate information. On the other
hand if courts have to rely on their own knowledge or research it is
bound to be selective and subjective. Courts also have no means for
effectively supervising and implementing the aftermath of their
orders, schemes and mandates. Moreover, since courts mandate for
isolated cases, their decrees make no allowance for the differing and
varying situations which administrators will encounter in applying the
mandates to other cases. Courts have also no method to reverse their
orders if they are found unworkable or requiring modification".
Highlighting the difficulties which the courts are likely to encounter if
embarking in the fields of legislation or administration, the learned
author advises " the Supreme Court could have well left the decision-
making to the other branches of government after directing their
attention to the problems rather than itself entering the remedial
field".
The primary function of judiciary is to interpret the law. It may
lay down principles, guidelines and exhibit creativity in the field left
open and unoccupied by Legislation. Patrick Devlin in ’The Judge’
(1979) refers to the role of the Judge as lawmaker and states that there
is no doubt that historically judges did make law, at least in the sense
of formulating it. Even now when they are against innovation, they
have never formally abrogated their powers; their attitude is: ’We
could if we would but we think it better not.’ But as a matter of
history did the English judges of the golden age make law? They
decided cases which worked up into principles. The judges, as Lord
Wright once put it in an unexpectedly picturesque phrase, proceeded
’from case to case, like the ancient Mediterranean mariners, hugging
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the coast from point to point and avoiding the dangers of the open sea
of system and science’. The golden age judges were not rationalisers
and, except in the devising of procedures, they were not innovators.
They did not design a new machine capable of speeding ahead; they
struggled with the aid of fictions and bits of procedural string to keep
the machine on the road.
Professor S.P. Sathe, in his recent work (Year 2002) "Judicial
Activism in India Transgressing Borders and Enforcing Limits",
touches the topic "Directions : A New Form of Judicial Legislation".
Evaluating legitimacy of judicial activism, the learned author has
cautioned against Court "legislating" exactly in the way in which a
Legislature legislates and he observes by reference to a few cases that
the guidelines laid down by court, at times, cross the border of
judicial law making in the realist sense and trench upon legislating
like a Legislature. "Directions are either issued to fill in the gaps in
the legislation or to provide for matters that have not been provided by
any legislation. The Court has taken over the legislative function not
in the traditional interstitial sense but in an overt manner and has
justified it as being an essential component of its role as a
constitutional court." (p.242). "In a strict sense these are instances of
judicial excessivism that fly in the face of the doctrine of separation of
powers. The doctrine of separation of powers envisages that the
legislature should make law, the executive should execute it, and the
judiciary should settle disputes in accordance with the existing law.
In reality such watertight separation exists nowhere and is
impracticable. Broadly, it means that one organ of the State should
not perform a function that essentially belongs to another organ.
While law-making through interpretation and expansion of the
meanings of open-textured expressions such as ’due process of law’,
’equal protection of law’, or ’freedom of speech and expression’ is a
legitimate judicial function, the making of an entirely new
law..through directionsis not a legitimate judicial function."
(p.250).
Prescribing periods of limitation at the end of which the trial
court would be obliged to terminate the proceedings and necessarily
acquit or discharge the accused, and further, making such directions
applicable to all the cases in the present and for the future amounts to
legislation, which, in our opinion, cannot be done by judicial
directives and within the arena of the judicial law-making power
available to constitutional courts, howsoever liberally we may
interpret Articles 32, 21, 141 and 142 of the Constitution. The
dividing line is fine but perceptible. Courts can declare the law, they
can interpret the law, they can remove obvious lacunae and fill the
gaps but they cannot entrench upon in the field of legislation properly
meant for the legislature. Binding directions can be issued for
enforcing the law and appropriate directions may issue, including
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 other reason why the bars of limitation enacted in Common
Cause (I), Common Cause (II) and Raj Deo Sharma (I) and Raj Deo
Sharma (II) cannot be sustained is that these decisions though two or
three-judge Bench decisions run counter to that extent to the dictum of
Constitution Bench in A.R. Antulay’s case and therefore cannot be
said to be good law to the extent they are in breach of the doctrine of
precedents. The well settled principle of precedents which has
crystalised into a rule of law is that a bench of lesser strength is bound
by the view expressed by a bench of larger strength and cannot take a
view in departure or in conflict therefrom. We have in the earlier part
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of this judgment extracted and reproduced passages from A.R.
Antulay’s case. The Constitution Bench turned down the fervent plea
of proponents of right to speedy trial for laying down time-limits as
bar beyond which a criminal proceeding or trial shall not proceed and
expressly ruled that it was neither advisable nor practicable (and
hence not judicially feasible) to fix any time-limit for trial of offences.
Having placed on record the exposition of law as to right to speedy
trial flowing from Article 21 of the Constitution this Court held that it
was necessary to leave the rule as elastic and not to fix it in the frame
of defined and rigid rules. It must be left to the judicious discretion of
the court seized of an individual case to find out from the totality of
circumstances of a given case if the quantum of time consumed upto 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, as suggested in
A.R. Antulay. In Kartar Singh’s case (supra) the Constitution Bench
while recognising the principle that the denial of an accused’s right of
speedy trial may result in a decision to dismiss the indictment or in
reversing of a conviction, went on to state, "Of course, no length of
time is per se too long to pass scrutiny under this principle nor the
accused is called upon to show the actual prejudice by delay of
disposal of cases. On the other hand, the court has to adopt a
balancing approach by taking note of the possible prejudices and
disadvantages to be suffered by the accused by avoidable delay and to
determine whether the accused in a criminal proceeding has been
deprived of his right of having speedy trial with unreasonable delay
which could be identified by the factors (1) length of delay, (2) the
justification for the delay, (3) the accused’s assertion of his right to
speedy trial, and (4) prejudice caused to the accused by such delay."
