The State, Appellant V. Maksudan Singh And Others,
Respondents.
DATE : 13-08-1985
1985-(091)-CRLJ -1782 -PAT
JUDGE(S) :
P S Sahay
S S Sandhawalia
S Shamsul Hasan
PATNA HIGH COURT (FULL BENCH)
JUDGMENT
S. S. SANDHAWALIA, C.J. (Majority View) :- Is the constitutional
right of the accused to a speedy and public trial in all criminal
prosecutions now flowing from Art. 21 of our Constitution, by
virtue of precedential mandate, identical in content with the
express constitutional guarantee inserted by the Sixth Amendment
in the American Constitution ? What is the inevitable legal consequence
if the accused person is denied this constitutional right ? Would
American precedents on the Sixth Amendment be attracted and applicable
in this context in India as well ? Would inordinately long and
callous delays in concluding a criminal trial on a capital charge
by the prosecution be per se prejudicial to the accused ? These
are the significant questions which have come to the fore in this
reference to the Full Bench. Primarily in issue is a frontal challenge
to the reasoning and ratio of the Division Bench judgment in State
of Bihar v. Ramdaras Ahir, 1984 BBCJ 749 : (1985 Cri LJ 584).
2. For the determination of the pristinely legal issues aforesaid,
it is unnecessary to delve deeply into the facts at this stage.
Suffice it to mention that the State of Bihar has brought the
Government Appeal against twenty respondents who were all brought
to trial on the capital charge of murder, conspiracy, unlawful
assembly and other allied and minor offences. The alleged occurrence
admittedly took place more than 14 years ago on the 26th April,
1971. After a protracted investigation and trial extending beyond
5 years, the learned Additional Sessions Judge, Chapra, rendered
an exhaustive judgment running into 120 typed pages on the 31st
of August, 1976. Thereby eight of the accused persons were given
the benefit of doubt and were acquitted of all charges. Further,
Rabindra Singh, respondent, who was held guilty on the substantive
charge of murder under S. 302 I.P.C. was sentenced to rigorous
imprisonment for life. The remaining eleven accused persons who
were charged for vicarious liability for murder were found guilty
of causing simple hurts and rioting, etc. only and sentenced to
various terms of imprisonment and fine. As noticed above, the
State of Bihar brought the Government Appeal under S. 378 of the
Cr.P.C., 1973 against the acquittal of the accused respondents,
which was dismissed in limine qua Raghubansh Singh, Bishwanand
Singh and Mohan Prasad Singh, and admitted as regards others way
back on 1st of December, 1976. However, this appeal as also the
appeals preferred by the accused persons against their conviction
did not reach a hearing till eight years thereafter in the month
of September, 1984.
3. Before the Division Bench, Mr. Rash Behari Singh, the learned
Counsel appearing on behalf of the respondents, took up a preliminary
objection that the Government Appeal against acquittal qua some
of the accused respondents was not maintainable in view of Division
Bench judgment in Ramdaras Ahir's case (1985 Cri LJ 584) (supra)
because of the grave delay of more than 14 years from the date
of occurrence on the 26th of April, 1971. However, learned counsel
for the appellant State challenged the correctness of the ratio
in Ramdaras Ahir's case, and in view of the importance of the
issue the Division Bench issued notice to the Advocate-General
as well. On behalf of the appellant reliance was placed on State
of Maharashtra v. Champalal Punjaji Shah, AIR 1981 SC 1675 : (1981
Cri LJ 1273), Sher Singh v. State of Punjab, AIR 1983 SC 465 :
(1983 Cri LJ 803) and A. K. Roy v. Union of India, AIR 1982 SC
710 : 1982 Cri LJ 340. In view of the significant constitutional
and legal issues involved, the Division Bench has referred the
case to a larger Bench for an authoritative adjudication.
4. Ere I come to grips with the individual issues requiring adjudication,
it is apt to clear the decks for the background against which
these have now to be examined. As appears from the above, the
basic issue herein is the challenge to the ratio in Ramdaras Ahir's
case (1985 Cri LJ 584) and the necessary corollaries thereto.
It becomes necessary therefore to examine what precisely has been
laid down in the said judgment and within what limitations. This
cannot be better done than by noticing the undermentioned words
of the Division Bench itself :
"Before parting with this judgment, even at the risk of some
repetition, it seems necessary to point out, for clarity of precedent,
that the aforesaid discussion must not be viewed as any "general
dissertation on the reversal of any and every acquittal. It is
patently in the context of a capital charge for which the Legislature
provides either the sentence of death or of life imprisonment
only in the alternative. It is only against the backdrop of a
challenge or reversal of a clean acquittal on a capital charge
(i.e., not merely a State appeal against acquittal on a major
charge), which involves the onerous setting aside of a double
presumption of innocence, which runs like golden thread throughout
the web of our criminal jurisprudence. As elaborated earlier,
it is in the mosaic of statutory appeals provided against acquittal
which renders the proceedings nothing but a continuation or prolongation
of a trial on a charge of an offence punishable with death. What
has been said in the earlier part of this judgment is confined
to the parameters of the aforesaid conditions. Equally, in the
context of time limit which may be imposed, the same must operate
within the qualifications laid down by the final Court in Sher
Singh's case (1983 Cri LJ 803) (supra). The delay must not be
occasioned due to the absconding or the default of the accused,
nor must it run against the reasonable norm of time generally
occupied in the litigative process and also must take note of
the nature and the gravity of the crime."
At the very outset I may notice that we were invited temptingly
to enter the thicket of hypothetical cases and to examine the
issue of delay generically in all cases including those of trivial
and technical offences. However, I would stoutly refuse to be
drawn into any web of fantasy and confine myself strictly to the
terra firma of what squarely calls for adjudication. As noticed
earlier, Ramdaras Ahir's case was decided within the narrow parameters
drawn by the Bench itself and when a challenge is made to its
correctness, I would confine myself to the same limitations. As
a matter of sound judicial restraint and policy, the focus of
the Full Bench herein would remain on the issues directly involved
(including constitutional) and not on any academic ones. This
seems to be both sound on principle as also mandated by recent
precedent in A. K. Roy's case (1982 Cri LJ 340) (supra),
"All the same, the position is firmly established in the
field of constitutional adjudication that the Court will decide
no more than needs to be decided in any particular case. Abstract
questions present interesting challenges, but it is for scholars
and text-book writers to unravel their mystique. It is not for
the Courts to decide questions which are but of academic importance".
