Vishnu Sahai, J. - Heard Mr. K.M. Sangani for the applicant ad Mrs. S.G. Pingulkar APP for State.

2. This is an application for bail in a case under section 395 IPC. It is not disputed by the learned counsel for the parties that the decoity in question took place on 26th January 1986 and that although the applicant is in jail since 3rd September 1986 his trial has not yet commenced. In other words inspite of the fact that the applicant has been in jail for over 9 years and 4 months his trial has not commenced. This indeed is a shocking state of affairs and a shameful reflection on our judicial system.

3. This inordinate delay in the commencement of the trial of the applicant by itself is a sufficient ground to enlarge the applicant on bail in view of the mandate contained in Article 21 6f the Constitution of India.

Article 21 of the Constitution of India provides that "no person shall be deprived of his life or personal liberty except according to procedure established by law."

4. The expression "procedure established by law" came up for construction before the Apex Court in a large number of cases but for the purposes of disposal of this bail application it would only be necessary to refer to two of them, namely those reported in:

1. (Hussainara Khatoon and others v. Home Secretary, State of Bihar)1, and (Abdul Rehman Antulay v. R.S. Nayak and Anr.)2.ln both of these cases it has been held that the expression "procedure established by law", used in Article 21 of the Constitution of India does not only connote that the procedure has to be reasonable, fair and just built also stipulates that it has to be a speedy and expeditious procedure.

In paragraph 5 of AIR 1979 SC 1360 (Supra) the Apex Court has observed thus:

"….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

1. AIR 1979 SC 1360.

2. AIR 1992 SC 1701.

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 to life and liberty enshrined in Article 21…."

In paragraph 54 of AIR 1992 S.C. 1701 (Supra) the Apex Court has remarked thus:

"1. Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also does not make it any-the-less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances."

5. A perusal of the aforesaid two decisions of the Apex Court shows the right of the accused to a speedy or expeditious trial is a fundamental right.

It is a trite that this court zealously guards fundamental rights of accused persons also. Merely on account of their involvement in criminal cases their fundamental rights are not frozen. They survive to the extent they are compatible with their detention in jail. On this rationale for example, the fundamental rights conferred by Article 19(1) (c) (d) (e) and (g) namely the right to form associations or unions; to move freely throughout the territory of India; to reside and settle in any part of territory of India; and to practice any profession or to carry any occupation, trade or business are frozen because their exercise is incompatible with detention of the accused persons in jail. However the right guaranteed by Article 21 of the Constitution of India survives because there is no antagonism between its exercise and the detention of an accused person in jail. There can be no dispute that the non-commencement o