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HUSSAINARA KHATOON & ORS.

v.

HOME SECRETARY, STATE OF BIHAR, GOVT. OF

BIHAR. PATNA

F e.bruary 12, 1979

[P. N. BHAGWATI, R. S. PATHAK AND A. D. KOSHAL, JJ.]

16 9

Administration of Justice-Pre-trial detention-Right of under-trial prisoner

to

have a speedy trial-Art. 21 of Constitution of India .

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~ __ Pre-trial release--C'oncept of-Determinative factor~ in grant of bail and

--~ release of under-trial prisoner on personal bond without monetary obligation C Y

explainl·d.

In their petition for the issue of a writ of habeas corpus the petitioners stated

that a large nun1ber of men and women i•.1cluding childr'en were in jails for years

awaiting-trial in courts of law and that the offences, even if proved, would not

warrant punishn1ent for more than a few months. Although sufficient opportunity

was give.,,_, the State did not appea.r before the Court. D

Directing the release of the undertrials on their executing a personal bond.

HELD:

(Per Bhagwati & Koshal, JJ.)

1. A procedure "".hich keeps large number of people behind bars without trial

for long, cannot possibly be regarded

as

"rentsonable, just or fair" so as. to be in E

conformity

wi1h the requirement of Art. 21. It is necessary, therefore, that the

law

as enacted by the Legislature and as administered by the courts must radicaliy

chang~ its approach to pre-trial detention and ensure 'reasonable, 1ust an.J. fair'

procedure which has a creative connotation after the decision of the Supreme

Court in Maneka Gandhi's case. [174 C·D]

2. Speedy trial is of the essence of criminal justice and, therefore, d_elay in

trial by itself constitutes denial of justice. Though speedy trial is not sptcifically

):~enun1erated as a fundamental right, it is implicit in the broad sweep and C(Jntent

" of Art. 21. Speedy trial which means reasonably expeditious trial, is an itite·gral

•

part of the fundamental right to life and liberty 'enshrined il"l Art. 21, [179 H,

180 c, F]

Art. 21 confers a. fundamental right on every person not to be deprived of his

tife

or liberty except in accordance with the procedure prescribed by law and it

is not

e~ough to constitute compliance with the requirement of that Article that

some semblance of a procedure should be prescribed by Iaw, but that the pro

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cedure 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 Art.

21 and he would be entitled

to enforce such fund.am'ental right

and secure his release. Any procedure pres~

cribed by law for depriving a person of his liberty cannot be "reasonable

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fair or

just" unless. that procedure 'ensure.5 a ~pecdy trial for determination of the guilt

of such·person. [180 D-EJ

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17 0 SUPREME COURT REPORTS [1979] 3 s.c.Jt.

Maneka Gandhi v. Union of ln;dia, [1978] 2 SCR 621; referred to.

3. Expeditious trial and freedom from detention are part of human rights an&

basic freedoms. The judicial system which permits incarceration of men an4

women for long peripds of time withcut trial is denying human rights to suck

undertrials and withholding basic freedoms from th'em. Law has become for

them an iruttrument of injustice and they are helpless and despairing victims of

B the callousness of the legal and judicial system. [173 C-E, F]

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4. One reason why our legal and judicial system continually denies justice

te the poor -by keeping them for long years in pretrial detention is the highly

unsatisfactory bail system, which suffers from a property oriented approach. It

proceeds on th'e erroneous assumption that risk of monetary loss is the only

deterrent against

fleeing from justice.

Even after its re-enactment

1 the Code _'!.-....1. •

Criminal Procedure cootinues to adopt the same antiquated approach. Where ~

an accused iao to be released on his personal bond, it insists that the bond ehould ,

contain a monetary obligation requiring the accused to pay a sum of money in -4

case he fails to appear at the trial. Moreover, as if this were not sufficient deter-

rent to the poor, the courts mechanically and as a matter of course insist that

the accused should produce sureties

who will stand bail for him and these

sure-

ties must again esta.blish th'eir solvency to be able to pay the amount of bail

in case the accused fails to

app'ear to answer the charge. [17 4 E-G]

This system of bails operates. very harshly agaiinst the poor and it is only

the non-poor who are able to take adva.ntage of it by getting themselves released

on bail. The poor find it difficult to furnish bail even without sureties because

very often the amount of the bail fixed by the Court is so unrealistically cxces-

