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Poor Accused Weeps In Silence: Urgent Need Of ‘Speedy Trial Act’ In India

January 11, 2015

Poor Accused Weeps In Silence:
Urgent Need Of ‘Speedy Trial Act’ In India

“Pendency for long periods operates as an engine of oppression,” — The Hon’ble Supreme Court

‘’ Denial of speedy trial may with or without proof of something more lead to an unavoidable inference of prejudice and denial of justice. It is prejudice to a man to be detained without trial. It is prejudice to a man to be denied a fair trial.’’ —The Hon’ble Justice Chinnappa Reddy.

‘’Mounting of arrears of cases in courts, particularly in High Courts and District Courts, has been a cause of great concern for litigants as well as for the State. It is a fundamental right of every citizen to get speedy justice and speedy trial which also is the fundamental requirement of good judicial administration.’’— The Law Commission of Inida

The right to a speedy trial is an ancient liberty. It is important to remember that during the reign of henry ii (1154–1189), the English Crown promulgated the Assize of Clarendon, a legal code comprised of 22 articles, one of which promised speedy justice to all litigants. The Magna Charta, in 1215, prohibited the king from delaying justice to any person in the realm. Several of the charters of the American colonies protected the right to a speedy trial, as did most of the constitutions of the original 13 states. Ultimately, In U.S. in 1974, Congress enacted the Speedy Trial Act (18 U.S.C.A. §§ 3161 et seq.). Yet, In India, nevertheless increasing numbers of accused were jumping bail while free during extended pretrial release, there is no such Act in India, however, the Hon’ble Supreme Court held that right to speedy trial is neither a fact nor fiction but a “Constitutional reality”. What is wrong if ‘ Speedy trial Act’ is enacted in India? In a landmark ruling , with profound implication, the Hon’ble Supreme Court reiterated that just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to life and liberty (Article 21) is one of the part of fundamental rights which recognizes right to speedy trial. Many people in our country who spend their precious time and money in prisons and courts for seeking justice for years together . It is detrimental to the economic, social and cultural development of the country like India. There is no paucity to say that the Judiciary as a whole enjoy a higher degree of trust than other branches of the government.

The Judicial Response In Indian On ‘Speedy Trial’ :
“It is a crying shame upon our adjudicatory system which keeps men in jail for years on end without a trial.” “… no one shall be allowed to be confined in jail for more than a reasonable period of time, which we think cannot and should not exceed one year for a session trial … we fail to understand why our justice system has become so dehumanised that lawyers and judges do not feel a sense of revolt at caging people in jail for years without trial.” ( The Hon’ble Supreme Court in Kadra Pehadiya vs. State of Bihar – 1981 Cr.L.J. 481)

In ‘’Abdul Rehman Antulay Etc. Etc. vs R.S. Nayak And Another Etc. Etc’’, it was observed that ‘’Right to speedy trial is not enumerated as one of the fundamental rights in the Constitution of India, unlike the Sixth Amendment to the U.S. Constitution which expressly recognises this right The Sixth Amendment declares inter alia that ‘in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial’. This is in addition to the Fifth Amendment which inter alia declares that “no person shall….be deprived of life”, which corresponds broadly to Article 21 (and Clause 1 of Article 31, since deleted).

This omission and the holding in A.K. Gopalan v. State of Madras probably explains why this right was not claimed or recognised as a fundamental right flowing from Article 21 so long as Gopalan held the field. Once Gopalan was over-ruled in R.C. Cooper (1970 S.C. 564) and its principle extended to Article 21 in Maneka Gandhi (1978 S.C. 597) Article 21 got unshackled from the restrictive meaning placed upon it in Gopalan. It came to acquire a force and vitality hitherto unimagined. A burst of creative decisions of this Court fast on the heels of Maneka Gandhi gave a new meaning to the Article and expanded its content and connotation. While this is not the place to enumerate all those decisions, it is sufficient to say that the opinions of this Court in Hussainara Khatoon cases decided in the year 1979, declaring that right to speedy trial is implicit in Article 21 and thus constitutes a fundamental right of every person accused of a crime, is one among them.

In Gopalan, this Court held that the law relating to preventive detention is to be found in Article 22 of the Constitution and thatArticle 22 is a self-contained code in that behalf. It was also observed that the law contemplated by Article 21 need not answer the test of reasonableness in Article 19 since both the articles (21 and 19) constitute two different streams.

