Hussainara Khantoon & Ors Vs. Home
Secretary, State of Bihar, Patna [1979] INSC 88 (19 April 1979)
BHAGWATI, P.N.
BHAGWATI, P.N.
REDDY, O. CHINNAPPA (J) SEN, A.P. (J)
CITATION: 1979 AIR 1377 1979 SCR (3) 760 1980
SCC (1) 108
CITATOR INFO:
RF 1986 SC2130 (26,37)
ACT:
Legal Aid to Poor-Administration of Criminal
Justice- Constitutional obligation of State Government-Free legal
services-Absence of-Vitiation of trial-Art. 21 Constitution of India.
Criminal Procedure Code, 1973-S.
167(2)(a)-Right of under-trial prisoner-Release on bail-Entitlement to counsel
an State expense.
HEADNOTE:
On further hearing the petition for release
of under- trials in the State of Bihar.
HELD : 1. The State Governments do not seem
to be alive to their constitutional responsibility in the matter of provision
of free legal services in the field of administration of criminal justice. If
law is not only to speak justice but also deliver justice, legal aid is an
absolute imperative. Legal aid is really nothing also but equal justice in
action It is in fact the delivery system of social justice. [765D]
2. Every State Government will have to carry
out its constitutional obligation to provide free legal services to every
accused person who is in peril of losing his liberty and who is unable to
defend himself through a lawyer by reason of his poverty or indigence in cases
where the needs of justice so require. If free legal services are not provided
to such an accused, the trial itself may run the risk of being vitiated as contravening
Art. 21 and every State Government should try to avoid such a possible
eventuality. [765F-G]
3. When an under-trial prisoner is produced
before a Magistrate and he has been in detention for 90 days or 60 days as the
case may be, the Magistrate must, before making an order of further remand to
judicial custody, point out to the under-trial prisoner that he is entitled to
be released on bail. [762H, 763A]
4. The Magistrate must take care to see that
the right of the under-trial prisoner to the assistance of a lawyer provided at
State cost is secured to him with a view to enable him to apply for bail in
exercise of his right under proviso (a) to sub-section (2) of s. 167 Criminal
Procedure Code. [763B]
5. The Magistrate must deal with the
application for bail in accordance with the guidelines laid down in the Court's
order dated February 12, 1979. [763C]
ORIGINAL JURISDICTION : Writ Petition No. 57
of 1979.
Mrs. K. Hingorani for the Petitioner U. P.
Singh and S. N. Jha for the Respondent.
The Order of the Court was delivered by
BHAGWATI, J. This writ petition has again come up before us for further
directions. Mr. U.P. Singh, learned Advocate on behalf of the State of Bihar,
has intimated to us that pursuant to the directions given by us in our order
dated 9th March, 1979(1), the State of Bihar 761 has already released 70 under-trial
prisoners whose names were set out in the chart filed by Mrs. Hingorani on 9th
March, 1979. It is highly regrettable that these under-trial prisoners should
have remained in jail without trial for periods longer than the maximum term
for which they could have been sentenced if convicted. We fail to see what
moral or ethical justification could the State have to detain these unfortunate
persons for such unreasonably long periods of time without trial. We feel a
sense of relief that they should once again be able to breathe the air of
freedom. But we find that there are still many more under-trial prisoners who
fall within this category of persons who have been in detention for periods
longer than the maximum term without their trial having been commenced. Mrs.
Hingorani has filed before us at the hearing of the writ petition on 16th
April, 1979 a second chart giving the names and particulars of some of these
under trial prisoners who have not yet got the benefit of the earlier order
made by us. There are 59 under-trial prisoners whose names and particulars are
set out in this chart and we direct that they should be released forthwith as
their continued detention is clearly illegal and in violation of their
fundamental right under Art. 21 of the Constitution. There are also several
other under-trial prisoners who are accused multiple offences and even if we
were to proceed on the assumption that the State would be able to secure their
conviction and maximum sentences would be imposed on them and such sentences
would not be concurrent in accordance with the usual practice followed by the
courts but would be consecutive, they have already suffered the aggregate
imprisonment which could be inflicted on them, and there is no reason why they
should be subjected to any further detention. It may be pointed out that
ordinarily the sentences imposed on conviction for multiple offences are
concurrent and if we proceed on that assumption which is more realistic, it
would be found that there are many under-trial prisoners who have already been
in jail for periods exceeding the maximum term which could be imposed on them
even if they were convicted of the multiple offences with which they are charged.