1ive that in a majority of cases the Poor are unable to satis.fy the police or the

Magistrate about their solvency for the amount of tb'e bail. and where the bail is

with sureties, as is usually the case, it becomes an almost impossible task for the

poor to

find

pen-ons sufficiently solvent to stand as sureties. The result is that

tither they are

fleeced by the police and

revenue· officials or by touts and profes~

1ional sureties and sometimes they ha,"e even to incur debts for securing their

release or, be.ng unable to obtain release, they have to remain in jail until such

time

as the court is able to take up their cases for trial, leading to grave

conse­

quences, namely, ( 1) though presumed innocent, they are subjected to psycho­

logical

and

physical deprivations of jail life, (2) they are prevented irom con­

tributing

to the

preparation of their defence and (3) they lose their job, if the~

have on'e, and are deprived of an opportunity to work to support themselves .....__..,

and their family members with the result that the burden of their detention

almost invariably falls heavily on the innocent members of the family.

[174 G-

175 DJ •

The bail system, as it op'erates today, is thus ai source of great hardship to

G the poor and if the civil effects of poverty are to be eliminated and a fair and ~­

just treatment assured to the poor in the administration of justice, it is impera-

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tive that the bail system should be thoroughly reformed so that it should lie

possible for the poor, as easily as the rich, to obtain pre-tTial release without 4 '

jeopardizing the interest of justice. [177 C-D]

Ri•k of monetary loss is not the only deterrent against fleeing from ·justice;

There ar'e also other factors which act as equal dCterrents against :fleeing. There-­

fore. the courts, even under the law as it stands today, must abandon the anti~

quated concept under whicl!. pre-trial release is ordered ortly against .bail with

sureties. If the coun is satisfied, after taking into account, on the basis of

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H. KHATOON V. HOME SECRETARY 1 71

information placed berore it, that the accused has his roots in the community and

is act likely to abscond, it can safely release the accused on hil5 personaJ. bond.

[177 E, G, HJ

5. To determine wheth'er the accused baas his-roots in the com1nunity which

would deter him from fleeing, the court should take into account the following

factors toncerning the accused : ( 1) The length of his residence in th'c commu­

nity, (2) his employment status, history and his financial condition, (3) his

family ties and relationships, ( 4) his reputation, character and monetary condi­

tions, (5) his prior criminal record including any record of prior release· on

recognizance or on bail, (6) the identity of responsible members of the com­

munity who would vouch for his reliability, (7) the nature of the offence charged

and the apparent probability of conviction and the likely sente!lce in so far as

.hese factors are relevant to the risk of non appearance, and (8) any other

factors indicating the ties of the accused to the oommunity or bearing on the

risk of wilful failure to appear. [178 A-El

If the court is satisfied on a consideration of the

relevMit factors that the

accused has his ties in the community and there is no substantial risk of non­

:!tppearance, the accus'ed may, as far as possible, be released on his personal bond.

If facts a.re brought to the notice of the court showing that, havi'O.g regard to the

condition and back·ground of the accused, his previous record and the nature

and circumstances

of the offence, th'ere may be a substantial risk of his

non­

appeamnce at the trial, as for example, where the accused is a notorious bad

character or a confirmed criminal or the offence

is serious,

th'e court ma.y not

release the accused on his personal bond and may insist on bail with sureties.

But in the J:J3jority of cases, considerations like family ties and relatil111ship,

roots in the community, employment status etc. may prevail with the court in

releasing the accused on his personal bond and particularly in cases where th'!!

offence is not grave and the accused is poor or belongs to a weaker section of

the commooity, release on p'erson21l bond could, as far as possible, be preferred.

But even while releasing the accused on personal bond

it is necessary to caution

the oourt that the

amotmt of the bond which it fixes should not be based mer'cly

on lhe nature of the charge. The decision as regards the amount of th~ bond

should be an individualised decision depending on the individual :fina.ncial circum·

stances of the accused and the probability of his abS'COndiing. The amount of

the

bond

5hould be determined having regard to these relevant factors and should

not be fix'ed mechanically according to a schedule keyed to the nature of the

charge. Otherwise, it would be difficult for the accused to secure his release

even by executing a personal bond, it would be very harsh and

0ppt'essive if lie

is required to satisfy the court-and what is said in regard to the court must

apply equally in relation to the police while &ranting bail-that he is solvent

~nough to pay the amount of the bond if be fails to appeM. at the trial and in

oonsequence the bond

is forfeited. The inquiry into the solvency of the accused

can become

a source of great harassment to him and often result in denial of bail

and lfeprivation of liberty and should not, therefore, be ine;isted upon as a condi­

