IMPORTANT POINT
Speedy trial is part of fundamental right guaranteed under Article 21 of Constitution of India & right to speedy trial begins with actual restraint imposed by arrest & continues at all stages namely investigation, inquiry, trial, appeal & revision.

Headnote:Constitution of India—Article 21—Speedy trial—Speedy trial is an integral part of Article 21 of the Constitution—FIR u/s 5(2) of J & K Prevention of Corruption Act was registered in 1980 and appellant was arrested—Allegations were that appellant working as Manager in State Bank of India received Rs. 700/- as illegal gratification—Chargesheet filed in 1981 was quashed by High Court on a petition filed by appellant holding that sanction given by General Manager for prosecution was given by incompetent person—Meanwhile appellant was dismissed from service in departmental proceedings—Challan was filed again in 1986 on same set of facts on allegations that appellant was no more in service and sanction for prosecution was not required—Special Judge allowed appellant’s application for discharge holding that sanction for prosecution was sine qua non u/s 6 of the Act and discharged appellant—Challan was filed again in 2000—Petition to quash chargesheet and proceedings was dismissed by High Court—Appeal—Question of delay had to be decided by Court having regard to totality of circumstances of individual case—Test could be whether proceedings or trial had remained pending for a such a length of time that the inordinate delay could be legitimately called oppressive and unwarranted—Right to speedy trial begins with actual restraint and continues at all stages i.e. investigation, inquiry, trial, appeal and revision—No general guideline could be fixed and each case has to be examined on its own facts and circumstances—Not a single witness had been examined against appellant—Permitting State to continue with prosecution would be abuse of process of law and proceedings were liable to be quashed.
       Held : This Court, as per the majority in a seven-Judge Bench, in the case of P. Ramachandra Rao v. State of Karnataka (2002) 4 SCC 578 came to the conclusion and declared that this Court can interpret the law and in the process remove any lacuna, fill the gaps in the Legislation and even lay down a law with reference to the dispute before it. But it, cannot declare a new law of general application in the manner the Legislature does. In this case, the Court relied upon Antulays case (supra) and refrained from fixing any time limit not because the Court had no power to do so, but because it was "neither advisable nor practicable" to do so. The Court observed that since the law laid down by the Constitution Bench still holds the field, any declaration made in derogation thereof fixing time limit by a smaller Bench is overruled by virtue of the doctrine of binding precedents. The Court also laid down that the question of delay had to be decided by the Court having regard to the totality of circumstances of an individual case. The Court observed that 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 up to 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.(Para 32)
       The Constitutional guarantee is for the protection of both the accused and the society. Even in the United States where there has been a constitutional amendment recognizing speedy trial as an extremely valuable right of the accused even then the Court held that no time limit could be fixed for concluding the criminal trial. It has been held that it depends on the facts and circumstances of each case.(Para 34)
       The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our 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, inquiry, 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.(Para 44)
       This Court in a number of cases has reiterated that speedy trial is one of the facets of the fundamental right to life and liberty enshrined in Article 21 and the law must ensure reasonable, just and fair procedure which has a creative connotation after the decision of this Court in Maneka Gandhis case (supra). (Para 46)
       When we examine the instant case in the light of the aforementioned decisions of this Court and of the US Supreme Court, it becomes abundantly clear that no general guideline can be fixed by the court and that each case has to be examined on its own facts and circumstances. (Para 47)
       It is the bounden duty of the court and the prosecution to prevent unreasonable delay. (Para 48)
       The purpose of right to a speedy trial is intended to avoid oppression and prevent delay by imposing on the courts and on the prosecution an obligation to proceed with reasonable dispatch.(Para 49)
       In order to make the administration of criminal justice effective, vibrant and meaningful, the Union of India, the State Governments and all concerned authorities must take necessary steps immediately so that the important constitutional right of the accused of a speedy trial does not remain only on papers or is a mere formality.(Para 50)
       In the instant case not a single witness has been examined by the prosecution in the last twenty six years without there being any lapse on behalf of the appellant. Permitting the State to continue with the prosecution and trial any further would be total abuse of the process of law. Consequently, the criminal proceedings are quashed. (Para 51)

JUDGMENT

Dalveer Bhandari, J.—Speedy trial as read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution is the main issue which has arisen for adjudication in this appeal.

