Full Judgment Text
IN THE SUPREME COURT OF INDIA
CRIMINAL WRIT JURISDICTION
WRIT PETITION (CRL.) NO. 200 OF 2011
Ranjan Dwivedi ...Petitioner(s)
Versus
C.B.I., Through the Director General ...Respondent(s)
WITH
WRIT PETITION (CRL.) NO. 205 OF 2011
Ac. Sudevananda Avadhuta ...Petitioner(s)
Versus
C.B.I., Through the Director General ...Respondent(s)
J U D G M E N T
L. H. DATTU, J.
JUDGMENT
1. Reliefs sought in both the Writ Petitions are one and
the same; therefore, they are disposed of by this common
judgment.
2. These Criminal Writ Petitions, filed under Article 32
of the Constitution of India, seek for the enforcement of
petitioner’s fundamental right of “speedy trial” and for
“quashing of Sessions Trial No. SC1/06”, pending on the
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file of learned Additional Sessions Judge (East),
Kakardooma Courts, Delhi.
3. The petitioners herein are the accused and tried for
the assassination of Shri. L.N. Mishra, the then Union
Railway Minister. It is the case of the prosecution that
Shri. L.N. Mishra was injured in a bomb-blast at the
Railway Station, Samastipur on 2.01.1975 and later
succumbed to his injuries on 3.01.1975. The initial
investigation was conducted by the Bihar C.I.D. and
subsequently it was transferred to the Central Bureau of
Investigation (for short, ‘C.B.I.’) who filed charge sheet
on 10.11.1975. Thereafter, this case was transferred by
this Court to Delhi vide its order dated 17.12.1979 due to
interference by the then Bihar Government. Learned
Additional Sessions Judge, Karkardooma, Delhi, after
framing the charges, initiated trial against the accused
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persons but, unfortunately, the trial is still pending for
the past 37 years. In 1987, the Petitioner(s) had
preferred a Writ Petition (Crl.) No. 268/87 before this
Court for quashing of the charges and proceedings in view
of pending trial for over 12 years. This Court had
disposed of the writ petitions vide its Order dated
10.12.1991 with a direction to the trial court to
expeditiously complete the trial on day to day basis.
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However, the trial is still pending before the Learned
Additional Sessions Judge despite the direction of this
Court to expeditiously complete the trial. As of now, the
statements of accused under Section 313 of the Criminal
Procedure Core (for short, ‘Cr. P.C.’) have been recorded,
the Court witnesses have been examined as well as the
recording of statements of defence witness is also
complete and at the time of hearing of these petitions, we
are informed by the learned counsel that the matter is now
posted for arguments.
4. In view of delay in completion of trial for more than
37 years from date of the trial till date, the Petitioners
have preferred the present Writ Petitions praying for
quashing of the charges and trial.
5. Shri. T.R. Andhyarujina, learned Senior Counsel
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submits that the trial in the present case has been
dragged on for more than 37 years and is still continuing
and this amounts to violation of fundamental right of the
accused to get speedy trial. He would submit that this
Court has declared that right to speedy trial is a
requirement under Article 21 of the Constitution
guaranteeing right to life and liberty of a citizen. He
would submit that better part of the life of the accused-
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petitioner has already been spent in the jail during trial
and still, his fate is hanging in balance. He would
contend that whether the accused would get convicted or
acquitted is immaterial. The question here is; whether any
judicial system would tolerate such as inordinate delay?
Should the Supreme Court allow it to continue any more?
He would further contend that this is a unique case for
two reasons. Firstly, the prolongation of criminal trial
is as long as 37 years and petitioners have spent better
part of their human life in the jail. Secondly, this
Court in the year 1991 while disposing of the petitioners
writ petition, had issued specific directions to the trial
court to expeditiously complete the trial, which mandate
has been conveniently ignored by the trial court, which
amounts to total ignorance and indifference to the
directions issued by this Court. He would further contend
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that the fact that the judicial system works in a
particular way cannot be a justification for its failure
to complete the trial. He would submit that Article 21
not only protects the accused but also takes into
consideration the sufferings faced by his family members.