tion of acceptance of the personal bond. [178 F-179 DJ

6. Necessary to provide by an amendment of the penal law that if an accused

wilfully fails to appear in compliance with the promise contained in his personal

bond, he shall be liable to ponal action. [177 Fl

7. High time that the State Government realised its reopomibility to the

people in the matter of administration of justice and set up more courts for the

trial ef <...... [180 HJ

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17 2 SUPREME COURT REPORTS [1979] 3 s.c.R.

A Pathak J. (con.-urring)

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( 1) The primary principle of

crimina-1 law ill that imprhonment may follow

a judgment of guilt, but should not precede it. There is also another principle

which makes it desirable to ensure that the ac.::used is present to receive bis

sentence in the event of being found guilty. [181 E]

(2)

It is indisputable that an unnecessarily

prolooged det'ention in prison

of unUertrials befou; b;;ing brought to trial is an affront to all civilized norms

of human liberty and any meaningful concept of individual liberty which forms

the bedrock of a civilized ]egflil system must view with distress patently lm1~

periods of imprisonment before persons awaiting trial can receive the attention

of the aJministration of justice.

[181 D]

(3) The Code of Criminal Proc'edure both the old Code and the

new,

include provisions for the release of a person on bail or 0\1 the execution of a

bond without sureties for his appearance. There

is an amplitude of

judi-ciad. power

to release a prisoner awaiting trial on bail or on the execution of a personal

bond without sureties for his appearance within the

existi\1g provisions of the

Code of Criminal

Procedure and it is for the Courts to fully acqua.int themselves

with the nature and extent of their discr'etion in exercising it.

It is no longer

possible to countenance a mechanical exercise of the power. What should

be

the amount of security required or th'e monetary obligation demanded in a bond

is a matter calling for the careful

cons-idera.tion of several factors. The entire

object being cnly to ensure that tlie undertrial does not

flee or hide himself

from trial, all the relevant considerations which enter into the determination

of

that question must be t<1ken into account. [181 E, 182 B-C]

( 4) The abus'es attendant ~1 the prevailing system of pre~trial release in

India could be avoided or, in any event greatly reduced, if considerations like

"nature and circumstances of the offence charged, the weight of the ~vidence

against the accused, the accus-ed's family ties, employment, finain..:ial resources,

character ao,1d mental condition, the length of his residence in the community, his

record

of convictions, and his record of appearance at eourt proceedings or of

flight to avoid prosecution or

failur~ to appear at -court proceedings", are taken

into consideration when determining pre-trial r'elease and the amount

of security

or monetary obligation to be imposed.

[182 G, E-F]

United States Bail Reforms Act. 1966: 18

USS 3146 (b}, Moti Ram

& Ors. v. State of M.P. [1978] 4 SCC 47; referred to.

(5) Urgent need for a clear and explicit provision in the Code of Criminal

G Procedure enabling the release, in appropriate cases, of an under trial prisoner

on his bond without sureties and without any monetary obliga-tion. [l 83 B]

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ORIGINAL JURISDICTION : Writ Petition No. 57 of 1979.

Mrs. K. Hingorani for the Petitioners

S. M. Jha and U. P. Singh for the Respondent.

The Judgment of Bhagwati and Kasha!, JJ. was delivered by

Bhagwati, J. Pathak, J. gave a separll.te Opinion.

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H. KHATOON v. HOME SECRETARY (Bhagwmi, J. I I 7 :i

BHAGWA TI, J .-This petition for a writ of habeas corpus discloses

a shocking state

of affairs in regard to administration of justice in the State of Bihar. An alarmingly large number of men and women,

children including, are behind prison bars for years awaiting trial in

courts of law. The offences with which some of them are charged

are trivial, which, even if proved, would not warrant punishment for

more than a

few months, perhaps for a year or two, and yet these

unfortunate forgotten specimens

of humanity are in jail, deprived

of

their freedom, for periods ranging from three to ten years without even

as much

as their trial having commenced. It is a crying shame on

the judicial system which permits incarceration of men and women

for such long periods

of time without trial. We are shouting from

house tops about the protection and enforcement of human rights.