In Maneka Gandhi case, the observations in Gopalan with respect to Articles 21 and 19 constituting two different streams have been held to be either obiter dicta or wrong, as the case may be. It is pointed out that over the years this Court has accepted the view that the Constitution and in particular the several fundamental rights guaranteed by part Ill-should be read as an integral whole, with possible over-lappings of the subject-matter of what is sought to be protected by its various provisions.

His lordship Beg, The Hon’ble Chief Justice expressed the idea in the following words at page 648 of [1978] 2 S.C.R.: Article dealing with different fundamental rights contained in Part III of the Constitution do not represent entirely separate streams of rights which do not mingle at many points. They are all parts of an integrated scheme in the Constitution. Their waters must mix to constitute that grand flow of unimpeded and impartial Justice (social, economic and political), Freedom (not only of thought, expression, belief, faith and worship, but also of association, movement, vocation or occupation as well as of acquisition and possession of reasonable property), of Equality (of status and of opportunity, which imply absence of unreasonable or unfair discrimination between individuals, groups and classes), and of Fraternity (assuring dignity of the individual and the unity of the nation), which ourConstitution visualises. Isolation of various aspects of human freedom, for purposes of their protection, is neither realistic nor beneficial but would defeat the very objects of such protection.

The Hon’ble Justice Bhagwati, put the same idea in the following words : The law must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of ‘personal liberty’ and there is consequently no infringement of the fundamental right conferred by Article 21 such law in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article.

This proposition can no longer be disputed after the decisions in R.C. Cooper’s case, Shambhu Nath Sarkar’s case and Haradhan Sahai’s case. Now, if a law depriving a person of ‘personal liberty’ and prescribing a procedure for that purpose within the meaning ofArticle 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation, ex hypothesi it must also be liable to be tested with reference to Article 14.

The Hon’ble Judge pointed out the integral connection between Articles 14 and 21 in the following words : Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement ofArticle 21 would not be satisfied.

This decision does establish in unmistakable terms that the law and procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Articles 19 and 14. It establishes that the procedure prescribed by law within the meaning of Article 21 must be right and just and fair and not arbitrary, fanciful or oppressive. It is this principle of fairness and reasonableness which was construed as taking within its purview the right to speedy trial.

In the first Hussainara Khatoon decision the Hon’ble Justice Bhagwati, observed as follows : We think that even under ourConstitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content ofArticle 21 as interpreted by this Court in Maneka Gandhi v. Union of India. We have held in that case that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the requirement of that Articlethat some semblance of a procedure should be prescribed by law, but that the procedure should be “reasonable, fair and just”. If a person is deprived of his liberty under a procedure which is not “reasonable, fair or just”, such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his relief. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be “reasonable fair or just” unless that procedure ensures a speedy trial for determination of the guilt of such person. 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 of life and liberty enshrined in Article 21.

The Hon’ble Judge, however, posed a question which be left it to be answered at a later stage. The question posed was : What is the consequence of denial of this right? Does it necessarily entail the consequence of quashing of charges/trial? That question we shall consider separately but what is of significance is, this decision does establish the following propositions : (1) Right to speedy trial is implicit in the broad sweep and content of Article 21. (2) That unless the procedure prescribed by law ensure a speedy trial it cannot be said to be reasonable, fair or just. Expeditious trial and freedom from detention are part of human rights and basic freedoms and that a judicial system which allow incarceration of men and women for long periods of time without trial must be held to be denying human rights to such under trials. There is also one other infirmity of the legal and judicial system which is responsible for this gross denial of justice to the under trial prisoners and that is the notorious delay in disposal of cases. It is a bad reflection on the legal and judicial system that the trial of an accused should not even commence for a long number of years. Even a delay of one year in the commencement of the trial is bad enough; how must worse could it be when the delay is as long as 3 or 5 or 7 or 10 years. Speedy trial is of the sense of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice. In the second Hussainara Khatoon case , this Court directed that the under-trial prisoners against whom charge-sheet has not been filed by the police within the period of limitation provided for in Section 468 cannot be proceeded against at all and released them forthwith. The reason being that any further detention of such persons would have been unlawful and violative of fundamental right enshrined in Article 21.

