Shaheen
Welfare Association Vs. Union of India & Ors [1996] INSC 326
(27 February 1996)
Manohar
Sujata V. (J) Manohar Sujata V. (J) Ahmadi A.M. (Cj) Mrs.Sujata V.Manohar,J.
CITATION:
1996 SCC (2) 616 JT 1996 (2) 719 1996 SCALE (2)481
ACT:
HEAD NOTE:
This
is a public interest litigation in which the petitioner has prayed for certain reliefs
to undertrial prisoners charged under the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (hereinafter referred to as 'TADA'). The petitioner has
asked, inter alia, for a direction that the respondents should file a list of detentes
lodged in jails in different States under TADA and has asked for a direction
for the release of TADA detentes against whom proper evidence is not with the
prosecution and where proper procedure prescribed under law is not followed.
Under
orders passed from time to time in this petition the States of Gujarat,
Rajasthan and Maharashtra as well as the Central Government
have filed affidavits giving information relating to the number of cases under
TADA pending in different Designated Courts in various States of the country.
We have also been furnished with the Statewise numbers of Designated Courts
constituted under TADA. In the affidavit filed on behalf of the Union of India
by Shri A.K.Shrivastava, Deputy Secretary to the Government of India, Ministry
of Home Affairs, New
Delhi, a statement is
annexed showing live cases under TADA and the number of Designated Courts in
different States and Union Territories.
The
statement is as follows:
Sr. Name
of the State/UT No. of live cases No. of Desig- No. under TADA nated Courts
--------------------------------------------------------- (1) (2) (3) (4)
----------------------------------------------------------
1.
Andhra Pradesh 1937 61
2. Arunachal
Pradesh 15 11
3. Assam 2908 1
4. Bihar 4 35
5. Gujarat 72 18
6. Haryana
348 8
7. Himachal
Pradesh 5 3
8. Jammu & Kashmir 5041 4
9.
Karnataka 25 19
10. Kerala
-- 1
11.
Manipur 603 4
12.
Madhya Pradesh 76 10
13. Maharashtra 244 8
14. Meghalaya
8 1
15. Punjab 2248 18
16.
Rajasthan 77 1 17 Tamil Nadu 26 5
18.
Uttar Pradesh 39 15
19. West Bengal 1 18
20. Chandigarh Admn. 9 2
21. Delhi 759 4
22. Goa 1 1
------------------------------------------------------------ Total:- 14446 248
------------------------------------------------------------ Thus, for example,
in the State of Assam the number of live cases are 2908. There is only one Designated Court to try all these cases. In Jammu
& Kashmir, there are only four Designated Courts for trial of 5041 cases.
In Rajasthan there is only one Designated Court for the trial of 77 cases while in Delhi there are four Designated Courts for the trial of 759 pending cases.
The number of Designated Courts is also somewhat deceptive in the sense that in
some States the existing Sessions Courts are also designated as courts under
TADA, with the result that these courts do not deal exclusively with the trial
of TADA cases. They also deal with other criminal cases. Therefore, the entire
time of such courts is not available for the trial of TADA cases. It is quite
clear that in many States there is no prospect of a speedy trial of pending
TADA cases. A statement which is annexed to an earlier affidavit filed on filed
on behalf of the Union of the Union of India by Shri R.S.Tanwar, Under
Secretary to the Government of India, Ministry of Home Affairs, New Delhi,
shows that in respect of 14446 cases under investigation and pending trial in
the various States of the country, the detentions involved are 42488, out which
the number of persons actually arrested and under detention is 59983. Those
released on bail are 30357, and those absconding and yet to be arrested are
6044. This is after taking into account the cases which were revided by the
State Review Committees, and were either withdrawn or where charges under the
provisions of TADA were dropped. The total number of cases so reviewed comes to
9203 and the number of persons discharged from TADA provisions are 7968.
The
National Human Rights Commission has also furnished a statement showing the
position of TADA detentes in jail as on 30.6.1995. While the Statewise figures
given by it do no tally with the figures given by the Union of India, the total
number of undertrials in jail according to the National Human Rights Commission
is 6000, (after taking into account its corrections for Assam, Punjab and Rajasthan) which is close to the figure of 5998 given
by the Union of India.
It is
in this context that we have to consider what relief can be granted to detentes
under TADA. In the case of Kartar Singh v. State of Punjab (1994 (3) SCC 569)
this Court while considering the validity of Section 20(8) of TADA, has
observed that while liberty of a citizen must be zealously safeguarded by the
courts, nonetheless the courts while dispensing justice in cases like the one
under TADA Act, should keep in mind not only the liberty of the accused but
also the interest of the victims and their near and dear ones and above all the
collective interest of the community and the safety of the nation so that the
public may not lose faith in the system of judicial administration and indulge
in private retribution. It also observed that the invocation of the provisions
of TADA in cases, the facts of which do not war f ant its invocation, is nothing
but sheer misuse and abuse of the Act by the police.
