Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
SHEELA BARSE & ORS.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT13/08/1986
BENCH:
BHAGWATI, P.N. (CJ)
BENCH:
BHAGWATI, P.N. (CJ)
MISRA RANGNATH
CITATION:
JT 1986 136 1986 SCALE (2)230
ACT:
Constitution of India, 1950, Article 21-Speedy trial-
Whether fundamental right of accused.
Children Act, 1960 Children-offences by-Not to be kept
in Jail-To be kept in remand homes or released on bail.
Criminal Trial-Investigation of offences by children-
Completion within three months of lodging complaint / FlR-
Trial-Completion within six months-Necessity of.
HEADNOTE:
On 12th July, 1986 this Court issued various directions
in regard to the physically and mentally retarded children
as also abandoned or destitute children who are lodged in
various jails in the country for ’safe custody’.
Giving further directions,
HELD: 1. The right to speedy trial is a fundamental
right implicit in Art. 21 of the Constitution. If an accused
is not tried speedily and his case remains pending before
the Magistrate or the Sessions Court for an unreasonable
length of time, it is clear that his fundamental right to
speedy trial would be violated unless, of course, the trial
is held up on account of some interim order passed by a
superior court or the accused is responsible for the delay
in the trial of the case. The consequence of violation of
the fundamental right to speedy trial would be that the
prosecution itself would be liable to be quashed on the
ground that it is in breach of the fundamental right. [566E-
G]
Hussainara Khatoon & Ors. v. Home Secretary, State of
Bihar, [ 1979] SCR 169, relied upon
2. Every State Government must take necessary measures
for the
563
purpose of setting up adequate number of courts, appointing
requisite number of Judges and providing them the necessary
facilities. It is also necessary to set up an Institute or
Academy for training of judicial officers so that their
efficiency may be improved and they may be able to regulate
and control the flow of cases in their respective courts.
[567B-C]
3. So far as a child-accused of an offence punishable
with imprisonment of not more than 7 years is concerned, a
period of 3 months from the date of filing of the complaint
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
or lodging of the First Information Report is the maximum
time permissible for investigation and a period of 6 months
from the filing of the charge sheet as a reasonable period
within which the trial of the child must be completed. If
that is not done, the prosecution against the child would be
liable to be quashed. Every State Government shall give
effect to this principle or norm in so far as any future
cases are concerned. [567E-F]
4. So far as concerns pending cases relating to
offences punishable with imprisonment of not more than 7
years, it is directed that every State Government shall
complete the investigation within a period of 3 months from
today if the investigation has not already resulted in
filing of chargesheet and if a chargesheet has been filed,
the trial shall be completed within a period of 6 months
from today and if it is not, the prosecution shall be
quashed. [567F-G]
5. The State Governments must set up necessary remand
homes and observation homes where children accused of an
offence can be lodged pending investigation and trial. On no
account should the children be kept in jail and if a State
Government has not got sufficient accommodation in its
remand homes or observation homes, the children should be
released on bail instead of being subjected to incarceration
in jail. [565D-E]
6. Instead of each State having its own Children’s Act
different in procedure and content from the Children’s Act
in other States, the Central Government should initiate
Parliamentary Legislation on the subject, so that there is
complete uniformity in regard to the various provisions
relating to children in the entire territory of the country.
The Children’s Act which may be enacted by Parliament should
contain not only provisions for investigation and trial of
offences against children below the age of 16 years but
should also contain mandatory provisions for ensuring
social, economic and psychological rehabilitation of the
children who are either accused of offences or are abandoned
or destitute or lost. [568A-G]
564
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition (Criminal) No.1451
of 1985
Under Article 32 of the Constitution of India.
Petitioner-in-person.
Harbans Lal. Tapas Ray, D.K. Sinha, J.R. Das, Girish
Chander, Ms. Subhashini, Pramod Swarup, D. Bhandari, C.V.S.
Rao, B.D. Sharma, D.N. Mukherjee, R. Mukherjee, A.V. Rangam.
T.V. Ratnam, S.B. Bhasme, A.S. Bhasme and A.M. Khanwilkar
for the Respondents.
