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Report No. 154

Chapter XXI

Speedy Justice

1. Speedy justice is sine qua non of criminal jurisprudence.1 It is not only an important safeguard to prevent undue and oppressive incarceration, to minimise anxiety and concern accompanying the accusation but also to limit the possibility of impairing the ability of an accused to defend himself. Indeed there is a societal interest in providing a speedy justice. This right has been actuated in the recent past and the courts in a series of decisions opened new vistas of fundamental rights.

The concept of speedy trial has 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 and similar provisions exist in Canada.

The right to speedy trial is recognised as a common law right flowing from the Magna Carta. This is the view in U.K., U.S.A., Canada and New Zealand. However, this view is not accepted in Australia. The right whether under common law or otherwise is not absolute relief is to be given based on various well settled guidelines evolved in the judicial decisions.

Under Article 14 of the International Convention Civil and Political Rights, 1966 the right to a speedy trial is provided. Similarly Article 3 of the European Convention of Human Rights and the Sixth Amendment. to the US Constitution refers it as a basic right.

1. See Black's Law Dictionary, 6th Edn., p. 1400.

2. The right to speedy trial is an integral and essential part of fundamental right to life and liberty enshrined in Article 21 of the Constitution of India.

3. The Supreme Court in Hussainara Khatoon (I) v. Home Secretary, State of Bihar, (1980) 1 SCC 81 while dealing with Article 21 of the Constitution of India has observed thus:

"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 period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21."

4. The Supreme Court, while delivering its constitutional bench judgment in the case of Abdul Rehman Antutlay v. R.S. Nayak1 declared that right to speedy trial is implicit in Article 21 of Constitution and thus constitutes a fundamental right of every persons accused of a crime, is one among them. The Court referred to the following observations made in Maneka Gandhi v. Union of India, AIR 1978 SC 597 regarding integral connection between Articles 14 and 21 of the Constitution:

"The procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be 'right and just and fair' and not arbitrary, fanciful or oppressive: otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied."

The Supreme Court in A.R. Antulay's case (supra) held that the aforesaid observations establish in unmistakable terms that the law and procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Articles 19 and 14. It establishes that the procedure prescribed by law within the meaning of Article 21 must be right and just and fair and not arbitrary, fanciful or oppressive. It emphasised that it is this principle of fairness and reasonableness which was construed as taking within its purview the right to speedy trial. In the Hussainara Khatoon (I)2 Bhagwati, J. had observed:

"Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. 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."

While quoting the aforesaid observations, the Supreme Court in Antulay's case (supra) posed the questions "What is the consequence of denial of this right? Does it necessarily entail the consequence of quashing of charges/trial?" These questions were not answered by Bhagawati, J. in Maneka Gandhi's case. However, the Supreme Court in A.R. Antulay's case (supra) has dealt with that question and approved the ratio of the Maneka Gandhi's, AIR 1987 SC 597 case laying down the following propositions:

"1. Right to speedy trial is implicit in the broad sweep and content of Article 21.

2. That unless the procedure prescribed by law ensures a speedy trial, it cannot be said to be reasonable, fair or just. Expeditious trial and freedom from detention are part of human rights and basic freedoms and that a judicial system which allow incarceration of men and women for long periods of time without trial must be held to be denying human rights to such under-trials."

1. (1992) 1 SCC 225. The Supreme Court referred to various decisions concerning delays in trial e.g. Hussainara Khatoon (III) v. Home Secretary, State of Bihar, (1980) 1 SCC 98; State of Bihar v. Uma Shankar Kejriwal, (1982) 1 SCC 75; Kadar Pahadiya v. State of Bihar, (1983) 2 SCC 104: 1983 SCC (Cri) 361; State of Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC 610: 1981 SCC (Cri) 762: (1982) 1 SCR 299; T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68: 1983 SCC (Cri) 342: (1983) 2 SCR 348; Sheela Barse v. Union of India, (1986) 3 SCC 632; S. Guin v. Grindlays Bank Ltd., (1986) 1 SCC 654; Raghubir Singh v. State of Bihar, (1986) 4 SCC 481: 1986 Supp SCC 505; Sriniwas Gopal v. Union Territory of Arunachal Pradesh, (1988) 4 SCC 36; T.J. Stephen v. Parte Bottling Co. Pvt. Ltd., 1988 Supp SCC 458.

2. Hussainara Khatoon (I) v. Home Secretary, State of Bihar, (1980) 1 SCC 81.

2.4. The right to speedy trial begins withlhe 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 guarantee of speedy trial is properly reflected in section 309 of the Code of Criminal Procedure.

The Supreme Court laid down in, A.R. Antulay's case,1 the following propositions meant to serve as guidelines. 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.

(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:

(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.

1. (1992) 1 SCC 225. The Supreme Court referred to various decisions concerning delays in trial e.g. Hussainara Khatoon WI) v. Home Secretary, State of Bihar, (1980) 1 SCC 98; State of Bihar v. Uma Shankar Kejriwal, (1982) 1 SCC 75; Kadar Pahadiya v. State of Bihar, (1983) 2 SCC 104: 1983 SCC (Cri) 361; State of Maharashtra v. Champalal Punjaji Shah, (1981) 3 SCC 610: 1981 SCC (Cri) 762: (1982) 1 SCR 299; T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68: 1983 SCC (Cri) 342: (1983) 2 SCR 348; Sheela Barse v. Union of India, (1986) 3 SCC 632; S. GuM v. Grindlays Bank Ltd., (1986) 1 SCC 654; Raghubir Singh v. State of Bihar, (1986) 4 SCC 481: 1986 Supp SCC 505; Sriniwas Gopal v. Union Territory of Arunachal Pradesh, (1988) 4 SCC 36; T.J. Stephen v. Park Bottling Co. Pvt. Ltd., 1988 Supp SCC 458.

