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CASE NO.:

Appeal (crl.) 535 of 2000

PETITIONER:

P. RAMACHANDRA RAO

Vs.

RESPONDENT:

STATE OF KARNATAKA

DATE OF JUDGMENT: 16/04/2002

BENCH:

CJI, R.C. Lahoti, N. Santosh Hegde, Ruma Pal & Arijit Pasayat

JUDGMENT:

WITH

Crl.Appeal Nos. 536/2000, 537/2000, 538/2000, 539/2000, 540/2000,

541/2000 & 542/2000.

J U D G M E N T

R.C. Lahoti, J.

No person shall be deprived of his life or his personal liberty

except according to procedure established by law declares Article 21

of the Constitution. Life and liberty, the words employed in shaping

Article 21, by the Founding Fathers of the Constitution, are not to be

read narrowly in the sense drearily dictated by dictionaries; they are

organic terms to be construed meaningfully. Embarking upon the

interpretation thereof, feeling the heart-throb of the Preamble,

deriving strength from the Directive Principles of State Policy and

alive to their constitutional obligation, the Courts have allowed

Article 21 to stretch its arms as wide as it legitimately can. The

mental agony, expense and strain which a person proceeded against in

criminal law has to undergo and which, coupled with delay, may

result in impairing the capability or ability of the accused to defend

himself have persuaded the constitutional courts of the country in

holding the right to speedy trial a manifestation of fair, just and

reasonable procedure enshrined in Article 21. Speedy trial, again,

would encompass within its sweep all its stages including

investigation, inquiry, trial, appeal, revision and re-trial in short

everything commencing with an accusation and expiring with the final

verdict the two being respectively the terminus a quo and terminus

ad quem __ of the journey which an accused must necessarily

undertake once faced with an implication. The constitutional

philosophy propounded as right to speedy trial has though grown in

age by almost two and a half decades, the goal sought to be achieved

is yet a far-off peak. Myriad fact-situations bearing testimony to

denial of such fundamental right to the accused persons, on account of

failure on the part of prosecuting agencies and executive to act, and

their turning an almost blind eye at securing expeditious and speedy

trial so as to satisfy the mandate of Article 21 of the Constitution have

persuaded this Court in devising solutions which go to the extent of

almost enacting by judicial verdict bars of limitation beyond which

the trial shall not proceed and the arm of law shall lose its hold. In its

zeal to protect the right to speedy trial of an accused, can the Court

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devise and almost enact such bars of limitation though the Legislature

and the Statutes have not chosen to do so __ is a question of far-

reaching implications which has led to the constitution of this Bench

of seven-Judge strength.

In Criminal Appeal No.535/2000 the appellant was working as

an Electrical Superintendent in the Mangalore City Corporation. For

the check period 1.5.1961 to 25.8.1987 he was found to have amassed

assets disproportionate to his known sources of income. Charge-sheet

accusing him of offences under Section 13(1)(e) read with Section

13(2) of the Prevention of Corruption Act, 1988 was filed on

15.3.1994. The accused appeared before the Special Court and was

enlarged on bail on 6.6.1994. Charges were framed on 10.8.1994 and

the case proceeded for trial on 8.11.1994. However, the trial did not

commence. On 23.2.1999 the learned Special Judge who was seized

of the trial directed the accused to be acquitted as the trial had not

commenced till then and the period of two years had elapsed which

obliged him to acquit the accused in terms of the directions of this

court in Raj Deo Sharma Vs. State of Bihar (1998) 7 SCC 507

(hereinafter, Raj Deo Sharma-I). The State of Karnataka through the

D.S.P. Lokayukta, Mangalore preferred an appeal before the High

Court putting in issue the acquittal of the accused. The learned Single

Judge of the High Court, vide the impugned order, allowed the appeal,

set aside the order of acquittal and remanded the case to the Trial

Court, forming an opinion that a case charging an accused with

corruption was an exception to the directions made in Raj Deo

Sharma-I as clarified by this Court in Raj Deo Sharma (II) Vs. State

of Bihar (1999) 7 SCC 604. Strangely enough the High Court not

only condoned a delay of 55 days in filing the appeal against acquittal

by the State but also allowed the appeal itself __ both without even

issuing notice to the accused. The aggrieved accused has filed this

appeal by special leave. Similar are the facts in all the other appeals.

Shorn of details, suffice it to say that in all the appeals the accused

persons who were facing corruption charges, were acquitted by the

Special Courts for failure of commencement of trial in spite of lapse

of two years from the date of framing of the charges and all the State

appeals were allowed by the High Court without noticing the

respective accused persons.

The appeals came up for hearing before a Bench of three

learned Judges who noticed the common ground that the appeals in

the High Court were allowed by the learned Judge thereat without

issuing notice to the accused and upon this ground alone, of want of

notice, the appeals hereat could be allowed and the appeals before the

High Court restored to file for fresh disposal after notice to the

accused but it was felt that a question arose in these appeals which

was likely to arise in many more and therefore the appeals should be

heard on their merits. In the order dated September 19, 2000, the

Bench of three learned Judges stated:

"The question is whether the earlier

judgments of this court, principally, in Common

Cause Vs. Union of India (1996 (4) SCC 33),

Common Cause Vs. Union of India (1996(6) SCC

775), Raj Deo Sharma Vs. State of Bihar (1998(7)

SCC 507) and Raj Deo Sharma (II) Vs. State of

Bihar 1999 (7) SCC 604), would apply to

prosecutions under the Prevention of Corruption

Act and other economic offences.

Having perused the judgments afore-

mentioned, we are of the view that these appeals

should be heard by a Constitution Bench. We take

this view because we think that it may be

necessary to sythesise the various guidelines and

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directions issued in these judgments. We are also

of the view that a Constitution Bench should

consider whether time limits of the nature

mentioned in some of these judgments can, under

the law, be laid down".

