Chapter. 2 Speeding Up The Wheels Of Criminal Justice System: A Human Rights Approach “The wheel of justice, or the dharmachakra, is the logo of the Supreme Court of India, which depicts the 3rd Century BC lion capital built by Emperor Ashoka, with an inscription from the ancient and sacred Rig Veda, ‘yadho dharmasthadho jayah’, meaning ‘victory is where justice reigns’.” 1 Exploitation and domination by the powerful was a global phenomenon. And man’s urge for plundering resources and exploiting fellow beings brought the world community into war after war. The frequent wars brought with them untold miseries for the weak and the meek and the whole human race was in great turmoil. And it is only during such calamities as wars and disasters that man becomes aware of his existence and the need for peaceful coexistence and prosperity. The urge for peace prompted the people the world over to unite for world peace, as the alternative was the devastating destruction of the human race as a whole. It is interesting to note that it was after the world wars that the world community floated international bodies with the primary objective of achieving peace and prosperity. It was after World War I that the League of Nations was attempted to be established in 1920. Again it was after World War II that the United Nations was established in 1945. 2 It was after the establishment of the UNO that the efforts to have a declaration of human rights bore fruits. In 1948 the Universal Declaration of Human Rights came to be adopted by the General Assembly of the United nations. Every recital of the Preamble signifies the strong desire of the United Nations to achieve common understanding of human rights and freedoms by all 1 The logo was adopted on January 28, 1950, when the court was first set up in the Chamber of Princes, within the Parliament building in New Delhi, just two days after India became a republic. 2 . Criminal Justice Edited by Dr. K.I.Vibhute First Edition, 2004 p.n. 97
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Chapter. 2 Speeding Up The Wheels Of Criminal Justice System: A Human Rights Approach
“The wheel of justice, or the dharmachakra, is the logo of the Supreme Court of India,
which depicts the 3rd Century BC lion capital built by Emperor Ashoka, with an
inscription from the ancient and sacred Rig Veda, ‘yadho dharmasthadho jayah’,
meaning ‘victory is where justice reigns’.”1
Exploitation and domination by the powerful was a global phenomenon. And
man’s urge for plundering resources and exploiting fellow beings brought the
world community into war after war. The frequent wars brought with them
untold miseries for the weak and the meek and the whole human race was in
great turmoil. And it is only during such calamities as wars and disasters that
man becomes aware of his existence and the need for peaceful coexistence and
prosperity. The urge for peace prompted the people the world over to unite
for world peace, as the alternative was the devastating destruction of the
human race as a whole. It is interesting to note that it was after the world
wars that the world community floated international bodies with the primary
objective of achieving peace and prosperity. It was after World War I that the
League of Nations was attempted to be established in 1920. Again it was after
World War II that the United Nations was established in 1945.2
It was after the establishment of the UNO that the efforts to have a declaration
of human rights bore fruits. In 1948 the Universal Declaration of Human
Rights came to be adopted by the General Assembly of the United nations.
Every recital of the Preamble signifies the strong desire of the United Nations
to achieve common understanding of human rights and freedoms by all
1 The logo was adopted on January 28, 1950, when the court was first set up in the
Chamber of Princes, within the Parliament building in New Delhi, just two days after India became a republic.
2 . Criminal Justice Edited by Dr. K.I.Vibhute First Edition, 2004 p.n. 97
66
nations. The target of the Convention is the human race as a whole
irrespective of race, caste, creed, religion or region.
Article 3 declares3: ‘Everyone has the right to life, liberty and security of
persons.’ Article 5 states: ‘No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment.’ Article 8 declares:
‘Everyone has the right to an effective remedy by the competent national
tribunals for acts violating the fundamental rights granted him by the
constitution or by law.’ Article 9 stipulates: ‘No one shall be subjected to
arbitrary arrest, detention or exile.’
Article 10, 11 and 12 specifically address questions that are quite relevant for
our Criminal Justice System. Article 10 states: ‘Everyone is entitled in full
equality to a fair and public hearing by an independent and impartial
tribunal, in the determination of his rights and obligations and of any criminal
charge against him.’4
Article 11 lays down the fundamental principles of Anglo-Saxon
jurisprudence thus:
“(1) Everyone charge with a penal offence has the right to be presumed
innocent until proved guilty according to law in a public trial at
which he has had all the guarantees necessary for his defence.
(2) No one shall be held guilty of any penal offence on account of any act
or omission which did not constitute a penal offence, under national
or international law, at the time when it was committed. Nor shall a
heavier penalty be imposed than the one that was applicable at the
time the penal offence was committed.”
Article 125 has directed relevance to search and seizure. It lays down:
3 Universal Declaration of Human Rights,1948 4 Criminal Justice Edited by Dr. K.I.Vibhute First Edition, 2004 p.n. 98 5 Universal Declaration of Human Rights,1948
67
“No one shall be subjected to arbitrary interference with his privacy, Family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the
right to the protection of the law against such interference or attacks.”
The purpose of the Universal Declaration was setting of norms. They are
general obligations that could be used for creating public opinion and an
environment conducive to the development of legally binding norms.