He would submit systemic failure has sufficiently punished
the petitioners and the very fact of delay shows prejudice
caused to the petitioners. He would further submit that
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this is the ideal case where this Court can correct the
short-fallings in the criminal justice delivery system by
limiting the time for the completion of the trial. He
would point out that this Court, on the earlier occasion,
had issued direction to the trial court to expeditiously
complete the trial on day to day basis, but even after two
decades, the trial is still not complete in the year 2012.
He would submit that this Court may quash the
excruciatingly long trial on the ground that it is a
unique case which has not only seriously prejudiced
petitioners but also brutally violated their right to
speedy trial, which is a part of their right to life. He
would contend that in a case of delay of 10 to 15 years,
this Court can order for expeditious completion of the
trial, but not in a case where the delay is for more than
37 years, and therefore, this Court should certainly
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intervene and give quietus to the trial.
6. The Petitioner in W.P. (Crl.) No. 205 of 2011 is
represented by Shri. Arvind Kumar, learned Counsel. He
adopts the arguments canvassed by Shri. T.R. Andhyarujina,
learned Senior Counsel.
7. Shri Raval, learned ASG submits that this Court has
once rejected the plea of petitioners for quashing the
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trial on the ground of delay in December, 1991. Therefore,
the petitioners are not entitled for the same relief which
was once negatived by this Court. He would then submit,
that, the prosecution is not responsible in any manner for
the delay caused in the trial from December 1991 till
date. He would read out a detailed list of dates
pertaining to the proceedings and orders of the trial
Court. He would further submit that prosecution has sought
for adjournments only on three or four occasions for good
and valid reasons and there is no deliberate intention on
the part of the prosecution to postpone the trial. The
learned ASG relies on the decision of this Court in State
v. Narayan Waman Nerukar (Dr), (2002) 7 SCC 6. In the
said case, the accused was charged with the offences
punishable under Sections 3 and 5 of the Official Secret
Act and Section 120-B of the IPC. The Magistrate had
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taken cognizance vide its order dated 16.08.1999 and
issued process. The accused approached the High Court for
quashing of the criminal proceedings on the ground of
delay. The High Court quashed the proceedings on the
ground of unnecessary delay of 12 years. The prosecution
approached this Court against the order of the High Court.
This Court while setting aside the order of the High Court
remanded the matter to the High Court for fresh disposal
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after considering all the relevant factors including that
criminal courts are not obliged to terminate trial of
criminal proceedings merely on account of lapse of time.
This Court has observed, that, while considering the issue
of delay in trial there are some relevant factors which
ought to be taken into consideration by the court such as,
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. 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.
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8. He would further rely on the decision of this Court in
Vakil Prasad Singh v. State of Bihar (2009) 3 SCC 355,
wherein the charge sheet was filed after the completion of
investigation and subsequently, the learned Magistrate
took cognizance vide its orders dated 20.02.1982, but
nothing substantial did happen till 1987. Thereafter,
the accused approached the High Court for fresh
investigation as the Investigating Officer had no
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jurisdiction to investigate. The High Court vide its
order dated 07.12.1990 quashed the order of cognizance
taken by the Magistrate and ordered fresh investigation.
Nothing was done till 1988. The accused again approached
the High Court for quashing of entire criminal proceedings
on the ground that re-investigation has not been initiated
by the prosecuting agency. Subsequently, the re-
investigation was ordered only in the year 2007 and fresh
charge-sheet was filed. The High Court dismissed such
petition filed by the accused. However, this Court found
that there is inordinate delay and has quashed the
proceeding. This Court has observed that the speedy trial
in all criminal prosecutions is an inalienable right under
Article 21 of the Constitution. This right is applicable
not only to the actual proceedings in court but also
includes within its sweep the preceding police
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investigations as well. In every case, where the right to
speedy trial is alleged to have been infringed, the court
has to perform the balancing act by taking into
consideration all the attendant circumstances, and
determine in each case as to whether the right to speedy
trial has been actually denied in a given case.