On 25th April, 2001 the appeals were heard by the Constitution

Bench and during the course of hearing attention of the Constitution

Bench was invited to the decision of an earlier Constitution Bench in

Abdul Rehman Antulay and Ors.Vs. R.S. Nayak & Anr. (1992) 1

SCC 225 and the four judgments referred to in the order of reference

dated 19th September, 2000 by the Bench of three learned Judges. It

appears that the learned Judges of the Constitution Bench were of the

opinion that the directions made in the two Common Cause cases and

the two Raj Deo Sharma's cases ran counter to the Constitution

Bench directions in Abdul Rehman Antulay's case, the latter being

five-Judge Bench decision, the appeals deserved to be heard by a

Bench of seven learned Judges. The relevant part of the order dated

26th April, 2001 reads as under:-

"The Constitution Bench judgement in A.R.

Antulay's case holds that "it is neither advisable

nor feasible to draw or prescribe an outer time

limit for conclusion of all criminal proceedings".

Even so, the four judgements afore-mentioned lay

down such time limits. Two of them also lay

down to which class of criminal proceedings such

time limits should apply and to which class they

should not.

We think, in these circumstances, that a

Bench of seven learned Judges should consider

whether the dictum afore-mentioned in A.R.

Antulay's case still holds the field; if not, whether

the general directions of the kind given in these

judgements are permissible in law and should be

upheld.

Having regard to what is to be considered by

the Bench of seven learned Judges, notice shall

issue to the Attorney General and to the Advocates

General of the States.

The papers shall be placed before the

Hon'ble the Chief Justice for appropriate

directions. Having regard to the importance of the

matter, the Bench may be constituted at an early

date".

On 20.2.2002 the Court directed, "Common Cause", the

petitioner in the two Common Cause cases which arose out of writ-

petitions under Article 32 of the Constitution, heard and decided by

this Court as public interest litigations, to be noticed. "Common

Cause" has responded and made appearance through counsel.

We have heard Shri Harish Salve, the learned Solicitor General

appearing for Attorney General for India, Mr. Ranjit Kumar, Senior

Advocate assisted by Ms. Binu Tamta, Advocate for the appellants,

Mr. Sanjay R. Hegde and Mr. Satya Mitra, Advocates for the

respondents, Mr. S. Murlidhar, Advocate for "Common Cause" and

such other Advocates General and Standing Counsel who have chosen

to appear for the States.

We shall briefly refer to the five decisions cited in the order of

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reference as also to a few earlier decisions so as to highlight the issue

posed before us.

The width of vision cast on Article 21, so as to perceive its

broad sweep and content, by seven-Judge Bench of this Court in Mrs.

Maneka Gandhi Vs. Union of India & Anr., (1978) 1 SCC 248,

inspired a declaration of law, made on February 12, 1979 in

Hussainara Khatoon and Ors. (I) Vs. Home Secretary, State of

Bihar (1980) 1 SCC 81, that Article 21 confers a fundamental right

on every person not to be deprived of his life or liberty, except

according to procedure established by law; that such procedure is not

some semblance of a procedure but the procedure should be

"reasonable, fair and just"; and therefrom flows, without doubt, the

right to speedy trial. The Court said __ "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." Many accused

persons tormented by unduly lengthy trial or criminal proceedings, in

any forum whatsoever were enabled, by Hussainara Khatoon(I)

statement of law, in successfully maintaining petitions for quashing of

charges, criminal proceedings and/or conviction, on making out a case

of violation of Article 21 of the Constitution. Right to speedy trial and

fair procedure has passed through several milestones on the path of

constitutional jurisprudence. In Maneka Gandhi (supra), this Court

held that the several fundamental rights guaranteed by Part III

required to be read as components of one integral whole and not as

separate channels. The reasonableness of law and procedure, to

withstand the test of Articles 21, 19 and 14, must be right and just and

fair and not arbitrary, fanciful or oppressive, meaning thereby that

speedy trial must be reasonably expeditious trial as an integral and

essential part of the fundamental right of life and liberty under Article

21. Several cases marking the trend and development of law applying

Maneka Gandhi and Hussainara Khatoon(I) principles to myriad

situations came up for the consideration of this Court by a

Constitution Bench in Abdul Rehman Antulay and Ors. Vs. R.S.

Nayan and Ors. (1992) 1 SCC 225, (A.R. Antulay, for short). The

proponents of right to speedy trial strongly urged before this Court for

taking one step forward in the direction and prescribing time limits

beyond which no criminal proceeding should be allowed to go on,

advocating that unless this was done, Maneka Gandhi and

Hussainara Khatoon(I) exposition of Article 21 would remain a

mere illusion and a platitude. Invoking of the constitutional

jurisdiction of this Court so as to judicially forge two termini and lay

down periods of limitation applicable like a mathematical formula,

beyond which a trial or criminal proceeding shall not proceed, was

resisted by the opponents submitting that the right to speedy trial was

an amorphous one something less than other fundamental rights

guaranteed by the Constitution. The submissions made by proponents

included that the right to speedy trial flowing from Article 21 to be

meaningful, enforceable and effective ought to be accompanied by an

outer limit beyond which continuance of the proceedings will be

violative of Article 21. It was submitted that Section 468 of the Code

of Criminal Procedure applied only to minor offences but the Court

should extend the same principle to major offences as well. It was

also urged that a period of 10 years calculated from the date of

registration of crime should be placed as an outer limit wherein shall

be counted the time taken by the investigation.

The Constitution Bench, in A.R. Antulay's case, heard

elaborate arguments. The Court, it its pronouncement, formulated

certain propositions, 11 in number, meant to serve as guidelines. It

is not necessary for our purpose to reproduce all those propositions.

