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PETITIONER:

SHAHEEN WELFARE ASSOCIATION

Vs.

RESPONDENT:

UNION OF INDIA & ORS.

DATE OF JUDGMENT: 27/02/1996

BENCH:

MANOHAR SUJATA V. (J)

BENCH:

MANOHAR SUJATA V. (J)

AHMADI A.M. (CJ)

CITATION:

1996 SCC (2) 616 JT 1996 (2) 719

1996 SCALE (2)481

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

Mrs.Sujata V.Manohar,J.

This is a public interest litigation in which the

petitioner has prayed for certain reliefs to undertrial

prisoners charged under the Terrorist and Disruptive

Activities (Prevention) Act, 1987 (hereinafter referred to

as 'TADA'). The petitioner has asked, inter alia, for a

direction that the respondents should file a list of

detentes lodged in jails in different States under TADA and

has asked for a direction for the release of TADA detentes

against whom proper evidence is not with the prosecution and

where proper procedure prescribed under law is not followed.

Under orders passed from time to time in this petition

the States of Gujarat, Rajasthan and Maharashtra as well as

the Central Government have filed affidavits giving

information relating to the number of cases under TADA

pending in different Designated Courts in various States of

the country. We have also been furnished with the Statewise

numbers of Designated Courts constituted under TADA. In the

affidavit filed on behalf of the Union of India by Shri

A.K.Shrivastava, Deputy Secretary to the Government of

India, Ministry of Home Affairs, New Delhi, a statement is

annexed showing live cases under TADA and the number of

Designated Courts in different States and Union Territories.

The statement is as follows:

Sr.Name of the State/UT No. of live cases No. of Desig-

No. under TADA nated Courts

---------------------------------------------------------

(1) (2) (3) (4)

----------------------------------------------------------

1. Andhra Pradesh 1937 61

2. Arunachal Pradesh 15 11

3. Assam 2908 1

4. Bihar 4 35

5. Gujarat 72 18

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6. Haryana 348 8

7. Himachal Pradesh 5 3

8. Jammu & Kashmir 5041 4

9. Karnataka 25 19

10. Kerala -- 1

11. Manipur 603 4

12. Madhya Pradesh 76 10

13. Maharashtra 244 8

14. Meghalaya 8 1

15. Punjab 2248 18

16. Rajasthan 77 1

17 Tamil Nadu 26 5

18. Uttar Pradesh 39 15

19. West Bengal 1 18

20. Chandigarh Admn. 9 2

21. Delhi 759 4

22. Goa 1 1

------------------------------------------------------------

Total:- 14446 248

------------------------------------------------------------

Thus, for example, in the State of Assam the number of live

cases are 2908. There is only one Designated Court to try

all these cases. In Jammu & Kashmir, there are only four

Designated Courts for trial of 5041 cases. In Rajasthan

there is only one Designated Court for the trial of 77 cases

while in Delhi there are four Designated Courts for the

trial of 759 pending cases. The number of Designated Courts

is also somewhat deceptive in the sense that in some States

the existing Sessions Courts are also designated as courts

under TADA, with the result that these courts do not deal

exclusively with the trial of TADA cases. They also deal

with other criminal cases. Therefore, the entire time of

such courts is not available for the trial of TADA cases. It

is quite clear that in many States there is no prospect of a

speedy trial of pending TADA cases. A statement which is

annexed to an earlier affidavit filed on filed on behalf of

the Union of the Union of India by Shri R.S.Tanwar, Under

Secretary to the Government of India, Ministry of Home

Affairs, New Delhi, shows that in respect of 14446 cases

under investigation and pending trial in the various States

of the country, the detentions involved are 42488, out which

the number of persons actually arrested and under detention

is 59983. Those released on bail are 30357, and those

absconding and yet to be arrested are 6044. This is after

taking into account the cases which were revided by the

State Review Committees, and were either withdrawn or where

charges under the provisions of TADA were dropped. The total

number of cases so reviewed comes to 9203 and the number of

persons discharged from TADA provisions are 7968.

The National Human Rights Commission has also furnished

a statement showing the position of TADA detentes in jail as

on 30.6.1995. While the Statewise figures given by it do no

tally with the figures given by the Union of India, the

total number of undertrials in jail according to the

National Human Rights Commission is 6000, (after taking into

account its corrections for Assam, Punjab and Rajasthan)

which is close to the figure of 5998 given by the Union of

India.

It is in this context that we have to consider what

relief can be granted to detentes under TADA. In the case of

Kartar Singh v. State of Punjab (1994 (3) SCC 569) this

Court while considering the validity of Section 20(8) of

TADA, has observed that while liberty of a citizen must be

zealously safeguarded by the courts, nonetheless the courts

while dispensing justice in cases like the one under TADA

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Act, should keep in mind not only the liberty of the accused

but also the interest of the victims and their near and dear

ones 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. It also observed that the invocation

of the provisions of TADA in cases, the facts of which do

not war f ant its invocation, is nothing but sheer misuse

and abuse of the Act by the police.