9. Shri Raval further relied on the decision of this
Court in Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7
Page 8
SCC 394, in support of his argument that the general rule
of criminal justice is that “a crime never dies”. This
Court noted that this principle is reflected in the well-
known maxim nullum tempus aut locus occurrit regi (lapse
of time is no bar to Crown in proceeding against
offenders). This Court further observed that the
Limitation Act, 1963 (for short the ‘Act’) does not apply
to criminal proceedings unless there are express and
specific provisions to that effect, for instance, Articles
114, 115, 131 and 132 of the Act. It is settled law that
a criminal offence is considered as a wrong against the
State and the society even though it has been committed
against an individual. Normally, in serious offences,
prosecution is launched by the State and a court of law
has no power to throw away prosecution solely on the
ground of delay. Mere delay in approaching a court of law
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would not by itself, afford a ground for dismissing the
case, though it may be a relevant circumstance in reaching
a final verdict.
10. Shri Raval also relied on the decision of this Court
in P. Vijayan v. State of Kerala, (2010) 2 SCC 398, where
one naxalite extremist was killed in a police encounter in
1970. However, in 1988, a newspaper article was published
that the encounter in which the said naxalite was killed,
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was a fake one and some Senior Police Officers were
responsible for it. On the basis of these reports, writ
petitions were filed before the High Court of Kerala,
wherein, one Constable filed a counter affidavit, making a
confessional statement that he shot the said naxalite on
the instructions of his Senior Officer. The High Court
vide its order dated 27.01.1999, directed the CBI to
register the F.I.R. for killing of the naxalite in a fake
encounter. The accused preferred a petition under Section
227 of the Cr.P.C. before the trial court. The same was
dismissed. Thereafter, the accused filed a Criminal
Revision Petition before the High Court. The same was
also dismissed. Being aggrieved, the accused approached
this Court. This Court, while dismissing his appeal, has
observed that at this stage, it cannot be claimed that
there is no sufficient ground for proceeding against the
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appellant and discharge is the only course open. Further,
whether the trial will end in conviction or acquittal is
also immaterial. It is also observed that the question
whether the materials at the hands of the prosecution are
sufficient or not are matters for trial.
11. Shri Raval would conclude his submission by stating
that the real purpose of the criminal proceedings is to
find out the truth which can only be done after the
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conclusion of the trial.
12. We preface our decision by extracting certain
observations made by this Court in Abdul Rehman Antulay v.
R.S. Nayak, (1992) 1 SCC 225, Kartar Singh v. State of
Punjab, (1994) 3 SCC 569 and P. Ramachandra Rao v. State
of Karnataka , (2002) 4 SCC 578.
13. The Constitution Bench, in Abdul Rehman Antulay v.
R.S. Nayak , (supra), has formulated certain propositions,
11 in number, meant to serve as guidelines. They are :
“ 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 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.
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(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:
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( a ) the period of remand and pre-
conviction detention should be as short as
possible. In other words, the accused should
not be subjected to unnecessary or unduly long
incarceration prior to his conviction;
( b ) the worry, anxiety, expense and
disturbance to his vocation and peace,
resulting from an unduly prolonged
investigation, inquiry or trial should be
minimal; and
( c ) undue delay may well result in
impairment of the ability of the accused to
defend himself, whether on account of death,
disappearance or non-availability of witnesses
or otherwise.
(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 work
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.
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(5) While determining whether undue delay has
occurred (resulting in violation of Right to Speedy
Trial) one must have regard to all the attendant
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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 “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 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.
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(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
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whether the right to speedy trial has been denied in a
given case.
(9) Ordinarily speaking, where the court comes to
the conclusion that right to speedy trial of an
accused has been infringed the charges or the
conviction, as the case may be, shall be quashed. But
this is not the only course open. The nature of the
offence and other circumstances in a given case may be
such that quashing of proceedings may not be in the
interest of justice. In such a case, it is open to the
court to make such other appropriate order - including
an order to conclude the trial within a fixed time
where the trial is not concluded or reducing the
sentence where the trial has concluded as may be
-
deemed just and equitable in the circumstances of the
case.
(10) It is neither advisable nor practicable to fix
any time-limit for trial of offences. Any such rule is
bound to be qualified one. Such rule cannot also be
evolved merely to shift the burden of proving
justification on to the shoulders of the prosecution.
In every case of complaint of denial of right to
speedy trial, it is primarily for the prosecution to
justify and explain the delay. At the same time, it is
the duty of the court to weigh all the circumstances
of a given case before pronouncing upon the complaint.