In the light of the above. I would constrict myself within the
narrow parameters within which the issues arise, namely, - the
reversal of a clean acquittal on a capital charge (punishable
with a sentence of death or life imprisonment in the alternative
only) and the consequent dislodging of a double presumption of
innocence after an unexplained, callous and inordinate delay of
more than 10 years.
5. Since the whole debate herein has centred on the foundational
base of the ratio of Ramdaras Ahir's case, (1985 Cri LJ 584) the
discussion hereinafter is inevitably rested on what has been held
in that case without wastefully repeating the same. In a way the
judgment in Ramdaras Ahir's case must be deemed as an integral
part of the present one, nevertheless it becomes necessary to
notice he salient holdings arrived at therein. It has been held
-
(i) That now by precedential mandate the basic human right to
speedy trial has been expressly written as if with pen and ink
into the constitutional right relating to the right of life and
liberty guaranteed by Art. 21 of our constitution.
(ii) That the constitutional right of speedy trial envisages an
equally expeditious conclusion of a substantive appeal and not
merely a technical completion of the proceeding in the original
court alone.
(iii) That a grave, inordinate delay in reversing an acquittal
on a capital charge, though not identical, is yet in a way akin
to similar delay in the execution of a capital sentence.
(iv) That a horrendous delay, extending beyond a decade in a criminal
trial (including a substantive appeal) on a capital charge, involving
the reversal of a double presumption of innocence, would violate
the constitutional guarantee of a fair, just and reasonable procedure,
and, equally infract the fundamental right to a speedy trial vested
in an accused under Art. 21
(v) That American decisions on the Sixth Amendment to the American
Constitution with regard to accused's right to speedy and public
trial would now have a direct bearing under Art. 21 of our Constitution
:
(vi) That once a constitutional guarantee to speedy trial and
the right to a fair, just and reasonable procedure has been violated,
then the accused is entitled to unconditional release and the
charges against him would fall to the ground :
(vii) That a callous and inordinately prolonged delay of 10 years
or more, which, in no way arises from the accused's default (or
is otherwise not occasioned due to any extraordinary and exceptional
reasons), in the context of the reversal of a clean acquittal
on a capital charge, would plainly violate the constitutional
guarantee of a speedy trial under Art. 21.
6. Mr. Pandey, the learned counsel for the appellant, State of
Bihar, assailed the foundational premise of Ramdaras Ahir's case,
namely, that the accused's right to speedy and public trial flowing
from Art. 21 of our Constitution is identical in import with the
expressly guaranteed constitutional right in the Sixth Amendment
of the American constitution. The ingenious submission made was
that eventhough the right of speedy and public trial may now be
deemed to be implicit in Art. 21 by virtue of the precedents of
the final court, yet such a right in India was lesser in content
and effect from what it would be in America, where it was a part
of the constitution in express terms. It was submitted that the
language of the Sixth Amendment to the American Constitution was
conspicuous by its absence in Art. 21 and has been adopted only
by way of analogy by precedent. On this hypothesis it was argued
that such a right in India rests on a pedestal much lower than
that under the American Constitution.
7. Though one must compliment the learned counsel for the appellant
for his ingenuity, it seems plain to me that within this jurisdiction
no such submission can be easily countenanced, both because of
the doctrine of precedent and equally because of the express mandate
of Art. 141. In view of the discussion in Paragraphs 9 to 14 of
the judgment in Ramdaras Ahir's case (1985 Cri LJ 584), it seems
somewhat unnecessary to launch a fresh on a dissertation upon
the enlarged and expanded concept of Art. 21 by virtue of the
recent precedents of the final court. This in a way epitomises
what Lord Tennyson had said a century ago :
"Where freedom slowly broadens down, from precedent to precedent."
8. The question now is whether the enlarged and broadened concept
of Art. 21 would include within its wide sweep the renowned right
to speedy and public trial which, indeed, is a basic human right
as well. Undoubtedly, an expeditious trial is the very soul and
essence of criminal justice and there can be no manner of doubt
that notorious delays in such trials, if occasioned entirely by
the default of the prosecution, would by themselves constitute
a denial of justice. It is in recognition of this fundamental
principle that way back in 1790, the Sixth Amendment to the United
States Constitution had provided as follows :-
"In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial by an impartial jury of the
State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law,
and to be informed of the nature and cause of the accusation;
to be confronted with the witnesses against him, to have compulsory
process for obtaining witnesses in his favour, and to have the
assistance of counsel for his defence."
Though it is literally true that the aforesaid words have not
been specifically enumerated in terms in our Art. 21, yet it is
now well settled that the identical right is implicit in the broad
sweep and content of Art. 21 as authoritatively interpreted by
the Supreme Court. Therefore, for your purpose, it is necessary
to examine this on principle because it seems to me as settled
beyond cavil by binding precedents. In Hussainara Khatoon v. State
of Bihar, AIR 1979 SC 1360 : (1979 Cri LJ 1036), which was yet
one of the series of cases from our own State arising from the
notorious and heart rending delays in the context of undertrials
Bhagwati, J. has categorically held as follows :-
"Even a delay of one year in the commencement of the trial
is bad enough; how much worse could it be when the delay is as
long as 3 or 5 or 7 or even 10 years. Speedy trial is of the essence
of criminal justice and there can be no doubt that delay in trial
by itself constitutes denial of justice. It is interesting to
note that in the United States, speedy trial is one of the constitutionally
guaranteed rights. The Sixth Amendment to the Constitution provides
that,
"In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial."
So also Article 3 of the European Convention on Human Rights provides
that.
'every one arrested or detained shall be entitled to trial within
a reasonable time or to release pending trial.'
We think that even under our Constitution though speedy trial
is not specifically enumerated as a fundamental right, it is implicit
in the broad sweep and content of Article 21 as interpreted by
this court in Maneka Gandhi v. Union of India (AIR 1978 SC 597).
We have held in that case that Article 21 confers a fundamental
right on every person not to be deprived of his life or liberty
except in accordance with the procedure prescribed by law and
it is not enough to constitute compliance with the requirement
of that Article that some semblance of a procedure should be prescribed
by law, but that the procedure should be 'reasonable, fair and
just'. If a person is deprived of his liberty under a procedure
which is not 'reasonable, fair or just', such deprivation would
be violative of his fundamental right under Article 21 and he
would be entitled to enforce such fundamental right and secure
his release. 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".
In the succeeding case of the series Hussainara Khatoon v. State
of Bihar, AIR 1979 SC 1369 : (1979 Cri LJ 1045), it was again
reiterated as under :
"Speedy trial is, as held by us in our earlier judgment dated
26th February, 1979, an essential ingredient of 'reasonable, fair
and just' procedure guaranteed by Article 21 and it is the constitutional
obligation of the State devise such a procedure as would ensure
speedy trial of the accused."
