Full Judgment Text
2026 INSC 473
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2026
(Arising out of Special Leave Petition (Crl.) No. 6564 of 2026)
KAILASH CHANDRA KAPRI ...APPELLANT(S)
VERSUS
STATE OF UTTAR PRADESH & ORS. …RESPONDENT(S)
O R D E R
“Crime and the actions of the criminal justice
system are mutually responsive, influencing
each other in ways that are only minimally
predictable; general changes in the political
and socio-economic climate will affect both
crime and the criminal justice system in a
similar manner”.
[Alfred Blumstein in Encyclopedia of
Crime and Justice, Khadish (ed.)]
Signature Not Verified
Digitally signed by
HARPREET KAUR
Date: 2026.05.12
14:50:37 IST
Reason:
1. Leave granted.
2. This appeal arises from the order passed by the High court
of Allahabad dated 23.02.2006 in application under Section 482
No. 20610 of 2024 by which the application preferred by the
appellant-herein praying for quashing of the criminal
proceedings of Case No. 545 of 1991 arising out of Case Crime
No. 115 of 1989 registered with the GRP Rambagh Police Station
for the offence punishable under Sections 147, 323 and 504 of
the Indian Penal Code,(for short, “IPC”) respectively and
Section 120 of the Railways Act came to be dismissed.
3. It appears from the materials on record that one Gajendra
Singh, constable No. 614, posted at the relevant point of time,
at GRP Rambagh, Distt. Gonda, Allahabad lodged a First
Information Report with the GRP Rambagh police station referred
to above against the appellant-herein and four other police
constables for the offences enumerated above.
4. The FIR dated 19.02.1989 reads thus:
“ Respectfully submitted that on 19.2.1989 at about 20:00
hours I was going to Mess No 1 At that time Constable
No. 57 Shiv Charan Tiwari; Constable No 95 Arvind Kumai",
Constable No. 51 Kailash Katariya, Constable No. 90
Harish Chandra Joshi and Constable No. 190 Kailash
Chandra Kapri who had come from District Almora; for
Kumbh Mela duty at G.R.P., began to say that you have
become very close to Mess Manager Shukla. I said that I
have no concern with anyone. They started abusing me. I
told them not to abuse. Thereupon they surrounded me and
assaulted me with fists and kicks and beat me with red
shoes. Constable No. 825 Parmhansh Singh and Constable
No. 713 Achyutanand Mishra saved me and witnessed the
incident. Afterwards the accused persons ran away taking
their belongings. My report be written and action be
taken. Constable No. 614 Gajendra Singh District Gonda
Dated 19.02.1989. ”
5. Upon completion of the investigation chargesheet came to be
filed for the offences enumerated above against the appellant
and other co-accused. The filing of the chargesheet culminated
in Criminal Case No. 545 of 1991 pending as on date in the
court of Additional Chief Judicial Magistrate (Railway)
Allahabad.
6. We take notice of the fact that two of the co-accused passed
away during the pendency of the proceedings and the other two
co-accused were put to trial and came to be acquitted by the
Additional Chief Judicial Magistrate (Railway) Allahabad vide
judgment and order dated 01.02.2023. We are informed that the
two co-accused were acquitted as prosecution was unable to lead
any evidence in support of the charge.
7. The judgment acquitting the two co-accused in Case No. 545A
of 1991 passed by the Additional Chief Judicial Magistrate
(Railway), Allahabad is on record. It is very much relevant to
reproduce some part of the judgment which reads thus:
“Charges under Section 147, 323, 504 IPC and Section
120 Railway Act were framed against the accused persons.
The accused denied the charges and claimed for trial.
The prosecution was granted sufficient and long
opportunity by
This Court to produce evidence. However, the present
case has remained pending in this Court since the year
1991, i.e., for about 33 years, and this file was one
of the oldest pending records of this Court, but the
prosecution failed to examine even a single witness in
the matter. It is noteworthy that all the witnesses were
police personnel themselves, and every possible step
was taken to secure their presence. Summons were sent
even through Radiogram to the; Director General of
Police, Uttar Pradesh). and other competent
authorities, yet the prosecution failed to produce any
witness. Thereafter, the Court granted a last
opportunity to the prosecution to produce evidence, but
even then the prosecution failed to examine any witness.
Consequently, on 25.05.2022, the opportunity for
prosecution evidence was closed and the statements of
the accused under Section 313 Cr.P.C. were recorded, in
which they denied the occurrence and also declined to
produce any defence evidence. Thereafter, the case was
fixed for arguments.
I have heard the learned prosecution officer and the
learned counsel for the accused persons and carefully
perused the oral as well as documentary evidence
available on record.
It is a well-settled principle of criminal law that the
prosecution must prove its case beyond reasonable doubt.
The case has been pending since the year 1989, and
charges were framed long back, and since then the case
remained fixed for prosecution evidence, but the
prosecution failed to examine any oral witness in
support of its case.
It is also relevant that in the present case, after
investigation, the witnesses cited in the charge-sheet
were police personnel themselves, yet the prosecution
failed to produce any witness. The case has been pending
since 1989, and the prosecution cannot be given endless
and unlimited opportunities to produce evidence. In view
of the above facts and circumstances of the case, and
keeping in view the directions laid down by the Hon’ble
High Court, the prosecution has failed to prove the
charges against the accused persons beyond reasonable
doubt due to lack of evidence, and the accused persons
are entitled to be acquitted of the charges under
Sections 147, 323, 504 IPC and Section 120 Railway Act.”
8. We enquired with the learned counsel appearing for the State
as to why the trial did not proceed against the appellant along
with the co-accused. We were informed that the appellant came
to be transferred to the State of Uttarakhand after the
bifurcation took place of the State of Uttar Pradesh and since
the appellant left Uttar Pradesh, no summons could be served
upon him.
9. It appears on plain reading of the FIR and the other
materials on record that on the date of the alleged incident
five police constables posted with the GRP Rambagh fought with
each other on a very trivial issue. This incident occurred in
the police mess relating to food.
10. We also take notice of the fact that in 1991 when the FIR
came to be registered the appellant was 22 years old and as on
date, he is 59 years of age. It appears that for the reasons
assigned by the appellant in the pleadings no summons was issued
to him by the trial court till the year 2021.
11. In such circumstances referred to above the appellant went
before the High court and prayed that it has been 35 years that
the criminal proceedings are pending against him and on this
ground alone the proceedings deserve to be quashed. The High
court declined to quash the proceedings by way of the impugned
order. The impugned order read thus:
“ 1. Heard learned counsel for the applicant and learned
A.G.A. for the State.
2. The present application under Section 482 Cr.P.C. has
been filed for quashing the entire criminal proceedings
of Case No. 545 of 1991, arising out of Case Crime No.
115 of 1989, under Sections 147, 323, 504 I.P.C. and 120
Railway Act, Police Station GRP Rambagh, District
Allahabad.
3. Inom the perusal of the material on record and looking
into the facts of the case at this stage it Cannot he
said that no offence is made out against the applicant
at this stage. All the submissions made at the bar,
relate to the disputed questions of fact, which cannot
be adjudicated upon by this Court under Section 482
Cr.P.C. No case for interference is made out. The prayer
for quashing the entire criminal proceedings of the
aforesaid case is refused.
4. Learned counsel for the applicant has prayed that a
liberty may be given to the applicant to appear before
the court below through counsel to move discharge
application and the court below may be directed to decide
the discharge application within the stipulated period.
5. Accordingly, liberty is given to the applicant to
appear before the court; below through counsel to move
discharge application within 30 days from today.
6. This application is disposed of with a direction to
the court below that in case the applicant appears before
the court below through counsel within 30 from today and
moves a discharge application, the same shall be
considered and decided in accordance with law. Till the
disposal of discharge application, no coercive action
shall be taken against the applicant.
7. It is made clear that in case the applicant does not
appear before the court below within the aforesaid
period, no further time shall be given to him. ”
12. In such circumstances referred to above the appellant is
here before this court with the present appeal.
13. We heard the learned counsel appearing for the appellant
and also the learned counsel appearing for the State.
14. The short question that falls for our consideration is
whether the criminal proceedings pending against the appellant-
herein past 35 years deserve to be quashed only on the ground
that his fundamental right to have a speedy trial as enshrined
in the Article 21 of the Constitution could be said to have
been infringed?
15. The Right to have a speedy trial is one of the requirements
of Article 21 of the Constitution irrespective of the fact
whether the accused is in jail or on bail and furthermore
irrespective of the nature of the crime. This speedy trial is
one of the requirements of Article 21 of the Constitution and
from the facts and circumstances of a given case if the High
court finds that the proceeding if allowed to continue will
amount to violation of Article 21 of the Constitution then the
High court should not hesitate to exercise its inherent powers
under Section 528 of the BNSS 2023 or in exercise of its writ
jurisdiction under Article 226 of the Constitution.
16. The Supreme Court of the United States in Robert Dean
Dickey v. State of Florida , (1970) 26 Law Ed 2d 26 : 398 US 30,
has explained the right to a speedy trial in the following
words:
“The right to a speedy trial is not a theoretical or
abstract right but one rooted in hard reality in the need
to have charges promptly exposed. If the case for the
prosecution calls on the accused to meet charges rather
than rest on the infirmities of the prosecution’s case,
as is the defendant’s right, the time to meet them is
when the case is fresh. Stale claims have never been
favoured by the law, and far less so in criminal cases.
Although a great many accused persons seek to put off the
confrontation as long as possible, the right to a prompt
inquiry into criminal charges is fundamental and the duty
of the charging authority is to provide a prompt trial.”
(Emphasis supplied)
17. Another aspect of the right to speedy trial was then
highlighted in Barker v. Wingo , (1972) 33 Law Ed 2d 101 : 407
US 514 in these words:
“The right to a speedy trial is generically different
from any of the other rights enshrined in the
Constitution for the protection of the accused. In
addition to the general concern that all accused persons
be treated according to decent and fair
procedures, there is a societal interest in providing a
speedy trial which exists separate from, and, at times
in opposition to the interests of the accused.”