The Supreme Court of USA too has repeatedly refused to
fix any such outer time-limit in spite of the Sixth
Amendment. Nor do we think that not fixing any such
outer limit ineffectuates the guarantee of right to
speedy trial.
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(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.”
14. In Kartar Singh v. State of Punjab , (supra), another
Constitution Bench considered the right to speedy trial
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and opined that the delay is dependent on the
circumstances of each case, because reasons for delay will
vary. This Court held:
“ 84. The right to a speedy trial is a derivation
from a provision of Magna Carta. This principle has
also been incorporated into the Virginia Declaration
of Rights of 1776 and from there into the Sixth
Amendment of the Constitution of United States of
America which reads, “In all criminal prosecutions,
the accused shall enjoy the right to a speedy and
public trial...”. It may be pointed out, in this
connection, that there is a Federal Act of 1974 called
‘Speedy Trial Act’ establishing a set of time-limits
for carrying out the major events, e.g., information,
indictment, arraignment, in the prosecution of
criminal cases. [See Black's Law Dictionary, 6th Edn .
page 1400].
The right to a speedy trial is not only an
85.
important safeguard to prevent undue and oppressive
incarceration, to minimise anxiety and concern
accompanying the accusation and to limit the
possibility of impairing the ability of an accused to
defend himself but also there is a societal interest
in providing a speedy trial. This right has been
actuated in the recent past and the courts have laid
down a series of decisions opening up new vistas of
fundamental rights. In fact, lot of cases are coming
before the courts for quashing of proceedings on the
ground of inordinate and undue delay stating that the
invocation of this right even need not await formal
indictment or charge.
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86. The concept of speedy trial is read into Article
21 as an essential part of the fundamental right to
life and liberty guaranteed and preserved under our
Constitution. The right to speedy trial begins with
the actual restraint imposed by arrest and consequent
incarceration and continues at all stages, namely, the
stage of investigation, inquiry, trial, appeal and
revision so that any possible prejudice that may
result from impermissible and avoidable delay from the
time of the commission of the offence till it
consummates into a finality, can be averted. In this
context, it may be noted that the constitutional
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guarantee of speedy trial is properly reflected in
Section 309 of the Code of Criminal Procedure.
This Court in Hussainara Khatoon (I) v. Home
87.
Secretary, State of Bihar while dealing with Article
21 of the Constitution of India has observed thus:
(SCC p. 89, para 5)
“No procedure which does not ensure a reasonably
quick trial can be regarded as ‘reasonable, fair or
just’ and it would fall foul of Article 21. There
can, therefore, be no doubt that speedy trial, and
by speedy trial we mean reasonably expeditious
trial, is an integral and essential part of the
fundamental right to life and liberty enshrined in
Article 21. The question which would, however,
arise is as to what would be the consequence if a
person accused of an offence is denied speedy trial
and is sought to be deprived of his liberty by
imprisonment as a result of a long delayed trial in
violation of his fundamental right under Article
21. Would he be entitled to be released
unconditionally freed from the charge levelled
against him on the ground that trying him after an
unduly long period of time and convicting him after
such trial would constitute violation of his
fundamental right under Article 21.”
See also (1) Sunil Batra v. Delhi Administration
(I) , (2) Hussainara Khatoon (I) v. Home Secretary,
State of Bihar , (3) Hussainara Khatoon (IV) v.
Home Secretary, State of Bihar, Patna , (4)
Hussainara Khatoon (VI) v. Home Secretary, State
of Bihar, Govt. of Bihar, Patna , (5) Kadra Pahadia
v. State of Bihar (II) , (6) T.V. Vatheeswaran v.
State of T.N. , and (7) Abdul Rehman Antulay v.
R.S. Nayak .
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Thus this Court by a line of judicial
88.
pronouncements has emphasised and re-emphasised that
speedy trial is one of the facets of the fundamental
right to life and liberty enshrined in Article 21 and
the law must ensure ‘reasonable, just and fair’
procedure which has a creative connotation after the
decision of this Court in Maneka Gandhi .”