Suffice it to state that in the opinion of the Constitution Bench (i) fair,

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just and reasonable procedure implicit in Article 21 of the

Constitution creates a right in the accused to be tried speedily; (ii)

right to speedy trial flowing from Article 21 encompasses all the

stages, namely, the stage of investigation, inquiry, trial, appeal,

revision and re-trial; (iii) who is responsible for the delay and what

factors have contributed towards delay are relevant factors. Attendant

circumstances, including nature of the offence, number of accused and

witnesses, the work-load of the court concerned, prevailing local

conditions and so on what is called the systemic delays must be kept

in view; (iv) each and every delay does not necessarily prejudice the

accused as some delays indeed work to his advantage. Guidelines 8,

9, 10 and 11 are relevant for our purpose and hence are extracted and

reproduced hereunder:-

"(8) Ultimately, the court has to balance and weigh the

several relevant factors 'balancing test' or

'balancing process' and determine in each case

whether the right to speedy trial has been denied in

a given case.

(9) Ordinarily speaking, where the court comes to the

conclusion that right to speedy trial of an accused

has been infringed the charges or the conviction, as

the case may be, shall be quashed. But this is not

the only course open. The nature of the offence

and other circumstances in a given case may be

such that quashing of proceedings may not be in

the interest of justice. In such a case, it is open to

the court to make such other appropriate order

including an order to conclude the trial within a

fixed time where the trial is not concluded or

reducing the sentence where the trial has

concluded as may be deemed just and equitable

in the circumstances of the case.

(10) It is neither advisable nor practicable to fix any

time-limit for trial of offences. Any such rule is

bound to be qualified one. Such rule cannot also

be evolved merely to shift the burden of proving

justification on to the shoulders of the prosecution.

In every case of complaint of denial of right to

speedy trial, it is primarily for the prosecution to

justify and explain the delay. At the same time, it

is the duty of the court to weigh all the

circumstances of a given case before pronouncing

upon the complaint. The Supreme Court of USA

too has repeatedly refused to fix any such outer

time-limit in spite of the Sixth Amendment. Nor

do we think that not fixing any such outer limit

ineffectuates the guarantee of right to speedy trial.

(11) An objection based on denial of right to speedy

trial and for relief on that account, should first be

addressed to the High Court. Even if the High

Court entertains such a plea, ordinarily it should

not stay the proceedings, except in a case of grave

and exceptional nature. Such proceedings in High

Court must, however, be disposed of on a priority

basis."

During the course of its judgment also the Constitution Bench

made certain observations which need to be extracted and

reproduced:-

"But then speedy trial or other expressions

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conveying the said concept are necessarily

relative in nature. One may ask speedy

means, how speedy? How long a delay is

too long? We do not think it is possible to

lay down any time schedules for conclusion

of criminal proceedings. The nature of

offence, the number of accused, the number

of witnesses, the workload in the particular

court, means of communication and several

other circumstances have to be kept in

mind". (para 83).

".it is neither advisable nor feasible

to draw or prescribe an outer time-limit for

conclusion of all criminal proceedings. It is

not necessary to do so for effectuating the

right to speedy trial. We are also not

satisfied that without such an outer limit, the

right becomes illusory". (para 83)

"even apart from Article 21 courts in

this country have been cognizant of undue

delays in criminal matters and wherever

there was inordinate delay or where the

proceedings were pending for too long and

any further proceedings were deemed to be

oppressive and unwarranted, they were put

an end to by making appropriate orders".

(para 65)

[emphasis supplied]

In 1986, "Common Cause"__ a Registered Society, espousing

public causes, preferred a petition under Article 32 of the Constitution

of India seeking certain directions. By a brief order ("Common

Cause" A Registered Society through its Director Vs. Union of

India & Ors. (1996) 4 SCC 32, hereinafter Common Cause (I) ), a

two-Judge Bench of this Court issued two sets of directions: one,

regarding bail, and the other, regarding quashing of trial. Depending

on the quantum of imprisonment provided for several offences under

the Indian Penal Code and the period of time which the accused have

already spent in jail, the undertrial accused confined in jails were

directed to be released on bail or on personal bond subject to such

conditions as the Court may deem fit to impose in the light of Section

437 of Cr.P.C.. The other set of directions directed the trial in

pending cases to be terminated and the accused to be discharged or

acquitted depending on the nature of offence by reference to (i) the

maximum sentence inflictable whether fine only or imprisonment,

and if imprisonment, then the maximum set out in the law, and (ii) the

period for which the case has remained pending in the criminal court.

A perusal of the directions made by the Division Bench shows

the cases having been divided into two categories: (i) traffic offences,

and (ii) cases under IPC or any other law for the time being in force.

The Court directed the trial Courts to close such cases on the

occurrence of following event and the period of delay:-

Category (i) : Traffic Offences:

The Court directed the cases to be closed and the accused to be

discharged on lapse of more than two years on account of non-serving

of summons to the accused or for any other reason whatsoever.

Category (ii) : Cases under IPC or any other law for the time

being in force :

The Court directed that in the following sub-categories if the

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trial has not commenced and the period noted against each sub-

category has elapsed then the case shall be closed and the accused

shall be discharged or acquitted __

Nature of the cases

Period of delay i.e. trial not

commenced for

Cases compoundable with the

permission of the Court

More than two years

Cases pertaining to offences

which are non-cognizable and

bailable

More than two years

Cases in connection with offences

punishable with fine only and are

not of recurring nature

More than one year

Cases punishable with

imprisonment upto one year, with

or without fine

More than one year

Cases pertaining to offences

punishable with imprisonment

upto three years with or without

fine

More than two years

The period of pendency was directed to be calculated from the

date the accused are summoned to appear in Court. The Division

Bench, vide direction 4, specified certain categories of cases to which

its directions would not be applicable. Vide direction 5, this court

directed the offences covered by direction 4 to be tried on priority

basis and observance of this direction being monitored by the High

Courts. All the directions were made applicable not only to the cases

pending on the day but also to cases which may be instituted

thereafter.