(Emphasis supplied)
18. Yet again, the basic principles underlying the right were
embodied in the following terms in Richard M. Smith v. Fred M.
Hooey , (1969) 21 Law Ed 2d 607 : 393 US 374:—
“Suffice it to remember that this constitutional
guarantee has universally been thought essential to
protect at least three basic demands of criminal justice
in the Anglo-American legal system:
‘(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.’”
(Emphasis supplied)
19. In Hussainra Khatoon v. State of Bihar , AIR 1979 SC 1360
this Court after in terms quoting the Sixth Amendment to the
American Constitution and also Art. 3 of the European Convention
on Human Rights, observed as under:
“We think that 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
Art. 21 as interpreted by this Court in Maneka
Gandhi v. Union of India, AIR 1978 SC 597. We have held
in that case that Art. 21 confers a fundamental right on
every person not to be deprived of his life or liberty
except in accordance with the procedure prescribed by
law and it is not enough to constitute compliance 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 Art.
21 and he would be entitled to enforce such fundamental
right and secure his release. Now obviously procedure
prescribed by law for depriving a person of his liberty
cannot be ‘reasonable, fail or just’ unless that
procedure ensures a speedy trial for determination of
the guilt of such person. No procedure which does not
ensure a reasonably quick trial can be regarded as
‘reasonable, fair or just’ and it would fall foul of
Art. 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
Art. 21.”
(Emphasis supplied)
20. In the succeeding case of the series Hussainara
Khatoon v. State of Bihar , AIR 1979 SC 1369, it was again
reiterated as under:—
“Speedy trial is, as held by us in our earlier judgment
dated 26th February, 1979, an essential ingredient of
‘reasonable, fair and just’ procedure guaranteed by Art.
21 and it is the constitutional obligation of the State
to devise such a procedure as would ensure speedy trial
of the accused.”
(Emphasis supplied)
21. In Maneka Gandhi v. Union of India reported in AIR 1978 SC
597 this Court explained and gave a new dimension to the
contents of Article 21 of the Constitution of India. It was
held that the “law” within the meaning of Article 21 of the
Constitution of India must be a law which fulfills the
requirements of Articles 14 and 19 of the Constitution
respectively. In other words, the procedure contemplated by
Article 21 must answer the test of reasonableness and must be
right, just and fair and not arbitrary, fanciful or oppressive.
22. The same view was reiterated in Kadra Pehadiya v. State of
Bihar reported in AIR 1981 SC 939.
23. In S. Gum v. Grindlays Bank Limited reported in AIR 1986
SC 289 this Court was considering a case which went from the
Calcutta High Court. In this case the accused was acquitted by
the Metropolitan Magistrate. The High Court after setting aside
that order gave an order for retrial. In paragraph 3 of the
judgment this Court observed:
“After going through the Judgment of the Magistrate and
of the High Court we feel that whatever might have been
the error committed by the Magistrate, in the
circumstances of the case, it was not just and proper
for the High Court to have remanded the case for fresh
trial when the order of acquittal had been passed nearly
6 years before the judgment of the High Court. The
pendency of the criminal appeal for 6 years before the
High Court is itself a regrettable feature of this case.
In addition to it, the order directing retrial has
resulted in serious prejudice to the appellants. A fresh
trial nearly even years after the alleged incident is
bound to result in harassment and abuse of judicial
process.”
(Emphasis supplied)
24. In Rakesh Saxena v. State through CBI reported in AIR 1987
SC 740 this court quashed the charges in a criminal case on the
twin considerations of delay and doubtfulness of an ultimate
conviction. The court observed as follows:
“We have carefully considered the various aspects of the
case and we are of the view that having regard to the
nature of the dispute and the fact that the offences, if
any, are alleged to have been committed more than 6 years
ago and the appellant was merely a trader at the lowest
rung of the hierarchy in the foreign Exchange Division
of the Bank and not a highly placed officer and the trial
is bound to occupy the time of the Court of first
instance for not less than 2 or 3 years in view of the
complicated nature of the case and even then, it is
extremely doubtful whether it will at all result in
conviction, no useful purpose will be served by allowing
the prosecutions to continue.”
(Emphasis supplied)
25. A Full Bench of the Patna High Court in The
State v. Maksudan Singh reported in AIR 1986 Patna 38 held as
follows:
“Once the constitutional guarantee of speedy trial and
the right to a fair, just and reasonable procedure under
Article 21 has been violated, then the accused is
entitled to unconditional release and the charges
levelled against him would fall to the ground. The right
of speedy and public trial does not arise or depend on
the conviction and sentence of the accused…. An accused
person on the ground of inordinate delay should claim
the right long before the conclusion of the trial and
before the stage of holding him guilty or otherwise
arises.”
(Emphasis supplied)
26. Another Full Bench decision of the Patna High Court
in Madheshwardhari Singh v. State of Bihar reported in AIR 1986
Patna 324 reiterated the same view and even sought to prescribe
an outer limit of 7 years of delay as sufficient to quash the
proceeding as any further continuation thereof would violate
the Constitutional guarantee of a speedy trial under Article
21 of the Constitution of India.
27. This Court in the case of State through CBI Vs. Dr. Narayan
Waman Nerukar and another reported in (2002) 7 SCC 6 observed
as under:
“6. “Recently a 7-Judges Bench of this Court in P.
Ramachandra Rao vs. State of Karnataka held as
under:(SCC pp.587-88,para 1)
"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 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."
7. It was held that the decisions in the two "Common
Cause" cases and Raj Deo Sharma v. State of Bihar and
Raj Deo Sharma (II) v. State of Bihar, were not correctly
decided on certain aspects. It is neither advisable nor
feasible, nor judicially permissible or 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 the
aforesaid four cases could not have been so prescribed
or drawn and, therefore, are not good law. Criminal
courts are not obliged to terminate trial of criminal
proceedings merely on account of lapse of time, as
prescribed by the directions made in the aforesaid
cases.
8. As was observed in P. Ramchandra Rao's case (supra),
at the most periods of time prescribed in those decisions
can be taken by the Courts in seisin of the trial or
proceedings to act as reminder when they may be persuaded
to apply to their judicial mind to the facts and
circumstances of the case before them and determine by
taking into consideration several relevant factors as
pointed in A.R. Antulay's case (supra) 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 be
treated by any court as a bar to further trial or
proceedings and as mandatorily obliging the court to
terminate the same and acquit or discharge the accused.
9. While considering the question of delay the court has
a duty to see whether the prolongation was on account of
any delaying tactics adopted by the accused and other
relevant aspects which contributed to the delay. Number
of witnesses examined, volume of documents likely to be
exhibited, nature and complexity of the offence which is
under investigation or adjudication are some of the
relevant factors. There can be no empirical formula of
universal application in such matters. Each case has to
be judged in its own background and special features if
any. No generalization is possible and should be done.
It has also to be borne in mind that the criminal courts
exercise available powers such as those under Sections
309, 311 and 258 of the Cr.P.C. to effectuate right to
speedy trial.”
(Emphasis supplied)
28. In the case of Mahendra Lal Das vs. State of Bihar and
others reported in (2001) Cri.L.J. 4718 this Court observed as
under:
“Abdul Rehman Antulay & Ors. v. R.S. Nayak & Anr, [ 1992]
1 SCC 225 while interpreting the scope of Article 21 of
the Constitution held that every citizen has a right of
speedy trial of the case pending against him. The speedy
trial was considered also in public interest as it serves
the social interest also. It is in the interest of all
concerned that guilty or innocence of the accused is
determined as quickly as possible in the circumstances.
The right to speedy trial encompasses all the stages,
namely, stage of investigation, enquiry, trial, appeal,
revision and re-trial. While determining the alleged
delay, the court has to decide each case on its facts
having regard to all attending circumstances including
nature of offence, number of accused and witnesses, the
work-load of the court concerned, prevailing local
conditions, etc. Every delay may not be taken as causing
prejudice to the accused but the alleged delay has to be
considered in the totality of the circumstances and the
general conspectus of the case. Inordinate long delay
can be taken as a presentive proof of prejudice.”
22. In Hussainara Khatoon's case (AIR 1979 SC 1360)
(supra), the Hon'ble Apex Court gave anxious
consideration to the pathetic plight of under trial
prisoners languishing in jail for years together and
held that any procedure which would not ensure a speedy
trial could not be regarded as reasonable, fair or just
and that the right of an accused to speedy trial rather
'a reasonably expeditious trial' is imbibed in Article
21 of the Constitution of India. In paragraph 5
thereunder, it was held thus :-
“We think that 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 this Court in
Maneka Gandhi v. Union of India (AIR 1978 SC 597). We
have held in that case that article 21 confers a
fundamental right on every person not to be deprived of
his life or liberty except in accordance with the
procedure prescribed by law it is not enough to
constitute compliance 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. Now obviously procedure prescribed by law
for depriving a person of his liberty cannot be
'reasonable, fair or just' unless that procedure ensures
a speedy trial for determination of the guilt of such
person. No procedure which does not ensure a reasonably
quick trial can be regarded as 'reasonable, far 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."
In Abdul Rehman Antulay's case (AIR 1992 SC 1701)
(supra), a Constitution Bench of the Hon'ble Supreme
Court held that right to speedy trial is part of fair,
just and reasonable procedure implicit in Article 21 and
is reflected in S. 309, Cr. P. C. and that the said right
comprehends all stages viz., investigation, inquiry,
trial, appeal, revision and retrial. In paragraph 81, it
was held :
"81. Article 21 declares that no person shall be deprived
of his life or liberty except in accordance with the
procedure prescribed by law. The main procedural law in
this country is the Code of Criminal Procedure, 1973.
