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PETITIONER:

RAJ DEO SHARMA

Vs.

RESPONDENT:

THE STATE OF BIHAR

DATE OF JUDGMENT: 08/10/1998

BENCH:

CJI, K.T.

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

Leave granted.

On November 2, 1982, a case was registered against

the petitioner regarding an offence under Section 5(2) read

with Section 5(1) (e) of the prevention of Corruption Act

(Act 11 of 1947). A charge sheet was submitted on 30.8.1985

by the C.B.I. in which the alleged disproportionate assets

of the petitioner as on 5.11.1982 amounted to Rs.

9.10.932.41 along with a list of 40 witnesses and 20

documents. The Special Judge, C.B.I., South Bihar, Patna

took cognisance of the offences on 14.11.1986 and issued

summons fixing 2.12.1986 as the date for appearance. On

24.4.1987, the petitioner appeared before court, applied for

and obtained bail. The charges were framed by the Special

Judge on 4.3.1993. Three withnesses were examined by the

prosecution till 1.6.1995.

2.The petitioner filed a writ petition in the high

Court of Patna on 5.12.1995 praying inter alia for quashing

the entire prosecution including the F.I.R. on the ground

that more than 13 years had elapsed since the institution of

the F.I.R. and thus the right of the petitioner to speedy

trial was violated.The petition registered as Cr. W.J.C.

No. 809/95 was dismissed by the High Court on 7.12.1995 on

the ground that the delay was due to the fact that there was

only one Special Court of the C.B.I. functioning and a

large number of cases were pending before it. It is the

said order which is challenged in this petition.

2.The petitioner filed a writ petition in the High

Court of Patna on 5.12.1995 praying inter alia for quashing

the entire prosecution including the F.I.R on the ground

that more than 13 years had elapsed since the institution of

the F.I.R and thus the right of the petitioner to speedy

trial was violated. The petition registered as Cr. W.J.C.

No. 809/95 was dismissed by the High Court on 7.12.1995 on

the ground that the delay was due to the ract that there was

only one Special Court of the C.B.I. functioning and a

large number of cases were pending before it. It is the

said order which is challenged in this petition.

3.After service of notice and appearance of the

respondent, the Superintendent of Police, C.B.I., Patna was

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arrayed as second respondent. By order dated 9.12.1996. a

report was called for from the Special Judge as to the

condition of the present case as well as other cases

similarly blocked up. The report of the Special Judge dated

25.12.1996 has disclosed a shocking state of affairs. As

regards the present case, the relevant part of the report

reads as follows:-

"According to chargesheet there are as many as

forty witnesses out of whom, the prosecution has

examined till today only three witnesses. The

last witness was examined on 3.9.93. Thereafter

36 adjournments were given to the prosecution for

examination of remaining witnesses. However, the

Prosecution has failed to examine any of the

remaining witnesses. The next date fixed in the

case for production of witness by the prosecution

is 6.1.97. it would not be out of place that

myself joined as Special Judge only on 21.9.96.

thereafter I also directed the C.B.I. to produce

witnesses."

4.The report contains details of other pending cases.

There are as many as 52 cases ranging from 1975 to 1996

pending at the stage of evidence relating to C.B.I., South

Bihar and 44 cases ranging from 1972 to 1992 relating to

C.B.I. , North Bihar. By order dated 6.1.1997. We

directed the Superintendent of Police to file a counter

affidavit explanatory to the remarks made by the Special

Judge in his report with regard to the pendency of matters.

The counter affidavit filed by the Superintendent of Police

in February, 1997 has attempted to throw the blame on the

accused. In para 9 thereof, it is stated as follows:-

"However, on perusal of the order sheet

it would appear that all the times despite the

police papers being made available and inspection

being completed, the accused with a view to delay

framing of the charge, filed petition after

petition for supply of police papers. Such

petitions on behalf of the accused were nothing

but a dilatory device to delay framing of the

charge. Ultimately, charge was framed on 4.3.93;

it is also true that only 3 PWs have been

examined till date, for the only reason that

there has been only one court of Special Judge at

Patna hearing Special Cases of C.B.I. since

19.4.94 till date. It is also submitted that on

a number of occasions the accused remained

absent. No bailable warrant or nonbailable

warrants could be obtained against the witnesses,

as the trial court always remained busy in other

cases. It is pertinent to mention that the

Special Judge for C.B.I., is also Special judge

for Vigilances Cases. The Special Court for

C.B.I. also hears Sessions Trials and Civil

Appeals and as such the Court is hardly left with

time to hear exclusively the cases of Anti

Corruption matters. Over and above, C.B.I. had

256 cases pending before the special judge in

June. 1995, besides cases of Vigilance

Department, Government of Bihar and other regular

cases such as Cr. Appeals, Session trials

entrusted to him by the District and Session

Judge, Patna."