Abovesaid directions in Common Cause-I were made on May

1, 1996. Not even a period of 6 months had elapsed, on 15.10.1996,

Shri Sheo Raj Purohit __ a public-spirited advocate addressed a Letter

Petition to this Court, inviting its attention to certain consequences

flowing from the directions made by this Court in Common Cause (I)

and which were likely to cause injustice to the serious detriment of the

society and could result in encouraging dilatory tactics adopted by the

accused. A two-Judge Bench of this court, which was the same as had

issued directions in Common Cause (I), made three directions which

had the effect of clarifying/modifying the directions in Common

Cause (I). The first direction clarified that the time spent in criminal

proceedings, wholly or partly, attributable to the dilatory tactics or

prolonging of trial by action of the accused, or on account of stay of

criminal proceedings secured by such accused from higher courts

shall be excluded in counting the time-limit regarding pendency of

criminal proceedings. Second direction defined the terminus a quo,

i.e. what would be the point of commencement of trial while working

out 'pendency of trials' in Sessions Court, warrant cases and

summons cases. In the third direction, the list of cases, by reference

to nature of offence to which directions in Common Cause (I) would

not apply, was expanded.

In Raj Deo Sharma (I), an accused charged with offences

under Sections 5(2) & 5 (1) (e) of the Prevention of Corruption Act,

1947 came up to this Court, having failed in High Court, seeking

quashing of prosecution against him on the ground of violation of

right to speedy trial. Against him the offence was registered in 1982

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and chargesheet was submitted in 1985. The accused appeared on

24.4.1987 before the Special Judge. Charges were framed on

4.3.1993. Until 1.6.1995 only 3 out of 40 witnesses were examined.

The three-Judge Bench of this Court, which heard the case, set aside

the order passed by the High Court and sent the matter back to the

Special Judge for passing appropriate orders in the light of its

judgment. Vide para 17, the three-Judge Bench issued five further

directions purporting to be supplemental to the propositions laid down

in A.R. Antulay. The directions need not be reproduced and suffice it

to observe that by dividing the offence into two categories those

punishable with imprisonment for a period not exceeding 7 years and

those punishable with imprisonment for a period exceeding 7 years,

the Court laid down periods of limitation by reference to which either

the prosecution evidence shall be closed or the accused shall be

released on bail. So far as the trial for offences is concerned, for the

purpose of making directions, the Court categorized the offences and

the nature and period of delay into two, which may be set out in a

tabular form as under:-

Nature of offence

Nature and period of delay

Offence punishable with

imprisonment for a period

not exceeding seven years,

whether the accused is in

jail or not

Completion of two years from the date

of recording the plea of the accused on

the charges framed, whether the

prosecution has examined all the

witnesses or not within the said period

of two years

Offence punishable with

imprisonment for a period

exceeding seven years,

whether the accused is in

jail or not

Completion of three years from the

date of recording the plea of the

accused on the charge framed, whether

the prosecution has examined all the

witnesses or not within the said period

The consequence which would follow on completion of two or

three years, as abovesaid, is, the Court directed, that the trial Court

shall close the prosecution evidence and can proceed to the next step

of trial. In respect of the second category, the Court added a rider by

way of exception stating __ "Unless for very exceptional reasons to be

recorded and in the interest of justice, the Court considers it necessary

to grant further time to the prosecution to adduce evidence beyond the

aforesaid time limit" (of three years). The period of inability for

completing prosecution evidence attributable to conduct of accused in

protracting the trial and the period during which trial remained stayed

by orders of the court or by operation of law was directed to be

excluded from calculating the period at the end of which the

prosecution evidence shall be closed. Further, the Court said that the

directions made by it shall be in addition to and without prejudice to

the directions issued in Common Cause (I) as modified in Common

Cause (II).

Raj Deo Sharma (I) came up once again for consideration of

this Court in Raj Deo Sharma Vs. State of Bihar (1999) 7 SCC

604, hereinafter Raj Deo Sharma (II). This was on an application

filed by Central Bureau of Investigation (CBI) for clarification (and

also for some modification) in the directions issued. The three-Judge

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Bench which heard the matter consisted of K.T. Thomas, J. and M.

Srinivasan, J. who were also on the Bench issuing directions in Raj

Deo Sharma (I) and M.B. Shah, J. who was not on the Bench in Raj

Deo Sharma (I). In the submission of CBI the directions of the Court

made in Raj Deo Sharma (I) ran counter to A.R. Antulay and did not

take into account the time taken by the Court on account of its

inability to carry on day to day trial due to pressure of work. The CBI

also pleaded for the directions in Raj Deo Sharma (I) being made

prospective only, i.e., period prior to the date of directions in Raj Deo

Sharma (I) being excluded from consideration. All the three learned

Judges wrote separate judgments. K.T. Thomas, J. by his judgment,

to avert 'possibility of miscarriage of justice', added a rider to the

directions made in Raj Deo Sharma (I) that an additional period of

one year can be claimed by the prosecution in respect of prosecutions

which were pending on the date of judgment in Raj Deo Sharma (I)

and the Court concerned would be free to grant such extension if it

considered it necessary in the interest of administration of criminal

justice. M. Srinivasan, J. in his separate judgment, assigning his own

reasons, expressed concurrence with the opinion expressed and the

only clarification ordered to be made by K.T. Thomas, J. and placed

on record his express disagreement with the opinion recorded by M.B.

Shah, J.