Several other enactments too contain many a procedural
provision. After Maneka Gandhi v. Union of India (AIR
1978 SC 597), it can hardly be disputed that the 'law'
(which has to be understood in the sense the expression
has been defined in clause (3)(a) of Article 3 of the
Constitution) in Article 21 has to answer the test of
reasonableness and fairness inherent in Articles 19 and
14. In other words, such law should provide a procedure
which is fair, reasonable and just. Then alone, would it
be in consonance with the command of Article 21. Indeed,
wherever necessary, such fairness must be read into such
law. Now, can it be said that a law which does not
provide for a reasonably prompt investigation, trial and
conclusion of a criminal case is fair, just and
reasonable? It is both in the interest of the accused as
well as the society that a criminal case is concluded
soon. If the accused is guilty, he ought to be declared
so. Social interest lies in punishing the guilty and
exoneration of the innocent but this determination (of
guilt or innocence) must be arrived at with reasonable
despatch - reasonable in all the circumstances of the
case. Since it is the accused who is charged with the
offence and is also the person whose life and/or liberty
is at peril, it is but fair to say that he has a right
to be tried speedily. Correspondingly, it is the
obligation of the State to respect and ensure this right.
It needs no emphasis to say, the very fact of being
accused of a crime is cause for concern. It affects the
reputation and the standing of the person among his
colleagues and in the society. It is a cause for worry
and expense. It is more so, if he is arrested. If it is
a serious offence, the man may stand to lose his life,
liberty, career and all that he cherishes. In Abdul
Rehman Antulay's case (AIR 1992 SC 1701) (supra), a
Constitution Bench of the Hon'ble Supreme Court held
that right to speedy trial is part of fair, just and
reasonable procedure implicit in Article 21 and is
reflected in S. 309, Cr. P. C. and that the said right
comprehends all stages viz., investigation, inquiry,
trial, appeal, revision and retrial. In paragraph 81, it
was held :
"81. Article 21 declares that no person shall be deprived
of his life or liberty except in accordance with the
procedure prescribed by law. The main procedural law in
this country is the Code of Criminal Procedure, 1973.
Several other enactments too contain many a procedural
provision.
After Maneka Gandhi v. Union of India (AIR 1978 SC 597),
it can hardly be disputed that the 'law' (which has to
be understood in the sense the expression has been
defined in clause (3)(a) of Article 3 of the
Constitution) in Article 21 has to answer the test of
reasonableness and fairness inherent in Articles 19 and
14. In other words, such law should provide a procedure
which is fair, reasonable and just. Then alone, would it
be in consonance with the command of Article 21. Indeed,
wherever necessary, such fairness must be read into such
law. Now, can it be said that a law which does not
provide for a reasonably prompt investigation, trial and
conclusion of a criminal case is fair, just and
reasonable? It is both in the interest of the accused as
well as the society that a criminal case is concluded
soon. If the accused is guilty, he ought to be declared
so. Social interest lies in punishing the guilty and
exoneration of the innocent but this determination (of
guilt or innocence) must be arrived at with reasonable
despatch - reasonable in all the circumstances of the
case. Since it is the accused who is charged with the
offence and is also the person whose life and/or liberty
is at peril, it is but fair to say that he has a right
to be tried speedily. Correspondingly, it is the
obligation of the State to respect and ensure this right.
It needs no emphasis to say, the very fact of being
accused of a crime is cause for concern. It affects the
reputation and the standing of the person among his
colleagues and in the society. It is a cause for worry
and expense. It is more so, if he is arrested. If it is
a serious offence, the man may stand to lose his life,
liberty, career and all that he cherishes. (Emphasis
added)
In paragraph 86, it was held thus :
"86. In view of the above discussion, the following
propositions emerge, meant to serve as guidelines. We
must forewarn that these propositions are not
exhaustive. It is difficult to foresee all situations.
Nor is it possible to lay down any hard and fast rules.
These propositions are :
(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 that 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.
(2) Right to speedy trial flowing from Article 21
encompasses all the stages, namely the stage of
investigation, inquiry, trial, appeal, revision and re-
trial. That is how, this Court has understood this right
and there is no reason to take a restricted view.
(3) 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 nonavailability of
witnesses or otherwise.
(4) At the same time, one cannot ignore the fact that it
is usually the accused who is interested in delaying the
proceedings. As is often pointed out, "delay is a known
defence tactic". Since the burden of proving the guilt
of the accused lies upon the prosecution, delay
ordinarily prejudices the prosecution. Non-availability
of witnesses, disappearance of evidence by lapse of time
really works against the interest of the prosecution. Of
course, there may be cases where the prosecution, for
whatever reason, also delays the proceedings. Therefore,
in every case, where the right to speedy trial is alleged
to have been infringed, the first question to be put and
answered is - who is responsible for the delay?
Proceedings taken by either party in good faith, to
vindicate their rights and interest, as perceived by
them, cannot be treated as delaying tactics nor can the
time taken in pursuing such proceedings be counted
towards delay. It goes without saying that frivolous
proceedings or proceedings taken merely for delaying the
day of reckoning cannot be treated as proceedings taken
in good faith. The mere fact that an
application/petition is admitted and an order of stay
granted by a superior court is by itself no proof that
the proceeding is not frivolous. Very often these stays
are obtained on ex parte representation.
(5) While determining whether undue delay has occurred
(resulting in violation of Right to Speedy Trial) one
must have regard to all the attendant circumstances,
including nature of offence, number of accused and
witnesses, the workload of the Court concerned,
prevailing local conditions and so on - What is called,
the systemic delays. It is true that it is the obligation
of the State to ensure a speedy trial and State includes
judiciary as well, but a realistic and practical
approach should be adopted in such matters instead of a
pedantic one.
(6) Each and every delay does not necessarily prejudice
the accused. Some delays may indeed work to his
advantage. As has been observed by Powell, J. in Barker
(1972) 33 Law Ed "it cannot be said how long a delay is
too long in a system where justice is supposed to be
swift but deliberate". The same idea has been stated by
White, J. in U.S. v. Ewell (1966) 15 Law Ed in the
following words :
'....... the Sixth Amendment right to a speedy trial is
necessarily relative, is consistent with delays, and has
orderly expedition, rather than mere speed, as its
essential ingredients; and whether delay in completing
a prosecution amounts to an unconstitutional deprivation
of rights depends upon all the circumstances.'
However, inordinately long delay may be taken as
presumptive proof of prejudice. In this context, the
fact of incarceration of accused will also be a relevant
fact. The prosecution should not be allowed to become a
persecution. But when does the prosecution become
persecution, again depends upon the facts of a given
case.
(7) We cannot recognize or give effect to, what is called
the 'demand' rule. An accused cannot try himself; he is
tried by the Court at the behest of the prosecution.
Hence, an accused's plea of denial of speedy trial cannot
be defeated by saying that the accused did at no time
demand a speedy trial. If in a given case, he did make
such a demand and yet he was not tried speedily, it would
be a plus point in his favour, but the mere non-asking
for a speedy trial cannot be put against the accused.
Even in USA, the relevance of demand rule has been
substantially watered down in Barker and other
succeeding cases.
(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 can 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.”
(Emphasis supplied)
29. In P. Ramachandra Rao's case reported in (AIR 2002 SC 1856),
a Seven Judge Bench of this Court held that the criminal Courts
should exercise their available powers, such as those under
Sections 309, 311 and 258 of the Code of Criminal Procedure
respectively to effectuate the right to speedy trial. In
paragraph 29 of P. Ramachandra Rao's case (supra), this Court
upheld and reaffirmed the propositions laid down in the matter
of speedy trial in Abdul Rehman Antulay's case (supra). It was
held thus :
"The propositions emerging from Article 21 of the
Constitution and expounding the right to speedy trial
laid down as guidelines in A. R. Antulay case adequately
take care of right to speedy trial. We uphold and
reaffirm the said propositions."
In paragraph 29(5) thereunder, it was held :
"The criminal Courts should exercise their available
powers, such as those under Sections 309, 311 and 258 of
the Code of Criminal Procedure to effectuate the right
to speedy trial. A watchful and diligent trial Judge can
prove to be a better protector of such right than any
guidelines. In appropriate cases, jurisdiction of the
High Court under Section 482, Cr. P.C. and Articles 226
and 227 of the Constitution can be invoked seeking
appropriate relief or suitable directions. "
(Emphasis supplied)
30. In A. R. Antulay's case (supra) this Court observed that
the very fact of being accused to a crime is a cause for concern
and it affects the reputation and the standing of the person
among his colleagues and in the society. It is a cause for
worry and expense. It is more so, if he is arrested. It is a
serious offence, the man may stand to lose his life, liberty,
career and all that he cherishes. Right to life means right to
live with full human dignity, without humiliation and
deprivation or degradation of any sort. The impact of being an
accused is evident from the aforequoted observations of this
Court and therefore, there can be no doubt that the tag of
'accused' would deprive a man the right to live with full human
dignity. It is these facets and factors that fetched 'fair
trial' the recognition as a human right. Speedy trial is an
integral part of fair trial. Therefore, we are of the view that
the right to speedy trial is also a human right and no civilized
society can deny the same to an accused. Furthermore, it should
always be the concern of the society to see that a real culprit
is given the condign punishment at the earliest and also to see
that an accused is given an early opportunity to clear the
cloud of suspicion shrouded around him and to remove the tag
of 'accused'. The said purpose in view that is founded on social
interest may stand frustrated if trial is unduly delayed as
trial is the sole device to decide the guilt or innocence of
an accused. While considering the grievance of denial of speedy
trial, the decision in Zahira Habibulla H. Shaikh's case
reported in AIR 2004 SC 3114 should also be borne in mind. At
the same time, the propositions laid in the form of guidelines,
as observed in A. R. Antulay's case (supra), more particularly,
the first and eighth propositions respectively also should be
borne in mind. We may advert to and quote the said propositions.
