IMPORTANT POINT
It is neither advisable nor practicable to fix any time, limit for trial of offences and wherever a complaint of infringement of right to speedy trial is made the court has to weigh all the facts and circumstances of the case and in cases, where quashing of charges convictions may not be in the interest of justice, it shall be open to the court to pass such appropriate orders as may not be in the interest of justice, it shall be open to the court to pass such appropriate order as may be deemed just in the circumstances of the case.

Headnote:(i) Constitution or India, 1950 - Articles 21 and 22-Criminal Procedure Code, 1973-Sub section (1) and (2) or Section 309-Speedy Trial-Constitutional guarantee or speedy trial emanating from Article 21 is properly reflected in the provisions or the Code.
       Held: Article 21 declares that no person shall be deprived of his life or liberty except in accordance with the procedure prescribed by law. The main procedural law in this country is the Code of Criminal Procedure, 1973. Several other enactments too contain many a procedural provision. After Maneka Gandhi, it can hardly be disputed that the law which has to be understood in the sense the expression has been defined in clause (3) (a) of Article 13 of the Constitution) in Article 21 has to answer the test of reasonableness and fairness inherent in Articles 19 and 14. In other words, such law should provide a procedure which is fair, reasonable and just. Then alone, would it be in consonance with the command of Article 21. Indeed, wherever necessary such fairness must be read into such law. Now can it be said that a law which does not provide for a reasonably prompt investigation, trial and conclusion of a criminal case is fair just and reasonable? It is both in the interest of the accused as well as the society that a criminal case is concluded soon. If the accused is guilty. he ought to be declared so. Societal interest lies in punishing the guilty and exoneration of the innocent but this determination (of guilt or innocence) must be arrived at with reasonable dispatch-reasonable in all the circumstances of the case. Since it is the accused who is charged with the offence and is also the person whose life and/or liberty is at peril it is but fair to say that he has a right to be tried speedily Correspondingly, it is the obligation of the State to respect and ensure this right. It needs no emphasis to say, the very fact of being accused of a crime is cause for concern. It affects the reputation and the standing of the person among his colleagues and in the society. It is a cause for worry and expense. It is more so, if he is arrested. If it is a serious offence the man may stand to lose his life, liberty career and all that he cherishes. (Para 49)
       The provisions of the Code of Criminal Procedure are consistent with and indeed illustrate this principle. They provide for an early investigation and for a speedy and fair trial. The learned Attorney General right in saying that if only the provisions of the Code are following in their letter and spirit, there would be little room for any grievance. The fact however, remains unpleasant as it is that in many cases, these provisions are honored more in breach. Be that as it may it is sufficient to say that the constitutional guarantee of speedy trial emanating from Article 21 is properly reflected in the provisions of the Code. (Para 50)
       (ii) Constitution or India, 1950 - Article 21 Criminal Procedure Code, 1973-Section 309- Right or speedy Trial-Concept or-It is not possible to lay down any time schedule for conclusion or criminal proceedings-wherever a complaint or infringement or right to speedy trial is made the court has to consider all the circumstances or the case and arrive at a decision whether in fact the proceedings have been pending for an unjustifiably long period-Consequence flowing from an infringement or right to speedy trial-In cases, where quashing or charges/convictions may not be in the interest or Justice, it shall be open to the court to pass such appropriate orders as may be deemed just in the circumstances or the case-Propositions evolved to serve as guidelines.
       Held: 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 societal 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.
       2. Right to speedy Trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is now, this court has understood this right and there is no reason to take a restricted view.
       3. The concerns underlying the Right to speedy trial from the point of view of the accused are:
       (a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;
       (b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and
       (c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise.
       4. At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defense tactic." Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the Right to speedy trial is alleged to have been infringed, the first question to be put and answered is-who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest as perceived by them cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not a frivolous. Very often these stays obtained on ex-part representation.
       5. While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of 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. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.
       6. Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barker "it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate". The same ideal has been stated by White. J in U. S. v. Ewell, 15 (Lawyers Edn. 2nd 627. in the following words:
       "the sixth amendment right to a speedy, trial is necessarily relative, is consistent with delays and has orderly expedition. rather than mere speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an un-constitutional deprivation of rights depends upon all the circumstances."
       However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case.
       7. We cannot recognize or give effect to, what is called the "demand" rule. An accused cannot try himself he is tried by the court at the behest of the prosecution. Hence an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in U.S.A. the relevance of demand rule has been substantially watered down in Barker and other succeeding cases.
       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 U.S.A. too has repeatedly refused to fix any such outer time limit inspite of the Sixth. Amendment. Nor do we think that not fixing any such outer limit in effectuates 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. (Para 54)
       (iii) Constitution of India-Article. 21Criminal Procedure Code, 1973-Section 309Right of speedy Trial-Prosecution for offence under section 5 of Prevention of Corruption Act r/ws 161, 165 and 420, 109 and 120-B Indian Penal Code-Special case instituted in 1982 is still pending in the year 1991-Prosecution has completed its evidence- The only step remaining is the examination of the accused and the recording of defense evidence, if any-On a consideration of all the facts and circumstances of the case, this is not a fit case for quashing the criminal proceedings-The proper direction to make is to direct the expeditious trial on a day to day basis.
       Held: It is clear from the material placed before us that the prosecution cannot be held guilty of any delaying tactics or for &hat matter, for causing an y delay in the conduct of trial from the date the criminal proceedings were transferred to Delhi. The proceedings of the court for this period placed before us the respondents do clearly establish that during this period the prosecution has always been anxious to go on with the trial. That the trial could not be concluded so far is for reasons for which prosecution cannot be held responsible. (Para 56)
       Result: Writ petitions- dismissed. Evidence so far recorded in special case No. 24 of 1982 in the Bombay High Court shall be treated as evidence recorded in the Special Court which will now try the said criminal case.