We have requested Mrs.
Hingorani to prepare a chart showing
separately the above two categories of under-trial prisoners so that we can
pass appropriate orders in regard to them at the next hearing of the writ
petition. Mr. U.P. Singh, appearing on behalf of the State Government, will
help Mrs. Hingorani in preparing this chart since Mrs. Hingorani has undertaken
this public interest litigation as a matter of public duty and her resources
are therefore, bound to be limited.
We are informed that amongst the under trial
prisoners there are some who are lunatics or persons of unsound mind.
It is difficult to under- 762 stand how such
persons could possibly be kept in the same jail along with other under-trial
prisoners. We should like to know from the State Government, in an affidavit to
be filed before the next hearing of the writ petition, as to what are the
circumstances in which these persons have been kept as under-trial prisoners in
the ordinary jails and what the State Government proposes to do in regard to
them. Mrs. Hingorani will prepare a list showing the names and particulars of
these persons and Mr. U. P. Singh on behalf of the State Government will render
the necessary help in this connection. The list may be filed by Mrs. Hingorani
at the next hearing of the writ petition so that we may be able to pass final
orders in regard to this category of under-trial prisoners.
We find that pursuant to the directions given
by us in our order dated 9th March, 1979, Bageshwari Prasad Pandey,
Superintendent of the Patna Central Jail has filed an affidavit dated 4th
April, 1979 along with a chart showing the dates on which petitioners Nos. 1,
2, 3, 4, 5, 6, 7, 8, 9 and 17 confined in the Patna Central Jail prior to their
release on personal bond, were produced before the Magistrates in compliance
with the proviso to section 167(2) of the Code of Criminal Procedure. A similar
affidavit dated 4th April, 1979 has also been filed by Pradeep Kumar Gangoli,
Superintendent of Muzaffarpur Jail along with a chart showing the dates on
which petitioners Nos. 10, 11, 12, 13, 15, 16 and 18 who were previously
confined in the Muzaffarpur Central Jail prior to their release on personal
bond, were produced before the Magistrates in compliance with the requirement
of the proviso to section 167(2).
Bhuvan Mohan Munda, Superintendent of the
Ranchi Central Jail has also filed an affidavit dated 12th April, 1979 together
with a chart showing the dates on which some of the under-trial prisoners
referred to in our Order dated 9th March, 1979 were produced before the
Magistrates in compliance with the requirement of the proviso to section
167(2). It is apparent from these charts that some of the petitioners and other
under-trial prisoners referred to in these charts have been produced numerous
times before the Magistrates and the Magistrates have been continually making
orders of remand to judicial custody. It is difficult to believe that on each
of the countless occasions on which these under-trial prisoners were produced
before the Magistrates and the Magistrates made orders of remand, they must
have applied their mind to the necessity of remanding those under-trial
prisoners to judicial custody. We are also very doubtful whether on the expiry
of 90 days or 60 days, as the case may be, from the date of arrest, the
attention of the undertial prisoners was drawn to the fact that they were
entitled to be released on ball under proviso (a) of sub-section (2) of section
167. When an under-trial prisoner is produced before a Magistrate and he has
been in deten- 763 tion for 90 days or 60 days, as the case may be, the
Magistrate must, before making an order of further remand to judicial custody,
point out to the under-trial prisoner that he is entitled to be released on
bail. The State Government must also provide at its own cost a lawyer to the under-trial
prisoner with a view to enable him to apply for bail in exercise of his right
under proviso (a) to sub-section (2) of section 167 and the Magistrate must
take care to see that the right of the under-trial prisoner to the assistance
of a lawyer provided at State cost is secured to him and he must deal with the
application for bail in accordance with the guidelines laid down by us in our
Order dated 12th February, 1979.(1) We hope and trust that every Magistrate in
the country and every State Government will act in accordance with this mandate
of the Court. This is the constitutional obligation of the State Government and
the Magistrate and we have no doubt that if this is strictly carried out, there
will be considerable improvement in the situation in regard to under-trial
prisoners and there will be proper observance of the rule of law.