5.A rejoinder has been filed by the petitioner

refuting the allegations in the counter-affidavit and

reiterating that the delay in this case is entirely due to

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the fault of the prosecution which has prejudiced his

fundamental right to speedy trial. It is stated therein that

the prosecution failed to produce the documents on 48

occasions and failed to produce witnesses on 46 occasions.

6.The question before us is whether on the facts and

circumstances of the case, the prosecution against the

petitioner is to be quashed on the ground of delay in the

conduct of trial. The petitioner has never suffered

incarceration. As stated earlier, his application for bail

was ordered on the day he appeared before the Court and

presented the same.

7.The entitlement of the accused to speedy trial has

been repeatedly emphasised by this Court. Through it is not

enumerated as a fundamental right in the Constitution, this

Court has recognized the same to be implicit in the spectrum

of Article 21. In Hussainara Khatoon Versus Home Secretary,

State of Bihar (1980) 1 S.C.C. 81, the Court while dealing

with the cases of undertrials who had suffered long

incarceration held that a procedure which keeps such large

number 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 Article 21. The Court

laid stress upon the need for enactment of a law to ensure

reasonable, just and fair procedure which has creative

connotation after Manoka Gandhi's case [(1978) 1 S.C.C.248)]

in the matter of criminal trials.

8.In Hussainara Khatoon and others (IV) versus Home

Secretary. State of Bihar, Patna (1980) 1 S.C.C 98 this

Court held that financial constraints and priorities in

expenditure would not enable the Government to avoid its

duty to ensure speedy trial to the accused.

9.In State of Maharashtra versus Champalal Punjaji

Shan (1981) 3 S.C.C. 610 the Court took cognizance of the

fact that the prosecution would in some cases deliberately

adopt delaying tactics to keep the accused persons in jail

as long as possible and to harass them particularly when the

evidence is of a weak character and the conviction is not a

probable result. The Court also pointed out that the

accused person may be seriously jeopardised in the conduct

of his defence with the passage of time as witnesses for the

defence may become unavailable and their memories may fail.

However, the Court pointed out that a delayed trial is not

necessarily an unfair trial and the delay may be occasioned

by the tactics or the conduct of the accused himself.

10.In Madhu Mehta versus Union of India (1989) 4 S.C.C.

62 this Court commuted the death sentence to life

imprisonment while holding that inordinate delay should be

taken into account for purpose of deciding whether the

execution of the sentence should be carried out or should be

altered into imprisonment for life. The Court also observed

that no fixed period of delay would be considered to be

decisive.

11.In Abdul Rehman Antulay and others versus R.S.

Nayak and another (1992) 1 S.C.C. 225 the Constitution

Bench of this Court dealt with this aspect of the matter and

laid down certain guidelines. The relevant passages in

the judgment are as follows:-

Another question seriously canvassed

before us related to the consequence flowing from

an infringement of right to speedy trial.

Counsel for accused argued on the basis of the

observations in Sheela Barse and Strunk that the

only consequence is quashing of charges and/or

conviction, as the case may be. Normally, it may

be so. But we do not think that is the only

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order open to court. In a given case, the facts

including the nature of offence - may be such

that quashing of charges may not be in the

interest of justice. After all, every offence

more so economic offences, those relating to

public officials and food adulteration - is an

offence against society. It is really the

society - the State - that prosecutes the

offender. We may in this connection recall the

observations of this court in Champalal Punjaji

Shah. In cases, where quashing of

charges/convictions may not be in the interest of

justice, it shall be open to the court to pass

such appropriate orders as may be deemed just in

the circumstances of the case. Such orders may,

for example, take the shape of order for

expedition of trial and its conclusion within a

particular prescribed period, reduction of

sentence when the matter comes up after

conclusion of trial and conviction, and so on.