They read thus :
“(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.
(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.”
(Emphasis supplied)
31. In Imityaz Ahmad vs. State of Uttar Pradesh & Ors. reported
in (2012) 2 SCC 688 this Court while taking judicial notice of
long pendency of serious criminal cases like murder, rape,
kidnapping, dacoity etc., observed as under:
“14. On the basis of the aforesaid data it is clear
that problems which the administration of justice
faces today is of serious dimensions. Pendency is
merely a localised problem, in the sense that it
affects some High Courts far more than others. As seen
above, just four High Courts in this country amount
for 76.9% of the pendency. This may well be because of
various social, political and economic factors, which
are beyond the scope of the current enquiry by this
Court. It is a matter of serious concern that 41% of
the cases have been pending for 2-4 years, and 8%
(approximately 1 out of every 12 cases) have been
pending for more than six years.”
32. The Court proceeded to further observe as under:
“25. Unduly long delay has the effect of bringing about
blatant violation of the rule of law and adverse impact
on the common man's access to justice. A person's access
to justice is a guaranteed fundamental right under the
Constitution and particularly Article 21. Denial of this
right undermines public confidence in the justice
delivery system and incentivises people to look for
short cuts and other fora where they feel that justice
will be done quicker. In the long run, this also weakens
the justice delivery system and poses a threat to the
rule of law.
26. It may not be out of place to highlight that access
to justice must not be understood in a purely
quantitative dimension. Access to justice in an
egalitarian democracy must be understood to mean
qualitative access to justice as well. Access to justice
is, therefore, much more than improving an individual's
access to courts, or guaranteeing representation. It
must be defined in terms of ensuring that legal and
judicial outcomes are just and equitable [see United
Nations Development Programme, Access to Justice —
Practice Note (2004)].
27. The present case discloses the need to reiterate
that “access to justice” is vital for the rule of law,
which by implication includes the right of access to an
independent judiciary. It is submitted that the stay of
investigation or trial for significant periods of time
runs counter to the principle of rule of law, wherein
the rights and aspirations of citizens are intertwined
with expeditious conclusion of matters. It is further
submitted that delay in conclusion of criminal matters
signifies a restriction on the right of access to
justice itself, thus amounting to a violation of the
citizens' rights under the Constitution, in particular
under Article 21.
28. In a very important address to the Virginia Bar
Association in 1908, William H. Taft observed that one
reason for delay in the lower courts is the disposition
of Judges to wait for an undue length of time in the
writing of their opinions or judgments. [See William H.
Taft, The Delays of the Law, Yale Law Journal, Vol. 18,
No. 1 (November 1908), pp. 28-39.] The Judge should
deliver the judgment immediately upon the closure of
the argument. It is almost of as much importance that
the court of first instance should decide promptly as
that it should decide right. It should be noted that
everything which tends to prolong or delay litigation
between individuals, or between individuals and State
or Corporation, is a great advantage for that litigant
who has the longer purse. The man whose rights are
involved in the decision of the legal proceeding is much
prejudiced in a fight through the courts, if his
opponent is able, by reason of his means, to prolong
the litigation and keep him for years out of what really
belongs to him.
29. Dispatch in the decision-making process by court is
one of the great expectations of the common man from
the judiciary. A sense of confidence in the courts is
essential to maintain the fabric of order and liberty
for a free people. Delay in disposal of cases would
destroy that confidence and do incalculable damage to
the society; that people would come to believe that
inefficiency and delay will drain even a just judgment
of its value; that people who had long been exploited
in the small transactions of daily life come to believe
that courts cannot vindicate their legal rights against
fraud and overreaching; that people would come to
believe that the law—in the larger sense cannot fulfil
its primary function to protect them and their families
in their homes, at their workplace and on the public
streets. [See Belekar Memorial Lecture Series,
organised by the High Court Bar Association, Nagpur.
Lecture delivered on 31-8-2002.]
30. Merely widening the access to justice is not enough
to secure redress to the weaker sections of the
community. Post Independence, it was evident that
litigation in India was getting costlier and there was
agonising delay in the process. After the adoption of
the Constitution and creation of a welfare State, the
urgency of some structural changes in the justice
delivery system was obviously a major requirement. In
the 14th Report of the Law Commission under the
Chairmanship of the first Attorney General for India,
Shri M.C. Setalvad, it was observed as under:
“Insofar as a person is unable to obtain access to a
court of law for having his wrongs redressed …. Justice
becomes unequal and laws which are meant for his
protection fail in their purpose.”
31. In a very important discourse, Roscoe Pound argued
that by responding to the doctrine of social justice,
the concept of justice has advanced through various
stages. [See Roscoe Pound, Social Justice and Legal
Justice (address delivered to the Allegheny County Bar
Association) 5-4-1912.] At the first stage justice was
equated with dispute settlement. At the second stage
justice was equated with maintenance of harmony and
order. In the third stage, justice was equated with
individual freedom. Pound argued that a fourth stage
had developed in society, but had not yet been fully
reflected in the courts, and that was what Pound called
“social justice”. That is the ideal form of justice
where the needs of the people are satisfied, apart from
ensuring that they have freedom.
32. Despite complicated social realities, it is
submitted that the rule of law, independence of the
judiciary and access to justice are conceptually
interwoven. All the three bring to bear upon the quality
of aspirations which are guaranteed under our
Constitution. In order to fulfil the aspiration, it is
important that the system must be a successful legal
and judicial system. This would involve improvement of
better techniques to manage courts more efficiently,
cutting down costs and duration of proceedings and to
ensure that there is no corruption in the judiciary and
the establishment of the judiciary and would also
require regular judicial training and updating.
33. The memorable words of Lord Devlin (as quoted by
D.M. Dharmadhikari, J.) are pertinent to note: (SCC p.
J-7)
… The prestige of the judiciary and their reputation
for stark impartiality is not at the disposal of any
Government; it is an asset that belongs to the whole
nation….
(See Justice D.M. Dharmadhikari, Nature of Judicial
Process [(2002) 6 SCC J-1) .
34. Under the principle of the rule of law, adequate
protection of the law must be given to all persons and
to give meaning to it, there must exist an unimpeded
right of access to justice. In the words of Lord
Bingham:
“It would seem to be an obvious implication of the
principle that everyone is bound by and entitled to the
protection of law that people should be able, in the
last resort, to go to court to have their civil rights
and claims determined. An unenforceable right or claim
is a thing of little value to anyone.” (See Thomas
Bingham, The Rule of Law, p. 85.)
35. The right of access to justice has been recognised
as one of the fundamental and basic human rights in
various international covenants and charters. [See
Article 14(3) of the International Covenant on Civil
and Political Rights (Iccpr).] The right of access to
justice is also recognised under Article 67 of the
Statute of the International Criminal Court (Rome
Statute).
36. In the context of the European Union, Article 47 of
the Charter of Fundamental Rights of the European Union,
2007 provides for the right to an effective remedy and
to fair trial. With respect to the Council of Europe,
the European Convention on Human Rights and Fundamental
Freedoms, 1950, Article 6 significantly protects this
right to access justice.
37. The European Court of Human Rights has held that a
broader interpretation must be given to Article 6(1) of
ECHR laying emphasis on “right to a fair administration
of justice” in Delcourt v. Belgium [1970 ECHR 1] .
“… In a democratic society within the meaning of the
Convention, the right to a fair administration of
justice holds such a prominent place that a restrictive
interpretation of Article 6(1) would not correspond to
the aim and purpose of that provision.”
38. Article 8 of the Universal Declaration of Human
Rights provides that:
“8. Everyone has the right to an effective remedy by
the competent national tribunals for acts violating the
fundamental rights granted him by the constitution or
by law.”
39. Article 16(2) of the Draft Principles on Freedom
from Arbitrary Arrest and Detention [Ed.: UN Department
of Economic and Social Affairs, Study of the Right of
Everyone to be Free from Arbitrary Arrest, Detention
and Exile (UN DOC E/CN.4/826/Rev.1) (1964). The Draft
Principles form Part VI of the Study and were drawn up
in 1962 by a Committee established by the UN Commission
on Human Rights.] provides that:
“16. (2) To ensure that no person shall be denied the
possibility of obtaining provisional release on account
of lack of means, other forms of provisional release
than upon financial security shall be provided.”
40. The principle of “access to justice or courts” is
recognised as a right in South Africa's Constitution as
well:
“34.Access to courts.—Everyone has the right to have
any dispute that can be resolved by the application of
law decided in a fair public hearing before a court or,
where appropriate, another independent and impartial
tribunal or forum.”
41. The learned amicus urged that having regard to the
paramount importance of the right to access the court
which he argues is a basic fundamental right, specially
the Central Government and the State Governments have a
duty to ensure speedy disposal of cases for proper
maintenance of rule of law and for sustaining peoples'
faith in the judicial system. He further argued that
with the present infrastructure it is not possible for
courts, whether it is District Courts or the State High
Courts or this Court to effectively dispose of cases by
just and fair orders within a reasonable time-frame.
The learned amicus also urged that the problem is huge
and the considerations are momentous. To understand the
magnitude of the problem, the Government must appoint a
permanent commission to make continuous recommendation
on measures which are necessary to streamline the
existing justice delivery system.
42. In support of his submission, the learned amicus
referred to the report of Lord Woolf submitted to the
Lord Chancellor in England:
“… It will not only assist in streamlining and improving
our existing systems and process; it is also likely, in
due course, itself to be a catalyst for radical change
as well….”
[Final Report to the Lord Chancellor on the Civil
Justice System in England and Wales (Lord Woolf's
Report), 1996, Chapter 21, para 1.”