(para 92).
For all the foregoing reasons, we are of the opinion that in
Common Cause case (I) (as modified in Common Cause (II) ) and
Raj Deo Sharma (I) and (II), the Court could not have prescribed
periods of limitation beyond which the trial of a criminal case or a
criminal proceeding cannot continue and must mandatorily be closed
followed by an order acquitting or discharging the accused. In
conclusion we hold:-
(1) The dictum in A.R. Antulay’s case is correct and still holds the
field.
(2) 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. We uphold and re-affirm the said propositions.
(3) 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.
(4) 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)
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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’s case
and decide whether the trial or proceedings have become so
inordinately delayed as to be called oppressive and
unwarranted. Such time-limits cannot and will not by
themselves be treated by any Court as a bar to further
continuance of the trial or proceedings and as mandatorily
obliging the court to terminate the same and acquit or discharge
the accused.
(5) The Criminal Courts should exercise their available powers,
such as those under Sections 309, 311 and 258 of Code of
Criminal Procedure to effectuate the right to speedy trial. A
watchful and diligent trial judge can prove to be better protector
of such right than any guidelines. In appropriate cases
jurisdiction of High Court under Section 482 of Cr.P.C. and
Articles 226 and 227 of Constitution can be invoked seeking
appropriate relief or suitable directions.
(6) This is an appropriate occasion to remind the Union of India
and the State Governments of their constitutional obligation to
strengthen the judiciary-quantitatively and qualitatively by
providing requisite funds, manpower and infrastructure. We
hope and trust that the Governments shall act.
We answer the questions posed in the orders of reference dated
September 19, 2000 and April 26, 2001 in the abovesaid terms.
The appeals are allowed. The impugned judgments of the High
Court are set aside. As the High Court could not have condoned the
delay in filing of the appeals and then allowed the appeals without
noticing the respective accused-respondents before the High Court,
now the High Court shall hear and decide the appeals afresh after
noticing the accused-respondent before it in each of the appeals and
consistently with the principles of law laid down hereinabove.
Before we may part, we would like to make certain
observations ex abundanti cautela :
Firstly, we have dealt with the directions made by this Court in
Common Cause Case-I and II and Raj Deo Sharma Case I and II
regarding trial of cases. The directions made in those cases regarding
enlargement of accused persons on bail are not subject matter of this
reference or these appeals and we have consciously abstained from
dealing with legality, propriety or otherwise of directions in regard to
bail. This is because different considerations arise before the criminal
courts while dealing with termination of a trial or proceedings and
while dealing with right of accused to be enlarged on bail.
Secondly, though we are deleting the directions made
respectively by two and three-Judge Benches of this Court in the cases
under reference, for reasons which we have already stated, we should
not, even for a moment, be considered as having made a departure
from the law as to speedy trial and speedy conclusion of criminal
proceedings of whatever nature and at whichever stage before any
authority or the court. It is the constitutional obligation of the State to
dispense speedy 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
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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. We need to remind all
concerned of what was said by this Court in Hussainara Khatoon
(IV) 1980 (1) SCC 98, "The State cannot be permitted to deny the
constitutional right of speedy trial to the accused on the ground that
the State has no adequate financial resources to incur the necessary
expenditure needed for improving the administrative and judicial
apparatus with a view to ensuring speedy trial. The State may have its
financial constraints and its priorities in expenditure, but, ’the law
does not permit any government to deprive its citizens of
constitutional rights on a plea of poverty’, or administrative inability."
Thirdly, we are deleting the bars of limitation on the twin
grounds that it amounts to judicial legislation, which is not
permissible, and because they run counter to the doctrine of binding
precedents. The larger question of powers of this court to pass orders
and issue directions in public interest or in social action litigations,
specially by reference to Articles 32, 141, 142 and 144 of the
Constitution, is not the subject matter of reference before us and this
judgment should not be read as an interpretation of those Articles of
the Constitution and laying down, defining or limiting the scope of the
powers exercisable thereunder by this Court.
And lastly, it is clarified that this decision shall not be a ground
for re-opening a case or proceeding by setting aside any such
acquittal or discharge as is based on the authority of ’Common
Cause’ and ’Raj Deo Sharma’ cases and which has already achieved
finality and re-open the trial against the accused therein.
. . . . . . .. . . . . . . . . . . . . . . . . . . . . CJI
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .J.
( Syed Shah Mohammed Quadri)
. . . . . . .. . . . . . . . . . . . . . . . . . . . . . .J.
( R.C. Lahoti )
. . . . . . .. . . . . . . . . . . . . . . . . . . . . . .J.
( N. Santosh Hegde )
. . . . . . .. . . . . . . . . . . . . . . . . . . . . . .J.
( Ruma Pal )
. . . . . . .. . . . . . . . . . . . . . . . . . . . . . .J.
( Arijit Pasayat )
April 16, 2002.