2002 Supreme(SC) 499

2002(3) Supreme 260
Supreme Court of India
(From Karnataka High Court)
S.P. Bharucha, CJI., Syed Shah Mohammed Quadri, R.C. Lahoti, N. Santosh Hegde, Doraiswamy Raju, Mrs. Ruma Pal, Arijit Pasayat, JJ.
P. Ramachandra Rao —Appellant
versus
State of Karnataka —Respondent
Criminal Appeal No. 535 of 2000
With
Civil Appeal Nos. 536/2000, 537/2000, 538/2000, 539/2000, 540/2000, 541/2000 and 542/2000
Decided on 16-4-2002
Counsel for the Parties :
For the Appearing Parties : R.N. Trivedi, Additional Solicitor Geneal, Subodh Markandeya, Parag P. Tripathi, Ranjit Kumar, Sr. Advocates, P. Parmeswaran, Manish Singhvi, Advocate for Attorney General for India, Ms. Binu Tamta, Varun Goswami, S. Muralidhar, S. Vallinayagam, Shreyas Jaisimha, V.B. Joshi, Ravi Kini, A.V.L. Ram Prasad Varma, A.P. Singh, Ms. Umang Dara, Nikhil Nayyar, Mrs. Urmila Sirur, Sanjay R. Hegde, Satya Mitra, Ms. Priya Hegde, Vikrant Yadava, A. Mariarputham, Mrs. Aruna Mathur, G. Prabhakar, Advocate (NP), Mrs. H. Wahi, Ranjan Mukherjee, Ms. Rachana Srivastava, Ravindra Shrivastava, Advocate General for Chattiasgarh, Prakash Shrivastava, Anil Kumar Jha, Mrs. Alka Jha, Tarachandra Sharma, Rajedv Sharma, Ms. Neelam Sharma, Ajay Sharma, Rupesh Kumar, Ramesh Babu, M.R., Ashok Potshangbam, K.H. Nobin Singh, Inderbir Singh Alag, Rajeev Sharma, R.P. Goel, Advocate General for U.P., Ms. Chitra Markandeya, Ms. Feroza Bano, Ms. Vibha Dutta Makhija, Ms. Bharti Tyagi, Rohit Kumar Singh, S.K. Agnihotri , S.S. Shinde, S.V. Deshpande, Ms. Krishna Sarma, Ms. Asha G. Nair, V.K. Sidatharan, Ms. A. Subhashini, J.M. Khanna, Guntur Prabhakar, Advocates.

Very important points
1. The dictum by a Constitution Bench in A.R. Antulay’s case, 1992(1) SCC 225 that it is neither advisable nor feasible to draw or prescribe an outer time limit for conclusion of all criminal proceedings” for right to speedy trial of criminal cases flowing from Article 21 of the Constitution still holds the field.
2. In Common Cause Case (I) (as modified in Common Cause II) 1996(4) SCC 33 and 1996(6) SCC 775 and Raj Deo Sharma I and II 1998(7) SCC 507 and 1999(7) SCC 602 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 following by an order acquitting or discharging the accused as it is in derogation of the ratio laid down in A.R. Antulay’s case hence these four decisions are overruled being decided by benches of lesser number of Judges.

Headnote:(i) Constitution of India—Article 21—Fundamental right to life and liberty includes right to speedy trial (of criminal cases) i.e. reasonably expeditious trial by a “reasonable, fair and just procedure—Maneka Gandhi 1978(1) SCC 248 and Hussanara Khatoon (I) 1980(1) SCC 81 relied on. (Para 8)

       (ii) Criminal Procedure Code, 1973—Section 468—Limitation for trial of minor offences—Constitution of India—Article 21—Right to speedy trial flowing from it—Contention that to make it meaningful, enforceable and effective ought to be accompanied by an outer limit of 10 years for major offences—Propositions and guidelines of Constitution Bench in A.R. Antulay’s case 1992(1) SCC 225—Rejecting this contention—Whether this dictum is correct? (Yes)—Propositions reaffirmed—Guidelines illustrative.