The aforesaid view was reiterated by Chinnappa Reddy, J. speaking
for the Court State of Maharashtra v. Champalal Punjaji Shah,
AIR 1981 SC 1675 : (1981 Cri LJ 1273). Yet again in T. V. Vatheeswaran
v. State of Tamil Nadu, AIR 1983 SC 361 (2) : (1983 Cri LJ 481),
it was observed as follows :-
"The fiat of Article 21, as explained is that any procedure
which deprives a person of his life or liberty must be just, fair
and reasonable. Just, fair and reasonable procedure implies a
right to free legal services where he cannot avail them. It implies
a right to a speedy trial. It implies humane conditions of detention,
preventive or punitive. 'Procedure established by law' does not
end with the pronouncement sentence; it includes the carrying
out of sentence. That is as far as we have gone so far."
In the light of the aforesaid long line of broken precedents of
the final court itself, it is not possible for one to hold that
even though it has been declared now in categorical terms that
the right of speedy and public trial is as much a constitutional
right in India under Article 21 as it is in America under the
Sixth Amendment to the Constitution, yet here its content or effect
would be in a way different or lesser. That no qualification or
precondition has been laid out by their Lordships of the Supreme
Court whilst unreservedly importing the Sixth Amendment within
the sweep of Article 21 seems manifest. On the doctrine of binding
precedent, therefore, it must be held that the basic human right
of speedy trial is virtually written with pen and ink into the
constitutional right relating to the right to life and liberty
guaranteed by our Art. 21.
9. Even if any doubt remains in this context, it would stand dispelled
by Article 141 of our Constitution which says that the law declared
by the Supreme Court shall be binding on all Courts within the
territory of India. In a way so far as the judgments of the Supreme
Court are concerned, constitutional sanction is given to their
binding nature. To my mind, the judgments referred to above have
declared in uncompromisingly categorical terms that the right
to speedy and public trial is a constitutional guarantee under
Art. 21 and, therefore, the weight and content of that right cannot
be whittled down or debased. In this context it is well to remind
oneself of the succinct observation of Viscount Cave, Lord Chancellor
in the House of Lord's decision in 1927 AC 827 (Jones v. South
West Lancashire Coal Owners' Association Limited,) :-
"My Lords, when a question of law has been clearly decided
by this House, it is undesirable that the decision should be weakened
or frittered away by fine distinctions."
Therefore, the contention that we must in a way read down the
right of speedy and public trial in India and consequently put
it at a lower pedestal because it is not written in so many words
in our Constitution as it is in the Sixth Amendment of the American
Constitution, must be rejected.
10. To conclude on this aspect, the answer to the question posed
at the very outset is rendered in the affirmative and it is held
that the constitutional right of the accused to a speedy and public
trial in all criminal prosecutions now flowing from Art. 21 of
the Constitution by virtue of precedential mandate is identical
in content with the express constitutional guarantee inserted
by the Sixth Amendment in the American Constitution.
11. The learned Advocate-General, Mr. Ram Balak Mahto, with his
usual lucidity had confined himself to lay challenge to only two
of the propositions in Ramdaras Ahir's case (1985 Cri LJ 584).
With regard to what would be the inevitable legal consequences
of the infraction of the constitutional right to speedy and public
trial, he took the stand that these consequences pertain to the
realm of sentence alone, and not to total dismissal of the charge
or the vacation of the sentence imposed. Herein the learned Advocate
General highlighted the fact that the right of the accused to
a speedy and public trial was counter balanced by the obligation
of the State to expeditiously try serious offenders and bring
them to book. Herein he emphasised that a balance must be maintained
betwixt the right of the accused, on the one hand, and the State's
duty, on the other. The golden mean, according to Mr. Mahto, was
that even the grossest delays involve in effect the question of
sentence alone, and not that of conviction. This submission was
equally espoused by Mr. Pandey on behalf of the appellant State.
12. The aforesaid submission must necessarily break down on a
closer analysis, both for logical reasons as also on the ground
of weighty persuasive precedents. It is plain that the right of
speedy and public trial does not arise or depend on the conviction
and sentence of the accused. Barring exceptions (where it may
be invoked even after conviction), such right indeed arises normally
before any conviction or sentence is recorded. An accused person
on the ground of inordinate delay should claim the right long
before the conclusion of the trial and before the stage of holding
him guilty or otherwise arises. The assumption that he must be
first convicted before he can invoke such a right, and only, thereafter,
he can claim some leniency in the quantum of sentence at the stage
of its imposition or later in the appellate forum has, therefore,
to be categorically rejected. In the case of gross and inordinate
delay in trial Court itself, it is open to the accused to invoke
the claim that the trial should be halted in its tracks because
his constitutional right stands plainly infracted. It is not open
to the prosecution to suggest that despite the violation of the
constitutional guarantee, the belated trial must continue and
on the outlying chance of a conviction being recorded, some benefit
in the imposition of sentence be given for violating the right
which has been declared as both a human right and a constitutional
one. Plainly enough, therefore, the ingenuous argument of merely
compensating the constitutional right of speedy and public trial
by some leniency on the point of sentence must logically break
down.
13. In India, there appears to be an acute and, indeed total paucity
of precedents on the point of legal consequences that must flow
in the wake of violation of the constitutional guarantee of speedy
and public trial. The question was pointedly raised in Hussainara
Khatoon's case AIR 1979 SC 1360 : (1979 Cri LJ 1036), but was
not answered in terms. However, the possibility of the accused
being entitled to be released unconditionally from the charge
levelled against him was distinctly visualised and seems to have
been implicitly recognised. However, the issue has been the subject
matter of consideration in the American Courts, and as would be
shown later, these precedents on the Sixth Amendment would be
applicable and attracted to the situation. The question in a way
(though not frontally) came to be considered by the United States
Supreme Court in Willie Mae Barker v. John W. Wingo (1972) 33
Law Ed 2d 101, itself. However, the later authoritative enunciation
of the United States Supreme Court in Clarence Eugene Strunk v.
United States (1973) 37 Law Ed. 2d. 56 concluded the matter in
the following terms :
"The Government's reliance on Barker to support the remedy
fashioned by the Court of Appeals is further undermined when we
examine the Court's opinion in that case as a whole. It is true
that Barker described dismissal of an indictment for denial of
a speedy trial as an 'unsatisfactorily severe remedy'. Indeed,
in practice,' it means that a defendant who may be guilty of a
serious crime will go agog, without having been tried. (1972)
407 US 514 at P. 522 : 33 Law Ed 2d 101. But such severe remedies
are not unique in the application of a constitutional standards.