The Court further observed :
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Of course, no length of time is per se too long
“92.
to pass scrutiny under this principle nor the accused
is called upon the show the actual prejudice by delay
of disposal of cases. On the other hand, the court has
to adopt a balancing approach by taking note of the
possible prejudices and disadvantages to be suffered
by the accused by avoidable delay and to determine
whether the accused in a criminal proceeding has been
deprived of his right of having speedy trial with
unreasonable delay which could be identified by the
factors (1) length of delay, (2) the justification
-
for the delay, (3) the accused's assertion of his
right to speedy trial, and (4) prejudice caused to the
accused by such delay. However, the fact of delay is
dependent on the circumstances of each case because
reasons for delay will vary, such as delay in
investigation on account of the widespread
ramification of crimes and its designed network either
nationally or internationally, the deliberate absence
of witness or witnesses, crowded dockets on the file
of the court etc.”
15. Seven learned Judges of this Court in the case of P.
Ramachandra Rao v. State of Karnataka , (supra) , after an
exhaustive consideration of the authorities on the
subject, has observed:-
“ For all the foregoing reasons, we are of the
29.
opinion that in Common Cause case (I) [as modified in
Common Cause (II) ] and Raj Deo Sharma (I) and (II) the
Court could not have prescribed periods of limitation
beyond which the trial of a criminal case or a
criminal proceeding cannot continue and must
mandatorily be closed followed by an order acquitting
or discharging the accused. In conclusion we hold:
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( 1 ) The dictum in A.R. Antulay case is correct and
still holds the field.
( 2 ) The propositions emerging from Article 21 of the
Constitution and expounding the right to speedy trial
laid down as guidelines in A.R. Antulay case
adequately take care of right to speedy trial. We
uphold and reaffirm the said propositions.
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( 3 ) The guidelines laid down in A.R. Antulay case
are not exhaustive but only illustrative. They are not
intended to operate as hard-and-fast rules or to be
applied like a straitjacket formula. Their
applicability would depend on the fact situation of
each case. It is difficult to foresee all situations
and no generalization can be made.
( 4 ) It is neither advisable, nor feasible, nor
judicially permissible to draw or prescribe an outer
limit for conclusion of all criminal proceedings. The
time-limits or bars of limitation prescribed in the
several directions made in Common Cause (I) , Raj Deo
Sharma (I) and Raj Deo Sharma (II) could not have been
so prescribed or drawn and are not good law. The
criminal courts are not obliged to terminate trial or
criminal proceedings merely on account of lapse of
time, as prescribed by the directions made in Common
Cause case (I) , Raj Deo Sharma case (I) and (II) . At
the most the periods of time prescribed in those
decisions can be taken by the courts seized of the
trial or proceedings to act as reminders when they may
be persuaded to apply their judicial mind to the facts
and circumstances of the case before them and
determine by taking into consideration the several
relevant factors as pointed out in A.R. Antulay case
and decide whether the trial or proceedings have
become so inordinately delayed as to be called
oppressive and unwarranted. Such time-limits cannot
and will not by themselves be treated by any court as
a bar to further continuance of the trial or
proceedings and as mandatorily obliging the court to
terminate the same and acquit or discharge the
accused.
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( 5 ) 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 CrPC and Articles 226 and 227 of the
Constitution can be invoked seeking appropriate relief
or suitable directions.
( 6 ) This is an appropriate occasion to remind the
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Union of India and the State Governments of their
constitutional obligation to strengthen the judiciary
— quantitatively and qualitatively — by providing
requisite funds, manpower and infrastructure. We hope
and trust that the Governments shall act.”
16. The criminal case involving assassination of L. N.
Misra, the then Union Minister for Railways, on January
02, 1975 is still pending in 2012, i.e. even after a lapse
of thirty seven years. As a result, two of the accused
has moved these petitions for acquittal. We have given
our consideration to the submissions made by learned
Senior Counsel, Shri Andhyarujina, who repeatedly
emphasised that this case is the unique case and this
Court has not seen such a case earlier and may not see in
future. We do not intend to comment on this statement. We
can only observe, that, our legal system has made life too
easy for criminals and too difficult for law abiding
citizens.