Looking
to the nature of the crime and the paramount interests of the society this
Court held that the conditions imposed under Section 20(8) for the release of
TADA undertrials on bail did not violate Articles 14 and 21 of the
Constitution. It, however, gave directions for the constitution of
Review/Screening committees in each State and at the Center to ensure that the
provisions of TADA were correctly invoked in the cases pending before the
Designated Courts. The purpose of constituting such committees was to ensure a
higher level of scrutiny regarding applicability of the provisions of TADA to
the case in point. The need for such committees is amply borne out by the
results which have been annexed in the affidavits filed on behalf of the Union
of India before us relating to the number of cases so reviewed by the Review
Committees where it has been found that the provisions of TADA ought not to
have been applied.
We
are, however, sorry to note that not a single case filed by C.B.I. has been so
reviewed although the Review Committee, it is said, has examined all the cases.
A more independent and objective scrutiny of these cases by a Committee headed
by a retired judge is obviously necessary.
Inspite
of such review, from the figures which we have cited above, it is clear that
there is very little prospect of a speedy trial of cases under TADA in some of
the States because of the absence of an adequate number of Designated Courts
even in cases where a chargesheet has been filed and the cases are ready for
trial. We are conscious of the fact that even the trial of ordinary criminal
cases does take some time because of the courts being overloaded with work and
the concept of a speedy trial in the case of TADA cases must be viewed in the
context of pendency in relation to criminal trials also. But when the release
of undertrials on bail is severely restricted as in the case of TADA by virtue
of the provisions of Section 20(8) of TADA, it becomes necessary that the trial
does proceed and conclude within a reasonable time. Where this is not
practical, release on bail which can be taken to be embedded in the right of a
speedy trial may, in some cases, be necessary to meet the requirements of
Article 21.
It was
on this basis that in the case of Supreme Court Legal Aid Committee
Representing Undertrial Prisoners v. Union of India & Ors. (1994 (6) SCC
731), this Court considered similar provisions restricting the grant of bail
under Narcotic Drugs and Psychotropic Substances Act, 1985 and directed release
of undertrials on bail in certain situations and subject to the terms and
conditions set out there. The Court while doing so observed, (p.748):
"........
We
have felt that deprivation of the personal liberty without ensuring speedy
trial would also not be in consonance with the right guaranteed by Article 21.
Of course, some amount of deprivation of personal liberty cannot be avoided in
such cases; but if the period of deprivation pending trial becomes unduly long,
the fairness assured by Article 21 would receive a jolt. It is because of this
that we have felt that after the accused persons have suffered imprisonment
which is half of the maximum punishment provided for the offence, any further
deprivation of personal liberty would be violative of the fundamental right
visualized by Article 21, which has to be telescoped with the right guaranteed
by Article 14 which also promises justness, fairness and reasonableness in
procedural matters." It is in this context that it has become necessary to
grant some relief to those persons who have been deprived of their personal
liberty for a considerable length of time without any Prospect of the trial
being concluded in the near future. Undoubtedly, the safety of the community and
of the nation needs to be safeguarded looking to the nature of the offences
these undertrials have been charged with. But the ultimate justification for
such deprivation of liberty pending trial can only be their being found guilty
of the offences for which they have been charged. If such a finding is not
likely to be arrived at within a reasonable time some relief becomes necessary.
The
petition thus poses the problem of reconciling conflicting claims of individual
liberty versus the right of the community and the nation to safety and
protection from terrorism and disruptive activities. While it is essential that
innocent people should be protected from terrorists and disruptionists, it is
equally necessary that terrorists and disruptionists are speedily tried and
punished. In fact the protection to innocent civilians is dependent on such
speedily trial and punishment. The conflict is generated on account of the
gross delay in the trial of such persons.
This
delay may contribute to absence of proper evidence at the trial so that the
really guilty may have to be ultimately acquitted. It also causes irreparable
damage to innocent persons who may have been wrongly accused of the crime and
are ultimately acquitted, but who remain in jail for a long period pending
trial because of the stringent provisions regarding bail under TADA. They
suffer severe hardship and their families may be ruined.
Bearing
in mind the nature of the crime and the need to protect the society and the
nation, TADA has prescribed in Section 20(8) stringent provisions for granting
bail. Such stringent provisions can be justified looking to the nature of the
crime, as was held in Kartar Singh's case (supra), on the presumption that the
trial of the accused will take place without undue delay. No one can justify
gross delay in disposal of cases when undertrials perforce remain in jail,
giving rise to possible situations that may justify invocation of Article 21.
These
competing claims can be reconciled by taking a pragmatic approach.
The
proper course is to identify from the nature of the role played by each accused
person the real hardcore terrorists or criminals from others who do not belong
to that category; and apply the bail provisions strictly in so far as the
former class is conceived and liberally in respect of the latter class. This
will release the pressure on the courts in the matter of priority for trial.