In fact after the Declaration was made the General Assembly of the UN has
come up with the International Covenant on Civil and Political Rights and
International Covenant on Economic, Social and Cultural Rights in 1966. Both
came into force in 1976.
The various Articles in the International Covenant on Civil and Political
Rights echo the principles enunciated in the Universal Declaration of Human
Rights. It is heartening to note that most of the fundamental principles of
criminal jurisprudence are seen reflected in the various Articles.
While Article 6 speaks about right to life and the need for abolition of the
death penalty, Article 7 strongly prohibits employment of torture or cruel and
unusual punishment. Article 9 in its every word proclaims that there should
be no illegal arrest, illegal detention and the fundamental requirement of
producing the arrested before a judicial magistrate without delay. It also
speaks about the need for compensating the infraction of right to liberty.
Article 10 lays down that the persons who are lawfully denied liberty should
be treated with dignity. It also say that the aim of imprisonment should be
rehabilitation. Article 14 consists of a package of procedural rights for persons
accused of crime. Presumption of innocence is held sacrosanct under this
Article. This Article also embodies vital principles like the protection against
double jeopardy, appellate rights, right to compensation for illegal
punishment, etc. Article 15 constitutes principle against the retroactivity of
criminal provisions.
68
Generally speaking, the International Covenant on Economic, Social and
Cultural Rights does not directly deal with the criminal justice system. In fact
it urges upon member States to make the individual economically socially and
culturally strong.6
2.1 Criminal Justice System in India In India, the administration of criminal justice system follows the Anglo-
Saxon-adversarial pattern. It has four vital units, namely, the police,
prosecution, judiciary and correctional institutions. These components are
supposed to work in a harmonious and cohesive manner with close co-
ordination and cooperation in order to produce desired results more
effectively, fairly and quickly. Moreover, the success or failure of the
administration of criminal justice depends upon the efficacy of these allied
units.
However, it is a common perception that administration of criminal justice in
our country is deteriorating day by day and laymen are losing faith in the
entire system due to obvious reasons. It is, therefore, repeatedly felt that there
is an urgent need to review the entire criminal justice system, especially
investigation of crime by the police and the prosecuting machinery due to
which conviction rate are declining at a very rapid pace. This has also been
attributed to the lack of continuous and effective co-ordination amongst the
law enforcement agencies, i.e. the police, magistracy, judiciary an correctional
administration in general, and the police and prosecuting agencies in
particular.7
(a) Police and Prosecution
Police, being a front-line segment of the criminal justice system, have a very
vital role to play in providing justice to needy persons. They are the ones who
arrest culprits and assist courts in discharging their judicial functions
effectively. The police have to facilitate the courts for conviction of the real
6 Criminal Justice Edited by Dr. K.I.Vibhute First Edition, 2004 p.n. 99. 7 . Ibid p.n. 142.
69
culprits in order to maintain and enhance the faith of the people in the
administration of criminal justice.
It has been observed that the Code of Criminal Procedure, overhauled in 1973,
has widened the gap between two vital units, namely, the police and the
prosecution at the operational as well as organizational levels. This has led to
a state of frustration and ambiguity. It has also been considered a sorry state
of affairs in the sense that the police and the prosecution are two sides of the
same coin as the police functioning has a direct bearing on the success or
failure in the prosecution of criminal cases in courts. The police have a very
vital role in marshalling facts, while the prosecution has a very crucial role in
effective presentation of the facts before the courts during trial proceedings.
The National Police Commission, in its fourth Report, has also observed that
the ultimate success of police investigations depends upon the efficiency of
the prosecuting agencies in presenting the evidence in courts in a convincing
and effective manner. It calls for a good measure of cooperation and
interaction between the investigating officers and prosecutors.
It has been observed since long that in most of the States, police are facing
serious problems of proper coordination and cooperation with the
prosecution due to their casual approach in dealing with cases in the courts,
want of adequate follow-up action of cases on their part and also due to the
lack of proper legal advice available to the investigation officers on
complicated legal matters which come up during investigation. The
prosecuting officers are not properly scrutinizing charge-sheeted cases before
putting them in court for trial. Consequently, the defence in such cases takes
advantage of negligence on the part of the prosecuting agencies in securing
acquittals despite the facts on record indicating prima facie guilt. This is
evident from the official data which reveals that the conviction rate has been
constantly declining. The Law Commission of India in its 14th Report8 has
8. Law commission of India: Fourteenth Report : Reform of Judicial Administration
(Government of India, New Delhi, 1958
70
also pointed out that defective investigation, delayed investigation and
the lack of legal assistance at the investigation stages often result in
acquittal.9
IPC Cases For Investigation and their Disposal by Police10
necessary to grant further time to the prosecution to adduce
evidence beyond the aforesaid time limit.
(iii) But if the inability for completing the prosecution evidence within
the aforesaid period is attributable to the conduct of the accused in
protracting the trial, no court is obliged to close the prosecution
evidence within the aforesaid period in any of the cases covered by
clauses (i) to (iii).
(iv) Where the trial has been stayed by orders of the court or by
operation of aforesaid period for closing the prosecution evidence.