The State Government has also filed an
affidavit of B. Srinivasan, Superintendent of Police (C.I.D.), Government of
Bihar, giving in Annexure (I) particulars regarding number of cases pending
investigation by the police in each sub- division of the State as on 31st
December, 1978 and in Annexure (II), particulars regarding number of cases
pending investigation for more than six months. These annexures show that a
total number of 10,339 cases relating to major offences and 17,687 cases
relating to minor offences were pending investigation in the State of Bihar on
31st December, 1978 and out of these, 5835 cases relating to major offences and
7228 cases relating to minor offences were pending investigation for a period
of more than six months. It is a matter of great regret that such a large
number of cases should be pending investigation for a period of more than six
months and the number of such cases in relation to minor offences should be
over seven thousand. It is difficult to understand why as many as seven
thousand and odd cases relating to minor offences should remain pending
investigation for more than six months. It is no doubt true that reasons have
been attempted to be given by B. Srinivasan in a statement annexed to his
affidavit, but we are not at all satisfied about the validity of these reasons,
particularly in so far as investigation in relation to minor offences is
concerned. One of the reasons given by B. Srinivasan in his statement is that
in 10 per cent of the cases investigation is held up because of delay in
receipt of opinions from experts. We find it difficult to appreciate this
reason. We fail to see why the State Government cannot employ more experts or
set up a larger num- 764 ber of testing laboratories or establish more forensic
laboratories. It is also necessary to have more than one serologists in the
State. This is a situation which the State Government can certainly remedy by
taking prompt action. There are also many other measures which can be taken by
the State Government for the purpose of accelerating the pace of the
investigating machinery but it would not be proper for this Court to suggest or
recommend any such measures because this Court has not the requisite expertise
of material for doing so and moreover the National Police Commission appointed
by the Government of India is seized of this question and it is considering
what steps and measures should be taken for the purpose of expediting the
investigative process and making qualitative improvement in it. But we would be
failing in our duty if we do not express our sense of amazement and horror at
the leisurely and almost lethargic manner in which investigation into offences
seems to be carried on in the State of Bihar. It is high time that the State of
Bihar took steps to overhaul and streamline its investigative machinery so that
no investigation may take more than the bare minimum time required for it and
the judicial process may be set in motion without any unnecessary delay.
We directed by our Order dated 9th March,
1979 that on the next date when the under-trial prisoners, charged with
bailable offences, are produced before the Magistrates, the State Government
should provide them with a lawyer at its own cost for the purpose of making
application for bail and if any application for bail is made, the Magistrates
should dispose of the same in accordance with the broad guidelines set out by
us in our Judgment dated 12th February, 1979. We are told by Mr. U. P. Singh
that the necessary instructions to this effect have been issued by the State
Government to the District Magistrate, but we do not know whether and to what
extent these instructions have been carried out and lawyers at State expense
have been provided to the under-trial prisoners accused of bailable offences
for the purpose of making application for bail on their behalf. We should like
the State Government to file an affidavit stating how many under-trial accused
of bailable offences who have been in jail for a period of more than 18 months
as on 1st February, 1979 have been provided lawyers at State expenses and
whether or not they have been released on bail in accordance with the directions
given by us. The State Government will also file an affidavit giving similar
information in regard to those under-trial prisoners who have been in jail for
periods longer than half the maximum term of imprisonment for which they could,
if convicted, be sentenced, because we had given direction of a like nature
also in regard to these under-trial prisoners in our judgment dated 9th March,
1979.
765 We may point out that according to the
law as laid down by us in our judgment dated 9th March, 1979, it is the
constitutional right of every accused person who is unable to engage a lawyer
and secure legal services on account of reasons such as poverty, indigence or
incommunicado situation, to have free legal services provided to him by the
State and the State is under a constitutional mandate to provide a lawyer to
such accused person if the needs of justice so require. We do not know whether
the State Government has set up any machinery for the purpose of providing free
legal services to persons who are accused of offences involving possible
deprivation of liberty and who are unable to engage a lawyer on account of
poverty or indigence. This constitutional obligation cannot wait any longer for
its fulfilment, since more than 30 years have passed from the date of enactment
of the Constitution and no State Government can possibly have any alibi for not
carrying out this command of the Constitution. We are repeating this
observation once again in the present judgment because we find that barring a
few, many of the State Government do not seem to be alive to their
constitutional responsibility in the matter of provision of free legal services
in the field of 'administration of criminal justice'. Let it not be forgotten
that if law is not only to speak justice but also deliver justice, legal aid is
an absolute imperative. Legal aid is really nothing else but equal justice in
action. Legal aid is in fact the delivery system of social justice. It is
intended to reach justice to the common man who, as the poet song:
"Bowed by the weight of centuries he
leans Upon his hoe and gazes on the ground, The emptiness of ages on his face,
And on his back the burden of the World." We hope and trust that every
State Government will take prompt steps to carry out its constitutional
obligation to provide free legal services to every accused person who is in
peril of losing his liberty and who is unable to defend himself through a
lawyer by reason of his poverty or indigence in cases where the needs of
justice so require. If free legal services are not provided to such an accused
the trial itself may run the risk of being vitiated as contravening Article 21
and we have no doubt that every State Government would try to avoid such a
possible eventuality.