,

We are talking passionately and eloquently about the maintenance an:l

preservation of basic freedoms. But, are

we not denying human rights

to these nameless persons who .are languishing in jails for

years for

offences which perhaps they might ultimately be found not to have

committed

? Are we not withholding basic freedoms from these neg­

lected and helpless human beings who have been condemned to a

life of imprisonment and degradation for years on end

? Are expedi­

tious trial and freedom from detention not part of buman rights and

basic freedoms

? Many of these unfortunate men and women must

not even

be remembering when they entered the jail and for what

offence. They have over the years ceased to be human beings they

are mere ticket-numbers.

It is high time that the pnblic conscience

is awakened and the Government as well as the judiciary begin to

realise that in the dark cells of our prisons there are large

nnmbers of

men and women who are waiting patiently, impartiently perhaps, but

ln vain, for jnstice-a commodity which is tragically beyond their

reach and grasp. Law has become for them an instrument

of injustice

and they are helpless and despairing victims of the callousness of the

legal and judicial system. The time has come when the legal and

judicial system has

to be revamped and restructured so that such

injnstices do not occur and disfigures the fair and otherwise luminous

face

of our nascent democracy.

Though

we issued notice to the State of Bihar two weeks ago, it is

nnfortnnate that on the 5th February, 1979 no one has appeared on.

behalf

of the

State and we must, therefore, at this stage proceed on

the basis that the allegations contained in the issues of the Indian Ex­

press dated 8th and 9th January, 1979 which are incorporated in the

writ petition are correct. The information contained in these news­

paper cuttings

is most distressing and it is sufficient to stir the consci-

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SUPREME COURT REPORTS [1979] 3 s.c.R.

e11ce and disturb the equanimity of any socially motivated lawyer or

judge. Some of the undertrial prisoners whose names are giveil in

the newspaper cuttings have been in jail for as many as 5, 7

or 9

years

and a few of them, even more than

10 years, without their trial

having begun. What faith can these lost souls have

in the judicial

system which denies them a bare trial for so many years and keeps

them behind bars, not because they are guilty,

but because

they are

too poor to afford bail and the courts have no time to try them.

It

is a travesty of justice that many poor accused,

"little Indians, are

forced into long cellular servitude for little offences" because the bail

procedure

is beyond their meagre means and trials don't commence and

even if they do, they never conclude. There can

be little doubt, after

the dynamic interpretation placed by this Court on Art. 21

in

Mar.eka

Gandhi v. Union of lndia(

1

) that a procedure which keeps such large

numbers of people behind bars without trial so long cannot possibly

be regarded

as 'reasonable, just or fair' so as to be in conformity with

the requirement of that Article.

It is necessary, therefore, that the

law as enacted

by the Legislature and as administered by the

courts must radically change its approach

to pretrial detention and

ensure 'reasonable, just and fair' procedure which has creative

conne>­

tation after Maneka Gamlhi's caS!! supra.

Now, one reason why our legal

and judicial system continually

denies justice

to the poor by keeping them for long years in pretrial

detention is our highly unsatisfactory bail system.

It suffers from a

property oriented approach which seems to proceed on the erroneous

assumption that risk of monetary loss is the only deterrent against

fleeing from justice.

TlJe Code of Criminal Procedure, even after its

re-enactment, continues to adopt the same antiquated approach as the

earlier Code enacted towards the end of the last century .and where an

accused is to be released on his personal bond, it insists that the bond

should contain a monetary obligation requiring the accused to pay a

sum of money in case he fails to appear

at the trial. Moreover, as

if this were not sufficient deterrent

to the poor, the courts mechanically

and as a matter of course insist that the accused should

produc~ sure­

ties who will stand bail for him and these sureties must again estab­

lish their solvency to be able to pay np the amonnt of the bail in case

the accused fails to appear to answer the charge. This system of bails

operates very harshly against the poor and it

is only the non-poor

who are able to take advantage of it

by getting themselves released on

bail.

The poor find it difficult to furnish bail even without sureties

because very often the amount of the bail fixed by the courts

is so

(1) [19781 2

S.C.R. 621.