33. In the case of The National Investigation Agency vs. Areeb
Ejaz Majeed [Criminal Appeal No.389 of 2020 decided on 23rd
February 2021], the High court of Bombay observed as under:
“29. But, the case of the respondent on the second aspect
of the matter appears to be on firm footing. There is no
dispute about the fact that right to fair and speedy
trial is a right recognized under Article 21 of the
Constitution of India. The Hon'ble Supreme Court and
various High Courts, including this court, have
consistently held that the undertrials cannot be allowed
to languish for years together in jail, while the trials
proceed at snail's pace. If ultimately, the accused are
found to be not guilty, the number of years, months and
days spent by such accused as undertrials in jail, can
never be given back to them and this is certainly a
violation of their valuable right under Article 21 of
the Constitution of India. Therefore, right to speedy
trial has been recognized and reaffirmed consistently by
the judgments of the superior courts.
30. In cases where the accused are facing charges under
Special Acts like UAPA, parameters for grant of bail are
more stringent, as a consequence of which, the
undertrials in such cases remain in custody while the
trials are pending. This is because they are accused in
serious and heinous offences and their rights are
required to be balanced with the rights of the society
and citizens at large. The courts are required to perform
a balancing act, so as to ensure that a golden mean is
reached between the rights of the individual and those
of the society at large.
31. It is in the context of Special Acts that the Hon'ble
Supreme Court in the case of Shaheen Welfare Association
(supra) held that the long time taken by courts in
disposal of the cases would justify invoking Article 21
of the Constitution of India to issue directions to
release the undertrials on bail. The said judgment was
rendered in the context of TADA, which also had stringent
provisions with regard to grant of bail. Although, it
was stated in the said judgment itself that the
directions given therein were in the form of one time
measure, the said judgment has been recognized as having
laid down principles for grant of bail to undertrials,
who could be classified in different categories.
32. It has been held in the said judgment that the
undertrials could be categorized into three categories,
depending upon the role with which they were charged in
the context of special provisions of TADA. It was held
that those categorized in category (a) were hardcore
criminals, whose release would prejudice the prosecution
case, apart from being a menace to the society and they
could not be given liberal treatment. But, it was held
that the other undertrials who could be categorized in
category (b), (c) and (d) could be dealt with differently
and depending upon the duration that they had spent in
custody, they could be released on bail subject to
specific conditions.
33. In the present case, the NIA Court has categorized
the respondent in category (b) and, by applying the ratio
of Shaheen Welfare Association (supra), it has been held
that since the respondent has spent more than five years
in jail as an undertrial, he deserved to be granted bail,
subject to two stipulations being satisfied. It was
found that these two stipulations were firstly, that
there was no likelihood of the trial being completed in
the next six months, and secondly, that the respondent
did not have any antecedents or that, if released, he
would not be harmful to the complainant and witnesses or
their family members.
34. It needs to be examined that whether the NIA Court
was justified in holding that the respondent could be
categorized in category (b) as indicated in the judgment
of Shaheen Welfare Association (supra) and further as to
whether he satisfied the aforesaid two stipulations.
35. In the present case, the respondent has been charged
with offences under Sections 16 and 18 of the UAPA apart
from Section 125 of the IPC. There is no dispute about
the fact that the charge under Section 20 of the UAPA
was not framed by the NIA Court itself against the
respondent despite the fact that offence under the said
section was registered against him. Section 16 of the
UAPA pertains to punishment for a terrorist act and it
is specified therein that if death has resulted as a
consequence of such terrorist act, the accused could be
punished with sentence of death or imprisonment for
life. It was further specified that in any other case,
the sentence could be imprisonment for life or for a
sentence, which shall be not less than five years.
Section 18 of the UAPA pertains to punishment for
conspiracy and there also it is provided that the
sentence could range between five years and imprisonment
for life. In the present case, the respondent has been
charged on the basis that he along with the absconding
co- accused committed terrorist acts in Iraq and Syria
and further that he actively took part in such acts with
the intention to strike terror in the minds of the
people. He also stood charged under Section 125 of the
IPC for waging war against the Governments of Iraq and
Syria, who happen to be friendly nations with India.
There is also reference made on behalf of the NIA to the
fact that the respondent had allegedly returned to India
with an intention to carry out terrorist activities in
India, including blowing up of Police Headquarters at
Mumbai. In any case, no death was caused by the alleged
plans hatched by the respondent, since he was arrested
the moment he landed in India.
36. In this backdrop, it cannot be said that the NIA
Court committed an error in categorizing the respondent
in category (b) above and thereby applying stipulations
laid down in the judgment of the Hon'ble Supreme Court
in Shaheen Welfare Association (supra). There is no
dispute about the fact that the respondent has remained
in custody as an undertrial for more than six years now.
The process of examining 51 witnesses has taken more
than five years and admittedly there are 107 more
witnesses to be examined by the prosecution. Therefore,
there is no likelihood of the trial being completed
within the next six months. It is an admitted position
that the proceedings under the NIA Act are undertaken by
the NIA Court once in every week and that the said court
is also dealing with cases pertaining to other Special
Acts like the MCOCA, TADA, POTA, etc. Therefore, there
is every likelihood of the trial continuing for the next
few years. There is also no dispute about the fact that
even if convicted for the offence with which the
respondent is charged, he could be sentenced for
imprisonment for a period ranging between five years and
life imprisonment. It is crucial that the respondent has
undergone more than six years as an undertrial.
37. Considering the aforesaid facts, it needs to be
examined as to whether the law laid down by the Hon'ble
Supreme Court in the context of granting bail to
undertrials, who have already undergone incarceration
for number of years, needs to be applied in the case of
respondent. In this context, it is necessary to keep in
mind that the respondent is accused of offences under
the Special Act i.e. the UAPA.
38. It is in this context of the aforesaid Special Act
like the UAPA that the Hon'ble Supreme Court has rendered
the latest pronouncement in the case of K.A. Najeeb
(supra). While considering the stringent provisions of
the Special Acts i.e. the UAPA pertaining to bail, the
Hon'ble Supreme Court has held as follows:
“18. It is thus clear to us that the presence of
statutory restrictions like Section 43-D (5) of UAPA
per-se does not oust the ability of Constitutional
Courts to grant bail on grounds of violation of Part III
of the Constitution. Indeed, both the restrictions under
a Statue as well as the powers exercisable under
Constitutional Jurisdiction can be well harmonised.
Whereas at commencement of proceedings, Courts are
expected to appreciate the legislative policy against
grant of bail but the rigours of such provisions will
melt down where there is no likelihood of trial being
completed within a reasonable time and the period of
incarceration already undergone has exceeded a
substantial part of the prescribed sentence. Such an
approach would safeguard against the possibility of
provisions like Section 43-D (5) of UAPA being used as
the sole metric for denial of bail or for wholesale
breach of constitutional right to speedy trial."
39. Apart from the fact that the Constitutional Courts
can certainly take note of violation of fundamental
rights guaranteed under Part III of the Constitution of
India, particularly the right to life under Article 21
of the Constitution in the context of right to speedy
trial, it is specifically held that the rigours of
stringent provisions of bail as found in Section 43D(5)
of the UAPA would melt down where there is no likelihood
of the trial being completed in a reasonable time and
the period of incarceration already undergone exceeds
substantial part of the prescribed sentence. This is an
aspect which becomes significant in the facts of the
present case. We are conscious of the fact that even a
sentence of life imprisonment can be imposed for the
offence with which, the respondent has been charged
under the UAPA and the IPC but, we cannot ignore the
fact that the sentence could range between five years to
imprisonment for life. This is particularly significant
in the backdrop of the fact that the respondent has
admittedly already undergone incarceration for more than
six years while the trial is underway before the NIA
Court. Looking to the pace at which about 51 witnesses
have been examined, which took more than five years for
the NIA Court, there is clearly no likelihood of the
trial being completed within a reasonable time in the
near future. Therefore, we are of the opinion that on
this aspect, no error can be attributed to the impugned
judgment and order passed by the NIA Court, while holding
in favour of the respondent.
40. The other aspect of the matter is, as to whether it
can be said that releasing the respondent would amount
to prejudicially affecting the trial and whether there
would be possibility of influencing the witnesses and
tampering with the evidence. We have observed that the
respondent is an educated person, who was completing his
graduation in Civil Engineering when he left for Iraq at
the age of 21 years. He categorically stated before us
that as a 21 year old, he was carried away and that he
had committed a serious mistake, for which he had already
spent more than six years behind bars. In the past more
than six years of his incarceration, the respondent has
argued his case on his own before the NIA Court. He
represented his own case before this Court as well as
the NIA Court and we could find that he was presenting
his case by maintaining decorum and in a proper manner.
During the course of hearing, it transpired that his
father is a doctor of Unani medicine and his sisters are
also doctors. His brother is an engineer. This shows
that he comes from an educated family and that if
stringent conditions are imposed upon him, with an
undertaking to cooperate with the trial proceedings
before the NIA Court, his release on bail may not be
harmful to the society at large and it would not
adversely affect the trial proceedings before the NIA
Court.
41. Therefore, we are of the opinion that on the second
aspect of the matter, the findings rendered by the NIA
Court need to be upheld. In view of the above, although
we have held that the findings rendered by the NIA Court
on the merits of the matter in the impugned judgment and
order are unsustainable and consequently they are set
aside, on the second aspect of the matter pertaining to
the long pendency of the trial and the respondent having
already undergone incarceration for more than six years,
we are inclined to uphold the impugned order on the said
ground. Yet, we intend to impose further stringent
conditions on the respondent while upholding his release
on bail. Consequently, part of the impugned order
deserves to be modified by imposition of further
conditions. Hence, the following order:”
34. Thus, the Bombay High Court ordered release of the accused
on the ground that he had already undergone incarceration of
more than six years and likelihood of the trial being concluded
in near future was very remote.