Once the total number of prisoners in jail shrinks, those belonging to the
former class and, therefore, kept in jail can be tried on a priority basis.
That would help ensure that the evidence against them does not fade away on
account of delay. Delay may otherwise harm the prosecution case and the harsh
bail provisions may prove counter-productive. A pragmatic approach alone can
save the situation for, otherwise, one may find that many of the undertrials
may be found to have completed the maximum punishment provided by law by being
in jail without a trial. Even in cases where a large number of persons are tied
up with the aid of Sections 120B or 147, I.P.C., the role of each person can
certainly be evaluated for the purpose of bail and those whose role is not so
serious or menacing can be more liberally considered.
With
inadequate number of courts, the only pragmatic way is to reduce the prison
population of TADA detentes and then deal with hardcore undertrials on priority
basis before the evidence fades away or is lost. Such an approach will take
care of both the competing interests. This is the approach which we recommend
to courts dealing with TADA cases so that the real culprits are promptly tried
and punished.
For
the purpose of grant of bail to TADA detentes, we divide the undertrials into
three classes, namely,
(a) hardcore
undertrials whose release would prejudice the prosecution case and whose
liberty may prove to be a menace to society in general arid to the complainant
and prosecution witnesses in particular;
(b) other
undertrials whose overt acts or involvement directly attract Sections 3 and/or
4 of the TADA Act;
(c) undertrials
who are roped in, not because of any activity directly attracting Sections 3
and A, but by virtue of Sections 120B or 147, I.P.C., and;
(d) those
undertrials who were found possessing Incriminating articles in notified areas
and are booked under Section 5 of TADA.
Ordinarily,
it is true that the provisions of Sections 20(8) and 20(9) of TADA would apply
to all the aforesaid classes. But while adopting a pragmatic and just approach,
no one can dispute the fact that all of them cannot be dealth with by the same
yardstick. Different approaches would be justified on the basis of the gravity
or the charges. Adopting this approach we are of the opinion that undertrials
falling within group (a) cannot receive liberal treatment. Cases of undertrials
falling in group (b) would have to be differently dealt within. in that, if
they have been in prison for five years or more and their trial is not likely
to be completed within the next six months, they can be released on bail unless
the court comes to the conclusion that their antecedents are such that
releasing them may be harmful to the lives of the complainant the family
members of the complainant, or witnesses. Cases of undertrials falling in
groups (c) and (d) can be dealt with leniently and they can be released if they
have been in sail for three years and two years respectively. Those falling in
group (b) when released on bail may be released on bail of not less than
Rs.50,000/- with one surety for like amount and those falling in groups (c) and
(d) may be released on bail on their executing a bond for Rs.30 000/- with one
surety for like amount subject to the following terms:
(1) the
accused shall report to the c police station once a week;
(2) the
accused shall remain within the area of jurisdiction of the Designated Court pending trial and shall not leave
the area without the permission of the Designated Court;
(3) the
accused shall deposit his passport, if any with the Designated Court. If he does not hold a passport he
shall file an affidavit to that effect before the Designated Court. The Designated Court may ascertain the correct position from the passport
authorities if it deems it necessary;
(4)
The Designated Court will be at liberty to cancel the
bail if any of these conditions is violated or a case for cancellation of bail
is otherwise made out.
(5)
Before granting bail a notice shall be given The public prosecutor and an
opportunity shall be given to him to oppose the application or such release.
The Designated Court may refuse bail in-very special
circumstances for reasons to be recorded in writing.
These
conditions may be relaxed in cases of those under groups (c) and (d) and, for
special reasons to be recorded, in the case of group (b) prisoners. Also these
directions may not be applied by the Designated Court in exceptionally grave cases such as the Bombay Bomb Blast
Case where a lengthy trial is inevitable looking to the number of accused, the
number of witnesses and the nature of charges unless the court feels that the
trial is being unduly delayed. However, even in such cases it is essential that
the Review Committee examines the case against each accused bearing the above
directions in mind, to ensure that TADA provisions are not unnecessarily
invoked.
The
above directions are a one-time measure meant only to alleviate the current
situation.
When
stringent provisions have been prescribed under an Act such as TADA for grant
of bail and a conscious decision has been taken by the legislature to sacrifice
to some extent, the personal liberty of an undertrial accused for the sake of
protecting the community and the nation against terrorist and disruptive
activities or other activities harmful to society, it is all the more necessary
that investigation of such crimes is done efficiently and an adequate number of
Designated Courts are set up to bring to ok persons accused of such serious
crimes. This is the only way in which society can be protected against harmful
activities. This would also ensure that persons ultimately found innocent are
not unnecessarily kept in jail for long periods. It is unfortunate that none of
the States to whom notices have been issued by us nor the Union of India, have
come forward to state that they would set up an adequate number of Designated
Courts in each State so that cases pertaining to TADA can be speedily disposed
of. This has necessitated the above order as a one-time measure.
With
the above directions, the writ petition is disposed of.
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