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H. KHATOON v. HOME SECRETARY (Bhagwali, J.) 175

unrealistically excessive that in a majority of cases the poor are un­

able to satisf) the police or the Magistrate about their solvency fox

the amount of the bail and where the bail is· with sureties, as is usually

the

ca_se, it becomes an almost impossible task for the poor to find

persons sufficiently solvent to stand as sureties. The result

is that

either they are fleeced by the police and revenue officials or by touts

and professional sureties and sometimes they have even

to incur

debts for securing their release or, being unable

to obtain release, they

have

to remain in jail until such time as the court is able to

take up

!heir cases for trial, Jea~ing to grave consequences, namely, (1) though

presumed innocent, they are subjected to psychological and physical

deprivations of jail life,

(2) they are prevented from contributing to

the preparation of their defence and ( 3) they lose their job,

if they

have one, and are deprived of an opportunity

to work to support

them­

selves and their family members with the result that the burden of

'11eir detention almost invariably fal!s heavily on the innocent mem­

bers of the family.

It is

her~ that the poor find our legal and judicial

system oppressive and heavily weighted against them and a feeling of

frustration and despair occurs upon them as they find that they are

helplessly in a position of inequality with the non-poor. The Legal

Aid Committee appointed by the Government of Gujarat under the

chairmanship

of one of us, Mr. Justice Bhagwati, emphasised

this

,Paring inequality in the following words :

"The bail system, as we see it administered in the

criminal courts today,

is extremely unsatisfactory and needs drastic change. In the first place it is virtually impossible

to translate risk

of non-appearance by the accused into pre-cise monetary terms and even its basic premise that risk of

:financial loss is necessary to prevent the accused from fleeing

is of doubtful validity. There are several considerations

which deter an accused from running away from justice and

risk of financial loss is only one of them and that too not a

major one. The experience of enlightened Bail Projects in

tho United States such as Manhattan Bail Project and D. C.

Bail Project shows that even without monetary bail it has

been possible

to_ secure the presence of the accused at the

trial in quite a large number of cases. Moreover, the bail

system causes discrimination against

the poor since the poor

would not be able to furnish bail

on account of their poverty.

while the wealthier persons otherwise similarly situate would

be able to secure their freedom because they can afford to

furnish bail. This discrimination arises even if the amount

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176 SUPREME COURT REPORTS [1979) 3 s.c.R.

of the bail is fixed by the Magistrate is not high, for a large

majority

of those who are brought before the Courts in

criminal cases are so poor that they would find it difficult to

furnish bail even in a small

amount."

The Gujarat Committee also pointed out how the practice of fixing

B the amount of bail with reference to the nature of the charge without

taking into account relevant factors, such

as the individual financial

circumstances

of the accused and the probability of his fleeing before

~ial, is harsh and oppressive and discriminates against the poor :

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"The discriminatory nature of the bail system becomes

all the more acute by reason

of the mechanical way in which

it is custonnari!y operated. It is no doubt true that the­

oretically the Magistrate has broad discretion

in fixing the

amount of bail but in practice it seems that the amount of

bail depends almost always on the seriousness of the offence.

It is fixed according to a schedule related to the nature of the

charge. Little weight is given either to the probability that the

accused will attempt

to flee before his trial or to his indivi­

dual financial circumstances, the very factors which

seem

most

relevant if the purpose of bail is to assure the appearance

of the accused at the trial. The result

of ignoring these

factors and

fixing the amount of bail mechanically having

regard only to the seriousness

of the offence is to discrimi­

nate against the poor

who are not in the same position

as the

rich

as regards capacity to furnish bail. The Courts by

ignoring the differential capacity of the rich and the poor to

furnish bail and treating them equally produce inequality

between the rich and the poor : the rich

who is charged

with the same offence

in the same circumstances is able to

secure his release while the poor is unable to do so on ac­

count of his poverty. These are some of the major defects

in the bail system as it is operated

to-day."

The same anguish was expressed by President Lyndon B. Johnson at

the time of signing the Bail Reforms Act, 1966 :

"Today, we join to recognize a major development in

our system of criminal justice : the reform of the bail system.

This system has endured-archaic, unjust and virtually

unexamined-since the Judiciary Act of 1789.

The principal purpose

of bail is to insure that an accused

person

will return for trial if he is released after arrest.

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H. KHATOON v. HOME SECRETARY (Bhagwati, J.)