M.B. Shah, J. in his dissenting judgment noted the most usual

causes for delay in delivery of criminal justice as discernible from

several reported cases travelling upto this Court and held that the

remedy for the causes of delay in disposal of criminal cases lies in

effective steps being taken by the Judiciary, the Legislature and the

State Governments, all the three. The dangers behind constructing

time-limit barriers by judicial dictum beyond which a criminal trial or

proceedings could not proceed, in the opinion of M.B. Shah, J., are (i)

it would affect the smooth functioning of the society in accordance

with law and finally the Constitution. The victims left without any

remedy would resort to taking revenge by unlawful means resulting in

further increase in the crimes and criminals. People at large in the

society would also feel unsafe and insecure and their confidence in the

judicial system would be shaken. Law would lose its deterrent effect

on criminals; (ii) with the present strength of Judges and infrastructure

available with criminal courts it would be almost impossible for the

available criminal courts to dispose of the cases within the prescribed

time-limit; (iii) prescribing such time-limits may run counter to the

law specifically laid down by Constitution Bench in Antulay's case.

In the fore-quoted thinking of M.B. Shah, J. we hear the echo of what

Constitution Bench spoke in Kartar Singh Vs. State of Punjab

(1994) 3 SCC 569, vide para 351, "No doubt, liberty of a citizen must

be zealously safeguarded by the courts; nonetheless the courts while

dispensing justice in cases like the one under the TADA Act, should

keep in mind not only the liberty of the accused but also the interest of

the victim and their near and dear and above all the collective interest

of the community and the safety of the nation so that the public may

not lose faith in the system of judicial administration and indulge in

private retribution."

At the end M.B. Shah, J. opined that order dated 8.10.1998

made in Raj Deo Sharma (I) requires to be held in abeyance and the

State Government and Registrars of the High Courts ought to be

directed to come up with specific plans for the setting up of additional

courts/special courts (permanent/ad hoc) to cope up with the pending

workload on the basis of available figures of pending cases also by

taking into consideration the criteria for disposal of criminal cases

prescribed by various High Courts. In conclusion, the Court directed

the application filed by the CBI to be disposed of in terms of the

majority opinion.

A perception of the causes for delay at the trial and in

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conclusion of criminal proceedings is necessary so as to appreciate

whether setting up bars of limitation entailing termination of trial or

proceedings can be justified. The root cause for delay in dispensation

of justice in our country is poor judge-population-ratio. Law

Commission of India in its 120th Report on Manpower Planning in

Judiciary (July 1987), based on its survey, regretted that in spite of

Article 39A added as a major Directive Principle in the Constitution

by 42nd Amendment (1976), obliging the State to secure such

operation of legal system as promotes justice and to ensure that

opportunities for securing justice are not denied to any citizen several

reorganisation proposals in the field of administration of justice in

India have been basically patch work, ad hoc and unsystematic

solutions to the problem. The judge-population-ratio in India (based

on 1971 census) was only 10.5 judges per million population while

such ratio was 41.6 in Australia, 50.9 in England, 75.2 in Canada and

107 in United States. The Law Commission suggested that India

required 107 judges per million of Indian population; however to

begin with the judge strength needed to be raised to five-fold, i.e., 50

judges per million population in a period of five years but in any case

not going beyond ten years. Touch of sad sarcasm is difficult to hide

when the Law Commission observed (in its 120th Report, ibid) that

adequate reorganisation of the Indian judiciary is at the one and at the

same time everybody's concern and, therefore, nobody's concern.

There are other factors contributing to the delay at the trial. In A.R.

Antulay's case, vide para 83, the Constitution Bench has noted that in

spite of having proposed to go on with the trial of a case, five days a

week and week after week, it may not be possible to conclude the trial

for reasons, viz. (1) non-availability of the counsel, (2) non-

availability of the accused, (3) interlocutory proceedings, and (4)

other systemic delays. In addition, the Court noted that in certain

cases there may be a large number of witnesses and in some offences,

by their very nature, the evidence may be lengthy. In Kartar Singh

Vs. State of Punjab (1994) 3 SCC 569 another Constitution Bench

opined that the delay is dependent on the circumstances of each case

because reasons for delay will vary, such as (i) delay in investigation

on account of the widespread ramifications of crimes and its designed

network either nationally or internationally, (ii) the deliberate absence

of witness or witnesses, (iii) crowded dockets on the file of the court

etc. In Raj Deo Sharma (II), in the dissenting opinion of M.B. Shah,

J., the reasons for delay have been summarized as, (1) Dilatory

proceedings; (2) Absence of effective steps towards radical

simplification and streamlining of criminal procedure; (3) Multi-tier

appeals/revision applications and diversion to disposal of

interlocutory matters; (4) Heavy dockets; mounting arrears; delayed

service of process; and (5) Judiciary, starved by executive by neglect

of basic necessities and amenities, enabling smooth functioning.

Several cases coming to our notice while hearing appeals,

petitions and miscellaneous petitions (such as for bail and quashing of

proceedings) reveal, apart from inadequate judge strength, other

factors contributing to the delay at the trial. Generally speaking, these

are: (i) absence of, or delay in appointment of, public prosecutors

proportionate with the number of courts/cases; (ii) absence of or

belated service of summons and warrants on the accused/witnesses;

(iii) non-production of undertrial prisoners in the Court; (iv) presiding

Judges proceeding on leave, though the cases are fixed for trial; (v)

strikes by members of Bar; and (vi) counsel engaged by the accused

suddenly declining to appear or seeking an adjournment for personal

reasons or personal inconvenience. It is common knowledge that

appointments of public prosecutors are politicized. By convention,

government advocates and public prosecutors were appointed by the

executive on the recommendation of or in consultation with the head

of judicial administration at the relevant level but gradually the

executive has started bypassing the merit based recommendations of,

or process of consultation with, District and Sessions Judges. For non-

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service of summons/orders and non-production of undertrial prisoners,

the usual reasons assigned are shortage of police personnel and police

people being busy in VIP duties or law and order duties. These can

hardly be valid reasons for not making the requisite police personnel

available for assisting the Courts in expediting the trial. The members

of the Bar shall also have to realize and remind themselves of their

professional obligation __ legal and ethical, that having accepted a

brief for an accused they have no justification to decline or avoid

appearing at the trial when the case is taken up for hearing by the

Court. All these factors demonstrate that the goal of speedy justice

can be achieved by a combined and result-oriented collective thinking

and action on the part of the Legislature, the Judiciary, the Executive

and representative bodies of members of Bar.