The present petition was filed by the Central Bureau of Investigation for
clarification (and also for some modification) of the above direction by stating:
(1) That the said directions are only prospective and
(2) That the time taken by the Court on account of its inability to carry
on day to day trial due to pressure of work should be excluded.
In Mahendra Lal Das V/s State of Bihar49 (Sethi, J.) The appellant who, at the
relevant time, was an Executive Engineer, Public Engineering Department,
Mechanical Division, Ranchi, has prayed for quashing of the FIR registered in
1988 against him under section 5 (2) read with section 5 (1) (e) of the
Prevention of Corruption Act 1947 wherein it was alleged that the appellant
was in possession of disproportionate assets to the extent of Rs. 50,600. The
FIR was sought to be quashed mainly on the ground that despite expiry of
over 12 years, the respondent State had not granted the sanction which
amounted to the violation of his right of life and liberty as enshrined in
Article 21 of the constitution of India. The petition, filed by the appellant, was
dismissed and the order impugned on the ground that mere delay in granting
the sanction has not prejudiced the appellant in any manner particularly
when he is already on anticipatory bail.
49 (2002) SCC 149
104
FIR in the Vigilance Thana Division and District, Patna, alleging that the
appellant while holding different posts during the years 1961-62 to 1982-83
acquired disproportionate assets by misusing his official position and
adopting corrupt means. During investigation, the appellant gave details of
his income and expenses, on the basis of which the Investigating Officer
concluded that the appellant was in possession of a huge amount as
unaccountable money. As no prosecution was launched against him appellant
till the year 2000, he moved the High Court for quashing the proceedings and
his prayer was rejected vide the order impugned.
It is true that interference by the court at the investigation stage is not called
for. However, it is equally true that the investigating agency cannot be given
the latitude of protracting the concluding of the investigation without any
limit of time. Supreme Court in Abdul Rehman Antulay V/s R.S. Nayak while
interpreting the scope to Article 21 of the constitution held that every citizen
has a right to speedy trial of the case pending against him. The speedy trail
was considered also in public interest as it serves the social interest also. It is
in the interest of all concerned that guilt or innocence of the accused is
determined as quickly as possible in the circumstance; The right to speedy
trial encompasses all the stages namely stage of investigation enquiry trial
appeal, revision and retrial. While determining the alleged delay the court has
to decide each case on its facts having regard to all attending circumstance
including nature of offense number of accused and witnesses, the work load
of the court concerned prevailing local conditions etc.
Every delay may not be taken as causing prejudice to the accused but the
alleged delay has to be considered in the totality of the circumstance and the
general conspectus of the case. Inordinate long delay can be taken as a
preventive proof of prejudice.
105
2.3 International Perspectives
The Covenant on Civil and Political Rights, 1966 recognizes the right of the
accused to be tried without undue delay. Article 149 (3) (a) of the covenant
states as follows:
“In the determination of any criminal charge against the accused, everyone
shall be entitled to the following minimum guarantees in full equality:
(a)……………
(b)…………...
(c) To be tried without undue delay”
On account of having ratified the covenant, India, like other signatories to the
Covenant, assumed a legal obligation to enforce the international
commitment.
The concept of speedy trials is also enshrined in Article 3 of the European
Convention on Human Rights.
Everyone arrested or detained……shall be entitled to trial within a reasonable
time or to release pending trial.”
(a) United States Of America
In U.S. the right to speedy trial is guaranteed by the constitution. Sixth
Amendment to the American Constitution provides as follows:
“In all criminal prosecutions, the accused shall enjoy right to a speedy and
public trial, by an impartial jury.”
In pursuance of this guarantee Speedy trial Act was enacted in 1974. The
object of the Act as state in its introduction is to assist in reducing crime and
danger of recidivism by requiring speedy trials and by strengthening the
supervision over persons released pending trial and for other purposes50. The
primary focus of the Act was not concretization of the guarantee provided in 50 Bridges George S., “The Speedy Trial Act of 1974: Effects of Delays in Federal Criminal
Litigation”, (1982) 73 j, Crim. L. & C. p. 50.
106
the constitution, but reduction in crimes committed by the defendants. The
Speedy Trial Act thus introduced the concept that a public right to speedy
trial exists independent of accused’s sixth amendment rights.
Opinions have been expressed by a number of scholars with regard to the
effect of the statute in ensuring speedy justice. Julie Vennard pointed out that
limits eliminated “stalling strategies” on the attorneys; both prosecutors and
defense counsels undertake more rigorous investigation and preparation of
their cases and it also led to a variety of favorable developments in court
administration51. George Bridges compliance during the implementation
opines that improvements in compliance during the implementation wee
partly realized through application of the Act’s provision for excluded time;
courts and litigants therefore achieved less with respect to the speedy trial
goal52.
The scope of the right to speedy trial and consequences thereof has been
considered by the Supreme Court of America in a number of cases. It is thus
desirable to study some of the landmark cases. In Barker v. Wingo53 the court
laid down what came to be known as the balancing test. The court observed
that the balancing act requires the conduct of both the prosecution and the
defendant to be weighted.