       Held : 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, 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 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)

       (Paras 9 and 10)

       (iii) Constitution of India—Article 21—Right to speedy trial of criminal cases—Bars of limitation of criminal trial enacted in Common Cause (I) 1996(4) SCC 32, Common Cause (II) 1996(6) SCC 775, Raj Deo Sharma (I) 1998(7) SCC 507 and Raj Deo Sharma (II) 1999(7) SCC 604 (See Paras 11 to 19)—Is it at all necessary to have limitation bars terminating all criminal trials and proceedings? (No) (Paras 21 and 22) whether in prescribing various periods of limitation in above four cases the Court transgressed the limit of judicial legislation? (Yes)—Two reasons given by six Judges 7th Judge agreeing with one but not with the other—All the above four decisions are overruled.

       Per R.C. Lahoti (and 5 others)

       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. (Para 23)

       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 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 a 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. (Paras 27, 28 and 29)

       Per Doraiswamy Raju, J.

       The declaration of law made by the Constitution Bench of five learned Judges of this Court in the decision reported in A.R. Antu­lay’s case [1992(1) SCC 225], still holds the field and its binding force and authority has not been undermined or whittled down or al­tered in any manner by an other decision of a larger Bench. Conse­quently, the Benches of lesser number of Constitution of Judges which dealt with the cases reported in ‘‘Common Cause” A Regd. Society through its Director v. Union of India & Ors., [1996(4) SCC 33]; ‘‘Common Cause” A Regd. Society through its Director v. Union of India & Ors., 1996(6) SCC 775; Raj Deo Sharma v. State of Bihar, [1998(7) SCC 507] and Raj Deo Sharma (II) v. State of Bihar, [1999(7) SCC 604] could not have laid down any principles in derogation of the ratio laid down in A.R. Antulay’s case (supra) either by way of elaboration, expansion, clari­fication or in the process of trying to distinguish the same with reference to either the nature of causes considered therein or the consequences which are likely to follow and which, in their view, deserve to be averted. Even where necessities or justification, if any, were found therefor, there could not have been scope for such liberties being taken to transgress the doctrine of binding prece­dents, which has come to stay firmly in our method of Administration of Justice and what is permissible even under such circumstances being only to have had the matter referred to for reconsideration by a larger Bench of this Court and not to deviate by no other means. This solitary reason would suffice by itself to overrule the above deci­sions, the correctness of which stand referred to for consideration by this Bench. All the more so when, there is no reason to doubt the correctness of the decision in A.R. Antulay’s case (supra) and this Bench concurs with the principles laid down therein. (Para 34)

       Except dissociating myself from certain observations made express­ing doubts about the jurisdiction of this Court, for the reasons stated above, I am in entire agreement with the other reasons and conclusions in the judgment. (Para 37)

       (iv) Constitution of India—Articles 21, 14, 19, 32, 144,141, 142, 226, 227 Preamble, Directive Principles of State Policy—Cr.P.C. 1973—Explanation 2 to Section 309 and Sections 311, 258 in Ch. XX, 482—Whether in its zeal to protect the right to speedy trial of an accused—Can the Court devise and almost enact such bars of limitation which the legislature and statutes have not chosen to do so—6 conclusions and 4 precautions—Question answered accordingly.

       Held : 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) 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 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. (Paras 29, 30, 31 and 32)

       (v) Prevention of Corruption Act, 1988—Offences under—Accused persons who were facing corruption charges, were acquitted by the Special Court, for failure of commencement of trial in spite of lapse of 2 years from the date of framing of the charges—State filed appeals against acquittal in High Court—High Court allowed the appeal condoning delay without ­issuing notice to accused persons—Appeals against to Supreme Court—Whether appeals be allowed? (Yes, cases remanded) (for fresh disposal after notice­ to accused in accordance with law laid down in this judgment). (Paras 31 & 33 r/w 2 and 3)