How is that purpose met under the present system ?

The defendant with means can afford to pay bail. He can

afford to buy his freedom. But poorer defendant cannot

pay the price. He languishes

in jail weeks, months and

per­

haps even years before trial.

He does

11ot stay in jail because be is guilty. He does

not stay in jail because any sentence has been passed.

He

does not stay in jail because he is any more likely

to

flee before trial.

He stays in jail

for one reason only-because he is

177

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poor. ..... " C

The bail system,

as it operates today, is a source of

great hardship

to the poor and

if we really want to eliminate the evil effects of poverty

and assure a fair and just treatment to the poor in the administration of

justice, it

is imperative that the bail system should be thoroughly

re­

formed so that it should be possible for the poor, as easily as the rich

to obtain pretrial release with()ut jeopardizing the inteJest of justice.

It is high time that our

Parliament realises that risk of monetary

loss is not the only deterrent against

fleeing from justice, but there

are also other factors which act

as equal deterrents against

fleeing.

Ours is a socialist republic with social justice as the signature tune of

our constitution and Parliament 'would do well to consider whether it

would not be more consonant with the ethos

of our constitution that

instead of risk

of financial loss. other relevant considerations such

as

family ties, roots in the community, job security, membership of stable

organisations etc., should be the cfeterminativc factors

in grant of

bail and the accused should be in appropriate cases be released

on his

persona) bond without monetary obligation. Of course, it may be

necessary

in such a case to provide by an amendment of the penal

law that if the accused wilfully fails

to appear in compliance with the

promise contained

in his personal bond, he shall be liable to penal

action. But even under the law as it stands today the courts must

abandon the antiquated concept under which pretrial release

is

ordered

only against bail with sureties. That concept is outdated ~nd ex·

perience has shown that it has done more harm than good. The new

insight into the subject of pretrial release wh'ch has been developed

in socially advanced countries and particularly the United States should

ROW inform the decisions of our Courts in regard to pretrial release.

If the Court is satisfied, alter taking into account, on the basis of in­

formation placed before it, that the accused has his roots in the com­

munity and is not likely to abscond, it can safely release the accnsed

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178 SUPREME COURT REPORTS [1979] 3 s.c.1..

on his personal bond. To determine whether the accused has his rooti;

in the community which would deter him from fleeing, the Coort

should take into account the following factors concerning the accused :

1. The length of his residence in the community.

2. his employment status, history and his financial con-

dition,

3. his family ties and relationships,

4.

his reputation, character and monetary condition,

5. his prior criminal record including any record or prior

release on recognizance or

on bail,

6. the identity of responsible members of the community

who would vouch for his reliability.

7. the nature of the offence charged and the apparent pro­

bability of conviction and

the likely sentence in so far

as these factors are relevant to the risk of non

appear­

ance, and

8. any other factors indicating the ties of the accused to

the community or bearing

on the risk of wilful failure

to appear.

•

II the court is satisfied ou a consideration of the relevant factors that

the accused has

his ties in the community and there is no substantial

risk of

non~appearance, the accused may, as far as possible, be ra­

leased on his personal bond. Of course, if facts are brought to tlte

F notice of the court which go to show that having regard to the copdi­

tion and background of the accused his previous record and the

nature and circumstances of the

offence, there may be a

substantial

risk of his non-appearance at the trial, as for example, where the

accused is a notorious bad character or a confirmed criminal or the

offence

is serious (these examples are only by way of illustration), the

G court may not release the accused on his personal bond and

may insist

on bail with sureties. But in the majority

of cases, considerations

like family ties and relationship, roots in the community, employment

status etc. may prevail with the court in releasing the accused

on

his

personal bond and particularly in cases where the offence is not grave

and the accused

is poor or belongs to a weaker section of the

com-

H munity, release on personal bond could, as far as possible, be vre­

ferred. But e~en while releasing the accused on personal bond it is

necessary to caution the court that the amount of the bond which it

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H. KHATOON v. HOME SECRETARY (Bhagwati, J.) 179

fixes should not be based merely on the nature of the charge. The

decision as regards the amount of the bond should be an individualiii­

ed decision depending on the individual financial circumstances of the

accused and the probability of his absconding. The amount of the

bond should be determined having regard to these relevant factors and

should not be fixed mechanically according to a schedule keyed to

~ 1tie nature of the charge. Otherwise, it would be difficult for the

accased to secure his release even by executing a personal bond. More­

over, when the accused

is released on his personal bond, it would be J.._very harsh and oppressive if he is required to satisfy the court-and