In light of the policies which underlie the right to a speedy
trial, dismissal must remain, as Barker noted, the only possible
remedy. "Ibid".
14. To summarise on this aspect, the appellant State's stand that
the violation of the right of speedy and public trial pertain
to the realm of sentence alone must be rejected, both on principle
and precedents. It must be held that once the constitutional guarantee
of speedy trial and the right to a fair, just and reasonable procedure
under Art. 21 has been violated, then the accused is entitled
to an unconditional release and the charges levelled against him
would fall to the ground.
15. Inevitably, an allied issue which pointedly arises is whether
the American precedents on the Sixth Amendment would now be attracted
in the context of this aspect under Art. 21. It was sought to
be contended somewhat half heartedly on behalf of the appellant
State that it would be unpermissible to draw any aid from the
mass of American precedents on the Sixth Amendment of their constitution.
This submission, in my view, is indeed wholly untenable, Having
held as above that the constitutional right of the accused to
speedy and public trial under Art. 21 in India is identical in
content with that under the Sixth Amendment of the American institution,
it would follow a fortiori that American precedents on the point
would become identically applicable on this facet of Article 21.
Indeed no meaningful argument could be urged on behalf of the
appellant as to why the judgments of the Supreme Court of America
would not be attracted as persuasive precedent, once the foundational
bases of the Sixth Amendment and Art. 21 have been held to be
identical in content.
16. This matter may well be examined from another refreshing angle
as well. There a similar identity or in any case similarity betwixt
Art. 14 of our constitution and the equal protection clause of
the 14th Amendment of the American constitution. Because of this,
American precedent on the 14th Amendment has for long been attracted
and relied upon in the interpretation of Art. 14, Way back in
AIR 1960 SC 1125 : (1960 Cri LJ 1504), State of Uttar Pradesh
v. Deoman Upadhaya, the constitution Bench observed as follows
at p. 1131 (of AIR), (1511 of AIR) :
"Article 14 of the Constitution of India is adopted from
the last clause of S. 1 of the 14th amendment of the Constitution
of the United States of America and it may reasonably be assumed
that our Constituent Assembly when it enshrined the guarantee
of equal protection of the laws in our constitution, was aware
of its content delimited by judicial interpretation in the United
States of America. In considering the authorities of the superior
courts in the United States we would not therefore be incorporating
principles foreign to our constitution, or be proceeding upon
the slippery ground of apparent similarity of expressions or concepts
in an alien jurisprudence developed by a society whose approach
to similar problem on account of historical or other reasons differ
from ours." J. C. Shah, J. speaking for the majority, after
sanctifying reliance on the American precedents, proceeded to
cite and quote with approval three decisions of the United States
Supreme Court in that context. Even Subba Rao, J. in his dissenting
judgment equally placed reliance on the American precedents on
the 14th Amendment for interpreting Art. 14. Earlier Chief Justice
Das in Ram Krishna Dalmia v. S. R. Tendolkar AIR 1958 SC 538 had
culled out the rule of construction of the equality clause in
the context of the principles of classification from the various
decisions of the Supreme Court of the United States of America.
Much water has flown down the bridges since the aforesaid decisions
and consistently therewith in innumerable cases American precedent
under the equal protection clause has not only been repeatedly
referred to approvingly, but have been a sound source for interpretation
of Art. 14. In the recent Division Bench judgment of this court
in C.W.J.C. No. 337 of 1985 (R) (Kishan Maheshwari v. State of
Bihar) decided on 10th May, 1985, it has been held after an exhaustive
discussion that American precedents on the right of franchise
and equal protection clause of the 14th Amendment would be directly
attracted to the identical situation by virtue of Art. 14.
17. Now what seems to be true of Art. 14 qua equal protection
clause of the 14th Amendment is equally true in the context of
the 6th Amendment of the said constitution qua Article 21 of our
constitution. It must, therefore, be held that American precedents
on the Sixth Amendment of their constitution would be equally
attracted and applicable as persuasive precedent on this facet
of Art. 21 of our Constitution in India.
18. Mr. Pandey, the learned counsel for the appellant State, then
took up the stand that the delay, however prolonged it may be,
and even in the context of a capital charge would not by itself
amount to prejudice to the accused. According to him, the accused
must specifically allege and establish as to what other prejudice
was caused to him or to the conduct of his defence apart from
the fact that the horrendous spectacle of a death penalty or imprisonment
for life had hung over his head for 10 years or more. For this
submission, a somewhat pedantic reliance was sought to be placed
on an isolated line torn from its context in Champalal Punjaji
Shah's case (1981 Cri LJ 1273) (supra). It was submitted that
their Lordships had observed in passing that a delayed trial is
not necessarily an unfair trial and the delay may have caused
no prejudice to the accused.
19. Learned counsel's somewhat specious reliance on a passing
observation dehors its context has only to be noticed and rejected.
One must recall the rule in Quinn v. Leathem 1901 AC 495 that
what is relevant in a judgment is the ratio of the case and what
it actually decides and not every passing observation therein
or what may logically flow therefrom. Equally relevant is the
reiteration of this view by their Lordships in State of Orissa
v. Sudhansu Sekhar Misra AIR 1968 SC 647 holding that it is idle
to build upon a sentence or a line in a judgment. That Champalal
Punjaji Shah's case is plainly distinguishable in the context
in which the matter is being examined here is indeed manifest.
The charge in the said case far from being a capital one was indeed
for a somewhat minor economic offence punishable under the Customs
Act for possession of smuggled gold. The trial was not inordinately
delayed in its peculiar context, and on appeal the accused was
acquitted by the High Court. It was in the State appeal against
the said acquittal before their Lordships of the Supreme Court
that the plea of a delayed trial was raised as a matter of last
resort. But the hall-mark of the case was that their Lordships
came to a categoric conclusion that the delay had been occasioned
entirely by the accused himself. Indeed, it was observed at the
very outset of the judgment as under;
"It is one of the sad and distressing features of our criminal
justice system that an accused person, resolutely minded to delay
the day of reckoning, may quite conveniently and comfortably do
so, if he can but afford the cost involved, by journeying back
and forth, between the court of first instance and the superior
courts at frequent interlocutory stages. Applications abound to
quash investigations, complaints and charges on all unimaginable
grounds depending on the ingenuity of client and counsel."
and concluded in this case by holding that the accused himself
was responsible for a fair part of the delay."