The court identified some of the factors which they should assess in
determining whether a particular defendant has been deprived of his right or
not. The four factors to be identified are as follow: length of delay, the reason
for the delay, the defendant’s assertion of his right and the prejudice to the
defendant. In United States v. Anderson54, the court held that only a reasonable
delay on account of a missing witness will be considered appropriate; a
criminal prosecution cannot be left pending indefinitely because of the
disappearance of the witness. Other justified causes for delay are the
51 Vennard, Julie, “Court Delay and Speedy Trial Provisions”, 1985 Crim. L.R. p. 73 52 Op. cit. Vennard Juile, “Court Delay and Speedy Trial Provisions”, 1985 Crim. L.R. p. 77. 53 33 L Ed 2d 101. 54 471 F. 2d 201 (5th Cir. 1973).
107
incompetence of the accused said Supreme Court in United States exrcl. Little v.
Twomeny55. In Strunk v. United States56 it was held that an accused’s right to a
prompt inquiry into criminal charges is fundamental and the duty of the
charging authority is to provide a prompt trial. In this case the court was of
the opinion that the accused’s right to speedy trial was denied but without
quashing the charges it directed merely that the sentence awarded to the
accused should be reduced by the period of unconstitutional delay.
(b) United Kingdom
In England, the right of the accused to expeditious trial found its first
expression in the Habeas Corpus Act. 1679. Section 6 of the Act provided for
release on bail or discharge of persons detained on accusation of high treason
or felony in the courts of Sessions, if indictment could not take place in the
second term after committal57. Assizes Act, 1889 and Magistrate’s Court’s
Act, 1952 limit pre-conviction custody of the accused. Some steps to regulate
and limit the actual duration of the prosecution process was made in the
Crown Court Rules and Indictment Rules, which are statutory regulations,
issued if 1982 and 1983. Under these rules, the bill of indictment is to be
prepared within 28 days of committal and the trial is to commence within 8
weeks of committal. Both these limits may be extended by the court.
Section 22 of the Prosecution of Offenders Act, 1985 enables the Secretary of
State to prescribe custodial and overall time limit, in respect of preliminary
stages of trial. “Preliminary Stage” means, in crown court, proceedings prior
to taking of evidence for the prosecution58.
The actual time limit has to be prescribed by the Secretary of State through
delegated legislation. The consequence of non-adherence to overall time limits
55 477 F. 2d 767 (7th Cir. 1973). 56 37 L Ed 2d 56. 57 Pai, Mahesh T., “Delay in Criminal Justice System: Common Cause Evaluated: 1996
(Sept-Dec) 20 C.U. L.R. p. 400. 58 Prosecution of Offences Act, section 22 (11).
108
is acquittal.59 According to the provisions now in force, the maximum period
of custody between the accused’s first appearance and the commencement of
the summary trial is 56 days.60 While in case of offences triable on indictment
exclusively, the maximum period of custody between the accused’s fist
appearance and the time when the court decides whether or not to commit the
accused to the Crown Court for trial is 70 days.61
The Privy Council, while dealing with the question of delay in trial expressly
affirmed the principles laid down by the Supreme Court of the America in
Barker v. Wingo.62 In Bell v. Director of Prosecution, Jamica,63 the Privy Council
expressed the desirability of applying the same criteria as laid down in Barker
v. Wingo64 to any constitution, written or unwritten, which protects an
accused from oppression by delay in criminal proceedings.
(c) Indian Scenario
The Constitution of India imposes restrictions on the attention of any person
by the police beyond 24 hours without the authority of a magistrate. Article 22
(2), which imposes such restriction, thus seeks to prevent illegal detention of
people and ensure a prompt action on the part of police. Besides imposing
this restriction at the stage when an accused, for the first time, comes in
contact with the criminal justice system. It does not explicitly provide for
expeditious conduct of subsequent proceedings. But this requirement has
been read as implicit in Article 21 of the constitution. Article 21 of the
Constitution provides as follows:
“No person shall be deprived of his life or personal liberty except according to
procedure established by law”.
59 Halsbury laws of England, 4th ed., reissue vol. 11(2) para 855. 60 Ibid. 61 Ibid. para 852. 62 Supra n. 4. 63 (1985) 2 All ER 585. 64 Supra n.4.
109
(i) Statutory Provisions
The procedure for criminal trial as provided in The Code of Criminal
Procedure lays down a number of provisions aimed at curtailing the delay in
the investigation and trial of offences. Section 157 (1) of Cr. P.C. requires the
officer-in-charge of a police station to send forthwith the report of the
commission of an offences to the concerned magistrate. Perusal of section
167(1) Cr. P.C. indicates that the investigation is expected to be completed
within 24 hours of arrest of the accused. In case it appears that the
investigation cannot be completed within 24 hours and the allegation against
the accused is well founded, the investigation officer has to forward the diary
entries along with the accused to the magistrate in order to seek further
custody of the accused by 15 days, which can further be extended to 60 or 90
days depending upon the gravity of offence.65 The accused becomes entitled
to be released on bail on the expiry of the period of 60 or 90 days as the case
may be.