We have no report from the State Government
as to whether women under "protective custody" in jails have been
transferred to remand or welfare homes conducted by the social welfare
department as directed by us by our Order dated 26th February, 1979. Mr. U.P.
Singh on behalf of the State of Bihar stated before us that this direction has
been carried out by the State Government, but we should like to have an
affidavit of some responsible officer of the State Government stating that
women who were confined in jail under the label of "protective
custody" have been transferred to welfare homes and that necessary
instructions have been issued by the State Government to the effect that women
or children who are victims of offence or whose presence is required for giving
evidence should not be kept in jail under so called "protective
custody". This affidavit may be filed by the State Government within ten
days from today.
We had given direction by our Order dated
26th February, 1979 that the State Government should enquire into cases where
the offence charged against under-trial prisoners are triable as summons cases,
for the purpose of ascertaining whether there has been compliance with the
provision enacted in section 167, sub-section (5) of the Code of Criminal
Procedure. It is clear from this provision that if in any case tried by a
Magistrate as a summons case the investigation is not concluded within a period
of six months from the date on which the accused was arrested, the Magistrate
must make an order stopping further investigation into the offence, unless the
officer making the investigation satisfies the Magistrate that for special
reasons and in the interest of justice, the continuation of the investigation
beyond the period of six months is necessary. With a view to securing compliance
with this provision we directed that if, in a case triable by a Magistrate as a
summons case, it is found that investigation has been going on for a period of
more than six months without satisfying the Magistrate that, for special
reasons and in the interest of justice, the continuation of the investigation
beyond the period of six months is necessary, the State Government will release
the under-trial prisoner, unless the necessary orders of the Magistrate are
obtained within a period of one month. The reason for giving this direction was
that in such a case the Magistrate is bound to make an order stopping further
investigation and in that event, only two courses would be open: either the
police must immediately proceed to file a charge sheet, if the investigation
conducted till then warrants such a course, or if no case for proceeding
against the under-trial prisoner is disclosed by the investigation, the under-trial
prisoner must be released forthwith from detention. The State Government has
not filed before us any report of compliance with this direction and we would,
therefore, require the State Government to do so within a period of ten days
from today.
We would also request the High Court to draw
the attention of the Magistrates to the provision in section 167, sub- section
(5) and ensure compliance with the requirement of this provision by the
Magistrate.
767 We find that pursuant to the direction
given by us in our Order dated 9th March, 1979, the High Court of Patna has
forwarded to us a compilation containing particulars giving the location of
courts of Magistrates and courts of Sessions in the State of Bihar together
with the total number of cases pending in each of these courts as on 31st
December, 1978 with yearwise break up of such pending cases and briefly
explaining the reasons why it has not been possible to dispose of these cases
within a reasonable period of time. The figures of pending cases given in the
compilation are staggering and it is distressing to find that quite a few of
these cases have been pending for more than five years, sometimes extending
even to seven or nine or ten years. We shall examine the position arising from
the pendency of such a large number of cases for such long periods of time at
the next hearing of the writ petition, with a view to considering what
directions are necessary to be given to the State Government by way of taking
positive action for the purpose of securing enforcement of the fundamental
right of the accused to speedy trial. We would, however, require for this
purpose information from the High Court of Patna as to the norms of disposals
fixed by the High Court for the different categories of Magistrates and
Sessions Judges in the State of Bihar, since without this information, it would
not be possible for us to decide whether the existing strength of courts and
judges in the State of Bihar is adequate for the purpose of ensuring speedy
trial to the accused or it is necessary to have additional courts and judges.
We would request the High Court to furnish this additional information to us at
the next hearing of the writ petition.
We will proceed with the further hearing of
the writ petition on 24th April, 1979.
N.V.K.
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