It is apt to recall that in Ramdaras Ahir's case (1985 Cri LJ
584) it was specifically held that where the delay is occasioned
by the accused's own conduct, he can derive no benefit therefrom
whatsoever on the hallowed principle that no one can take advantage
of his own wrong. Champalal Punjaji Shah's case is thus distinguishable
and on this point is only authority for the proposition that in
cases other than those on a capital charge a delay occasioned
by the accused's own conduct or obstructive tactics cannot avail
any benefit to him.
20. Indeed, I am of the view that Champalal Punjaji Shah's case
(1981 Cri LJ 1273) far from in any way aiding the appellant is
of frontal assistance to the view canvassed on behalf of the accused
respondents. In the context of the delay caused by the prosecution,
their Lordships have forthrightly observed as under;
"We are not unmindful of the delays caused by the tardiness
and tactics of the prosecuting agencies. We know of the trials
which are overdelayed because of the indifference and somnolence
or the deliberate inactivity of the prosecuting agencies. Poverty-struck,
dumb accused persons, too feeble to protest, languish in prisons
for months and years on and awaiting trial because of the insensibility
of the prosecuting agencies ............ Again, an accused person
may be seriously jeopardised in the conduct of his defence with
the passage of time. Witnesses for the defence may become unavailable
and their memories too may fade like those of the witnesses for
the prosecution. In such situations, in appropriate cases, we
may readily infer an infringement of the right of life and liberty
guaranteed by Art. 21 of the Constitution. Denial of speedy trial
may with or without proof of something more lead to an inevitable
inference of prejudice and denial of justice. It is prejudice
to a man to be detained without trial. It is prejudice to a man
to be denied a fair trial. A fair trial implies a speedy trial."
It is plain from the above that their Lordships have in no uncertain
terms observed that it is prejudice to be denied a speedy trial
with or without proof of something more. It has rightly been held
that in such cases the court must readily infer an infringement
of the right to life and liberty guaranteed by Art. 21 of the
Constitution. It appears to me that Champalal Punjaji Shah's case
would drive the last nail in the coffin of the theory that such
delays would not be prejudicial.
20(a). Perhaps, this aspect can be well demonstrated by moving
from the abstract to the concrete and considering the case of
respondent No. 20, Professor Phulena Prasad Singh. At the material
time of occurrence, way back in April, 1971, he was a respected
member of the academy and was the head of the Department of History
in his institution. He was accused of the charge of mere conspiracy
levelled against him. He was suspended from the post with all
the ignominy attaching thereto. He laboured under the shadow of
death and destitution for more than five years till he was acquitted
on the 31st August, 1976. However, his deliverance seemed to be
short-lived and the State appeal against his acquittal was admitted.
By an application dated 6th of December, 1976 he applied to the
Vice Chancellor, Bihar University, for withdrawal of his suspension
order and for being allowed to join his post. However, this prayer
was categorically rejected and he was not permitted to join his
post because of the pendency of the Government appeal. This appeal,
however, lung over him like the sword of Damecles, for another
eight years. He was deprived of the chance of becoming the principal
of his college and to rise further in his profession which was
his lifetime ambition. During the pendency of the government appeal,
he retired from service and even after retirement, he was denied
payment of his provident fund, gratuity and other pensionary benefits
on the ground that as yet the Government appeal against his acquittal
was pending disposal. In our social conditions and family bonds,
his sons and laughters were denied the place of life which was
their due and lost good options of marital status because of the
horror of a capital charge pending against this respondent and
occasioned by the withholding of all financial benefits to him.
Mr. Rash Bihari Singh, his learned counsel, rightly highlighted
what the loss and prejudice to this respondent is perhaps irretrievable
and he is but a broken man and a mere shadow of himself, irrespective
of the fact whether today his acquittal is sustained or otherwise.
20(b). In the light of the aforesaid discussion, it must, therefore,
be held that inordinately prolonged and callous delay of ten years
or more occasioned entirety by the prosecutions default, in the
context of reversal of clean acquittal on a capital charge, would
be per se prejudicial to the accused.
21. Lastly, one must in fairness notice the submission of the
learned counsel for the appellant State in assailing the ratio
in Ramdaras Ahir's case (1985 Cri LJ 584), on what he chose to
label as discrimination. At the very outset it may be stated that
these submissions seem to stem from misapprehension of the true
import and ratio in the said case. Mr. Pandey at first contended
that it was not possible to precedentially lay down the time limit
of ten years and this would be discriminatory qua cases where
prejudice has been caused even in the context of delay of less
than the said period.
22. In rebutting this argument Mr. Rash Bihari Singh, the learned
counsel for the respondents submitted that indeed it was the court's
duty to draw the outer line somewhere and he forcefully urged
before us that indeed in Ramdaras Ahir's case, the line had been
drawn somewhat harshly at an inordinately long period of ten years.
Counsel forcefully contended that in criminal cases perhaps two
years should be the outer limit.
23. To appreciate the rival stand, it is apt to recall that in
Ramdaras Ahir's case (1985 Cri LJ 584), the Division Bench noticed
that it was not an easy task to precedentially lay down a somewhat
inflexible rule about the precise quantum of delay which would
entitle the accused for the invocation of the constitutional right
and, thereafter, proceeded to consider the matter in depth in
Paras 36 to 45. As regards the quantum of ten years so fixed,
it was observed :-
"Indeed I am somewhat hesitant in spelling out the aforesaid
time limit, which perhaps errs on the side of strictitude. However,
considering the fact that herein one seems to be breaking new
ground, I would wish to rest content with the same."
24. In view of the above, Ramdaras Ahir's case must not be misunderstood
or misconstrued to mean that a delay of less than ten years would
not in any case amount to prejudice. Indeed what it lays down
is the extreme outer limit of time, whereafter grave prejudice
to the accused must be presumed and the infraction of the constitutional
right would be plainly established. It does not even remotely
lays down that in a lesser period than ten years an accused person
would not be able to show the circumstances pointing to the patent
prejudice which may entitle the invocation of Art. 21. That is
a question which can be properly considered and adjudicated wherein
it directly arises. Both in Ramdaras Ahir's case and the present
one, the delay is admittedly far beyond the outer limit of ten
years.
25. A somewhat similar argument was then raised on behalf of the
appellant State that Ramdaras Ahir's case (1985 Cri LJ 584) was
applicable only to capital cases and the reversal of acquittal
therein and thus drew a discriminatory line between other cases
which were either not capital in nature or did not involve any
acquittal. Herein again the contention seems to arise from a somewhat
superficial appreciation of the ratio in Ramdaras Ahir's case.