Is it at all necessary to have limitation bars terminating trials

and proceedings? Is there no effective mechanisms available for

achieving the same end? The Criminal Procedure Code, as it stands,

incorporates a few provisions to which resort can be had for

protecting the interest of the accused and saving him from

unreasonable prolixity or laxity at the trial amounting to oppression.

Section 309, dealing with power to postpone or adjourn proceedings,

provides generally for every inquiry or trial, being proceeded with as

expeditiously as possible, and in particular, when the examination of

witnesses has once begun, the same to be continued from day to day

until all the witnesses in attendance have been examined, unless the

Court finds the adjournment of the same beyond the following day to

be necessary for reasons to be recorded. Explanation-2 to Section 309

confers power on the Court to impose costs to be paid by the

prosecution or the accused, in appropriate cases, and putting the

parties on terms while granting an adjournment or postponing of

proceedings. This power to impose costs is rarely exercised by the

Courts. Section 258, in Chapter XX of Cr.P.C., on Trial of Summons-

cases, empowers the Magistrate trying summons cases instituted

otherwise than upon complaint, for reasons to be recorded by him, to

stop the proceedings at any stage without pronouncing any judgment

and where such stoppage of proceedings is made after the evidence of

the principal witnesses has been recorded, to pronounce a judgment of

acquittal, and in any other case, release the accused, having effect of

discharge. This provision is almost never used by the Courts. In

appropriate cases, inherent power of the High Court, under Section

482 can be invoked to make such orders, as may be necessary, to give

effect to any order under the Code of Criminal Procedure or to prevent

abuse of the process of any Court, or otherwise, to secure the ends of

justice. The power is wide and, if judiciously and consciously

exercised, can take care of almost all the situations where interference

by the High Court becomes necessary on account of delay in

proceedings or for any other reason amounting to oppression or

harassment in any trial, inquiry or proceedings. In appropriate cases,

the High Courts have exercised their jurisdiction under Section 482 of

Cr.P.C. for quashing of first information report and investigation, and

terminating criminal proceedings if the case of abuse of process of

law was clearly made out. Such power can certainly be exercised on a

case being made out of breach of fundamental right conferred by

Article 21 of the Constitution. The Constitution Bench in A.R.

Antulay's case referred to such power, vesting in the High Court (vide

paras 62 and 65 of its judgment) and held that it was clear that even

apart from Article 21, the Courts can take care of undue or inordinate

delays in criminal matters or proceedings if they remain pending for

too long and putting to an end, by making appropriate orders, to

further proceedings when they are found to be oppressive and

unwarranted.

Legislation is that source of law which consists in the

declaration of legal rules by a competent authority. When judges by

judicial decisions lay down a new principle of general application of

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the nature specifically reserved for legislature they may be said to

have legislated, and not merely declared the law. Salmond on

Principles of Jurisprudence (12th Edition) goes on to say "we must

distinguish law-making by legislators from law-making by the courts.

Legislators can lay down rules purely for the future and without

reference to any actual dispute; the courts, insofar as they create law,

can do so only in application to the cases before them and only insofar

as is necessary for their solution. Judicial law-making is incidental to

the solving of legal disputes; legislative law-making is the central

function of the legislator" (page 115). It is not difficult to perceive the

dividing line between permissible legislation by judicial directives and

enacting law the field exclusively reserved for legislature. We are

concerned here to determine whether in prescribing various periods of

limitation, adverted to above, the Court transgressed the limit of

judicial legislation.

Bars of limitation, judicially engrafted, are, no doubt, meant to

provide a solution to the aforementioned problems. But a solution of

this nature gives rise to greater problems like scuttling a trial without

adjudication, stultifying access to justice and giving easy exit from the

portals of justice. Such general remedial measures cannot be said to

be apt solutions. For two reasons we hold such bars of limitation

uncalled for and impermissible : first, because it tantamounts to

impermissible legislation an activity beyond the power which the

Constitution confers on judiciary, and secondly, because such bars of

limitation fly in the face of law laid down by Constitution Bench in

A.R. Antulay's case and, therefore, run counter to the doctrine of

precedents and their binding efficacy.

In a monograph "Judicial Activism and Constitutional

Democracy in India", commended by Professor Sir William Wade,

Q.C. as a "small book devoted to a big subject", the learned author,

while recording appreciation of judicial activism, sounds a note of

caution "it is plain that the judiciary is the least competent to

function as a legislative or the administrative agency. For one thing,

courts lack the facilities to gather detailed data or to make probing

enquiries. Reliance on advocates who appear before them for data is

likely to give them partisan or inadequate information. On the other

hand if courts have to rely on their own knowledge or research it is

bound to be selective and subjective. Courts also have no means for

effectively supervising and implementing the aftermath of their

orders, schemes and mandates. Moreover, since courts mandate for

isolated cases, their decrees make no allowance for the differing and

varying situations which administrators will encounter in applying the

mandates to other cases. Courts have also no method to reverse their

orders if they are found unworkable or requiring modification".

Highlighting the difficulties which the courts are likely to encounter if

embarking in the fields of legislation or administration, the learned

author advises " the Supreme Court could have well left the decision-

making to the other branches of government after directing their

attention to the problems rather than itself entering the remedial

field".