In third Hussainara Khatoon case , his lordship Bhagwati, J. observed : The State cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability. The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State. It is also the constitutional obligation of this Court as the guardian of the fundamental rights of the people, as a sentinel on the qui vive, to enforce the fundamental right of the accused to speedy trial by issuing necessary directions to the State which may include taking of positive action, such as augmenting and strengthening the investigative machinery, setting up new courts, building new court houses, providing more staff and equipment to the courts, appointment of additional judges and other measures calculated to ensure speedy trial.

In State of Bihar v. Uma Shankar Ketriwal and Ors[4]. The Hon’ble Supreme Court observed : We cannot lose sight of the fact that the trial has not made much headway even though no less than 20 years have gone by. Such protraction itself means considerable harassment to the accused not only monetarily but also by way of constant attention to the case and repeated appearances in court, apart from anxiety. It may well be that the respondents themselves were responsible in a large measure for the slow pace of the case inasmuch as quite a few orders made by the trial Magistrate were challenged in higher courts, but then there has to be a limit to the period for which criminal litigation is allowed to go on at the trial stage. In this view of the matter, we do not consider the present case a proper one for our interference inspite of the fact that we feel that the allegations disclose the commission of an offence which we regard as quite serious.

In Khadra Paharia v. State of Bihar , the Hon’ble Supreme Court re-affirmed the principle of Hussainara Khatoon case and declared that :….any accused who is denied this right of speedy trial is entitled to approach this Court for the purpose of enforcing such right and this Court in discharge of its constitutional obligation has the power to give necessary directions to the State Governments and other appropriate authorities for securing this right to the accused….The Court also gave necessary directions to the Government of Bihar and High Court including a direction to create additional courts for speedy disposal of cases pending since long.

The Hon’ble Supreme Court considered the applicability of this right again in State of Maharashtra v. Champalal Punjaji Shah . in this ruling , it was observed : In deciding the question whether there has been a denial of the right to a speedy trial the court is entitled to take into consideration whether the defendant himself was responsible for a part of the delay and whether he was prejudiced in the preparation of his defence by reason of the delay. The Court is also entitled to take into consideration whether the delay was unintentional, caused by over-crowding of the court’s docket or under-staffing of the Prosecutors. In the course of his lordship judgment, Chinnappa Reddy, J., noted that “delay is a known defence tactic” and also that where the prosecution has a weak case, it may resort to same tactic with a view to keep the prosecution pending as long as possible. His lordship observed : Denial of speedy trial may with or without proof of something more lead to an unavoidable inference of prejudice and denial of justice. It is prejudice to a man to be detained without trial. It is prejudice to a man to be denied a fair trial.’’

In T.V. Vatheeswaran v. State of Tamil Nadu , this Court again reiterated the significance of the right to speedy trial and extended it even to post-conviction stage. It was held that undue delay in carrying out the death sentence entitles the accused to ask for lesser sentence of life imprisonment. This opinion is based upon the immense psycological, emotional and mental torture a man condemned to death suffers. Though this decision was over-ruled later by a Constitution Bench, it is relevant to the limited extent it re-affirms the right to speedy trial enunciated in Hussain Ara Khatoon. ’’

In Sheela Barse and Ors. v. Union of India and Ors. , a Division Bench. re-affirmed that the “right to speedy trial is a fundamental right implicit in Article 21 of the Constitution” and observed “the consequence of violation of fundamental right to speedy trial would be that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right.” Thus, the court answered the question which Bhagwati, J. had posed in the first Hussain Ara case. Accordingly, they directed that so far as a child accused of an offence punishable with imprisonment of not more than 7 years is concerned, a period of three months from the date of filing of complaint or lodging of the F.I.R. shall be deemed to be the maximum time permissible for investigation and a period of six months from the filing of the charge-sheet as the reasonable period within which the trial should be completed. It was specifically directed that if these time limits are not obeyed, the prosecution against the child should be quashed.

The Hon’ble Supreme Court in Raghubir Singh and Ors. v. State of Bihar . In this case, Wingo Singh Mann and few others applied to this Court for bail and also for quashing the proceedings pending against them before the Special Judge on the ground of violation of right to speedy trial. The Hon’ble Supreme In Rakesh Saxena v. State through. C.B.I. , quashed the proceedings on the ground that any further continuance of the prosecution after lapse of more than six years in the case of the appellant who was merely a trader at the lowest rung of the hierarchy in the Foreign Exchange Division of the Bank is uncalled for, particularly in view of the complicated nature of the offence charged.

