Full Judgment Text
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PETITIONER:
SHAHEEN WELFARE ASSOCIATION
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 27/02/1996
BENCH:
MANOHAR SUJATA V. (J)
BENCH:
MANOHAR SUJATA V. (J)
AHMADI A.M. (CJ)
CITATION:
1996 SCC (2) 616 JT 1996 (2) 719
1996 SCALE (2)481
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
Mrs.Sujata V.Manohar,J.
This is a public interest litigation in which the
petitioner has prayed for certain reliefs to undertrial
prisoners charged under the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (hereinafter referred to
as ’TADA’). The petitioner has asked, inter alia, for a
direction that the respondents should file a list of
detentes lodged in jails in different States under TADA and
has asked for a direction for the release of TADA detentes
against whom proper evidence is not with the prosecution and
where proper procedure prescribed under law is not followed.
Under orders passed from time to time in this petition
the States of Gujarat, Rajasthan and Maharashtra as well as
the Central Government have filed affidavits giving
information relating to the number of cases under TADA
pending in different Designated Courts in various States of
the country. We have also been furnished with the Statewise
numbers of Designated Courts constituted under TADA. In the
affidavit filed on behalf of the Union of India by Shri
A.K.Shrivastava, Deputy Secretary to the Government of
India, Ministry of Home Affairs, New Delhi, a statement is
annexed showing live cases under TADA and the number of
Designated Courts in different States and Union Territories.
The statement is as follows:
Sr.Name of the State/UT No. of live cases No. of Desig-
No. under TADA nated Courts
---------------------------------------------------------
(1) (2) (3) (4)
----------------------------------------------------------
1. Andhra Pradesh 1937 61
2. Arunachal Pradesh 15 11
3. Assam 2908 1
4. Bihar 4 35
5. Gujarat 72 18
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6. Haryana 348 8
7. Himachal Pradesh 5 3
8. Jammu & Kashmir 5041 4
9. Karnataka 25 19
10. Kerala -- 1
11. Manipur 603 4
12. Madhya Pradesh 76 10
13. Maharashtra 244 8
14. Meghalaya 8 1
15. Punjab 2248 18
16. Rajasthan 77 1
17 Tamil Nadu 26 5
18. Uttar Pradesh 39 15
19. West Bengal 1 18
20. Chandigarh Admn. 9 2
21. Delhi 759 4
22. Goa 1 1
------------------------------------------------------------
Total:- 14446 248
------------------------------------------------------------
Thus, for example, in the State of Assam the number of live
cases are 2908. There is only one Designated Court to try
all these cases. In Jammu & Kashmir, there are only four
Designated Courts for trial of 5041 cases. In Rajasthan
there is only one Designated Court for the trial of 77 cases
while in Delhi there are four Designated Courts for the
trial of 759 pending cases. The number of Designated Courts
is also somewhat deceptive in the sense that in some States
the existing Sessions Courts are also designated as courts
under TADA, with the result that these courts do not deal
exclusively with the trial of TADA cases. They also deal
with other criminal cases. Therefore, the entire time of
such courts is not available for the trial of TADA cases. It
is quite clear that in many States there is no prospect of a
speedy trial of pending TADA cases. A statement which is
annexed to an earlier affidavit filed on filed on behalf of
the Union of the Union of India by Shri R.S.Tanwar, Under
Secretary to the Government of India, Ministry of Home
Affairs, New Delhi, shows that in respect of 14446 cases
under investigation and pending trial in the various States
of the country, the detentions involved are 42488, out which
the number of persons actually arrested and under detention
is 59983. Those released on bail are 30357, and those
absconding and yet to be arrested are 6044. This is after
taking into account the cases which were revided by the
State Review Committees, and were either withdrawn or where
charges under the provisions of TADA were dropped. The total
number of cases so reviewed comes to 9203 and the number of
persons discharged from TADA provisions are 7968.
The National Human Rights Commission has also furnished
a statement showing the position of TADA detentes in jail as
on 30.6.1995. While the Statewise figures given by it do no
tally with the figures given by the Union of India, the
total number of undertrials in jail according to the
National Human Rights Commission is 6000, (after taking into
account its corrections for Assam, Punjab and Rajasthan)
which is close to the figure of 5998 given by the Union of
India.
It is in this context that we have to consider what
relief can be granted to detentes under TADA. In the case of
Kartar Singh v. State of Punjab (1994 (3) SCC 569) this
Court while considering the validity of Section 20(8) of
TADA, has observed that while liberty of a citizen must be
zealously safeguarded by the courts, nonetheless the courts
while dispensing justice in cases like the one under TADA
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Act, should keep in mind not only the liberty of the accused
but also the interest of the victims and their near and dear
ones 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. It also observed that the invocation
of the provisions of TADA in cases, the facts of which do
not war f ant its invocation, is nothing but sheer misuse
and abuse of the Act by the police.