The primary function of judiciary is to interpret the law. It may

lay down principles, guidelines and exhibit creativity in the field left

open and unoccupied by Legislation. Patrick Devlin in 'The Judge'

(1979) refers to the role of the Judge as lawmaker and states that there

is no doubt that historically judges did make law, at least in the sense

of formulating it. Even now when they are against innovation, they

have never formally abrogated their powers; their attitude is: 'We

could if we would but we think it better not.' But as a matter of

history did the English judges of the golden age make law? They

decided cases which worked up into principles. The judges, as Lord

Wright once put it in an unexpectedly picturesque phrase, proceeded

'from case to case, like the ancient Mediterranean mariners, hugging

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the coast from point to point and avoiding the dangers of the open sea

of system and science'. The golden age judges were not rationalisers

and, except in the devising of procedures, they were not innovators.

They did not design a new machine capable of speeding ahead; they

struggled with the aid of fictions and bits of procedural string to keep

the machine on the road.

Professor S.P. Sathe, in his recent work (Year 2002) "Judicial

Activism in India Transgressing Borders and Enforcing Limits",

touches the topic "Directions : A New Form of Judicial Legislation".

Evaluating legitimacy of judicial activism, the learned author has

cautioned against Court "legislating" exactly in the way in which a

Legislature legislates and he observes by reference to a few cases that

the guidelines laid down by court, at times, cross the border of

judicial law making in the realist sense and trench upon legislating

like a Legislature. "Directions are either issued to fill in the gaps in

the legislation or to provide for matters that have not been provided by

any legislation. The Court has taken over the legislative function not

in the traditional interstitial sense but in an overt manner and has

justified it as being an essential component of its role as a

constitutional court." (p.242). "In a strict sense these are instances of

judicial excessivism that fly in the face of the doctrine of separation of

powers. The doctrine of separation of powers envisages that the

legislature should make law, the executive should execute it, and the

judiciary should settle disputes in accordance with the existing law.

In reality such watertight separation exists nowhere and is

impracticable. Broadly, it means that one organ of the State should

not perform a function that essentially belongs to another organ.

While law-making through interpretation and expansion of the

meanings of open-textured expressions such as 'due process of law',

'equal protection of law', or 'freedom of speech and expression' is a

legitimate judicial function, the making of an entirely new

law..through directionsis not a legitimate judicial function."

(p.250).

Prescribing periods of limitation at the end of which the trial

court would be obliged to terminate the proceedings and necessarily

acquit or discharge the accused, and further, making such directions

applicable to all the cases in the present and for the future amounts to

legislation, which, in our opinion, cannot be done by judicial

directives and within the arena of the judicial law-making power

available to constitutional courts, howsoever liberally we may

interpret Articles 32, 21, 141 and 142 of the Constitution. The

dividing line is fine but perceptible. Courts can declare the law, they

can interpret the law, they can remove obvious lacunae and fill the

gaps but they cannot entrench upon in the field of legislation properly

meant for the legislature. Binding directions can be issued for

enforcing the law and appropriate directions may issue, including

laying down of time limits or chalking out a calendar for proceedings

to follow, to redeem the injustice done or for taking care of rights

violated, in a given case or set of cases, depending on facts brought to

the notice of Court. This is permissible for judiciary to do. But it may

not, like legislature, enact a provision akin to or on the lines of

Chapter XXXVI of the Code of Criminal Procedure, 1973.

The other reason why the bars of limitation enacted in Common

Cause (I), Common Cause (II) and Raj Deo Sharma (I) and Raj Deo

Sharma (II) cannot be sustained is that these decisions though two or

three-judge Bench decisions run counter to that extent to the dictum of

Constitution Bench in A.R. Antulay's case and therefore cannot be

said to be good law to the extent they are in breach of the doctrine of

precedents. The well settled principle of precedents which has

crystalised into a rule of law is that a bench of lesser strength is bound

by the view expressed by a bench of larger strength and cannot take a

view in departure or in conflict therefrom. We have in the earlier part

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of this judgment extracted and reproduced passages from A.R.

Antulay's case. The Constitution Bench turned down the fervent plea

of proponents of right to speedy trial for laying down time-limits as

bar beyond which a criminal proceeding or trial shall not proceed and

expressly ruled that it was neither advisable nor practicable (and

hence not judicially feasible) to fix any time-limit for trial of offences.

Having placed on record the exposition of law as to right to speedy

trial flowing from Article 21 of the Constitution this Court held that it

was necessary to leave the rule as elastic and not to fix it in the frame

of defined and rigid rules. It must be left to the judicious discretion of

the court seized of an individual case to find out from the totality of

circumstances of a given case if the quantum of time consumed upto a

given point of time amounted to violation of Article 21, and if so, then

to terminate the particular proceedings, and if not, then to proceed

ahead. The test is whether the proceedings or trial has remained

pending for such a length of time that the inordinate delay can

legitimately be called oppressive and unwarranted, as suggested in

A.R. Antulay. In Kartar Singh's case (supra) the Constitution Bench

while recognising the principle that the denial of an accused's right of

speedy trial may result in a decision to dismiss the indictment or in

reversing of a conviction, went on to state, "Of course, no length of

time is per se too long to pass scrutiny under this principle nor the

accused is called upon to show the actual prejudice by delay of

disposal of cases. On the other hand, the court has to adopt a

balancing approach by taking note of the possible prejudices and

disadvantages to be suffered by the accused by avoidable delay and to

determine whether the accused in a criminal proceeding has been

deprived of his right of having speedy trial with unreasonable delay

which could be identified by the factors (1) length of delay, (2) the

justification for the delay, (3) the accused's assertion of his right to

speedy trial, and (4) prejudice caused to the accused by such delay."

(para 92).

For all the foregoing reasons, we are of the opinion that in

Common Cause case (I) (as modified in Common Cause (II) ) and

Raj Deo Sharma (I) and (II), the Court could not have prescribed

periods of limitation beyond which the trial of a criminal case or a

criminal proceeding cannot continue and must mandatorily be closed

followed by an order acquitting or discharging the accused. In

conclusion we hold:-

(1) The dictum in A.R. Antulay's case is correct and still holds the

field.