_A Y.>hat we have said here in regard to the court must apply equally in

; relation to the police while granting bail-that he is ~olvent enough

t~ tiay the amount of the bond if he fails to a,ppear at the trial and

in consequence the bond

is forfeited. The inquiry into the solvency

of

the accused can become a source of gre~t harassment to him and

often re1ult in denial of bail and deprivation of liberty artd should

not, therefore, be insisted upon as a condition

of acceptance of the

personal bond. We have no doubt that

if the system of bail, even

under the existing law, is administered

in the manner

we have in di~

cated in this judgment, it would go a long way towards relieving hard­

ship of the poor and help them to secure pretrial release from incar­

ceration. It is for this reason we ha~e directed the undertrial prison­

ers whose names are given in the two issues of the Indian Express

ihould be released forthwith on their personal bond. We should have

ordinarily said that personal bond to be executed by them should be

with monetary obligation, but

we directed as an exceptional measure

that there need be no monetary obligation

in the personal bond

be­

canse we found that all these persons have been in jail without trial

. for several years, and in some cases for offences for which the punisl!-

o.;r ment would in all probability be less than the period of their deten­

tion and moreover, the order we were making was merely an interim

order. The peculiar facts and circumstances of the case dictated such

an unusual course .

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There is also one other infirmity of the legal and judicial system G

which is responsible for this gross denial of justice to the undertrial

prisoners and that

is the notorious delay in d;sposal of cases. It is

a

bad reflection on the legal and judicial system that the trial of an

accused should not even commence for a long number of years. 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 H

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

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180 SUPREME COURT REPORTS [1979] 3 s.c.R.

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 th~

broad sweep and content of Article 21 as interpreted by this Court in ,-

Maneka Gandhi v. Union of India. We have held in that case that +

Article 21 confers a fundamental right on every person not to be de-

prived 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 1ecure 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

~ilt of such person. No procedure which does not ensure a reason-

able 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

tri>1l and by speedy trial we mean reasonably expeditious trial,

is

an integral and essential part of the fundamental right to life

and~

liberty enshrined in Article 21. The question which would, however, '·•

arise is as to what would be the consequence if a person accused of

an offence is denied speedy trial and is sought to be deprived of his

liberty by imprisonment as a result of a long delayed trial in violation

of his fundamental right undc Article 21. Would he be entitled to

be released unconditionally freed from the charge levelled against him

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on the ground that trying him after an unduly long period of time and

convicting him after such trial would constitute violation of his funda­

mental right under Article 21

? That is a question we shall have to

consider when we hear the writ petition on merits on the adjourned

7 <

date. But one thing is certain and we cannot impress it too strongly

on the State Government that it is high time that the State Govern-

ment realised its responsibility to the people in the matter of admini-

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H. KHATOON v. HOME SECRETARY (Pathak, J.) lSI

'!ration of justice and set up more courts for the trial of cases. We

may point out that it would not be enough merely to establish more

courts but the State Government would also have to man them by

competent judges and whatever is necessary for the purpose of rec­

ruiting competent judges,

such as improving their conditions of ser-

vice, would have to be done by the

State Government, if they want

to improve the system

of administration of justice and make it an

effective instrument for reaching justice

tb the large masses of people

for whom justice

is to-day a meaningless and empty word.

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....-~ebruary, 1979. We shall now proceed to hear the ;nit petition on

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19th February, 1979. C

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PATHAK, J.-lt is indisputable that an unnecessarily prolonged

detention in prison of undertrials before being brought to trial is an

affront to all civilized norms of human liberty. Any meaningful

concept of individual liberty which forms the bedrock of a civilized

legal system must

view with distress patently long periods of im-' D

prisonment before persons awaiting trial can receive the

attention of the administration of justice. The primary principle of

criminal law

is that imprisonment may follow a judgment of guilt.