If in a case triable by a magistrate as a summons case, the investigation is not
conclude within six months from the date on which the accused was arrested
the magistrate is required to stop further investigation into the offences66. The
investigation is allowed to go on beyond six months only if the investigation
officer satisfies the magistrate that for special reasons and in the interest of
justice the continuation of investigation is necessary.67
Certain state governments, particularly the government of West Bengal have
amended section 167 to the effect that if investigation is not completed within
the prescribed time fame, the magistrate will not take cognizance of such
offences.
Section 173 (1) of Cr. P.C. requires the police officer to complete the
investigation “without unnecessary delay” and forward the report to the
65 The Code of Criminal Procedure, 1973, section 167 (2), 66 The Code of Criminal Procedure, 1973, section 167 (5). 67 Ibid.
110
magistrate “as soon as it is completed”. Further section 207 requires that a
copy of documents like the police report, F.I.R., statements recorded u/s 161
(3) except those portions for which request for exclusion is made, confessions
and statements u/s 164 or any other documents or relevant extract thereof is
to be given free of cost to the accused “without delay”. Section 208 requires
that where, in a case instituted otherwise than on a police report, it appears to
the Magistrate issuing process under section 204 that the offence is triable by
the court of session the Magistrate shall without delay furnish to the accused
free of cost, a copy of statements and confession recorded under sections 200,
202, 161 or 164 of the Code of Criminal Procedure 1973.
All the abovementioned provisions in Cr.P.C. pertain to the stage of
investigation into an offence. These provisions, besides laying down in broad
terms, , certain limits subject to which investigation is to be carried out, also
put limits upon detention pending investigation. Section 468 Cr. P.C. also in a
way impose a time limit for completion of investigation as it debars courts
taking cognizance of certain minor offences after expiry of certain period of
limitation68. Section 469 marks that the period of limitation commences from
the date of offence, or the first on which such offence comes to the knowledge
of aggrieved person.
Section 309 of Cr. P.C mandates expeditious conduct of trial. In particular it
requires that when the examination of witnesses has once begun, the same
shall be continued from day-to-day until all the witnesses in attendance have
been examined, unless the court finds the adjournment of the proceeding
beyond the following day to be necessary for reasons to be recorded. Thought
the Code recognizes the power of the court to adjourn the proceedings from
time to time after the cognizance of the offence is taken or after
commencement of the trial after recording reasons for doing so69, yet it
68 The period of limitation prescribed in section 468 Cr. P.C. is as follows: Six months, if the
offence is punishable with fine only; One year if the offence is punishable with imprisonment for a term not exceeding one year; Three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
69 The Code of Criminal Procedure, 1973 section 309 (2).
111
provides that when witnesses are in attendance, no adjournment or
postponement shall be granted, without examining them, except for special
reasons to be recorded in writing70, No adjournment is to be granted for the
purpose only of enabling the accused person to show cause against the
sentence proposed to be imposed on him71. Further the terms on which an
adjournment or postponement may be granted include, in appropriate cases,
the payment of costs by the prosecution or the accused72.
Section 437 (6) of the code provides that if the trial of a person accused of a
non bailable offence is not concluded within a period of sixty days from the
date fixed for taking evidence, such person is to be released on bail if he is in
custody.
In addition to this provision which directly provides for expeditious conduct
of trial, there is another provision which aim at achieving the same end e.g.
section 353 (1) provides that the judgment in every trial in every court of
original jurisdiction shall be pronounced in open court by the presiding
officer immediately after the termination of the trial or at some subsequent
time of which notice shall be given to the parties or then-pleaders. Thus the
provision clearly requires the judgment to be pronounced soon after the
completion of the trial so that there is no delay in the pronouncement of the
same.
The perusal of these provisions enshrined in Cr. P.C. thus indicates that the
code does impose certain checks on the time that is taken by the investigating
authority to complete investigation and also contains direction for the
purpose of speedy completion of criminal trials.
(ii) Judicial Pronouncements
The deep rooted malady of violation of human rights of the victims as well as
the accused has been brought to the notice of the Apex Court in piece-meal
manner and the apex Court has also given appropriate directions to the
Government for protection of human rights of the aggrieved party in various
judicial pronouncements. The Apex Court cannot remain oblivious of the
social needs and requirements for protection of human rights of all concerned
by restoring the credibility of the criminal justice system73. It is really the
poor, starved and mindless millions who need the court’s protection for
securing to themselves the enjoyment of human rights74.
The fundamental rights guaranteed in Part III of the constitution of India
cover substantially the wide spectrum of rights enshrined in U.N. Charter and
International Covenants to which India is a signatory. The right to life, liberty
and security of person guaranteed in International Treaties (Article 3 of
Universal Declaration of Human Rights, 1948; Articles 6 & 9 of International
Covenant on Civil and Political Rights, 1966), is enforceable as fundamental
rights under Article 21 of the Indian Constitution. The right to speedy trial
incorporated in International Covenant was not protected as a fundamental
right under the Constitution till Justice P.N. Bhagwati75 in his judicial activism
and zeal to humanize criminal jurisprudence, pointed out that speedy trial
was implicit in broad sweep content of Article 21 of the constitution. The logic
behind recognizing speedy trial as the fundamental right was that the
inordinate delay in trial of criminal cases was responsible for gross denial of
justice to the under trial prisoners and as such the procedure which denied
speedy trial to the accused could not be just, fair and reasonable. The court
proceeded further to hold that the court could enforce this right by issuing
necessary directions to the state to fulfill its obligation to ensure this right to
the accused, and that the state could not be permitted to deny this human
right on the ground that the state had no adequate financial resources. The
Supreme Court has expanded the scope of human rights by a plethora of
judicial pronouncements. By land mark judgment in Francis Coralie Mullin’s 73 S.K. Awasthi and R.P.Kataria; Law relating to protection of human rights, millennium
Ed. (2000) p. 791. 74 Keshvanandi Bharti v. State of Kerala, 1973 SC 1461. 75 Article 14 of International Covenant on Civil and Political Rights,1966.