As has been observed earlier in the adjudication of constitutional
questions, it is always inapt to travel beyond the actuality of
the case. Since the issue in Ramdaras Ahir's case had arisen only
in the context of a capital charge and the reversal of an acquittal
thereon, the examination and the adjudication of the question
was confined to a case of that nature. From that it does not follow
that - some part of its rationale or the ratio itself would not
be equally attracted in cases other than those on a capital charge
or ones not directly involving the reversal of an acquittal. However,
these are issues which can only be justifiably examined when they
properly arise in a case and cannot be pronounced upon in an academic
vacuum. On this aspect, we would, therefore, re-affirm the reasoning
and the ratio in Ramdaras Ahir's case with the clarifications
aforementioned.
26. To finally conclude, it is held -
(i) that the constitutional right of the accused to a speedy and
public trial in all criminal prosecutions now flowing from Art.
21 of the Constitution by virtue of precedential mandate is identical
in content with the express constitutional guarantee inserted
by the sixth amendment in the American Constitution;
(ii) that once the constitutional guarantee of a speedy trial
and the right to a fair, just and reasonable procedure under Art.
21 have been violated then the accused is entitled to an unconditional
release and the charges levelled against him would fall to the
ground;
(iii) that the American precedents on the Sixth Amendment of their
Constitution would be equally attracted and applicable as persuasive
on this fact of Art. 21 of our Constitution as well;
(iv) that inordinately prolonged and callous delays of 10 years
or more entirely because of the prosecution's default in the context
of the reversal of a clean acquittal on a capital charge would
be per se prejudicial to the accused; and
(v) that the ratio and the reasoning of Ramdaras Ahir's case is
hereby affirmed.
27. These appeals would now go back to the Division Bench for
a decision on merits in the light of the above.
P. S. SAHAY, J. (Minority view) :- 28. I had the advantage of
going through the judgment of the Hon'ble the Chief Justice but
I regret to say that I cannot subscribe to the views expressed
by his Lordship. These cases were placed for final hearing before
a Bench of which I was also a member, and a preliminary objection
was raised by the learned counsel appearing on behalf of the respondents
in the Government Appeal that the appeal is being taken up after
more than 10 years of the date of occurrence and in view of the
decision in the case of State v. Ramdaras Ahir, (1985 Cri LJ 584)
(supra) the appeal has abated against the respondents as they
were all charged under S. 302 of the Penal Code which is punishable
with death or imprisonment for life. Learned counsel for the State,
however, doubted the correctness of the aforesaid decision and
raised two contentions :-
"(1) Even in cases relating to capital punishment no time
limit can be fixed and the period of ten years was wholly arbitrary
and without any basis.
(2) In cases of lesser offence the Government Appeal will not
be barred even after the expiry of the period of ten years, which
will be highly discriminatory and violative of Article 14 of the
Constitution of India."
In view of the importance of the points decided and its implication
on criminal cases and trials, we were of the opinion, that the
decision referred to above requires reconsideration and, therefore,
we referred it to a larger Bench.
29. So far as the second point is concerned, it has been observed
by the Hon'ble the Chief Justice that it does not require consideration
in the instant case and can be taken note of, if and when occasion
arises, meaning thereby that when an appeal against acquittal
in cases relating to lesser offence will be taken up for hearing
by this Court. But when Arts. 21 and 141 of the Constitution of
India and other relevant provisions are being considered in detail,
then, in my opinion. Art. 14 cannot be lost sight of, and as stated
earlier this decision will have far-reaching consequences in criminal
trials and also after the stage of appeal and revision. However,
I will not dialate on this point and shall confine myself to the
first point only for the present.
30. Now, after so many judicial pronouncements of the Supreme
Court, details of which have been given and discussed in great
detail by the Hon'ble the Chief Justice, there is no doubt that
speedy trial is integral and essential part of fundamental right
to life and liberty as enshrined in Art. 21 of the Constitution
of India which runs as follows :-
"No person shall be deprived of his life or personal liberty
except according to the procedures established by law."
We are aware that there is always some delay in the disposal of
the cases, for one reason or the other, due to which the accused
persons have to be in jail for a number of years in cases relating
to serious offences, thus causing great harassment to them. In
some cases they are also acquitted for which there is no provision
to compensate them. Therefore, in cases of delayed trial what
will be the consequence, this has not been answered till today,
though raised, before the Supreme Court. Courts are fully alive
to this problem and there is always a hue and cry for speedy disposal
of cases pending in different Courts starting right from the lower
courts to the highest Court. It is often said that due to long
delay, people in general and litigants in particular, are losing
faith in the manner the Courts are functioning and the procedure.
The law-makers are also fully conscious of this problem and still
no steps have been taken to fix any time limit for the disposal
of any type of criminal cases. In the Code of Criminal Procedure,
1973 there are some provisions, in which time-limit has been prescribed
and I may refer to Sections 167 and 468 of the Criminal P.C. which
give certain benefit to the accused persons. In that situation,
will it be proper for this Court to fix any time limit even in
cases relating to appeal against acquittal involving capital punishment
? In my opinion, the answer must be in the negative. The provision
of the American Constitution has been discussed in great detail
by the Hon'ble the Chief Justice, and the 6th Amendment to the
United States' Constitution runs as follows :-
"In all criminal prosecutions the accused shall enjoy the
right to speedy and public trial."
There is no such provision in our Constitution as it has been
rightly observed by the Hon'ble the Chief Justice. Therefore,
what consequence will follow in cases where trial has been delayed.
The delay in our country is due to various factors including the
failure on the part of the State in not providing with adequate
number of Judges or Magistrates, buildings, court-rooms, non-production
of witnesses and other factors connected with the disposal of
cases. These problems may be completely absent in American countries
and, therefore, the law-makers have made amendment in the American
Constitution giving benefit to the accused persons in cases of
delayed trial. Therefore, in my opinion, it will not be proper
to follow the American Constitution and their decisions while
deciding our cases when we have self-contained Code laying down
complete procedure. Moreover, a law which is codified cannot be
equated with certain observations here and there of the Supreme
Court, when the point has been kept open and has not been answered.
In some of the decisions of the Supreme Court, we find, cognizance
taken has been held to be good, but on account of long delay the
Supreme Court has declined to interfere even if the proceeding
had wrongly been quashed. In some cases legal infirmities have
been found in course of trial, convictions have been set aside
and no re-trial has been ordered. In some cases death sentence
has not been awarded and in some lenient view has been taken while
awarding the sentence due to the long and protracted trial, not
due to the fault of the accused. These cases have been decided
on the facts and circumstances of each case and there is absolutely
no discussion for fixing any time-limit.