JUDGMENT
17. Our Constitution does not expressly declare that right
to speedy trial as a fundamental right. The right to a
speedy trial was first recognised in the Hussainara
Khatoon’s case, AIR 1979 SC 1360 , wherein, the court held
that a speedy trial is implicit in the broad sweep and
content of Article 21 of the Constitution. Subsequently,
in a series of judgments, this Court has held that
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‘reasonably’ expeditious trial is an integral and
essential part of the Fundamental Right to Life and
Liberty enshrined in Article 21 of the Constitution of
India.
18. The guarantee of a speedy trial is intended to avoid
oppression and prevent delay by imposing on the court and
the prosecution an obligation to proceed with the trial
with a reasonable dispatch. The guarantee serves a three
fold purpose. Firstly, it protects the accused against
oppressive pre-trial imprisonment; secondly, it relieves
the accused of the anxiety and public suspicion due to
unresolved criminal charges and lastly, it protects
against the risk that evidence will be lost or memories
dimmed by the passage of time, thus, impairing the ability
of the accused to defend him or herself. Stated another
way, the purpose of both the criminal procedure rules
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governing speedy trials and the constitutional provisions,
in particular, Article 21, is to relieve an accused of the
anxiety associated with a suspended prosecution and
provide reasonably prompt administration of justice.
19. The reasons for the delay is one of the factors
which courts would normally assess in determining as to
whether a particular accused has been deprived of his or
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her right to speedy trial, including the party to whom the
delay is attributable. Delay, which occasioned by action
or inaction of the prosecution is one of the main factors
which will be taken note by the courts while interjecting
a criminal trial. A deliberate attempt to delay the
trial, in order to hamper the accused, is weighed heavily
against the prosecution. However, unintentional and
unavoidable delays or administrative factors over which
prosecution has no control, such as, over-crowded court
dockets, absence of the presiding officers, strike by the
lawyers, delay by the superior forum in notifying the
designated Judge, (in the present case only), the matter
pending before the other forums, including High Courts and
Supreme Courts and adjournment of the criminal trial at
the instance of the accused, may be a good cause for the
failure to complete the trail within a reasonable time.
JUDGMENT
This is only illustrative and not exhaustive. Such delay
or delays cannot be violative of accused’s right to a
speedy trial and needs to be excluded while deciding
whether there is unreasonable and unexplained delay. The
good cause exception to the speedy trial requirement
focuses on only one factor i.e. the reason for the delay
and the attending circumstances bear on the inquiry only
to the extent to the sufficiency of the reason itself.
Page 21
Keeping this settled position in view, we have perused the
note prepared by Shri Raval, learned ASG. Though, the
note produced is not certified with copies of the order
sheets maintained by the trial court, since they are not
disputed by the other side, we have taken the information
furnished therein as authentic. The note reveals that
prosecution, apart from seeking 4-5 adjournments, right
from 1991 till 2012, is not responsible for delay in any
manner whatsoever. Therefore, in our opinion the delay in
trial of the petitioners from 1991 to 2012 is solely
attributable to petitioners and other accused persons.
20. Second limb of the argument of the learned Senior
Counsel Shri Andhyarujina is that the of failure of
completion of trial has not only caused great prejudice to
the petitioners but also their family members.
Presumptive prejudice is not an alone dispositive of
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speedy trial claim and must be balanced against other
factors. The accused has the burden to make some showing
of prejudice, although a showing of actual prejudice is
not required. When the accused makes a prima-facie
showing of prejudice, the burden shifts on the prosecution
to show that the accused suffered no serious prejudice.
The question of how great lapse it is, consistent with the
guarantee of a speedy trial, will depend on the facts and
Page 22
circumstances of each case. There is no basis for holding
that the right to speedy trial can be quantified into
specified number of days, months or years. The mere
passage of time is not sufficient to establish denial of a
right to a speedy trial, but a lengthy delay, which is
presumptively prejudicial, triggers the examination of
other factors to determine whether the rights have been
violated.