113
case76 the Supreme Court has held that the right to life protected under Article
21 of the Constitution cannot be restricted to mere animal existence, but it also
includes within its broad matrix the right to live with basic human dignity.
According to the Law Commission of India77, a criminal case should be
disposed of within Six months from the date of filing police report or
complaint. There may not be a single criminal court in the country where the
human rights of the accused for speedy trial have not been violated.
The trial judge is the lynchpin of our judicial system. The trial judge who is
shaky in professional understanding, imperfect in moral resolution and
undue conciliatory in personality will inevitably be over-powered and
overborne by aggressive and strong willed lawyers. The Law Commission has
reiterated bright young law graduate in judiciary by all India competitive
examination train them and give them pay scales and amenities of Indian
Administrative Services and promotional avenue up to the highest court of
the country78.
Expeditious administration of criminal justice can avoid the problem of huge
arrears and heavy backlog of pending file in various courts of the country.
Long delay has also the effect of defeating justice in some cases. As a result of
such delay the possibility can not be ruled out of loss of important evidence
because of the fading of memory or death of witness. It has also the effect of
defeating justice in some cases.
Hon’ble Justice K.T.Thomas and Justice R.P.Sethi of Apex Court, observed,
“Witnesses tremble on getting summons from courts in India, not because
they fear examination or cross-examination in the courts but because of the
fear that they might not be examined at all for several days. It is high time that
the trial courts should regard witnesses as guests invited for helping such
courts with their testimony for reaching judicial findings. 76 Francis Coralie Mullin v. Union Territory of Delhi, (1981) 1 SSC 608 : 1981 Cr.LJ 212. 77 17th Report of Law Commission of India, Page 49, Nov. 1978 78 14th Report of Law Commission of India, Vol. 1, P.181-185 (Sep. 1958); 78th Report of
the Law Commission of India (Nov. 1986).
114
All judicial officers should be vigilant enough in carrying out the order of the
Hon’ble Apex Court that a witness if present must be examined on that day.”
Former Chief Justice of India Justice S.P.Bharucha blamed various state
governments for pendency in cases, said- “The states are not interesting in
spending money on the judiciary as litigant were not vote bank for them. The
states were under an obligation to secure justice for citizens which was most
often breached. This was evident from the strength of prisons which are
already over crowded with under trials awaiting justice.”
Prof. Upendra Baxi stated, that the delay in administration of criminal justice
also affected the jail. He said the size of under trial prisoners in many states
normally more than double the population of convicts undergoing
punishment. In some states people have under trial for periods exceeding four
to ten years, affecting of punishment in cases of eventual conviction is no
answer to the problem.
Justice V.S. Malimath, the Chairman of the committee on reforms of criminal
justice system has said, “The long delays in deciding the cases by court and
poor rate of conviction are contributing to an increase in crimes. The maladies
of criminal justice system were inordinate delay in disposal of cases and poor
rate of conviction. As a result crime has become a profitable business.”
The Paramount purpose of criminal justice is the protection of innocent and
punishment to the offenders. A victim for securing this end has to come to
criminal courts. But prolonged pendency of cases has created an
insurmountable barrier in the dispensation of criminal justice. This has cast a
serious repercussion on the public at large. They had lost their faith in the
present system of criminal justice administration. Huge numbers of criminal
cases pending for years together are creating unbearable mental and
economic pressure on the litigant of criminal justice system.
It is of paramount importance to reform the problem of delay at the earliest
and provide justice to citizens of this country in a reasonable time. It is
imperative so that the faith of the society in the justice delivery system can be
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maintained. In a country like ours where people consider, the judges only
second to God, efforts should be made to strengthen that belief of common
man. Delay in disposal of cases facilitates the people to raise eyebrows some
time genuinely which, if not checked, may shake the confidence of the people
in the judicial system. A time has come when the judiciary itself has to assert.
For preserving its stature, respect and regards for the attainment of the rule of
law. For the people, of a few, the glorious and glittering name of the judiciary
can not be permitted to be made ugly. It is the policy and purpose of the law,
to have speedy justice for which efforts are required to be made to come to the
expectations of the society of ensuring speedy untainted and unpolluted
justice79.