35. In the case of Union of India vs. K. A. Najeeb [Criminal
Appeal No.98 of 2021 decided on 1st February 2021] this Court
observed as under:
“12. The High Court’s view draws support from a batch of
decisions of this Court, including in Shaheen Welfare
Association (supra), laying down that gross delay in
disposal of such cases would justify the invocation of
Article 21 of the Constitution and consequential
necessity to release the undertrial on bail. It would be
useful to quote the following observations from the
cited case:
“10. 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 case [(1994) 3 SCC 569 : 1994 SCC
(Cri) 899], 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.” (emphasis supplied)
13. Even in the case of special legislations like the
Terrorist and Disruptive Activities (Prevention) Act,
1987 or the Narcotic Drugs and Psychotropic Substances
Act, 1985 (“NDPS”) which too have somewhat rigorous
conditions for grant of bail, this Court in Paramjit
Singh v. State (NCT of Delhi) [(1999)9 SCC 252, Babba
alias Shankar Raghuman Rohida v. State of Maharashtra
[(2005) 11 SCC 569] and Umarmia alias Mamumia v. State
of Gujarat [(2017) 2 SCC 731] enlarged the accused on
bail when they had been in jail for an extended period
of time with little possibility of early completion of
trial. The constitutionality of harsh conditions for
bail in such special enactments, has thus been primarily
justified on the touchstone of speedy trials to ensure
the protection of innocent civilians.
14. We may also refer to the orders enlarging similarly-
situated accused under the UAPA passed by this Court in
Angela Harish Sontakke v. State of Maharashtra [SLP
(Crl.) No.6888 of 2015 order dated 4 th May 2016]. That
was also a case under Sections 10, 13, 17, 18, 18A, 18B,
20, 21, 38, 39 and 40(2) of the UAPA. This Court in its
earnest effort to draw balance between the seriousness
of the charges with the period of custody suffered and
the likely period within which the trial could be
expected to be completed took note of the five years’
incarceration and over 200 witnesses left to be
examined, and thus granted bail to the accused
notwithstanding Section 43-D(5) of UAPA. Similarly, in
Sagar Tatyaram Gorkhe v. State of Maharashtra [SLP (Crl)
No.7947 of 2015 order dated 3 rd January 2017], an
accused under the UAPA was enlarged for he had been in
jail for four years and there were over 147 witnesses
still unexamined.
15. The facts of the instant case are more egregious
than these two above-cited instances. Not only has the
respondent been in jail for much more than five years,
but there are 276 witnesses left to be examined. Charges
have been framed only on 27.11.2020. Still further, two
opportunities were given to the appellant-NIA who has
shown no inclination to screen its endless list of
witnesses. It also deserves mention that of the thirteen
co-accused who have been convicted, none have been given
a sentence of more than eight years’ rigorous
imprisonment. It can therefore be legitimately expected
that if found guilty, the respondent too would receive
a sentence within the same ballpark. Given that two-
third of such incarceration is already complete, it
appears that the respondent has already paid heavily for
his acts of fleeing from justice.
16. This Court has clarified in numerous judgments that
the liberty guaranteed by Part III of the Constitution
would cover within its protective ambit not only due
procedure and fairness but also access to justice and a
speedy trial. In Supreme Court Legal Aid Committee
Representing Undertrial Prisoners v. Union of India
[(1994) 6 SCC 731], it was held that undertrials cannot
indefinitely be detained pending trial. Ideally, no
person ought to suffer adverse consequences of his acts
unless the same is established before a neutral arbiter.
However, owing to the practicalities of real life where
to secure an effective trial and to ameliorate the risk
to society in case a potential criminal is left at large
pending trial, Courts are tasked with deciding whether
an individual ought to be released pending trial or not.
Once it is obvious that a timely trial would not be
possible and the accused has suffered incarceration for
a significant period of time, Courts would ordinarily be
obligated to enlarge them on bail.
17. As regard to the judgment in NIA v. Zahoor Ahmad
Shah Watali (supra), cited by learned ASG, we find that
it dealt with an entirely different factual matrix. In
that case, the High Court had re-appreciated the entire
evidence on record to overturn the Special Court’s
conclusion of their being a prima facie case of
conviction and concomitant rejection of bail. The High
Court had practically conducted a mini-trial and
determined admissibility of certain evidences, which
exceeded the limited scope of a bail petition. This not
only was beyond the statutory mandate of a prima facie
assessment under Section 43-D(5), but it was premature
and possibly would have prejudiced the trial itself. It
was in these circumstances that this Court intervened
and cancelled the bail.
18. It is thus clear to us that the presence of statutory
restrictions like Section 43-D (5) of UAPA per-se does
not oust the ability of Constitutional Courts to grant
bail on grounds of violation of Part III of the
Constitution. Indeed, both the restrictions under a
Statue as well as the powers exercisable under
Constitutional Jurisdiction can be well harmonised.
Whereas at commencement of proceedings, Courts are
expected to appreciate the legislative policy against
grant of bail but the rigours of such provisions will
melt down where there is no likelihood of trial being
completed within a reasonable time and the period of
incarceration already undergone has exceeded a
substantial part of the prescribed sentence. Such an
approach would safeguard against the possibility of
provisions like Section 43-D (5) of UAPA being used as
the sole metric for denial of bail or for wholesale
breach of constitutional right to speedy trial.
19. Adverting to the case at hand, we are conscious of
the fact that the charges levelled against the
respondent are grave and a serious threat to societal
harmony. Had it been a case at the threshold, we would
have outrightly turned down the respondent’s prayer.
However, keeping in mind the length of the period spent
by him in custody and the unlikelihood of the trial being
completed anytime soon, the High Court appears to have
been left with no other option except to grant bail. An
attempt has been made to strike a balance between the
appellant’s right to lead evidence of its choice and
establish the charges beyond any doubt and
simultaneously the respondent’s rights guaranteed under
Part III of our Constitution have been well protected.
20. Yet another reason which persuades us to enlarge the
Respondent on bail is that Section 43-D(5) of the UAPA
is comparatively less stringent than Section 37 of the
NDPS. Unlike the NDPS where the competent Court needs to
be satisfied that prima facie the accused is not guilty
and that he is unlikely to commit another offence while
on bail; there is no such pre-condition under the UAPA.
Instead, Section 43-D (5) of UAPA merely provides
another possible ground for the competent Court to
refuse bail, in addition to the well-settled
considerations like gravity of the offence, possibility
of tampering with evidence, influencing the witnesses or
chance of the accused evading the trial by absconsion
etc.
CONCLUSION
21. In light of the above discussion, we are not inclined
to interfere with the impugned order. However, we feel
that besides the conditions to be imposed by the trial
Court while releasing the respondent, it would serve the
best interest of justice and the society-at-large to
impose some additional conditions that the respondent
shall mark his presence every week on Monday at 10AM at
the local police station and inform in writing that he
is not involved in any other new crime. The respondent
shall also refrain from participating in any activity
which might enrage communal sentiments. In case the
respondent is found to have violated any of his bail
conditions or attempted to have tampered the evidence,
influence witnesses, or hamper the trial in any other
way, then the Special Court shall be at liberty to cancel
his bail forthwith. The appeal is accordingly dismissed
subject to above-stated directions.”
(Emphasis supplied)
36. Thus, this Court unequivocally held that although it was
conscious of the fact that the charges levelled against Najeeb
were grave and a serious threat to societal harmony and the
plea of bail could have been declined at the threshold, yet
keeping in mind the length of the period spent in the custody
and the unlikelihood of the trial being completed at any time
in near future, the High Court was justified that it was left
with no other option, except to grant bail. K.A. Najeeb was one
of the co-accused along with the other members of the Popular
Front of India. He was allegedly involved in an incident in
2010 where a group chopped off the hand of a Malayalam Professor
and hurled bombs at the bystanders. The attackers believed that
the question paper set by the Professor for his college exam
was blasphemous and offended the Holy Prophet Mohammed. After
absconding from the police for five years, Najeeb was finally
arrested in 2015. His bail applications between 2016 and 2021
were repeatedly rejected. Finally, the Kerala High Court
granted him bail as he had already served four years as an
undertrial prisoner. The speedy trial mandated under the
National Investigative Agency Act, 2008 was not met. The State
in its appeal before this Court asserted that the High Court
was wrong in granting bail to Najeeb. On behalf of Union of
India, it was argued that the normal bail granting standards
under the criminal law would be inapplicable for the offences
under the UAPA or other special laws. It was further argued
that the National Investigative Agency (‘NIA’) had prima facie
evidence of Najeeb’s involvement and culpability. It was argued
on behalf of Najeeb that most of the co-accused, in the case,
were acquitted. Even those who were found guilty did not get
sentence of more than eight years. Najeeb had been kept in
prison for over five and a half years without a trial. This
violated his fundamental right to a speedy trial and access to
justice. The five and half years Najeeb spent as an undertrial
prisoner became a crucial factor. The Court invoked Shaheen
Welfare Association v. Union of India reported in (1996) 2 SCC
616 to hold that the ‘gross delay’ in trial violates the right
to life and personal liberty under Article 21. A fundamental
right violation could be used as a ground for granting bail.
Even if the case is under a stringent criminal legislation
including the anti-terror laws, prolonged delay in a trial
necessitates granting of bail.
