Sheela Barse & Ors Vs. Union of
India & Ors [1986] INSC 169 (13 August 1986)
BHAGWATI, P.N. (CJ) 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 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
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 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
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 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 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.
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