The Indian Criminal Justice System is expected to provide the maximum
sense of security to the people at large and deal with crimes and criminals
effectively, quickly and legally. The entire existence of the orderly society
depends upon speedy justice as prolonged trial causes untold harassment to
the victims, accused, and witnesses and in turn to the society at large. For a
victim, one can imagine the suffering if the accused is acquitted after
inordinate delay. Many a times inordinate delay contributes to acquittal of
guilty persons either because the evidence is lost or because of lapse of time
or the witnesses do not remember all the details or do not come forward to
give evidence due to threats, inducement or sympathy. On the other hand, for
the accused, undergoing trial and languishing in jail for years pending trial
can itself be a harrowing experience. In this whole process, trauma faced by
the witnesses to come to the court for deposition from time to time can not be
undermined. Prolonged trials also result in fading away of memory of these
witnesses. Speedy trial though recognized as an essential feature of right to
fair trial has so far remained a distant reality in our criminal justice system.
Speedy justice is an assurance extended to a citizen under the ambit of “right
to life” guaranteed under Article 21 of our Constitution. It is the best way to
79 Anil Rai v. State of Bihar AIR 2001 S.C. 3173.
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restore peoples’ faith in the administration of justice and in the rule of law.
Delay is always known defense tactics. We can not ignore the fact that it is
usually the accused who is interested in delay the proceedings since the
burden of proving the guilty of the accused lies upon the prosecution. Delay
ordinarily prejudices the prosecution. In many cases the prosecution also
delayed the proceedings.
The courts’ concern about the problem of delay in trial finds reflection in their
judgments. In Agha Nazar Ali Sultan Mohammed v. Emperor80, the court
ordered.
“The trial of this case, the delay of which is now beyond all reason, must be continued
by the magistrate from day to day…………..”
The court again in Mahander v. State of Hyderabad81, the Supreme Court refused
to remand the case back to the trial court for fresh trial because of delay of five
years between the commission of the offence and the final judgment of
Supreme Court. In its judgment the court observed:
“We are not prepared to keep persons-who were on trial for their lives till indefinite
suspense because trial judges omit to do their duty………..we have to draw a nice
balance between conflicting rights and duties…………..while it is incumbent on us to
see that the guilty do not escape, it is even more necessary to see that persons accused
of crimes are not indefinitely harassed………… while every reasonable latitude must
be given to those concerned ‘with the detection of crime and entrusted with
administration of justice, limits must be place on the lengths to –which they may go.”
In Veerabadran Chettiar v. E.V. Ramaswami Narcker82 the Supreme Court
reversed the concurrent finding on the basis of which the trial court had
refused to take cognizance of the complaint but still did not allow the matter
to proceed on the ground that it had become “Stale”. In Chajoo Ram v. Radhey
80 AIR 1958 SC 1032. 81 AIR 1971 SC 1367. 82 (1972) 3 SCC 504.
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Shyam83 delay in trial was one of the factors on the basis of which the court
dropped the further proceedings. In State of Uttar Pradesh v. Kapil Deo Shukla84
though the court found the acquittal of the accused unsustainable, it refused
to order a remand or direct a trial after a lapse of 20 years.
The Apex Court in Hussainara Khatoon vs. Home Secretary, State of Bihar85
proved to be a high water marks in the development of speedy trial
jurisprudence. A writ of habeas corpus was filed on behalf of men and
women languishing in jails in the state of Bihar awaiting trial. Some of them
had been in jail for a period much beyond what they would have spend had
maximum sentence been imposed on them for the offence of which they were
accused. Alarmed by the shocking revelations made in the writ petitions and
concerned about the denial of the basic human rights to those “victims of
callousness of the legal and judicial system”, Supreme Court went on to give a
new direction to the Constitutional jurisprudence. In doing so the court
heavily relied on its decision in an earlier case in which the court gave a very
progressive interpretation to Article 21 of the Constitution. Article 21 confers
a fundamental right on every individual not to be deprived of his life or
personal liberty except according to procedure established by law. The Court
in Maneka Gandhi v. Union of India86 held that such procedure as required
under Article 21 has to be “fair, just and reasonable” and not “arbitrary,
fanciful or oppressive”. Taking this interpretation to its logical end, Bhagwati
J., in Hussainara’s case said
“………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
83 (1980) 1 SCC 81. 84 (1978) I SCC 248. 85 (1979) I.S.C.R. 514-15; See also H.M. Seervai; Constitutional law of India, 4th edi. Vol. p.
1167. 86 (1978) 1 SCC248.
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it would fall foul of Article 21. Thee 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”
Bhagwati J, also added that the state cannot be permitted to deny the
constitutional right to speedy trial on the ground that the state has no
adequate financial resources to incur the necessary expenditure needed for
improving the administrative and judicial apparatus with a view to ensuring
speedy trial. As far as the question of consequences of violation of the right to
speedy trial is concerned, it was raised but left unanswered by the court.
In Charles Sobhraj v. Supt, Centrl jail, Tihar87, The Krisna Iyer while repeating
the judgment pronounced in Batra’s case observed: “whenever Fundamental
rights are flouted or Legislative protection ignored, to any prisoner’s
prejudice, this courts writ will run, breaking through stone walls and iron
walls, to right the wrong and restore the rule of law. Then the parrot cry of
discipline will not deter security, will not scare, discretion, will not dissuade
the judicial process”.