31. While construing our own Constitution different High Courts
of this country have depricated the practice to take the aid and
help from the Constitution of other countries and I may refer
to some of the decisions and they are L. K. Burman v. State of
Bihar, (1950) ILR 29 Patna 502 (FB), Md. Zia v. United Provinces,
AIR 1943 All 345 and Mahadeo v. B. B. Sen, AIR 1951 Cal 563. In
the case of A. K. Roy v. Union of India, AIR 1982 SC 710 : (1982
Cri LJ 340) reliance was placed on some of the provisions of American
Constitution and also on American decisions and it has been held
as follows :
"It is only proper that we must evolve our own solution to
problems arising under our Constitution without, of course, spurning
the learning and wisdom of our counterparts in comparable jurisdiction."
About the American decisions their Lordships' observations may
be usefully quoted, -
"For reasons which we have stated more than once during the
course of the judgment, the discussions of the U.S. Supreme Court
which turn peculiarly on the due process clause in the American
Constitution cannot be applied wholesale for resolving questions
which arise under our Constitution, especially when, after a full
discussion of that clause in the Constituent assembly, the proposal
to incorporate it in article 21 was rejected. In U.S.A. itself,
Judges have expressed views on the scope of that clause, which
are not only divergent but diametrically opposite. For example,
in Goldberg (1970) 25 Law Ed 2d 287 on which Sri Jethamalani has
placed considerable reliance. Black, J., said in his dissenting
opinion that the majority was using the judicial power for legislative
purposes and that 'they wander out of their field of vested powers
and transgress into the area constitutionally assigned to the
Congress and the people'. The dissenting opinion of Chief Justice
Burger in that case is reported in Mac Wheeler v. John Montgomery,
(1970) 25 Law Ed 2d 307, 311, in the same volume. Describing the
majority opinion as 'unwise and precipitous' the learned Chief
Justice said :
"The Courts action today seems another manifestation of the
now familiar constitutionalising syndrome; once some presumed
flaw is observed, the Court then eagerly accepts the invitation
to find a constitutionally 'rooted' remedy. If no provision is
explicit on the point, it is then seen as 'implicit' or commanded
by the vague and nebulous concept of 'fairness'."
32. While construing the provisions of our own statute a note
of warning has been given by the Supreme Court in the following
terms :-
"It is the part of judicial prudence to decide an issue arising
under a specific statute by confining the focus to that statutory
compass as far as possible. Diffusion into wider jurisprudential
areas is fraught with unwitting conflict or confusion" [1981
BBCJ 533 at p. 536 : (AIR 1981 Patna 309 at p. 311) (FB).
Therefore, in my opinion, while deciding a case of such a far-reaching
consequence we should better confine ourselves to the four corners
of our own Constitution and the law relating to the procedure
to be followed in deciding criminal cases. Art. 21 of the Constitution
of India extracted above only lays stress on 'procedure established
by law' and even after acquittal by the trial Court appeals are
admitted and if it is not disposed of according to the procedure
laid down, then, in my opinion, there will be a clear violation
of the 'procedure established by law'. In that view of the matter,
fixing of 10 years will be contrary to the provisions of the Constitution
as well as the Code of Criminal Procedure.
33. Mr. Rash Bihari Singh, learned counsel appearing on behalf
of the respondents in the Government Appeal has submitted that
even delay of two years should be sufficient to give benefit to
the accused person. This submission, according to me, is wholly
ridiculous when we all know that even revision and quashing applications
are not disposed of within that period. Another submission of
Mr. Singh that prejudice has been caused to one of the respondents
and this has been discussed in great detail by the Hon'ble the
Chief Justice. This is also equally without any substance. There
is another aspect of the matter which cannot be lost sight of.
The Court has to take into consideration not only the question
of harassment to the accused but also has to consider the other
side of the picture, about the family and relations who have suffered.
If culprits go scot-free due to delay in disposal of cases which
may not be due to their own fault, then it will not be proper
to exonerate them and that will be disposal of the case no doubt,
but not justice in the eyes of law. The question of delay and
harassment can be taken into consideration at the time of awarding
sentence and there is specific provision to hear the parties before
pronouncing the judgment on the question of sentence and the Court
will take into consideration all relevant facts which will be
placed both by the prosecution and the defence.
34. For the reasons given above, I am unable to agree to the reasonings
and conclusions arrived at by the Hon'ble the Chief Justice and
no time-limit can be fixed even in cases relating to the offences
punishable with death. The Government Appeal will, therefore,
not abate. Let all the appeals be placed before a Division Bench
for final hearing, including the Government Appeal, which will
proceed against all the respondents, to be decided on merits,
in accordance with law.
S. SHAMSUL HASAN, J. (Majority view) :- 35. I may state straightway
that I agree entirely with the reasonings and the conclusions
of the Hon'ble the Chief Justice and disagree with deepest deference
with the conclusions of Hon'ble P. S. Sahay, J. I venture, however,
to express my own feelings on the matter in issue also.
36. Speedy trial of a person facing prosecution on any charge
and more so on a capital charge is the inherent right of such
a person. The entire scheme of the Code of Criminal Procedure
and its amendment is patently striving to achieve this. To dilute
this situation on the basis of legalistic and constitutional alibi
would be a concept alien to the modern and progressive criminal
jurisprudence. This inherent right has now been strengthened by
precedential support of the Supreme Court of India which has imported
the concept of American Constitution as spelt out in the Sixth
Amendment to that Constitution and in view of Art. 141 of our
Constitution it must now be treated as a law of the land. Even
agreeing with Hon'ble P. S. Sahay, J. to the extent that we must
confine ourselves to our own Constitution, a question emerges
that, has not the American concept, as embodied in the Sixth Amendment,
become a part, of our Constitution also. In my view, as held by
Hon'ble the Chief Justice, reiterating the decision of the Supreme
Court it certainly has and now it devolves upon the Court of law
from the initial to the ultimate stage to ensure that this aspect
is treated as a golden thread in the web enmeshing the criminal
procedure.
37. I also agree with Hon'ble the Chief Justice that the American
decisions relevant to the matter in issue can now be looked into
and, in my view, certainly as a work of scholarship as we would
examine a text book in order to apply the principles embodied
in them to our situations.
38. Coming to the question of the period of ten years, as has
been fixed by Hon'ble the Chief Justice in his judgment, I am
inclined to agree with the submission of Mr. Rash Bihari Singh
that it should have been fixed at two years. I do not agree with
Hon'ble P. S. Sahay, J. that the conditions prevailing in this
country and Courts render this suggestion of two years ridiculous.