The order of the Court was delivered by
MISRA J. We made an Order on 12th July, 1986 issuing
various directions in regard to physically and mentally
retarded children as also abandoned or destitute children
who are lodged in various jails in the country for ’safe
custody’. We also directed the Director General of
Doordarshan as also the Director General of All India Radio
to give publicity seeking cooperation of non-governmental
social service organisations in the task of rehabilitation
of these children. We were extremely pained and anguished
that these children should be kept in jail instead of being
properly looked after, given adequate medical treatment and
imparted training in various skills which would make them
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
independent and self-reliant. Some years ago we came out
with a National Policy for the Welfare of Children which
contained the following preambulatory declaration:
"The nation’s children are a supremely important
asset. Their nurture and solicitude are our
responsibility. Children’s programme should find a
prominent part in our national plans for the
development of human resources, so that our
children grow up to become robust citizens, physi-
cally fit, mentally alert and morally healthy,
endowed with the skill and motivations needed by
society. Equal opportunities for development to
all children during the period of growth should be
our aim, for this would serve our large purpose of
reducing inequality and ensuring social justice."
If a child is a national asset, it is the duty of the State
to look after the child with a view to ensuring full
development of its personality. That
565
is why all the statutes dealing with children provide that
child shall not be kept in jail. Even apart from this
statutory prescription, it is elementary that a jail is
hardly a place where a child should be kept. There can be no
doubt that incarceration in jail would have the effect of
dwarfing the development of the child, exposing him to
baneful influences, coarsening his conscience and alienating
him from the society. It is a matter of regret that despite
statutory provisions and frequent exhortations by social
scientists, there are still a large number of children in
different jails in the country as is now evident from the
reports of the survey made by the District Judges pursuant
to our order dated 15th April, 1986. Even where children are
accused of offences, they must not be kept in jails. It is
no answer on the part of the State to say that it has not
got enough number of remand homes or observation homes or
other places where children can be kept and that is why they
are lodged in jails. It is also no answer on the part of the
State to urge that the ward in the jail where the children
are kept in separate from the ward in which the other
prisoners are detained. It is the atmosphere of the jail
which has a highly injurious effect on the mind of the
child, estranging him from the society and breeding in him
aversion bordering on hatred against a system which keeps
him in jail. We would therefore like once again to impress
upon the State Governments that they must set up necessary
remand homes and observation homes where children accused of
an offence can be lodged pending investigation and trial. On
no account should the children be kept in jail and if a
State Government has not got sufficient accommodation in the
remand homes or observation homes, the children should be
released on bail instead of being subjected to incarceration
in jail.
The problem of detention of children accused of an
offence would become much more easy of solution if the
investigation in the police and the trial by the Magistrate
could be expedited. The reports of survey made by District
Judges show that in some places children have been in jail
for quite long periods. We fail to see why investigation
into offences alleged to have been committed by children
cannot be completed quickly and equally why can the trial
not take place within a reasonable time after the filing of
the charge-sheet. Really speaking, the trial of children
must take place in the Juvenile Courts and not in the
regular criminal courts. There are special provisions
enacted in various statutes relating to children providing
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
for trial by Juvenile Courts in accordance with a special
procedure intended to safeguard the interest and welfare of
children, but, we find that in many of the States there are
no Juvenile Courts functioning at all and
566
even where there are Juvenile Courts, they are nothing but a
replica of the ordinary criminal courts, only the label
being changed. The same Magistrate who sits in the ordinary
criminal court goes and sits in the Juvenile Court and
mechanically tries cases against children. It is absolutely
essential, and this is something which we wish to impress
upon the State Governments with all the earnestness at our
command, that they must set up Juvenile Courts, one in each
district, and there must be special cadre of Magistrates who
must be suitably trained for dealing with cases against
children. They may also do other criminal work, if the work
of the Juvenile Court is not sufficient to engage then
fully, but they must have proper and adequate training for
dealing with cases against Juveniles, because these cases
require a different type of procedure and qualitatively a
different kind of approach.
We would also direct that where a complaint is filed or
first information report is lodged against a child below the
age of 16 years for an offence punishable with imprisonment
of not more than 7 years, the investigation shall be
completed within a period of three months from the date of
filing of the complaint or lodging of the First Information
Report and if the investigation is not completed within this
time, the case against the child must be treated as closed.