In T.V. Vatheeswaran v. State of Tamil Nadu88 the court again reiterated the
significance of the right to speedy trial. In S. Guisus v. Grindlyas bank Ltd.89, the
accused persons were acquitted by the trial court whereupon an appeal was
filed before the High Court which allowed it after a period of six years and
remanded the case for retrial. Reversing the decision of the High Court, The
Supreme Court held that the pendency of criminal appeal for six years before
the High Court is itself a regrettable feature of this case and a fresh trial nearly
seven years after the alleged incident is bound to result in harassment and
abuse of judicial process.
87 (1981) 1 SCC 85. 88 (1986) 3 SCC 632. 89 Supra n. 32.
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The Court in Sheela Barse v. Union of India90, addressed the question left
unanswered in Hussainara’s case and held as follows:
“The right to speedy trial is a right implicit in Article 21 of the Constitution
and the consequence of violation of this right could be that the prosecution
itself would be liable to be quashed on the ground that it is in breach of the
fundamental right”.
This case specifically deal: with the procedure to be followed in mattes where
accused was less than 16 years of age. The court held that where a juvenile is
accused of an offence punishable with imprisonment of 7 years or less,
investigation was to be completed within 3 months of the filing of F.I.R or else
the case was to be closed. Further all proceedings in respect of the matter had
to be completed within further six months of filing of the charge-sheet.
Rakesh Saxena v. State through C.B.I.91, the court quashed the proceedings on
the ground that any further continuance of the prosecution after lapse of more
than six years is uncalled for. In Sinivas Gopal v. Union Territory of Arunachal
Pradesh92, the court quashed the proceedings against the accused on the
ground of delay investigation and commencement of trial. In T.J. Stephen v.
Parle Botling Co. (P) Ltd.93, the court disallowed recommencement of the
prosecution after a lapse of twenty years on the ground that it would not be in
the interest of justice.
On the basis of the test laid down in State of Maharashtra v. Champalal Punjaji
Shah94 the court in Diwan Naubat Raj v. State through Delhi Administration95,
refused to quash the proceedings as it found that the accused himself was
mainly responsible for delay of which he was complaining.
In every case, where right to speedy trial is alleged to have been infringed, the
first question to be put and answered is who is responsible for the delay? 90 (1986) 3 SCC 596: 1986 SCC (Cri.) 337. 91 1988 Supp SCC 458. 92 Supra n. 36. 93 (1989) 1 SCC 297. 94 (1990) 2 SCC 3440. 95 (1992) 1 SCC 225.
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Proceeding taken by either party in good faith, to vindicate their party in
good faith, to vindicate their rights and interest, as perceived by them, cannot
be taken as delaying tactic nor can the time taken in pursuing such
proceedings be counted towards delay.
While determining whether undue delay has occurred one must have regard
to all the circumstances, including nature of offence, number of accused and
witnesses, the workload of the court concerned, prevailing local conditions
and so on.
Accused’s plea of denial of speedy trial cannot be defeated by saying that the
accused did at no time demand a speedy trial. The court has to balance and
weigh the several relevant factors-balancing test-and determine in each case
whether the right: of speedy trail has been denied in a given case.
Charge or conviction is to be quashed if the court comes to the conclusion that
right to speedy trial of an accused has been infringed. But this is not the only
course open. 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 is
not concluded or the sentence where the trial has concluded-as may be
deemed just and equitable in the circumstances of the case. It is neither
advisable nor practicable to fix any time limit for trial of offences. Not fixing
any such outer limit in effectuates the guarantee of right to speedy trial.
An objection based on denial of right to speedy trial and for relief on that
account should fist 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
be disposed of on a priority basis. The Supreme Court has laid down great
importance on speedy trials of criminal offences and has emphasized:
“It is implicit in the broad sweep and content of Article 2115. A fair trial
implies speedy trial. No procedure can be reasonable, fair or just unless that
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procedure ensures a speedy trial for determination of the guilt of such
persons.”
The Supreme Court has observed:
“No procedure which doesn’t 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 is an integral and essential part of the Fundamental Right to Life
and Liberty enshrined in Article21”
The Supreme Court has emphasized and re-emphasized this preposition
again and again. In Kartar Singh v. State of Punjab96, the court has observed:
“The Concept of speedy trial is read into Article 21 as an essential part of the
Fundamental Right to Life and Liberty guaranteed and preserved in our
Constitution. This right to speedy trial begins with the actual restraint
imposed by arrest and consequent incarceration and continues at all stages,
namely, the stage of investigation, enquiry, 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 averred”
The guidelines laid down in Antualy’s case were adhered to in a number of
cases which came to be considered by the court subsequently. But a different
note was struck in “Common Cause” a registered society through its director v.
Union of India97. In this case the court directed release of under trials on bails if
the trials on bail if the trial is going on for a certain period and the accused has
been in prison for a certain period of time. It also directed acquittal or
discharge of an accused where for an offence punishable with imprisonment
for a certain period, the trial had not begun even after a lapse of the whole or
2/3rd of that period. But the court excluded certain economic and other
offences from its application those cases where the pendency of criminal