37. We may also refer to one order passed by a Division Bench
of the Calcutta High Court in C.R.M. No.9314 of 2020 decided
on 27th November 2020. In the said case, the High court
considered the question whether the restrictions imposed by
Section 37 of the NDPS Act are over ridden by the operation of
the directions issued by this Court in Supreme Court Legal Aid
Committee vs. Union of India reported in (1994) 6 SCC 731 in
the matter of grant of bail to the undertrials in the NDPS
cases. In the said case, the accused was in custody past five
years and six months and only two witnesses had been examined
till the date the High Court passed the order of bail. Relying
on the ratio laid down in Supreme Court Legal Aid Committee
(supra), the accused therein pressed for bail. It was argued
on behalf of the Union of India that no law under Article 141
of the Constitution was declared in the decision of this Court
in the case of Supreme Court Legal Aid Committee (supra) and
only “one time direction” was issued. It was further argued
that the inordinate delay in trial may entitle the undertrials
to apply for bail only after due compliance of the requirements
under Section 436A of the Code of Criminal Procedure and not
otherwise. A Division Bench of the Calcutta High Court, while
releasing the accused on bail, held as under:
“Right of bail to an under-trial flows from Article 21
of the Constitution of India which frowns upon
unnecessary and prolonged detention pending judicial
adjudication of guilt. Nonetheless, discretion to grant
bail to an accused is circumscribed by the “procedure
established by law”. NDPS Act was promulgated
essentially for detection, investigation and prosecution
of offences under Narcotic Psychotropic Act. In view of
the grave nature of offences involving trafficking of
narcotics in commercial quantities, the law engrafts
strict restrictions under Section 37 of the Act on the
Court s discretion to ‟s discretion to grant bail.
Section 37 of the Act reads as follows:-
“37. Offences to be cognizable and non-bailable.- (1)
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974)-
(a) every offence punishable under this Act shall be
cognizable; (b)no person accused of an offence
punishable for offences under Section 19 or section 24
or section 27A and also for offences involving
commercial quantity shall be released on bail or on his
own bond unless –
(i) the Public Prosecutor has been given an opportunity
to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there are
reasonable grounds for believing that he is not guilty
of such offence and that he is not likely to commit any
offence while on bail.
2. The limitations on granting of bail specified in
clause (b) of sub-section (1) are in addition to the
limitations under the Code of Criminal Procedure, 1973
(2 of 1974) or any other law for the time being in force,
on granting of bail.”
As per the provision, if the prosecutor opposes the
prayer for bail, an onerous duty is cast on the accused
to satisfy the Court there are reasonable grounds to
believe that he is not guilty of the alleged offence and
shall not commit similar offence while on bail. The Apex
Court has unequivocally held the expression “reasonable
ground” must mean “prima facie ground”. [See State of
Kerala vs. Rajesh. AIR 2020 SC 721 (Para 21)]. Charge in
this case involves possession of narcotic substances
above commercial quantity. Hence, to obtain bail on
merits, the petitioner would require to overcome the
hurdle of satisfying the Court with regard to the twin
requirements, as aforesaid. However, in the present
case, the petitioner has sought bail not on merits but
on the score of inordinate delay in trial which infracts
his fundamental rights under Sections 14 and 21 of the
Constitution of India. In rebuttal, it has been argued
unless the petitioner has undergone half of the maxim
sentence as envisaged under Section 436A of the Code of
Criminal Procedure, no such right can be said to have
fructified in his favour. That apart, contribution of
the petitioner and other accused persons in the delay
must also be taken into consideration. In this regard
learned Additional Solicitor General drew our attention
to the observation of the Apex Court in the cited
decision holding deprivation of liberty by the accused
persons who have suffered half of the maximum punishment
provided for the offence can be held to be violative of
Articles 14 and 21 of the Constitution.
We are unable to accept the contentions of the learned
Additional Solicitor General for the following reasons.
The Apex Court while dealing with the issue of grant of
bail on the score of inordinate delay in disposal of
trials, had taken into consideration the statutory
restrictions under Section 37 of the NDPS Act and held
as follows :
“15. …we are conscious of the statutory provisions
finding place in Section 37 of the Act, prescribing the
conditions which have to be satisfied before a person
accused of an offence under the Act can be released.
Indeed we have averted to this Section in the earlier
part of the judgement. We have also kept in mind the
interpretation placed on a similar provision in Section
20 of the TADA Act by the Constitution Bench in Kartar
Singh vs. State of Punjab. Despite this provision we
have directed as above mainly at the call of Article 21
as the right to speedy trial may even require in some
cases quashing of a criminal proceeding altogether, as
held by a constitution Bench of this Court, A.R.Antulay
vs. R.S. Nayek, released on bail, which can be taken to
be embedded in the right of speedy trial, may in some
cases be the demand of Article 21. As we have not felt
inclined to accept the extreme submission of quashing
the proceedings and setting free the accused whose
trials have been delayed beyond reasonable time for
reasons already alluded to, 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.”
Aforesaid ratio clearly curves out a separate niche for
grant of bail to under trials on the score of inordinate
delay in contradistinction to bail on merits. Exercise
of judicial discretion in this domain stands on a
completely different footing from grant of bail on
merits which is circumscribed by the restrictions
envisaged under section 37 of the Act.
Observation of the Court with regard to the under trials
suffering half of the maximum sentence (as referred to
by learned ASG) has to be read in the light of the
subsequent directives issued by the court in NDPS cases.
After analysis of the impact of inordinate and
inexplicable delay on the fundamental rights of
prisoners, the court explored the reliefs which may be
made available to the incarcerated persons booked under
NDPS Act:-
“The offences under the Act are grave and, therefore, we
are not inclined to agree with the submission of the
learned counsel for the petitioner that we should quash
the prosecutions and set free the accused persons whose
trials are delayed beyond reasonable time. Alternatively
he contended that such accused likely to be further
delayed should be released on bail on such terms as this
Court considers appropriate to impose. This suggestion
commends to us. We were told by the learned counsel for
the State of Maharashtra that additional Special Courts
have since been constituted by having regard to the large
pendency of such cases in the State we are afraid this
is not likely to make a significant dent in the huge
pile of such cases. We, therefore, direct as under:-
(i)Where the undertrial is accused of an offence(s)
under the Act prescribing a punishment of imprisonment
of five years or less and fine, such an undertrial shall
be released on bail if he has been in jail for a period
which is not less than half the punishment provided for
the offence with which he is charged and where he is
charged with more than one offence, the offence
providing the highest punishment. If the offence with
which he is charged prescribes the maximum fine, the
bail amount shall be 50% of the said amount with two
sureties for like amount. If the maximum fine is not
prescribed bail shall be to the satisfaction of the
Special Judge concerned with two sureties for like
amount.
(ii)Where the undertrial accused is charged with an
offence(s) under the Act providing for punishment
exceeding five years and fine, such an undertrial shall
be released on bail on the term set out in (i) above
provided that his bail amount shall in no case be less
than Rs 50,000 with two sureties for like amount.
(iii)Where the undertrial accused is charged with an
offence(s) under the Act punishable with minimum
imprisonment of ten years and a minimum fine of Rupees
one lakh, such an undertrial shall be released on bail
if he has been in jail for not less than five years
provided he furnishes bail in the sum of Rupees one lakh
with two sureties for like amount.
(iv) Where an undertrial accused is charged for the
commission of an offence punishable under Sections 31
and 31-A of the Act, such an undertrial shall not be
entitled to be released on bail by virtue of this order”.
It is argued that such directions were intended to
operate as an “one time measure” in the State of
Maharashtra. We, however, note that the directives were
subsequently extended to the State of West Bengal and
other States vide order dated 17th April, 1995 reported
in 1995(4) SCC 695. We are of the view that the aforesaid
directives of the Apex Court in the matter of grant of
bail due to inordinate delay are required to be taken
into consideration and similar relief is to be extended
to all undertrials who stand on the same footing. Liberty
is an inalienable right of every individual guaranteed
by our Constitution and cannot be whittled down by
arbitrary categorisation. “Procedure established by law”
under Article 21 cannot be viewed in isolation from the
principles of “equal justice” or “equality before law”
enshrined under Article 14. To achieve such universal
equality it is imperative that the directives laid down
by the Court in the said report be extended to all
undertrials who are similarly circumstanced and are
suffering protracted detention throughout the length and
breadth of the country. Selective approach to personal
liberty is an anathema to our constitutional scheme.
Hence, it is the duty of every Court including the High
Courts when faced with the question of “bail or jail” to
bear in mind the beholden principles of parity and equal
access to justice. Courts need to rise above petty
technicalities to preserve and restore liberty to all
similarly circumstanced persons. Failure to do so, would
create privileged oases of liberty accessible to few and
denial of freedom to most.
This concern is poignantly highlighted by the Apex Court
in Arnab Manoranjan Goswami Vs The State of Maharashtra
& Ors. in Criminal Appeal No. 742 of 2020, wherein the
Court held that the High Courts and the District
Judiciaries are required to enforce the principle of
“bail and not jail in practice and not leave the court
of last resort to ‟s discretion to intervene at all
times. The Court observed that the remedy of bail is “an
expression of the humanness of the criminal justice
system” and it cannot be applied in an inverted manner.
If we do not extend the wholesome directives in Supreme
Court Legal Aid Committee (Supra) to all under trials (in
NDPS case) incarcerating in jail for more than five
years, we would fail to discharge our constitutional
duty to preserve personal liberty of citizens and apply
the balm of humanness to those unfortunate undertrials
who have failed to knock the door of the Apex Court
We are conscious that delay may also be caused by an
accused and it is nobody’s case that such a litigant can
derive benefit out of his own wrong. However, the
principle of apportionment of responsibility in the
matter of delay in trial must be counteracted in the
backdrop of the constitutional duty of the State to
ensure effective and speedy prosecution. The
Constitution assures every individual the precious right
of personal liberty and when it is forfeited by the State
to ensure administration of criminal justice a heavy
corresponding duty is cast on it to ensure speedy
conclusion of trial minimizing under trial detention.
Directives in Supreme Court Legal Aid Committee (Supra)
are to be viewed from such perspective. These directions
cannot be whittled down or restricted by the operation
of Section 436 A Cr.P.C. The said provision is an
expression of similar anxiety of the legislature to
minimize under trial detention. The directives of the
Apex Court relating to bail and section 436A operate in
the same field and are supplementary to one another. To
read one in derogative of the other would amount to
restricting the right of under-trials to bail in the
face of inordinate delay in trials and would frustrate
the very spirit of the aforesaid law.