If within three months, the chargesheet is filed against the
child in case of an offence punishable with imprisonment of
not more than 7 years, the case must be tried and disposed
of within a further period of 6 months at the outside and
this period should be inclusive of the time taken up in
committal proceedings, if any. We have already held in
Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar,
[1979] 3 SCR 169 that the right to speedy trial is a
fundamental right implicit in Art. 21 of the Constitution.
If an accused is not tried speedily and his case remains
pending before the Magistrate or the Sessions Court for an
unreasonable length of time, it is clear that his
fundamental right to speedy trial would be violated unless,
of course, the trial is held up on account of some interim
order passed by a superior court or the accused is
responsible for the delay in the trial of the case. The
consequence of violation of the fundamental right to speedy
trial would be that the prosecution itself would be liable
to be quashed on the ground that it is in breach of the
fundamental right. One of the primary reasons why trial of
criminal cases is delayed in the courts of Magistrates and
Additional Sessions Judges is the total inadequacy of judge-
strength and lack of satisfactory working conditions for
Magistrates and Additional Sessions Judges. There are courts
of Magistrates and Additional Sessions Judges where the
workload is so heavy that it is just not
567
possible to cope with the workload, unless there is increase
in the strength of Magistrates and Additional Sessions
Judges. There are instances where appointments of
Magistrates and Additional Sessions Judges are held up for
years and the courts have to work with depleted strength and
this affects speedy trial of criminal cases. The Magistrates
and Additional Sessions Judges are often not provided
adequate staff and other facilities which would help improve
their disposal of cases. We are, therefore, firmly of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
view that every State Government must take necessary
measures for the purpose of setting up adequate number of
courts, appointing requisite number of Judges and providing
them the necessary facilities. It is also necessary to set
up an Institute or Academy for training of Judicial officers
so that their efficiency may be improved and they may be
able to regulate and control the flow of cases in their
respective courts. The problem of arrears of criminal cases
in the courts of Magistrates and Additional Sessions Judges
has assumed rather disturbing proportions and it is a matter
of grave urgency to which no State Government can afford to
be oblivious. But, here, we are not concerned with the
question of speedy trial for an accused who is not a child
below the age of 16 years. That is a question which may have
to be considered in some other case where this Court may be
called upon to examine as to what is reasonable length of
time for trial beyond which the court would regard the right
to speedy trial as violated. So far as a child-accused of an
offence punishable with imprisonment of not more than 7
years is concerned, we would regard a period of 3 months
from the date of filing of the complaint or lodging of the
First Information Report as the maximum time permissible for
investigation and a period of 6 months from the filing of
the charge sheet as a reasonable period within which the
trial of the child must be completed. If that is not done,
the prosecution against the child would be liable to be
quashed. We would direct every State Government to give
effect to this principle or norm laid down by us in so far
as any future cases are concerned, but so far as concerns
pending cases relating to offences punishable with
imprisonment of not more than 7 years, we would direct every
State Government to complete the investigation within a
period of 3 months from today if the investigation has not
already resulted in filing of chargesheet and if a
chargesheet has been filed, the trial shall be completed
within a period of 6 months from today and if it is not, the
prosecution shall be quashed.
We have by our order dated 5th August 1986 called upon
the State Government to bring into force and to implement
vigorously the
568
provisions of the Children’s Acts enacted in the various
States. But we would suggest that instead of each State
having its own Children’s Act in other States. it would be
desirable if the Central Government initiates Parliamentary
Legislation on the subject, so that there is complete
uniformity in regard to the various provisions relating to
children in the entire territory of the country. The
Children’s Act which may be enacted by Parliament should
contain not only provisions for investigation and trial of
offences against children below the age of 16 years but
should also contain mandatory provisions for ensuring
social, economic and psychological rehabilitation of the
children who are either accused of offences or are abandoned
or destitute or lost. Moreover, it is not enough merely to
have legislation on the subject, but it is equally, if not
more, important to ensure that such legislation is
implemented in all earnestness and mere lip sympathy is not
paid such legislation and justification . for non-
implementation is not pleaded on ground of lack of finances
on the part of the State. The greatest recompense which the
State can get for expenditure on children is the building up
of a powerful human resource ready to take its place in the
forward march of the nation.
We have already given various directions by our orders
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
dated 12th July 1986 and 5th August 1986. We have also in
the meantime received reports of survey made by several
District Judges. We shall take up these matters for
consideration at the next hearing of the writ petition which
shall take place on 1.9.1986.
A.P.J.
569