Looking to the nature of the crime and the paramount
interests of the society this Court held that the conditions
imposed under Section 20(8) for the release of TADA
undertrials on bail did not violate Articles 14 and 21 of
the Constitution. It, however, gave directions for the
constitution of Review/Screening committees in each State
and at the Center to ensure that the provisions of TADA were
correctly invoked in the cases pending before the Designated
Courts. The purpose of constituting such committees was to
ensure a higher level of scrutiny regarding applicability of
the provisions of TADA to the case in point. The need for
such committees is amply borne out by the results which
have been annexed in the affidavits filed on behalf of the
Union of India before us relating to the number of cases so
reviewed by the Review Committees where it has been found
that the provisions of TADA ought not to have been applied.
We are, however, sorry to note that not a single case filed
by C.B.I. has been so reviewed although the Review
Committee, it is said, has examined all the cases. A more
independent and objective scrutiny of these cases by a
Committee headed by a retired judge is obviously necessary.
Inspite of such review, from the figures which we have
cited above, it is clear that there is very little prospect
of a speedy trial of cases under TADA in some of the States
because of the absence of an adequate number of Designated
Courts even in cases where a chargesheet has been filed and
the cases are ready for trial. We are conscious of the fact
that even the trial of ordinary criminal cases does take
some time because of the courts being overloaded with work
and the concept of a speedy trial in the case of TADA cases
must be viewed in the context of pendency in relation to
criminal trials also. But when the release of undertrials on
bail is severely restricted as in the case of TADA by virtue
of the provisions of Section 20(8) of TADA, it becomes
necessary that the trial does proceed and conclude within a
reasonable time. Where this is not practical, release on
bail which can be taken to be embedded in the right of a
speedy trial may, in some cases, be necessary to meet the
requirements of Article 21.
It was on this basis that in the case of Supreme Court
Legal Aid Committee Representing Undertrial Prisoners v.
Union of India & Ors. (1994 (6) SCC 731), this Court
considered similar provisions restricting the grant of bail
under Narcotic Drugs and Psychotropic Substances Act, 1985
and directed release of undertrials on bail in certain
situations and subject to the terms and conditions set out
there. The Court while doing so observed, (p.748): "........
we have felt that deprivation of the personal liberty
without ensuring speedy trial would also not be in
consonance with the right guaranteed by Article 21. Of
course, some amount of deprivation of personal liberty
cannot be avoided in such cases; but if the period of
deprivation pending trial becomes unduly long, the fairness
assured by Article 21 would receive a jolt. It is because of
this that we have felt that after the accused persons have
suffered imprisonment which is half of the maximum
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punishment provided for the offence, any further
deprivation of personal liberty would be violative of
the fundamental right visualized by Article 21, which
has to be telescoped with the right guaranteed by
Article 14 which also promises justness, fairness and
reasonableness in procedural matters."
It is in this context that it has become necessary to
grant some relief to those persons who have been deprived of
their personal liberty for a considerable length of time
without any Prospect of the trial being concluded in the
near future. Undoubtedly, the safety of the community and of
the nation needs to be safeguarded looking to the nature of
the offences these undertrials have been charged with. But
the ultimate justification for such deprivation of liberty
pending trial can only be their being found guilty of the
offences for which they have been charged. If such a finding
is not likely to be arrived at within a reasonable time some
relief becomes necessary.
The petition thus poses the problem of reconciling
conflicting claims of individual liberty versus the right of
the community and the nation to safety and protection from
terrorism and disruptive activities. While it is essential
that innocent people should be protected from terrorists and
disruptionists, it is equally necessary that terrorists and
disruptionists are speedily tried and punished. In fact the
protection to innocent civilians is dependent on such
speedily trial and punishment. The conflict is generated on
account of the gross delay in the trial of such persons.
This delay may contribute to absence of proper evidence at
the trial so that the really guilty may have to be
ultimately acquitted. It also causes irreparable damage to
innocent persons who may have been wrongly accused of the
crime and are ultimately acquitted, but who remain in jail
for a long period pending trial because of the stringent
provisions regarding bail under TADA. They suffer severe
hardship and their families may be ruined.
Bearing in mind the nature of the crime and the need to
protect the society and the nation, TADA has prescribed in
Section 20(8) stringent provisions for granting bail. Such
stringent provisions can be justified looking to the nature
of the crime, as was held in Kartar Singh’s case (supra), on
the presumption that the trial of the accused will take
place without undue delay. No one can justify gross delay in
disposal of cases when undertrials perforce remain in jail,
giving rise to possible situations that may justify
invocation of Article 21.
These competing claims can be reconciled by taking a
pragmatic approach.
