TaxTMI 
TaxTMI 
2002 (4) TMI 962
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....y 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 f....
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....ception 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. 3. 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 a....
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.... 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". 5. 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. 6. 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, Ad....
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.... 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....
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....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 exce....
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....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. 12. 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: 13. 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 : 14. The Court directed that in the following sub-categories if the 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 compound....
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....ause (I) would not apply, was expanded. 17. 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 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 o....
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.... 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 judgme....
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.... 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. 22. A perception of the causes for delay at the trial and in 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 proposal....
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....nd amenities, enabling smooth functioning. 23. 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 ....
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....r 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 Consti....
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....nter to the doctrine of precedents and their binding efficacy. 27. 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 modificat....
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....ner 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 directions is not a legitimate judicial function." (p.250). 30. 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 ....
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....ned 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....
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....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. 33. We answer the questions posed in the orders of referen....