In view of the above discussion, the

following propositions emerge, meant to serve as

guidelines. We must forewarn that these

propositions are not exhaustive. It is difficult

to foresee all situations. Nor is it possible to

lay down any hard and fast rules. These

propositions are :-

1) Fair, just and reasonable procedure

implicit in Article 21 of the Constitution

creates a right in the accused to be tried

speedily. Right to speedy trial is the right of

the accused. The fact that a speedy trial is also

in public interest or that it serves the social

interest also does not make it any the less the

right of the accused. It is in the interest of

all concerned that the quilt or innocence of the

accused is determined as quickly as possible in

the circumstances.

2) Right to speedy trial flowing from

Article 21 encompasses all the stages, namely the

stage of investigation, inquiry, trial, appeal,

revision and re-trial. That is how, this Court

has understood this right and there is no reason

to take a restricted view.

3) The concerns underlying the right to

speedy trial from the point of view of the

accused are :-

(a) the period of remand and

pre-conviction detention should be

as short as possible. In other

words, the accused should not be

subjected to unnecessary or unduly

long incarceration prior to his

conviction;

(b) the worry, anxiety, expense and

disturbance to his vocation and

peace, resulting from an unduly

prolonged investigation, inquiry or

trial should be minimal; and

(c) undue delay may well result in

impairment of the ability of the

accused to defend himself, whether

on account of death, disappearance

or non-availability of witnesses or

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otherwise.

4) At the same time, one cannot ignore

the fact that it is usualy the accused who is

interested in delaying the proceedings. As is

often pointed out, "delay is a known defence

tactic". Since the burden of proving the quilt

of the accused lies upon the prosecution, delay

ordinarily prejudices the prosecution.

Non-availability of witnesses, disappearance of

evidence by lapse of time really work against the

interest of the prosecution. Of course, there

may be cases where the prosecution, for whatever

reason, also delays the proceedings. Therefore,

in every case, where the right to speedy trial is

alleged to have been infringed, the first

question to be put and answered is - who is

responsible for the delay? Proceedings taken by

either party in good Maith to vindicate their

rights and interest, as perceived by them, cannot

be treated as delaying tactics nor can the time

taken in pursuing such proceedings be counted

towards delay. It goes without saying that

frivolous proceedings or proceedings taken merely

for delaying the day of rockoning cannot be

treated as proceedings taken in good faith. The

more fact that an application/petition is

admitted and an order of stay granted by a

superior court is by itself no proof that the

proceeding is not frivolous. Very often these

stays are obtained on ex-parte representation.

5) While determining whether undue delay

has occurred (resulting in violation of Right to

Speedy Trial) one must have regard to all the

attendant circumstances, including nature of

offence, number of accused and witnesses, the

workload of the court concerned, prevailing local

conditions and so on - what is called, the

systemic delays. It is true that it is the

obligation of the State to ensure a speedy trial

and State includes judiciary as well, but a

realistic and practical approach should be

adopted in such matters instead of a pedantic

one.

6) Each and every delay does not

necessarily prejudice the accused. Some delays

may indeed work to his advantage. As has been

observed by Powell, J. in Barker "it cannot be

said how long a delay is too long in a system

where justice is supposed to be swift but

deliberate". The same idea has been stated by

whitel, J. in U.S. V. Ewell in the following

words:

... the Sixth Amendment right to a speedy

trial is necessarily relative, is consistent with

delays, and has orderly expedition, rather than

more speed, as its essential ingredients; and

whether delay in completing a prosecution amounts

to an unconstitutional deprivation of rights

depends upon all the circumstances'.

However, inordinately long delay may be

taken as presumptive proof of prejudice. In this

context, the fact of incarceration of accused

will also be a relevant fact. The prosecution

should not be allowed to become a persecution.

But when does the prosecution become persecution,

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again depends upon the facts of a given case.

7) We cannot recognize or give effect to,

what is called the 'demand' rule. An accused

cannot try himself; he is tried by the court at

the behest of the prosecution. Hence, an

accused's plea of denial of speedy trial cannot

be defeated by saying that the afccused did at no

time demand a speedy trial. If in a given case,

he did make such a demand and yet he was not

tried speedily, it would be a plus point in his

favour, but the mere non-asking for a speedy

trial cannot be put against the accused. Even in

USA, the relevance of demand rule has been

substantially watered down in Barker and other

succeeding cases.

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 cases.

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 timelimit 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

timelimit 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.

