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Report No. 154

41. Disposal of old cases

41.1. The Supreme Court in the very recent epoch-making judgment of 'Common Cause', a registered society through its Directors v. Union of India, 1996 (4) SCALE 127 showed its deep concern over the unduly prolonged pendency of criminal cases when it observed:

"It is a matter of common experience that in many cases where the persons are accused of minor offences punishable not more than three years or even less-with or without fine, the proceedings are kept pending for years together. If they are poor and helpless, they languish in jails for long periods either because there is no one to bail them out or because there is no one to think of them. The very pendency of criminal proceedings for long period by itself operates as an engine of oppression. Quite often, the private complainants institute these proceedings out of oblique motives.

Even in cases of offences punishable for seven years or less with or without fine-the prosecutions are kept pending for years and years together in criminal courts. In a majority of these cases, whether instituted by police or private complainants, the accused belong to poorer sections of the society, who are unable to afford competent legal advice. Instances have also come before courts where the accused, who are in jail, are not brought to the court on every date of hearing and for that reason also the cases undergo several adjournments."

From the aforesaid observation it is evident that in order to ensure and obviate the pendency of criminal proceedings for long period, which by itself operates as an engine of oppression, it was considered essential to issue appropriate directions to protect and effectuate the right to life and liberty of the citizens guaranteed by Article 21 of the Constitution.

The relevant excerpts of the directions relating to delay in criminal trial and effect thereof are given below:

2(a) Where criminal proceedings are pending regarding traffic offences in any criminal court for more than two years on account of non serving summons to the accused or for any other reason whatsoever, the court may discharge the accused and close the case.

2(b) Where the cases pending in criminal courts for more than two years under I.P.C. or any other law for the time being in force are compoundable with permission of the court and if in such cases trial have still not commenced, the criminal court shall, after hearing the public prosecutor and other parties represented before it or their advocates, discharge or acquit the accused, as the case may be, and close such cases.

2(c) Where the cases pending in criminal courts under I.P.C. or any other law for the time being in force pertain to offences which are non-cognizable and bailable and if such pendency is for more than two years and if in such cases trials have still not commenced, the criminal court shall discharge or acquit the accused, as the case may be, and close such cases.

2(d) Where the cases pending in criminal courts under I.P.C. or any other law for the time being in force are pending in connection with offences which are punishable with fine only and are not of recurring nature, and if such pendency is for more than one year and if in such cases trials have still not commenced, the criminal court shall discharge or acquit the accused, as the case may be, and close such cases.

2(e) Where the cases pending in criminal courts under I.P.C. or any other law for the time being in force are punishable with imprisonment upto one year, with or without fine, and if such pendency is for more than one year and if in such cases trials have still not commenced, the criminal court shall discharge or acquit the accused, as the case may be and close such cases.

2(f) Where the cases pending in criminal courts under I.P.C. or any other law for the time being in force are punishable with imprisonment upto three years, with or without fine, and if such pendency is for more than two years and if in such cases trial have still not commenced, the criminal court shall discharge or acquit the accused, as the case may be, and close such cases.

3. For the purposes of directions contained in clauses (1) and (2) above, the period of pendency of criminal cases shall be calculated from the date the accused are summoned to appear in the court.

4. Directions (1) and (2) made hereinabove shall not apply to cases of offences involving:

(a) corruption, misappropriation of public funds, cheating, whether under the Indian Penal Code, Prevention of Corruption Act or any other statute;

(b) smuggling, foreign exchange violation and offences under the Narcotics Drugs and Psychotropic Substances Act;

(c) Essential Commodities Act, Food Adulteration Act, Acts dealing with Environment or any other economic offences;

(d) offences under Arms Act, Explosive Substances Act, Terrorists and Disruptive Activities Act;

(e) offences relating to the Army, Navy and Air Force;

(f) offences against public transquility;

(g) offences relating to public servants;

(h) offences relating to coins and Government stamp;

(i) offences relating to elections;

(j) offences relating to giving false evidence and offences against public justice;

(k) any other type of offences against the State;

(l) offences under the Taxing enactment; and

(m) offences of defamation as defined in section 499, I.P.C.

