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Report No. 268

D. Right to speedy and fair trial

2.22 The right to a speedy trial can be said to be an extension of right to liberty, security and protection against arbitrary detention and a precursor to the right to be presumed innocent until proven guilty. This right is ubiquitous and is not conditioned on any request or invocation of such right by the accused person. Such accused is entitled to be produced before the Court without undue delay in order to enable the court to determine whether the initial detention is justified and whether the accused must be released on bail.

Both the ICCPR and the ECHR provide that, releasing the accused on reasonable bail is the remedy for failure to decide upon charges in an expeditious manner.56 In addition, Article 9 (3) of the ICCPR states that a detained person shall be brought before the authorities promptly, and that the general rule is not detention. The US Supreme Court has considered right to speedy trial within strict scrutiny, as it has prescribed for the dismissal of the charges with prejudice as the ordinary remedy for the violation of this right.57

2.23 In Hussainara Khatoon v. Home Secretary, State of Bihar58, the Supreme Court ordered the release of under trial prisoners whose period of incarceration had exceeded the maximum period of imprisonment for their offences pointing towards the failure of Magistrates to respect section 167 (2) Cr.P.C. which mandates for the release of the under trial prisoners on the expiry of 60- 90 days respectively. Justice Bhagwati on the issue of right of speedy trial observed that the under-trial prisoners languish in jail because they were downtrodden and poor, and not because they are guilty. In Abdul Rehman Antulay v. R.S. Nayak59, the Supreme Court laid down guidelines for speedy trial for all the courts in the country:

  • Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in favor the accused to be tried speedily. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in such circumstances;
  • Right to speedy trial flowing from Article 21 encompasses all the stages namely the investigation, inquiry, trial, appeal, revision and re-trial;
  • The accused should not be subjected to undue or unnecessary detention prior to his conviction;
  • The worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal;
  • Undue delay may 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; and
  • However, it cannot be ignored that it is usually the accused who is interested in delaying proceedings. Delay is a known defense tactic. Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Moreover, non-availability of witnesses, disappearances of evidence by lapse of time, work against the interests of prosecution.

2.24 Thus, in relation to bail, the guarantee of speedy trial serves many objectives- provides protection against oppressive pre-trial detention; relieves the person accused of an offence of the anxiety and public suspicion due to unresolved criminal charges, protects against the risk of loss of evidence, and enables such accused to defend himself.60A bail inquiry is a judicial process that has to be conducted impartially and judicially and in accordance with statutory and constitutional prescripts.61Paucity of funds or resources is no defence to denial of right to justice emanating from Articles 21, 19 and 14 and the Directive Principles of State Policy- Article 39A.62

The basic objectives traditionally ascribed to the institution of bail, is to ensure the presence of the person accused of an offence at trial while maximising personal liberty in accordance with the principles of the constitution.63The Cr.P.C. and other legislations must be amended to reflect these constitutional mandates while ensuring that justice and initiatives to prevent crime are not diluted.

Amendments to Criminal Procedure Code, 1973 - Provisions relating to Bail Back

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