In Srinivas Gopal v. Union Territory of Arunachal Pradesh, (Now State), the court quashed the proceedings against the appellant on the ground of delay in investigation and commencement of trial. In this case, investigation commenced in November, 1976 and the case was registered on completion of the investigation in September, 1977. Cognizance was taken by the court in March, 1986. These facts were held sufficient to quash the proceedings particularly when the offence charged was a minor one namely, Section 304A read with 338 of the Indian Penal Code.

In T.J. Stephen and Ors. v. Parle Bottling Co. (P) Ltd. and Ors. it was held that though the order of the High Court quashing charges against the accused (Under Section 5 of the Imports and Exports (Control) Act, 1947) was unsustainable in law it would not be in the interest of justice to allow prosecution to start and trial to be proceeded with after a lapse of twenty years even though one of the accused was himself responsible for most of the delay caused by his mala fide tactics. In this decision, there is no reference either toArticle 21 or to the right to speedy trial. The order is merely based on the fact that it would not be in the interest of justice to allow a prosecution and trial to recommence after a lapse of 20 years. In Diwan Naubat Rai and Ors. v. State through Delhi Administration and Anr. , the court refused to quash the proceedings inasmuch as it was found that the accused himself was mainly responsible for the delay of which he was complaining.

In State of Andhra Pradesh v. P.V. Pavithran , The Hon’ble Supreme Court upheld the decision of the Hon’ble High Court quashing the F.I.R. on the ground of inordinate delay in completing the investigation. The respondent was an I.P.S. Officer against whom an offence under Section 5(2) read with Section 5(1) (e) of the Prevention of Corruption Act was registered in March, 1984. He was placed under suspension but then it was revoked in September, 1984 and he was reinstated in service. In July, 1985, the government cancelled its earlier order and called upon the respondent to show cause why he should not be retired from service. The respondent challenged the said notice before the Central Administrative Tribunal which was upheld. The Special Leave Petition presented to this Court was dismissed in view of the fact that respondent had already retired from service on attaining the age of superannuation. After all this, the Anti-corruption Bureau re-started the criminal proceedings in 1987-88 whereupon the respondent approached the High Court for quashing the said proceedings on the ground of delay. The High Court quashed the same accepting the ground urged. The Hon’ble Supreme court court affirmed. Of course, while doing so, it took care to observe that while examining the plea of delay in completing the investigation, the court should have regard to all the relevant circumstances and that it is not possible to formulate any inflexible guidelines or rigid principles of uniform application for speedy investigation nor is it possible to stipulate any arbitrary period of limitation for completing the investigation.

In Machander v. State of Hyderabad , The Hon’ble Supreme Court observed that while it is incumbent on the court to see that no guilty person escapes, it is still more its duty to see that justice is not delayed and accused persons are not indefinitely harassed. The scales, the court observed, must be held even between the prosecution and the accused. In the facts of that case, the court refused to order trial on account of the time already spent and other relevant circumstances of that case.

In Veerbhadra v. Ramaswamy Naickar, The Hon’ble Supreme Court refused to send back proceedings on the ground that already a period of five years has elapsed and it would not be just and proper in the circumstances of the case to continue the proceedings after such a lapse of time. Similarly, in Chajju Ram v. Radhey Sham, the court refused to direct a re-trial after a period of 10 years having regard to the facts and circumstances of the case.

In State of U.P. v. Kapil Deo Shukla , though the court found the acquittal of the accused unsustainable, it refused to order a remand or direct a trial after a lapse of 20 years. It is, thus, clear that 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 whore 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.

The Privy Council emphasised the necessity of taking notice of the delays inherent in a particular system. The Privy Council was dealing with a case from Jamaica. The Court of Appeals of Jamaica held that having regard to the circumstances obtaining in that country, a delay of 32 months cannot be said to infringe the constitutional right of an accused to speedy trial. The Privy Council observed that this opinion of the Jamaican court, which must be deemed to be acquainted with the conditions in that country, must be accepted. But, inasmuch as, it was a case of re-trial, the Privy Council held that the said delay must be held to have infringed the said right. The Board emphasised that a re-trial must be held with greater speed and that the delay which may be ignored in the case trial may not be ignored in the case of re-trial.

Suggestions For Enactment Of The Speedy Trial Act:
1. In India, there must be a ‘ THE SPEEDY TRIAL ACT’ like in United States Of America. That too, after enactment of ‘Speedy trial Act’, it should apply to the both citizens and non-citizens alike.