But should not precede

it. But there is another principle which

. makes it desirable to ensure that the accused is present to receive his

sentence in the event of being found

guilty. Now, the Code of

Criminal

Procedure, both the old Code and the new, include provision

for the release of a person on bail or on the execution of a bond

without sureties for

his appearance. Nonetheless, as appears prima

facie from the record before us, a large number of persons whose

names,

find mention in copies of the Indian Express of January 8

)---·and 9, 1979, have been in prison for long year without even being

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,.~ · brought to trial. Although sufficient opportunity was given to the

State of Bihar to meet the allegations made, it is unfortunate that

no one has appeared on behalf of the State.

In view of the impor­

tance of the questions arising on the habeas corpus petition,

we have '

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provided further opportunity to the State to appear and accordingly

have posted the petition for final hearing on February 19, 1979. But

at the same time

we see no reason why interim relief should be

denied to these undertrials. After carefully considering what has

been

said in respect of each individual undertrial, we have considered

it appropriate, in the interests of justice, to make the order of Febru­

ary

5, 1979

clirect!ng the release of the persons mentioned in that

order on their executing a personal bond. '\he order is somewhat

unusual

in that it directs that the personal bond to be taken in each

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182 SUPREME COURT REPORTS (1979] 3 s.c.R.

A case should not be based on any monetary obligation. The condi­

tion has been included

as an exceptional measure, under the

persua­

sive pressure of the particular facts and circumstance of the case.

In regard to the exercise of the judicial power to release a prisoner

awaiting trial on bail or on the execution of a personal bond without

B sureties for his appearance, I have to say this briefly. There is an

amplitude of power in

thi.s regard within the existing provisions of

_,,

the Code of Criminal Procedure, and it is for the Courts to fully ~

acquaint themselves with the nature and extent of their discretion in

exercising it. I think it is no longer possible to countenance a mecha-"

nical exercise of the power. What should ·be the amount~,_

C security required or the monetary obligation demanded in a bond is +

a matter calling for the careful consideration of several factors. The

entire object being only to ensure that the undertrial does not flee

or

hide. himself from trial, all the relevant considerations which enter

into the determination of that question must be taken into account. (

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• A synoptic impression of what the considerations could be may be

drawn from the following provision in the United States Bail Reform

Act

of 1966:

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"In determining which conditions of releases will

reasonably assure appearance, the judicial officer shall, on

the basis of available information, take into account the

nature and circumstances of the offence charged, the weight

of the evidence against the accused, the accused's family

ties, employment, financial resources, character and mental

condition, the length of his residence in the community, his

record of convictions, and his record of appearance

at court

proceedings

or of flight to avoid

prosecution or failure to

appear

at court proceedings. (

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These are considerations which should be kept in mind when deter­

mining the amount of the security

or monetary obligation.

Perhaps,

if this is done the abuses attendant on the prevailing system of pre­

trial release in India could be avoided or, in any event, greatly re­

duced See Moti Ram and Others v. State of Madhya Pradesh.(

8

)

I consider it desirable te refrain from making any final comment

or observation on the legality and propriety of the continued deten­

tian of the undertrial prisoners whether on the ground of infringement

JI (1) Secti~n 440, Code of Criminal Procedure.

(2) 18 lJ. s. s. 3146 (b)

(3) [197i] 4 s.c.c. 47.

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H. KHATOON v. HOME SECRETARY (Pathak, J.) 183

of Article 21 of the Constitution or on other grounds. That, I think, A.

should await the final determination of the habeas corpus petition .

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These are the reasons which have influenced me in making the

order dated February 5, 1979.

While concluding, it seems desirable to draw attention to the

absence

of an explicit provision in the Code of Criminal Procedure

enabling the release, in appropriate

cases, of an undertrial prisoner

on

his bond without sureties and without any monetary obligation.

, There is urgent need for a clear provision. Undeniably, the thousands

~-~ of undertrial prisoners lodged in Indian prisons today include many

,_. who are nnable to secure their release before trial because of their

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inability to produce sufficient financial guarantee for their appearance.

Where that is the only reason for their continued incarceration, there

may be good ground for complaining of invidious discrimination.

The more

so under a constitutional system which

pronrises social

equality and

social justice to all of its citizens. The deprivation of

liberty

for the reason of financial poverty only is an incongruous

element

in a society aspiring to the achievement of these constitu­

tional

objectives. There are sufficient guarantees for appearance in

the host of considerations to which reference has been made

earlier

and, it seems to me, our law-makers would take an important step

in defence of individual liberty if appropriate provision was made in

the statute for non-financial releases.

N.V.K .

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