The proper course is to identify from the nature of the
role played by each accused person the real hardcore
terrorists or criminals from others who do not belong to
that category; and apply the bail provisions strictly in so
far as the former class is conceived and liberally in
respect of the latter class. This will release the pressure
on the courts in the matter of priority for trial. Once the
total number of prisoners in jail shrinks, those belonging
to the former class and, therefore, kept in jail can be
tried on a priority basis. That would help ensure that the
evidence against them does not fade away on account of
delay. Delay may otherwise harm the prosecution case and the
harsh bail provisions may prove counter-productive. A
pragmatic approach alone can save the situation for,
otherwise, one may find that many of the undertrials may be
found to have completed the maximum punishment provided by
law by being in jail without a trial. Even in cases where a
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large number of persons are tied up with the aid of Sections
120B or 147, I.P.C., the role of each person can certainly
be evaluated for the purpose of bail and those whose role is
not so serious or menacing can be more liberally considered.
With inadequate number of courts, the only pragmatic way is
to reduce the prison population of TADA detentes and then
deal with hardcore undertrials on priority basis before the
evidence fades away or is lost. Such an approach will take
care of both the competing interests. This is the approach
which we recommend to courts dealing with TADA cases so that
the real culprits are promptly tried and punished.
For the purpose of grant of bail to TADA detentes, we
divide the undertrials into three classes, namely, (a)
hardcore undertrials whose release would prejudice the
prosecution case and whose liberty may prove to be a menace
to society in general arid to the complainant and
prosecution witnesses in particular; (b) other undertrials
whose overt acts or involvement directly attract Sections 3
and/or 4 of the TADA Act; (c) undertrials who are roped in,
not because of any activity directly attracting Sections 3
and A, but by virtue of Sections 120B or 147, I.P.C., and;
(d) those undertrials who were found possessing
Incriminating articles in notified areas and are booked
under Section 5 of TADA.
Ordinarily, it is true that the provisions of Sections
20(8) and 20(9) of TADA would apply to all the aforesaid
classes. But while adopting a pragmatic and just approach,
no one can dispute the fact that all of them cannot be
dealth with by the same yardstick. Different approaches
would be justified on the basis of the gravity or the
charges. Adopting this approach we are of the opinion that
undertrials falling within group (a) cannot receive liberal
treatment. Cases of undertrials falling in group (b) would
have to be differently dealt within. in that, if they have
been in prison for five years or more and their trial is not
likely to be completed within the next six months, they can
be released on bail unless the court comes to the conclusion
that their antecedents are such that releasing them may be
harmful to the lives of the complainant the family members
of the complainant, or witnesses. Cases of undertrials
falling in groups (c) and (d) can be dealt with leniently
and they can be released if they have been in sail for three
years and two years respectively. Those falling in group (b)
when released on bail may be released on bail of not less
than Rs.50,000/- with one surety for like amount and those
falling in groups (c) and (d) may be released on bail on
their executing a bond for Rs.30 000/- with one surety for
like amount subject to the following terms:
(1) the accused shall report to the
c police station once a week;
(2) the accused shall remain within
the area of jurisdiction of the
Designated Court pending trial and
shall not leave the area without
the permission of the Designated
Court;
(3) the accused shall deposit his
passport, if any with the
Designated Court. If he does not
hold a passport he shall file an
affidavit to that effect before
the Designated Court. The
Designated Court may ascertain the
correct position from the passport
authorities if it deems it
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necessary;
(4) The Designated Court will be at
liberty to cancel the bail if any
of these conditions is violated or
a case for cancellation of bail is
otherwise made out.
(5) Before granting bail a notice
shall be given The public
prosecutor and an opportunity shall
be given to him to oppose the
application or such release. The
Designated Court may refuse bail
in-very special circumstances for
reasons to be recorded in writing.
These conditions may be relaxed in cases of those under
groups (c) and (d) and, for special reasons to be recorded,
in the case of group (b) prisoners. Also these directions
may not be applied by the Designated Court in exceptionally
grave cases such as the Bombay Bomb Blast Case where a
lengthy trial is inevitable looking to the number of
accused, the number of witnesses and the nature of charges
unless the court feels that the trial is being unduly
delayed. However, even in such cases it is essential that
the Review Committee examines the case against each accused
bearing the above directions in mind, to ensure that TADA
provisions are not unnecessarily invoked.
The above directions are a one-time measure meant only
to alleviate the current situation.
When stringent provisions have been prescribed under an
Act such as TADA for grant of bail and a conscious decision
has been taken by the legislature to sacrifice to some
extent, the personal liberty of an undertrial accused for
the sake of protecting the community and the nation against
terrorist and disruptive activities or other activities
harmful to society, it is all the more necessary that
investigation of such crimes is done efficiently and an
adequate number of Designated Courts are set up to bring to
ok persons accused of such serious crimes. This is the only
way in which society can be protected against harmful
activities. This would also ensure that persons ultimately
found innocent are not unnecessarily kept in jail for long
periods. It is unfortunate that none of the States to whom
notices have been issued by us nor the Union of India, have
come forward to state that they would set up an adequate
number of Designated Courts in each State so that cases
pertaining to TADA can be speedily disposed of. This has
necessitated the above order as a one-time measure.
With the above directions, the writ petition is
disposed of.