2. The 221st Report of the Law Commission of India shall be considered.

3. As there is no ‘ The Speedy Trial Act’ in India, criminal justice has not always moved swiftly in India. Therefore, The Speedy trial Act’’ is urgently needed.

4. The word ‘Speedy Trial’ should be inserted in Indian Constitution as one of the fundamental rights.

5. Longer delays may be permitted to accommodate the schedules of important witnesses, and to allow the prosecution to prepare for a complex case. However, with certain conditions.

6. Longer delays may be tolerated when an accused is dilatory in asserting the right to a speedy trial.

7. Accused shall assert his right in a timely motion before the trial court. If the accused fails to assert the right in this manner or acquiesces in the face of protracted pretrial delays, accused may not raise the issue for the first time on appeal, unless the accused’s failure to raise the issue earlier was due to her/his advocate’s Negligence.

8. Accused who delays prosecution by inundating the trial court with frivolous pretrial motions are also treated as having forfeited his right to a speedy trial. The law does not allow accused to profit from his/her own wrong.

9. ‘’The Speedy Trial Act’’ shall apply to post-trial criminal proceedings, such as Parole and Probation hearings.

10. The Speedy Trial Act in India shall authorize courts to dismiss charges that have not been brought within a reasonable amount of time following arrest or indictment.

11. Delays attributable to prosecutorial misconduct, such as the deliberate attempt by the government to delay a proceeding and hamper the defense, will run afoul of the Speedy Trial Act. Therefore , certain precautions must be taken.

12. Prosecutorial or court staff negligence, such as misplacing accused’s file or losing incriminating evidence, may also considered an inappropriate reason for delay. However, strict punishment for the prosecutorial and court staff shall be given in case of such circumstances are arisen.

13. Inasmuch as the police usually fail to produce witnesses, accused promptly , a separate cadre of investigation agency enjoined with the responsibility of production of witness, production of accused and assisting the prosecuting agency will help a lot for speedy trial.

14. There is lack of coordination between the investigating agency and the prosecuting agency. This must be rectified.

15. When parties come to court, with agreement, seeking compromise in cases of compoundable offences , the proceedings must be ended by recording the compromise without any delay.

16. The Cr.P.C. should empower the investigating officer to compound offences which are compoundable.

17. Unfortnately, we are not mulling over about the concept of plea bargaining. It should be applied in offences which impose punishment of imprisonment of less than seven years and/or fine including the offences covered by section 320 of Criminal Procedure Code, 1973.

18. It has been said that a law court is not a cathedral but a casino where much depends on the throw of dice, but we should not brush aside the view that law is the end-product of technicalities.

19. The following steps are immediately to be needed in the branch of criminal law, these are (1) delay should be avoided, (2) simplicity of procedure, (3) fair deal to the poorer sections of society and of course a fair trial in every case according to the principles of natural justice.

20. The Speedy Trial Act in India is needed to serve two purposes. Firstly, to prevent accused from languishing in jail for an indefinite period before trial. Pre-trial incarceration is a deprivation of liberty no less serious than post-conviction imprisonment. In some cases pretrial incarceration may be more serious because public scrutiny is often heightened, employment is commonly interrupted, financial resources are diminished, family relations are strained, and innocent persons are forced to suffer prolonged injury to reputation. Secondly, to ensure an accused’s right to a fair trial. The longer the commencement of trial is postponed, the more likely it is that witnesses will disappear, memories will fade, and evidence will be lost or destroyed. Of course, both the prosecution and the defense are threatened by these dangers, but only the accused’s life, liberty, and property are at stake in a criminal proceeding.
# (1996) MLJ (Cri) P549.
# AIR 1992 SC 1701, 1992 (2) BLJR 1319, 1992 CriLJ 2717
# [1950] S.C.R. 88
# 1981 AIR 641, 1981 SCR (2) 402
# 1981 AIR 1675, 1982 SCR (1) 299
# 1983 AIR 361, 1983 SCR (2) 348
# JT 1986 136, 1986 SCALE (2)230
# [1988] suppl. 1 S.C.R. 477
# 1988 AIR 994, 1988 SCR (3) 296
# 1990 AIR 1266, 1990 SCR (1) 746
# 1955 AIR 792, 1955 SCR (2) 524
# 1959] S.C.R. 1211
# 1971] (suppl.) S.C.R. 172

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