2. Brief facts necessary to dispose of this appeal are as follows.

The appellant was working as a Manager in the State Bank of India, Sumbal, Kashmir in the year 1980. An FIR No. 34 of 1980 under Section 5(2) of the Jammu & Kashmir Prevention of Corruption Act (for short, the J & K PC Act) was registered against the appellant, pursuant to which the appellant was arrested on the allegation that he had received a sum of Rs.700/- as illegal gratification, though the amount as alleged was not recovered from him, but from one Gulam Quadir.

3. On 30.4.1981 a challan under Section 173 Cr.P.C. came to be filed against the appellant before the court of Special Judge, Anti Corruption, Srinagar, Kashmir under Section 5(2) of the J & K PC Act. The appellant challenged the legality of the proceedings of the Court before the High Court of Jammu & Kashmir in Criminal Petition No. 41 of 1982 on the ground that he was not a public servant within the meaning of Section 21 of the Ranbir Penal Code (for short, RPC), as such, he could not be tried under the provisions of the J & K PC Act.

4. The appellant also urged that the Court had no jurisdiction to try the case because no valid sanction had been obtained for prosecution of the appellant from the competent authority.

5. The Court, after hearing the parties, held that the appellant was a public servant within the meaning of Section 21 RPC being an employee of the State Bank of India, which was engaged in trading business besides being owned by the Central Government.

6. The High Court came to a definite finding that under the service rules of the State Bank of India, the supervisory staff was not the General Manager (Operations). The appellant at the time of the commission of the alleged offence was a Branch Manager and he could be removed from the service by the appointing authority or by an authority which was superior to the appointing authority. That being so, the sanction given by the General Manager (Operations) for prosecution of the appellant on 26.5.1981 was given by an incompetent person who had no jurisdiction or competence to remove the appellant from the service. The sanctioning authority was not even the appellants appointing authority. However, under Section 6 of the J & K PC Act which provides for initiation of prosecution, there must be a sanction issued by a person who was empowered to remove such an official from service.

7. The High Court clearly held that it was well settled that no prosecution could be brought before a Court without there being a proper sanction. Existence of a valid sanction was a condition precedent for prosecution under Section 5(2) of the J & K PC Act. In the absence of sanction, the trial Judge had no jurisdiction to take cognizance of the case. The Court, while allowing the petition filed by the appellant, quashed the proceedings pending against the appellant in the trial court under Section 5(2) of the J & K PC Act and under Section 161 RPC.

8. The appellant, however, was dismissed from service in the departmental proceedings initiated against him, and later, in appeal, the dismissal was converted into removal from the service.

9. It may be pertinent to mention that the respondents again filed a challan against the appellant before the Court of a Special Judge, Anti Corruption, Srinagar on 25.7.1986, on the same set of facts that the appellant was no more in service and the sanction for prosecution was not required now.

10. The chronic militancy in Srinagar led to mass migration of the minority community. The appellant being a member of the minority community migrated to Jammu on 23.9.1998. The appellant filed a petition before the High Court of Jammu & Kashmir at Jammu seeking transfer of the cas

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2006 Supreme(SC) 927

IMPORTANT POINTSpeedy trial is part of fundamental right guaranteed under Article 21 of Constitution of India & right to speedy trial begins with actual restraint imposed by arrest & continues at all stages namely investigation, inquiry, trial, appeal & revision.

Cases Referred (6)

IMPORTANT POINT
Speedy trial is part of fundamental right guaranteed under Article 21 of Constitution of India & right to speedy trial begins with actual restraint imposed by arrest & continues at all stages namely investigation, inquiry, trial, appeal & revision.