5. The criminal courts shall try the offences mentioned in Para (4) above on a priority basis. The High Courts are requested to issue necessary directions in this behalf to all the criminal courts under their control and supervision.

6. The criminal courts and all courts trying criminal cases shall take appropriate action in accordance with the above directions. These directions are applicable not only to the cases pending on this day but also to cases which may be instituted hereafter.

41.2. We have carefully perused the aforesaid directions from the point of view of speedy trial. The aforesaid directions laid down under para. 2(b), however, do not cover the offences which are compoundable without the permission of the Court. We feel that the scope of para. 2(b) be widened to cover all offences which are compoundable without the permission of the Court but which could not be compounded.

41.3. The directions given by the Supreme Court prima facie are applicable only to cases where trial has not commenced. It is a matter of common knowledge that even though trial has commenced but is still kept pending inordinately many a time without justifiable reasons. We are of the view that in such cases also some remedial measures on the same lines have to be evolved.

With reference to para. 2(b) of the direction, we feel that if the trial has commenced but not concluded then in such cases (under I.P.C.) which are compoundable without the permission of the Court or cases under any other law for the time being in force for offences punishable upto one year, are pending in the criminal courts for more than two years then the criminal court shall after hearing the public prosecutor and other parties represented before it or their advocates discharge or acquit the accused.

Likewise, where the cases under I.P.C. which are compoundable with the permission of the court or in cases under any other law for the time being in force for offences punishable up to three years are pending in the criminal courts for more than three years then the criminal court shall after hearing the public prosecutor and other parties represented before it or their advocates, discharge or acquit the accused as the case may be and dose such cases. The difference in approach adopted by us in the above categories of offences is necessitated in view of the minor nature of offences involved in the said categories without permission of the court.

41.4. Likewise, the directions under paras. 2(c), (d), (e) and (f) do not deal with the situation where the trials are commenced but not concluded within the period specified therein. In order to meet the situation the directions even under those paras. should be made applicable on the same lines to such cases where the trials are commenced but not concluded and delayed without justifiable reasons.

41.5. For the aforesaid purposes the trial shall be deemed to have commenced when the accused appears in pursuance to the summons/warrant issued by the court.

41.6. In computing the period in respect of the case pending trail after commencement but not concluded, the period of delay attributable on the part of the accused or his counsel shall be excluded.

41.7. We are of the opinion that the aforesaid directions should not be made applicable to cases where the accused has been convicted more than once or against whom more than one case is pending.

41.8. We have made the aforesaid suggestions in respect of cases where trial has commenced but not concluded and kept indefinitely in view of the fact that the direction given by the Supreme Court in common cause case (supra) would not apply to such cases. It is a matter of common knowledge that in such cases, the parties have to undergo greater stress and strain as they remain bound over or remanded to custody.

41.9. We are also of the view that these directions should be made applicable only to the pending cases and not in respect of the future cases which may be launched. However, in respect of the future cases there, should be a periodical review from time to time preferably every three years and on the lines laid down by the Supreme Court Legal Aid Case (supra) and also in Hussainara Khatoon, (1980) 1 81: (1980) 1 SCC 91: (1980) 1SCC 93: (1980) 1 SCC 98: (1980) 1 SCC 108 and (1980) 1SCC 115 and Hussainara Khatoon (VII) v. Home Secretary Bihar, (1995) 5 SCC 326.

42. In R.I. Upadhyay v. State of Andhra Pradesh, 1996 (1) Crimes 189 (SC), the Supreme Court emphasising the right to speedy trial guaranteed under Article 21 of the Constitution directed the State Govt. to nominate/designate ten Additional Judges to take up exclusively trial and decide long pending cases of murder within a period of six months. This is an important measure to be adopted wherever it is necessary,

43. Quit apart from the observations made above pilot projects have been undertaken in some States by utilising the services of Retd. District and Session; Judges to preside over the courts where backlog is heavy. Such pilet projects may be adopted for disposal of cases pending for more than two years. We also feel that crash programme for establishing such courts to deal with old cases have to be worked up in each State and put them into operation immediately. These steps, in our opinion, would reduce the arrears.



The Code of Criminal Procedure, 1973 Back




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