21. The length of the delay is not sufficient in
itself to warrant a finding that the accused was deprived
of the right to a speedy trial. Rather, it is only one of
the factors to be considered, and must be weighed against
other factors. Moreover, among factors to be considered
in determining whether the right to speedy trial of the
accused is violated, the length of delay is least
conclusive. While there is authority that even very
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lengthy delays do not give rise to a per se conclusion of
violation of constitutional rights, there is also
authority that long enough delay could constitute per se
violation of right to speedy trial. In our considered
view, the delay tolerated varies with the complexity of
the case, the manner of proof as well as gravity of the
alleged crime. This, again, depends on case to case
basis. There cannot be universal rule in this regard. It
Page 23
is a balancing process while determining as to whether the
accused’s right to speedy trial has been violated or not.
The length of delay in and itself, is not a weighty
factor.
22. In the present case, the delay is occasional by
exceptional circumstances. It may not be due to failure
of the prosecution or by the systemic failure but we can
only say that there is a good cause for the failure to
complete the trial and in our view, such delay is not
violative of the right of the accused for speedy trial.
23. Prescribing a time limit for the trial court to
terminate the proceedings or, at the end thereof, to
acquit or discharge the accused in all cases will amount
to legislation, which cannot be done by judicial
directives within the arena of judicial law making power
JUDGMENT
available to constitutional courts; however, liberally the
courts may interpret Articles 21, 32, 141 and 142.
( Ramchandra Rao P. v. State of Karnataka, (2002) 4 SCC
578). The Seven Judges Bench overruled four earlier
decision of this Court on this point: Raj Deo (II) v.
State of Bihar , (1999) 7 SCC 604 , Raj Deo Sharma v. State
of Bihar, (1998) 7 SCC 507 ; Common Cause, A Registered
Society v. Union of India, (1996) 4 SCC 33. The time
Page 24
limit in these four cases was contrary to the observations
of the Five Judges Bench in A.R. Antulay (Supra). The
Seven Judges Bench in Ramchandra Rao P. v. State of
Karnataka , (Supra) has been followed in State through CBI
v. Dr. Narayan Waman Nerukar, (2002) 7 SCC 6 and State of
Rajasthan v. Ikbal Hussen, (2004) 12 SCC 499. It was
further observed that it is neither advisable, feasible
nor judicially permissible to prescribe an outer limit for
the conclusion of all criminal proceedings. It is for the
criminal court to exercise powers under Sections 258, 309
and 311 of the Cr.P.C. to effectuate the right to a speedy
trial. In an appropriate case, directions from the High
Court under Section 482 Cr.P.C. and Article 226/227 can be
invoked to seek appropriate relief.
24. In view of the settled position of law and
particularly in the facts of the present case, we are not
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in agreement with the submissions made by learned Senior
Counsel, Shri. T.R. Andhyarujina. Before we conclude, we
intend to say, particularly, looking into long
adjournments sought by the accused persons, who are seven
in number, that accused cannot take advantage or the
benefit of the right of speedy trial by causing the delay
and then use that delay in order to assert their rights.
Page 25
25. The learned Senior Counsel would tell us, please don’t
look who caused the delay in completing the trial but only
look at whether there is delay in completion of the trial
and if it is there, please put a big “full stop” for the
trial. In our view, this submission of the learned Senior
Counsel cannot be accepted by us, in view of the
observations by this Court in P. Ramachandra’s case
(supra). Before parting with the case, we should
certainly give credit to our judicial officers, who have
painstakingly suffered with all the dilatory tactics
adopted by the accused in dragging on with the proceedings
for nearly thirty seven years. They are not to be blamed
at all. In fact, they do deserve appreciation while
conducting such trials where one of the accused is not
only Bachelor of Laws but also Bachelor of Literature. We
certainly say that our system has not failed, but, accused
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was successful in dragging on the proceedings to a stage
where, if it is drawn further, it may snap the Justice
Delivery System. We are also conscious of the fact that
more than thirty Judges had tried this case at one stage
or the other, but, all of them have taken care to see that
the trial is completed at the earliest. They are not to
be blamed and certainly the system has not to be blamed,
but, positively, somebody has succeeded in his or in their
Page 26
attempt. The system has done its best, but, has not
achieved the expected result and certainly, will not fit
into the category of cases where (late) N.A. Palkhiwala,
one of the most outstanding Senior Advocates in the
Country had said that “...... the law may or may not be an
ass, but in India it is certainly a snail and our cases
proceed at a pace which would be regarded as unduly slow
in a community of snails” . Therefore, we say, we will not
buy this argument of the learned Senior Counsel that there
is systemic failure. Therefore, in our view at this stage
the one and the only direction that requires to be issued
is to direct the learned trial judge to take up the case
on day to day basis and conclude the proceedings as early
as possible, without granting unnecessary and unwarranted
adjournments.