Looking to the nature of the crime and the paramount

interests of the society this Court held that the conditions

imposed under Section 20(8) for the release of TADA

undertrials on bail did not violate Articles 14 and 21 of

the Constitution. It, however, gave directions for the

constitution of Review/Screening committees in each State

and at the Center to ensure that the provisions of TADA were

correctly invoked in the cases pending before the Designated

Courts. The purpose of constituting such committees was to

ensure a higher level of scrutiny regarding applicability of

the provisions of TADA to the case in point. The need for

such committees is amply borne out by the results which

have been annexed in the affidavits filed on behalf of the

Union of India before us relating to the number of cases so

reviewed by the Review Committees where it has been found

that the provisions of TADA ought not to have been applied.

We are, however, sorry to note that not a single case filed

by C.B.I. has been so reviewed although the Review

Committee, it is said, has examined all the cases. A more

independent and objective scrutiny of these cases by a

Committee headed by a retired judge is obviously necessary.

Inspite of such review, from the figures which we have

cited above, it is clear that there is very little prospect

of a speedy trial of cases under TADA in some of the States

because of the absence of an adequate number of Designated

Courts even in cases where a chargesheet has been filed and

the cases are ready for trial. We are conscious of the fact

that even the trial of ordinary criminal cases does take

some time because of the courts being overloaded with work

and the concept of a speedy trial in the case of TADA cases

must be viewed in the context of pendency in relation to

criminal trials also. But when the release of undertrials on

bail is severely restricted as in the case of TADA by virtue

of the provisions of Section 20(8) of TADA, it becomes

necessary that the trial does proceed and conclude within a

reasonable time. Where this is not practical, release on

bail which can be taken to be embedded in the right of a

speedy trial may, in some cases, be necessary to meet the

requirements of Article 21.

It was on this basis that in the case of Supreme Court

Legal Aid Committee Representing Undertrial Prisoners v.

Union of India & Ors. (1994 (6) SCC 731), this Court

considered similar provisions restricting the grant of bail

under Narcotic Drugs and Psychotropic Substances Act, 1985

and directed release of undertrials on bail in certain

situations and subject to the terms and conditions set out

there. The Court while doing so observed, (p.748): "........

we have felt that deprivation of the personal liberty

without ensuring speedy trial would also not be in

consonance with the right guaranteed by Article 21. Of

course, some amount of deprivation of personal liberty

cannot be avoided in such cases; but if the period of

deprivation pending trial becomes unduly long, the fairness

assured by Article 21 would receive a jolt. It is because of

this that we have felt that after the accused persons have

suffered imprisonment which is half of the maximum

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punishment provided for the offence, any further

deprivation of personal liberty would be violative of

the fundamental right visualized by Article 21, which

has to be telescoped with the right guaranteed by

Article 14 which also promises justness, fairness and

reasonableness in procedural matters."

It is in this context that it has become necessary to

grant some relief to those persons who have been deprived of

their personal liberty for a considerable length of time

without any Prospect of the trial being concluded in the

near future. Undoubtedly, the safety of the community and of

the nation needs to be safeguarded looking to the nature of

the offences these undertrials have been charged with. But

the ultimate justification for such deprivation of liberty

pending trial can only be their being found guilty of the

offences for which they have been charged. If such a finding

is not likely to be arrived at within a reasonable time some

relief becomes necessary.

The petition thus poses the problem of reconciling

conflicting claims of individual liberty versus the right of

the community and the nation to safety and protection from

terrorism and disruptive activities. While it is essential

that innocent people should be protected from terrorists and

disruptionists, it is equally necessary that terrorists and

disruptionists are speedily tried and punished. In fact the

protection to innocent civilians is dependent on such

speedily trial and punishment. The conflict is generated on

account of the gross delay in the trial of such persons.

This delay may contribute to absence of proper evidence at

the trial so that the really guilty may have to be

ultimately acquitted. It also causes irreparable damage to

innocent persons who may have been wrongly accused of the

crime and are ultimately acquitted, but who remain in jail

for a long period pending trial because of the stringent

provisions regarding bail under TADA. They suffer severe

hardship and their families may be ruined.

Bearing in mind the nature of the crime and the need to

protect the society and the nation, TADA has prescribed in

Section 20(8) stringent provisions for granting bail. Such

stringent provisions can be justified looking to the nature

of the crime, as was held in Kartar Singh's case (supra), on

the presumption that the trial of the accused will take

place without undue delay. No one can justify gross delay in

disposal of cases when undertrials perforce remain in jail,

giving rise to possible situations that may justify

invocation of Article 21.

These competing claims can be reconciled by taking a

pragmatic approach.