12.In Kartar Singh versus State of Punjab (1994) 3

S.C.C. 569 another Constitution Bench to which one of us

(M.M.Punchhi, j. as he then was) party observed thus:

"The concept of speedy trial is read into

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Article 21 as an essential part of fundamental

right to life and liberty guaranteed and

preserved under out Constitution. The right to

speedy trial begins with the actual restraint

imposed by arrest and consequent incarceration

and continues at all stages, namely, the stage of

investigation, enquiry, trial, appeal and

revision so that any possible prejudice that may

result from impermissible and avoidable delay

from the time of the commission of the offence

till it consummates into a finality, can be

averted. In this context, it may be noted that

the constitutional guarantee of speedy trial is

properly reflected in Section 309 of the Code of

criminal Procedure .................

Of course, no length of time is per se

too long to pass scrutiny under this principle

nor the accused is called upon the 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.

However, the fact of delay is dependent on the

circumstances of each case because reasons for

delay will very, such as delay in investigation

on account of the widespread ramification of

crimes and its designed network either nationally

or internationally, the deliberate absence of

witness or witnesses, crowded dockets on the file

of the court etc."

13.The above observations have to be understood in the

backdrop of the issues involved in that case. The

constitutional validity of Terrorist and Deisruptive

Activities (Prevention ) Act, 1987 (TADA) was questioned and

a five judge bench was then considering various contentions

including the possibility of persons accused of offences

under TADA remaining in jail as under trial prisoners for

long period on account of harsher and more stringent

provisions relating to grant of bail. The observations made

therein cannot, therefore, be read as in any way different

from the observations made by the seven judge bench in AR

Antulay (1992) (1) SCC 225). Hence, the legal position

adumbrated by this court in AR Antulay that the right to

speedy trial flows from Article 21 and it encompasses the

stages right from the date of registration of the FIR and

onwards remains unaltered.

14.But it has become necessary to consider the matter

at some length and lay down the additional guidelines in

view of the large pendency of the cases before the Special

Court, Patna for more than two decades by now. There may be

similar pendency in other States also.

15.The Code of Criminal Procedure is comprehensive

enough to enable the Magistrate to close the prosecution if

the prosecution is unable to produce its witnesses inspite

of repeated opportunities. Section 309(1) Cr. P.C. supports

the above view as it enjoins expeditious holding of the

proceedings and continuous examination of witnesses from day

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today. The section also provides for recording reasons for

adjourning the case beyond the following day.

16.After deep consideration of the matter, we proceed

to supplement the propositions laid down by the Constitution

bench in Antulay's case (supra) with the following

directions:-

(i) In cases where the trial is for an offence

punishable with imprisonment for a period not exceeding

seven years, whether the accused is in jail or not, the

court shall close the prosecution evidence on completion of

a period 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 and the court can proceed to the next step provided

by law for the trial of the case.

(ii) In such cases as mentioned above, if the

accused has been in jail for a period of not less than one

half of the maximum period of punishment prescribed for the

offence, the trial court shall release the accused on bail

forthwith on such conditions as it deems fit.

(iii) If the offence under trial is punishable with

imprisonment for a period exceeding 7 years, whether the

accused is in jail or not, the court shall close the

prosecution evidence on completion of three years from the

date of recording the plea of the accused on the charge

framed, whether the prosection has examined all the

witnesses or not within the said period and the court can

proceed to the next step provided by law for the trial of

the case, 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.

(iv) But if the inability for completing the

prosecution within the aforesaid period is attributable to

the conduct of the accused in protracting the trial, no

court is obliged to close the prosecution evidence within

the aforesaid period in any of the cases covered by clauses

(i) to (iii).

(v) Where the trial has been stayed by orders of

court or by operation of law such time during which the stay

was in force shall be excluded from the aforesaid period for

closing prosecution evidence. The above directions will be

in addition to and without prejudice to the directions

issued by this Court in "Common Cause" Vs. Union of India

(1996)(4) SCC 33) as modified by the same bench through the

order reported in "Common Cause" a registered Society Vs.

Union of India (1996) (6) SCC 775).

17.In the result, we set aside the impugned order

passed by the High Court and direct the Special Judge,

C.B.I. South Bihar, Patna to pass appropriate orders in the

case of the petitioner in pursuance of this judgment. The

appeal is allowed accordingly.

18.We issue the following additional direction in so

far as the State of Bihar is concerned:-

The State of Bihar shall constitute, within a period

of three months from today, at least five Special Courts, to

try the cases involving offences under the Prevention of

Corruption Act 1988 or its corresponding previous Act with

or without other offences allied to them.

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

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

( K.T. Thoms )

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

New Delhi

October 8, 1998.

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