JUDGMENT
Page 27
26. Writ Petitions are, accordingly, dismissed with the
aforesaid directions.
...................................J.
(H. L. DATTU)
...................................J.
(CHANDRAMAULI KR. PRASAD)
NEW DELHI;
AUGUST 17, 2012.
JUDGMENT
Page 28
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL WRIT JURISDICTION
WRIT PETITION (CRIMINAL) NO. 200 OF 2011
Ranjan Dwivedi … Petitioner(s)
Versus
C.B.I. through Director General … Respondent(s)
WITH
WRIT PETITION (CRIMINAL) NO. 205 OF 2011
AC. Sudevananda Avadhuta … Petitioner(s)
Versus
C.B.I. through Director General … Respondent(s)
JUDGMENT
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
I agree.
However, I would like to add few words of my own.
The Union Minister for Railways lost his life in a
bomb explosion which took place at Samastipur Railway
nd
Station in the State of Bihar on 2 of January, 1975.
Page 29
Petitioners are facing trial in the said case. Their
statements under Section 313 of the Code of Criminal
Procedure have been recorded and the trial is at the stage
of argument.
At this stage, petitioners have filed these writ
petitions under Article 32 of the Constitution of India
and their prayer is to quash the prosecution primarily on
the ground of violation of their fundamental right of
speedy trial guaranteed under Article 21 of the
Constitution of India.
Mr. T.R. Andhyarujina, Senior Advocate appears in
support of the writ petitions. He submits that delay of
37 years in conclusion of the trial, for whatever reason,
is atrocious and a civilized society cannot permit
continuance of the trial for such a long period. He
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appeals to us to rise to the occasion and make history by
holding that the system which allows trial for such a long
period is barbaric, oppressive and atrocious and,
therefore, in the teeth of right of speedy trial
guaranteed under Article 21 of the Constitution. Systemic
delay cannot be a defence to deny the right of speedy
trial, emphasizes Mr. Andhyarujina.
Page 30
I have given my most anxious consideration to the
submission advanced and, at one point of time, in
deference to his passionate appeal I was inclined to
consider this issue in detail and give a fresh look but,
having been confronted with the Five-Judge Constitution
Bench decision in the case of
Abdul Rehman Antulay v. R.S.
and Seven-Judge Constitution Bench
Nayak, (1992) 1 SCC 225
judgment of this Court in the case of
P. Ramachandra Rao
v. State of Karnataka, (2002) 4 SCC 578 , this course does
not seem to be open to me. Judicial discipline expects us
to follow the ratio and prohibits laying down any
principle in derogation of the ratio laid down by the
earlier decisions of the Constitution Benches of this
Court.
In the case of Abdul Rehman Antulay (supra) this Court
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in paragraph 86 (5) has observed as follows:
“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.”
Page 31
The aforesaid decision came up for consideration
before a Seven-Judge Constitution Bench of this Court in
the case of and while approving
P. Ramachandra Rao (supra)
the ratio, the Court in Paragraph 29 (1) & (2) observed as
follows:
“(1 ) The dictum in Abdul Rehman Antulay v. R.S.
Nayak, (1992) 1 SCC 225 is correct and still
holds the field.
( 2 ) The propositions emerging from Article 21
of the Constitution and expounding the right to
speedy trial laid down as guidelines in Abdul
Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225
adequately take care of right to speedy trial.
We uphold and reaffirm the said propositions.”
Hence, in my opinion, the trial cannot be terminated
merely on the ground of delay without considering the
reasons thereof.
My learned and noble brother has gone into the reasons
for delay and I agree with him that the facts of the
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present case do not justify quashing of the prosecution.
………………………………………………………….J.
(CHANDRAMAULI KR PRASAD)
New Delhi,
August 17, 2012.
Page 32