The proper course is to identify from the nature of the

role played by each accused person the real hardcore

terrorists or criminals from others who do not belong to

that category; and apply the bail provisions strictly in so

far as the former class is conceived and liberally in

respect of the latter class. This will release the pressure

on the courts in the matter of priority for trial. Once the

total number of prisoners in jail shrinks, those belonging

to the former class and, therefore, kept in jail can be

tried on a priority basis. That would help ensure that the

evidence against them does not fade away on account of

delay. Delay may otherwise harm the prosecution case and the

harsh bail provisions may prove counter-productive. A

pragmatic approach alone can save the situation for,

otherwise, one may find that many of the undertrials may be

found to have completed the maximum punishment provided by

law by being in jail without a trial. Even in cases where a

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large number of persons are tied up with the aid of Sections

120B or 147, I.P.C., the role of each person can certainly

be evaluated for the purpose of bail and those whose role is

not so serious or menacing can be more liberally considered.

With inadequate number of courts, the only pragmatic way is

to reduce the prison population of TADA detentes and then

deal with hardcore undertrials on priority basis before the

evidence fades away or is lost. Such an approach will take

care of both the competing interests. This is the approach

which we recommend to courts dealing with TADA cases so that

the real culprits are promptly tried and punished.

For the purpose of grant of bail to TADA detentes, we

divide the undertrials into three classes, namely, (a)

hardcore undertrials whose release would prejudice the

prosecution case and whose liberty may prove to be a menace

to society in general arid to the complainant and

prosecution witnesses in particular; (b) other undertrials

whose overt acts or involvement directly attract Sections 3

and/or 4 of the TADA Act; (c) undertrials who are roped in,

not because of any activity directly attracting Sections 3

and A, but by virtue of Sections 120B or 147, I.P.C., and;

(d) those undertrials who were found possessing

Incriminating articles in notified areas and are booked

under Section 5 of TADA.

Ordinarily, it is true that the provisions of Sections

20(8) and 20(9) of TADA would apply to all the aforesaid

classes. But while adopting a pragmatic and just approach,

no one can dispute the fact that all of them cannot be

dealth with by the same yardstick. Different approaches

would be justified on the basis of the gravity or the

charges. Adopting this approach we are of the opinion that

undertrials falling within group (a) cannot receive liberal

treatment. Cases of undertrials falling in group (b) would

have to be differently dealt within. in that, if they have

been in prison for five years or more and their trial is not

likely to be completed within the next six months, they can

be released on bail unless the court comes to the conclusion

that their antecedents are such that releasing them may be

harmful to the lives of the complainant the family members

of the complainant, or witnesses. Cases of undertrials

falling in groups (c) and (d) can be dealt with leniently

and they can be released if they have been in sail for three

years and two years respectively. Those falling in group (b)

when released on bail may be released on bail of not less

than Rs.50,000/- with one surety for like amount and those

falling in groups (c) and (d) may be released on bail on

their executing a bond for Rs.30 000/- with one surety for

like amount subject to the following terms:

(1) the accused shall report to the

c police station once a week;

(2) the accused shall remain within

the area of jurisdiction of the

Designated Court pending trial and

shall not leave the area without

the permission of the Designated

Court;

(3) the accused shall deposit his

passport, if any with the

Designated Court. If he does not

hold a passport he shall file an

affidavit to that effect before

the Designated Court. The

Designated Court may ascertain the

correct position from the passport

authorities if it deems it

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necessary;

(4) The Designated Court will be at

liberty to cancel the bail if any

of these conditions is violated or

a case for cancellation of bail is

otherwise made out.

(5) Before granting bail a notice

shall be given The public

prosecutor and an opportunity shall

be given to him to oppose the

application or such release. The

Designated Court may refuse bail

in-very special circumstances for

reasons to be recorded in writing.

These conditions may be relaxed in cases of those under

groups (c) and (d) and, for special reasons to be recorded,

in the case of group (b) prisoners. Also these directions

may not be applied by the Designated Court in exceptionally

grave cases such as the Bombay Bomb Blast Case where a

lengthy trial is inevitable looking to the number of

accused, the number of witnesses and the nature of charges

unless the court feels that the trial is being unduly

delayed. However, even in such cases it is essential that

the Review Committee examines the case against each accused

bearing the above directions in mind, to ensure that TADA

provisions are not unnecessarily invoked.

The above directions are a one-time measure meant only

to alleviate the current situation.

When stringent provisions have been prescribed under an

Act such as TADA for grant of bail and a conscious decision

has been taken by the legislature to sacrifice to some

extent, the personal liberty of an undertrial accused for

the sake of protecting the community and the nation against

terrorist and disruptive activities or other activities

harmful to society, it is all the more necessary that

investigation of such crimes is done efficiently and an

adequate number of Designated Courts are set up to bring to

ok persons accused of such serious crimes. This is the only

way in which society can be protected against harmful

activities. This would also ensure that persons ultimately

found innocent are not unnecessarily kept in jail for long

periods. It is unfortunate that none of the States to whom

notices have been issued by us nor the Union of India, have

come forward to state that they would set up an adequate

number of Designated Courts in each State so that cases

pertaining to TADA can be speedily disposed of. This has

necessitated the above order as a one-time measure.

With the above directions, the writ petition is

disposed of.