(2) The propositions emerging from Article 21 of the Constitution

and expounding the right to speedy trial laid down as guidelines

in A.R. Antulay's case, adequately take care of right to speedy

trial. We uphold and re-affirm the said propositions.

(3) The guidelines laid down in A.R. Antulay's case are not

exhaustive but only illustrative. They are not intended to

operate as hard and fast rules or to be applied like a strait-jacket

formula. Their applicability would depend on the fact-situation

of each case. It is difficult to foresee all situations and no

generalization can be made.

(4) It is neither advisable, nor feasible, nor judicially permissible

to draw or prescribe an outer limit for conclusion of all criminal

proceedings. The time-limits or bars of limitation prescribed in

the several directions made in Common Cause (I), Raj Deo

Sharma (I) and Raj Deo Sharma (II) could not have been so

prescribed or drawn and are not good law. The criminal courts

are not obliged to terminate trial or criminal proceedings merely

on account of lapse of time, as prescribed by the directions

made in Common Cause Case (I), Raj Deo Sharma case (I)

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and (II). At the most the periods of time prescribed in those

decisions can be taken by the courts seized of the trial or

proceedings to act as reminders when they may be persuaded to

apply their judicial mind to the facts and circumstances of the

case before them and determine by taking into consideration the

several relevant factors as pointed out in A.R. Antulay's case

and decide whether the trial or proceedings have become so

inordinately delayed as to be called oppressive and

unwarranted. Such time-limits cannot and will not by

themselves be treated by any Court as a bar to further

continuance of the trial or proceedings and as mandatorily

obliging the court to terminate the same and acquit or discharge

the accused.

(5) The Criminal Courts should exercise their available powers,

such as those under Sections 309, 311 and 258 of Code of

Criminal Procedure to effectuate the right to speedy trial. A

watchful and diligent trial judge can prove to be better protector

of such right than any guidelines. In appropriate cases

jurisdiction of High Court under Section 482 of Cr.P.C. and

Articles 226 and 227 of Constitution can be invoked seeking

appropriate relief or suitable directions.

(6) This is an appropriate occasion to remind the Union of India

and the State Governments of their constitutional obligation to

strengthen the judiciary-quantitatively and qualitatively by

providing requisite funds, manpower and infrastructure. We

hope and trust that the Governments shall act.

We answer the questions posed in the orders of reference dated

September 19, 2000 and April 26, 2001 in the abovesaid terms.

The appeals are allowed. The impugned judgments of the High

Court are set aside. As the High Court could not have condoned the

delay in filing of the appeals and then allowed the appeals without

noticing the respective accused-respondents before the High Court,

now the High Court shall hear and decide the appeals afresh after

noticing the accused-respondent before it in each of the appeals and

consistently with the principles of law laid down hereinabove.

Before we may part, we would like to make certain

observations ex abundanti cautela :

Firstly, we have dealt with the directions made by this Court in

Common Cause Case-I and II and Raj Deo Sharma Case I and II

regarding trial of cases. The directions made in those cases regarding

enlargement of accused persons on bail are not subject matter of this

reference or these appeals and we have consciously abstained from

dealing with legality, propriety or otherwise of directions in regard to

bail. This is because different considerations arise before the criminal

courts while dealing with termination of a trial or proceedings and

while dealing with right of accused to be enlarged on bail.

Secondly, though we are deleting the directions made

respectively by two and three-Judge Benches of this Court in the cases

under reference, for reasons which we have already stated, we should

not, even for a moment, be considered as having made a departure

from the law as to speedy trial and speedy conclusion of criminal

proceedings of whatever nature and at whichever stage before any

authority or the court. It is the constitutional obligation of the State to

dispense speedy justice, more so in the field of criminal law, and

paucity of funds or resources is no defence to denial of right to justice

emanating from Articles 21, 19 and 14 and the Preamble of the

Constitution as also from the Directive Principles of State Policy. It is

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high time that the Union of India and the various States realize their

constitutional obligation and do something concrete in the direction of

strengthening the justice delivery system. We need to remind all

concerned of what was said by this Court in Hussainara Khatoon

(IV) 1980 (1) SCC 98, "The State cannot be permitted to deny the

constitutional right of speedy trial to the accused on the ground that

the State has no adequate financial resources to incur the necessary

expenditure needed for improving the administrative and judicial

apparatus with a view to ensuring speedy trial. The State may have its

financial constraints and its priorities in expenditure, but, 'the law

does not permit any government to deprive its citizens of

constitutional rights on a plea of poverty', or administrative inability."

Thirdly, we are deleting the bars of limitation on the twin

grounds that it amounts to judicial legislation, which is not

permissible, and because they run counter to the doctrine of binding

precedents. The larger question of powers of this court to pass orders

and issue directions in public interest or in social action litigations,

specially by reference to Articles 32, 141, 142 and 144 of the

Constitution, is not the subject matter of reference before us and this

judgment should not be read as an interpretation of those Articles of

the Constitution and laying down, defining or limiting the scope of the

powers exercisable thereunder by this Court.

And lastly, it is clarified that this decision shall not be a ground

for re-opening a case or proceeding by setting aside any such

acquittal or discharge as is based on the authority of 'Common

Cause' and 'Raj Deo Sharma' cases and which has already achieved

finality and re-open the trial against the accused therein.

. . . . . . .. . . . . . . . . . . . . . . . . . . . . CJI

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .J.

( Syed Shah Mohammed Quadri)

. . . . . . .. . . . . . . . . . . . . . . . . . . . . . .J.

( R.C. Lahoti )

. . . . . . .. . . . . . . . . . . . . . . . . . . . . . .J.

( N. Santosh Hegde )

. . . . . . .. . . . . . . . . . . . . . . . . . . . . . .J.

( Ruma Pal )

. . . . . . .. . . . . . . . . . . . . . . . . . . . . . .J.

( Arijit Pasayat )

April 16, 2002.