In this backdrop, we have gone through the records of
the case and we do not find any special feature relating
to contributory role of the petitioner in the inordinate
delay in trial. Absence of forensic laboratories, under
staffing in those laboratories, inadequate number of
prosecutors and frequent transfer of official witnesses
cause chronic delay in trial of narcotic cases.
Adverting to such issues, the Apex Court in Thana Singh
Vs. Central Bureau of Narcotics, (2013) 2 SCC 590 issued
various directions to ensure speedy trial. Thana Singh
(Supra) quoted with approval the directives Supreme
Court Legal Aid Committee (Supra). In spite of such
directions, there is little progress in the ground and
the bleak picture of delay persist to haunt under trials.
In light of the aforesaid discussion, we are of the view
that the directives in Supreme Court Legal Aid Committee
(Supra) applies with full force to the facts of this
case and the petitioner ought to be released on bail on
the score of inordinate delay in trial infracting his
fundamental rights under Articles 14 and 21 of the
Constitution.
Accordingly, we direct that the petitioner shall be
released on bail upon furnishing a bond of Rs. 2,00,000/-
with ten sureties of Rs. 20,000/- each, one of whom must
be local, to the satisfaction of the learned Judge,
Special Court under NDPS Act, North 24 Pargans, subject
to the conditions that petitioner shall appear before
the trial court on every date of hearing until further
orders and shall not intimidate the witnesses and/or
tamper with evidence in any manner whatsoever and on
further condition that the petitioner, while on bail,
shall remain within the jurisdiction of Gardenreach
Police Station until further orders except for the
purpose of investigation and/or for attending Court
proceedings and shall report to the Officer-in-Charge of
the concerned police station and Mr. Kalyan Das,
Superintendent, Customs, AIU, Legal Section, Customs
House, 15/1, Strand Road, Kolkata- 700 001, once in a
week until further orders.
In the event the petitioner fails to appear before the
trial court without justifiable cause, the trial court
shall be at liberty to cancel his bail in accordance
with law without further reference to this Court.
Under-trial detention in India is a chronic malady in
the administration of criminal justice. 25th Edition of
the Prison Statistics in India as per NCRB Report, 2019
shows that 69.5 per cent of prisoners in Indian jail are
undertrials.
Under such circumstances and to ensure that equal
justice is extended to all under trials who are
incarcerated in jail for five years and more in NDPS
cases, we direct the learned ASG as well as the learned
Public Prosecutor, High Court, Calcutta to submit
reports enumerating cases under NDPS Act where accused
persons are in detention for five years or more.”
(Emphasis supplied)
38. We may also refer to the decision of this Court in the case
of State of Kerala vs. Rasheed reported in (2019) 13 SCC 297,
wherein this Court laid down guidelines to be followed by the
Trial Courts in the conduct of a criminal trial as far as
possible:
“24.1 A detailed case-calendar must be prepared at the
commencement of the trial after framing of charges;
24.2 The case-calendar must specify the dates on which the
examination-in-chief and cross-examination (if required)
of witnesses is to be conducted;
24.3 The case-calendar must keep in view the proposed order
of production of witnesses by parties, expected time
required for examination of witnesses, availability of
witnesses at the relevant time, and convenience of both
the prosecution as well as the defence, as far as possible;
24.4 Testimony of witnesses deposing on the same subject-
matter must be proximately scheduled;
24.5 The request for deferral under Section 231(2) of the
Cr.P.C. must be preferably made before the preparation of
the case-calendar;
24.6 The grant for request of deferral must be premised
on sufficient reasons justifying the deferral of cross-
examination of each witness, or set of witnesses;
24.7 While granting a request for deferral of cross-
examination of any witness, the trial courts must specify
a proximate date for the cross-examination of that
witness, after the examination-in-chief of such
witness(es) as has been prayed for;
24.8 The case-calendar, prepared in accordance with the
above guidelines, must be followed strictly, unless
departure from the same becomes absolutely necessary;
24.9 In cases where trial courts have granted a request
for deferral, necessary steps must be taken to safeguard
witnesses from being subjected to undue influence,
harassment or intimidation.”
39. We wonder how many such guidelines as referred to above may
have been issued by this Court over a period of at least two
decades. Guidelines just remain on paper; guidelines do not work
fully. The reason for the same is also very simple. No court
bothers to follow the guidelines. They do not follow because there
is no accountability. No one is made answerable for the same.
40. The case at hand is one of causing simple hurt and criminal
intimidation. It is, as such, neither a grave or heinous offence
nor an offence against the community as such, though all criminal
offences are crime against the society. Having regard to the nature
of offence, there is enormous delay in proceeding with the criminal
prosecution- 35 years for a trial for simple hurt and criminal
intimidation is too long a time. Quick justice is sine qua non of
Article 21 of the Constitution. Keeping a person in suspended
animation for 35 years and that too a public servant without any
cause at all- and none was indicted before the High court or before
us- gone by with the spirit of procedure established by law. In
that view of the matter, it is just unfair and in accordance with
equity to direct that the trial or prosecution of the appellant to
proceed no further. We do so accordingly.
41. Having said so as aforenoted we could have closed this matter.
However, closing this matter with the grant of necessary relief to
the appellant is not going to serve the overall purpose with which
we have dictated this judgment. Article 21 has been a part of our
Constitution since it was adopted in 1949 and came into effect on
January 26, 1950. As of 2026, it has been a cornerstone of Indian
democracy for 76 years while it states that “ No person shall be
deprived of his life or personal liberty except according to the
procedure established by law”, its meaning has expanded
significantly over the decades through various decisions of this
Court to include the right to privacy, education, clean
environment, etc., and above all, the right to speedy trial. This
right to speedy trial should not remain as an abstract or illusory
safeguard.
42. We firmly believe that we should carry this matter further to
make this right of an accused to have a speedy trial as enshrined
under Article 21 of the Constitution more meaningful and real. The
question is how to go about it? In other words, how to make this
right more meaningful and real and not just let it remain illusory.
43. We believe we should call for some relevant information from
the High court of Allahabad. Once we are able to collect the
necessary data and the statistics, we may consider to work out
some modalities by which we can make some difference in so far as
the State of U.P. is concerned.
44. We direct the Registrar General of the Allahabad High court to
furnish us with the following information on oath by way of an
affidavit.
i. How many criminal cases are pending as on date in the
courts of Judicial Magistrate First Class and Chief Judicial
Magistrates? How old are these cases pending before the
Judicial Magistrate First Class and the Chief Judicial
Magistrates respectively in the State? In how many cases the
accused persons are in jail as under trial prisoners and since
how long? What is the status of these criminal cases and what
are the impediments coming in the way of different courts in
proceeding further with these cases?
ii. How many sessions cases are pending as on date in the
sessions courts? How old are these cases pending before the
sessions courts in the State? In how many cases the accused
persons are in jail as under trial prisoners and since how
long? What is the status of these criminal cases and what are
the impediments coming in the way of different courts in
proceeding further with these cases?
iii. How many judicial officers are functioning as on date in
the rank of Judicial Magistrate First Class, Chief Judicial
Magistrate and Sessions judge respectively?
iv. How many sanctioned posts are there in so far as civil
judges and JMFCs are concerned? How many sanctioned posts are
there in the cadre of Chief Judicial Magistrate? How many
sanctioned posts are there for the post Sessions judge?
v. How many posts are lying vacant in so far as the judicial
officers of different cadres referred to above are concerned.
vi. Are there any proposals forwarded by the High Court
pending with the State Government for filling up of various
posts at the level of Judicial Magistrate First Class, Chief
Judicial Magistrate and Sessions judges?
Information Regarding Pendency and Tracking of Bail Applications
1.Whether information about the period of custody undergone by
an undertrial prisoner is recorded by the High Court Registry in
respect of bail applications filed before the High Court? If not,
whether collection of such a data point can be mandated for
subsequent filings?
2.What is the number of bail applications pending before the High
Court as on 30.04.2026? Kindly categories the data in a tabular
format according to the year of filing.
3.Whether the pending bail applications can be categorised
according to the period of custody undergone by the
applicant/undertrial prisoner?
4.If the answer to Question No.3 is in the affirmative, kindly
provide the data in the following manner:
a. Number of cases where the period of custody undergone
by the applicant is more than 10 years.
b. Number of cases where the period of custody undergone
is between 8-10 years.
c. Number of cases where the period of custody undergone
is between 6-8 years.
d. Number of cases where the period of custody undergone
is between 4-9 years.
e. Number of cases where the period of custody undergone
is between 2-4 years.
f. Number of cases where the period of custody undergone is
between 1-2 years.
g. Number of cases where the period of custody undergone
is between 0-1 years.
5.Whether any measures are currently in place, or were introduced
in the past, to expedite the disposal of bail applications wherein
the period of detention undergone by the applicant exceeds 5
years, or to prioritise the disposal of the oldest pending bail
applications or bail applications where the applicant is in
custody pending trial for unduly long periods?
6.If the answer to Question No. 5 is in the negative, whether any
measures can be introduced for tracking and expediting the
disposal of bail applications wherein the period of custody of
the undertrial prisoner exceeds 5 years and the oldest pending
bail applications?
7.Whether data is available regarding the number of undertrial
prisoners in the State of Uttar Pradesh who are in custody for a
period exceeding 5 years and whose bail applications have not yet
been filed or decided by the Court of Sessions, or who have not
yet preferred a bail application before the High Court in the
event of rejection of bail by the Court of Sessions?
45. The aforesaid information called for should reach the Registry
of this Court on or before 13.07.2026.
46. Post this matter for further hearing along with the status
report that may be received from the High Court of Allahabad.
47. The matter be treated as part heard.
……………………………………………J.
(J.B. Pardiwala)
……………………………………………J.
(Ujjal Bhuyan)
th
29 April, 2026
New Delhi