The situation in Court cannot tend to deprive an affected person
of his valuable and constitutional right of getting his prosecution
speedily disposed of nor can the constitutional mandate be diluted
by exigencies of the situation caused by the absence of an adequate
infra-structure at the instance of the State for speedy disposal.
If necessary infrastructure is not provided, the person facing
criminal prosecution should not be made the victim of the situation
and the State is alone to be blamed for it. It is well-known that
time limit has been fixed in various situations particularly when
capital punishment is involved, in commuting them. Even the Supreme
Court has in many cases commuted death sentences after two years
and in some because of the attitude of the appellant accused five
years was not sufficient. Frankly speaking much lesser period
should have been fixed but that would not have received the approbation
of those who are oblivions of the hardship caused and the mental
agony inflicted by the delay to a person who may ultimately be
acquitted of all charges. The submission of the Advocate General
that delay should only be taken into consideration for inflicting
lesser punishment is only to be stated to be rejected. This submission
forgets that no lesser sentence than imprisonment for life can
be imposed if a person is convicted on a capital charge. His submission,
therefore, only means this that if a person is sentenced to death,
that sentence can be reduced to imprisonment for life. For such
commutation 2 or 3 years has been found to be enough in a lot
of cases and in any event when capital sentence is inflicted the
likelihood of its delayed disposal is very rare. In most cases,
therefore, we are concerned with the persons sentenced with the
imprisonment for life or likely to be sentenced to death or imprisonment
for life if an appeal by the State succeeds. Can it be said that
after 10-15 years if a person is found guilty of capital charge
in a Government Appeal, then because of the delay instead of imposing
death sentence imprisonment for life is inflicted, thus mitigating
the delay in disposal of the case. In my view, 'no' because at
that stage life imprisonment may amount to be inflicting a punishment
which would be far harsher than death sentence because the accused
would be passing through a "living death". Due process
of law does not mean that the process itself becomes punitive
before a penalty is inflicted. Due process is synonymous with
the process being exhaustive with greatest of speed.
39. As regards application of the aforesaid principle to the trial
for lesser offences Hon'ble the Chief Justice has rightly not
entered into any discussion in this appeal. I may, however, add
that if a situation arises, then within the ambit of those sections
the principle of speedy trial can certainly be applicable but
that will be for some other occasion.
40. I am also not inclined to agree with the submission of the
State that it is the duty of the Courts to keep in mind the rights
of the citizens and the victims and their families against acts
of crime committed by individuals while dealing with criminal
appeals and trials and even if they are delayed, that is not a
justifiable ground for interfering. The concept embodied in the
submission is erroneous, more so in a Government appeal. When
the respondent has been found to be innocent in a proper trial,
he can no longer be treated as a person who in any way poses a
danger to the welfare of the society in general. This submission
ignores the duty of the State-appellant entirely in relation to
criminal prosecution. On the commission of a criminal offence
the person concerned is taken into custody on his name transpiring
in the F.I.R. or on suspicion of having committed the offence
on the subjective satisfaction of the Police or other agency of
the State. It is erroneous immediately to assume that the man
arrested is guilty and is danger to the welfare of society at
large and is the person who has to give his pound of flesh to
satisfy the spirit of vendentta of the victim's family and relations.
He will be deemed to be innocent at that stage. It will then be
the duty of the agency of the State and they alone to ensure that
not only the right man is sent up for trial but wrong person is
not so done. When this situation is crystallised on the basis
of the evidence recorded by the Police and if a trial has to proceed
it is again the prosecution and the prosecution alone which has
to produce evidence in Court as early and as speedily as possible
to ensure that either the guilty is punished, thus serving the
cause of the society in general and the victim, or his family,
as the case may be, in particular, or to ensure that the future
of an innocent person does not hang in balance of uncertainty
regarding his complicity or involvement in the crime. His name
should be cleared as early as possible. In this situation the
Courts are helpless and remain entirely in the hands of the State
prosecutor. If witnesses are not produced, if the Investigating
Officers do not appear; if the doctors fail to turn up, then it
may well be asked - who is protecting whose interest ? Is the
interest of the society in general protected by allowing the accused
or a couple of accused to be subjected to protracted trial and
in most cases languish in jail for years ? The answer is "no".
A situation like this deserves the highest reprobation. The submission
of the State is not only surprising but unrealistic because it
is invariably the agency of the State which causes delay in disposal
of trials and the benefit of delayed disposal thus must flow to
the accused in such a situation. The Hon'ble the Chief Justice
has clearly distinguished the delay caused by the accused from
those that are caused by other circumstances beyond control of
Courts or created by the accused and in the former it has been
held that the accused is not entitled to any benefit. It is well
known that the prosecution witnesses are kept back at the instance
of the informant to harass the accused particularly when he is
in jail. State owes its duty both to the society and the victim's
family on the one hand and the accused, on the other. It is, therefore,
the duty of the State to see that the guilty is punished as quickly
as possible and the innocent is declared so as speedily as possible.
Similar will be the situation in Government Appeal and appeal
against conviction. The disposal of the Govt. Appeal or appeal
against conviction has been delayed merely because the State has
failed to provide necessary infrastructure for ensuring speedy
preparation and an early hearing of such cases - respondent or
appellant being the mute sufferer of this delay.
41. I may also state that notoriety of a particular incident should
be of no consequence to a Court trying to indicted of that occurrence.
What is important is the value of the evidence brought on the
record and if that is not brought speedily, then the traversity
of justice will be patent and writ large.
42. This situation must be kept in mind by Courts at all levels
- whether it be at the trial stage or at the appellate stage.
In the post death sentence had been commuted on the ground of
delay in culmination of the processing up to the appellate stage.
It is time now that appellants are also granted bail if the hearing
of the appeals is delayed by 2 years or if an appellant has languished
in jail for a considerable period of time prior to appeal. This
is the dictum of the Supreme Court and is well recognised form
of relief against protracted delay in hearing the appeal while
the appellant is languishing in jail running the sentence detrimentally
affected which cannot be reversed if an acquittal takes place.
43. While parting I may add that a day may come and that too sooner
than later that the period of less than ten years also will be
treated as unjustified delay and it will be brought down to two
years. It will be only then that the interest of justice will
be served. I also hope that Courts everywhere and at all levels
will be conscious of the right of the indicated person to get
speedy disposal of his indictment and consequently the hardship
that delay beyond the control of the accused causes.
44. In the result, I adopt the direction given by Hon'ble the
Chief Justice.
Order accordingly.
*-*-*-*-*
Home
HOME 