(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. The prosecution for whatever reason, also delays the proceedings.

Therefore in every case, where the right to speedy trail is alleged to have been infringed, the first question to be put and answered is-who is responsible for a delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as 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 partes representation.

(5) 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 witness, 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 pendantic 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, 15 L Ed 2d 627 in the following words:

'the Sixth Amendment right to a speedy trail 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.

(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 trail 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.1

1. While Mac Barker v. John Wingo, 33 L Ed 2d 101. See also Strunk v. United States, 37 L Ed 2d 53.

(8) Ultimately, the court has to balance and weigh the several relevant factors - 'balancing test' or 'balancing process' - and determine in each case 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 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 non-fixing of any such outer limit infatuates the guarantee of right to speedy trial.

(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. However, these propositions were held by the court to be not exhaustive. According to the Court, "it is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules."

5. In Sheela Barse v. Union of India, AIR 1986 SC 1773 (1778) where a petition was filed for the release of all children, below the age of 16 years detained in various jails in different states, and seeking detailed information in respect of them, the Court observed that the problem of children under detention would more easily be solved if the investigation and trial in respect of the charges against them could be expedited. The Court directed the state governments to take steps for completing the investigation within three months in cases lodged against children below the age of sixteen and to establish adequate number of courts to expedite trial of such cases.

6. The Supreme Court in Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731 while dealing with NDPS Act and section 309, Cr. P.C. Supreme Court has given a number of directions. With respect to pending cases it directed as under:

"(i) Where the under-trial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an under-trial shall be released on bail if he has been in Jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence he is charged with prescribes the maximum fine, the bail amount shall be 50% of the said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the Special Judge concerned with two sureties for like amount.

(ii) Where the under-trial accused is charged with an offence(s) under the Act providing for punishment exceeding five years and fine, such an under-trial shall be released on bail on the term set out in (i) above, provided that his bail amount shall in no case be less than Rs. 50,000 with two sureties for like amount.

(iii) Where the under-trial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lath, such an under-trial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lath with two sureties for like amount.

(iv) Where a under-trial accused is charged with the commission of an offence punishable under sections 31 and 31A of the Act, such an under-trial shall not be entitled to be released on bail by virtue of this order.

The directives in clauses (i), (ii), and (iii) above shall be subject to the following general conditions:

(i) The under-trial accused entitled to be released on bail shall deposit his passport with the learned judge of the Special Court concerned and if he does not hold a passport he shall file an affidavit to that effect in the form that may be prescribed by the learned Special Judge. In the latter case the learned Special Judge will, if he has reason to doubt the accuracy of the statement, write to the Passport Officer concerned to verify the statement and the Passport Officer shall verify his record and send a reply within three weeks. If he fails to reply within the said time, the learned Special Judge will be entitled to act on the statement of the under-trial accused;

(ii) the under-trial accused shall on being released on bail present himself at the police station which has prosecuted him at least once in a month in the case of those covered under clause (i), once in a fortnight in the case of those covered under clause (ii) and once in a week in the case of those covered by clause (iii), unless leave of absence is obtained in advance from the Special Judge concerned;

(iii) the benefit of the direction in clause (ii) and (iii) shall not be available to those accused persons who are, in the opinion of the learned Special Judge, for reasons to be stated in writing, likely to tamper with evidence or influence the prosecution witnesses;

(iv) in the case of under-trial accused who are foreigners, the Special Judge shall, besides impounding their passports, insist on a certificate of assurance from the Embassy/High Commission of the country and shall appear before the special Court as and when required;

(v) the under-trial accused shall not leave the area in relation to which the Special Court is constituted except with the permission of the learned Special Judge;

(vi) the under-trial accused may furnish bail by depositing cash equal to the bail amount;

(vii) the Special Judge will be at liberty to cancel bail if any of the above conditions is violated or a case for cancellation of bail is otherwise made out; and

(viii) after the release of the under-trial accused pursuant to this order, the cases of those under-trial who have not been released and are in jail will be accorded priority and the Special Court will proceed with them as provided in section 309 of the code.

The above directions are intended to operate as one-time directions for cases in which the accused persons are in jail and their trials are delayed. They are not intended to interfere with the Special Courts power to grant bail under section 37 of the Act. The Special Court will be free to exercise that power keeping in view the complaint of inordinate delay in the disposal of the pending cases. The Special Court will, notwithstanding the directions, be free to cancel bail if the accused is found to be misusing it and grounds for cancellation of bail exist. Lastly, we grant liberty to apply in case of any difficulty in the implementation of this order."

7. 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 wait formal indictment or charge.1

1. See also (1) Sunil Batra v. Delhi Administration, (1978) 4 SCC 494; (2) Hussainara Khatoon (I) v. Home Secretary, State of Bihar, (1980) 1 SCC 81; (3) Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, Patna, (1980) 1 SCC 98; (4) Hussainara Khatoon (VI) v. Home Secretary, State of Bihar, Patna, (1980) 1 SCC 115; (5) Kndra Palladia v. State of Bihar, (II) (1983) 2 SCC 104; (6) T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68, and (7) Abdul Rehman Antulay v. RS, Nayak, (1992) 1 SCC 225.

8. A survey of the aforesaid cases reveals that Supreme Court in a series of judicial pronouncements has emphasised and re-emphasised that speedy trial is one of the facts 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, AIR 1978 SC 597. We now propose to refer to the recommendations made by various Committees and Commissions to achieve speedy justice.



The Code of Criminal Procedure, 1973 Back




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