JUDGMENT

B.P.Jeevan Reddy,J- It is more than 12 years since this court declared in Hussain Ara Khatoonl that right to speedy trial is implicit in the broad sweep and content of Article 21. Many a decision thereafter re-affirmed the principle. There has never been a dissenting note. It is held that violation of this right entails quashing of charges and/or conviction. It is, however, contended now before us that no such fundamental right flows from Article 21. At any rate, it is argued it is only a face of a fair and reasonable procedure guaranteed by Article 21 and nothing more. It is also argued that violation of this right does not result in quashing of the charges and/or conviction. It is submitted that the right if at all there is one, is an amorphous one, a right which is something less than other fundamental rights guaranteed by our Constitution. On the other hand, proponents of the right want us to go a step forward and prescribe a time limit beyond which no criminal proceeding should be allowed to go on. Without such a limit, they say, the right remains a mere illusion and a platitude. Proponents of several viewpoints have put forward their respective contentions. We had the benefit of elaborate arguments addressed by counsel on both sides of the spectrum. A large number of cases have been cited. Different viewpoints have been presented. We shall refer to them at the appropriate stage. First, how these matters have come to be posted before the Constitution Bench.

2. Writ petition No. 268/87 and a few other criminal appeals came up before a Division Bench when it was urged for the accused that a time limit be fixed for concluding all criminal proceedings. Without such a time limit it was argued, the guarantee of right to speedy trial will remain a mere platitude. The Division Bench was of the opinion that the said contention "raises a very important constitutional question" which is likely to arise more often in many cases and that, the decision on the question will have far-reaching consequences in tens of thousands of criminal cases pending in courts all over the country". Accordingly, the Bench directed the cases to be placed before a Constitution Bench. Subsequently, other cases too were added. Though several cases are posted before us, we indicated to the counsel that we will not enter into or investigate the factual aspects in all the cases but shall take the facts of only the first two cases. We indicated that we will dispose of these two cases, namely, W. P. No. 268 of 1987 (Ranjan Dwivedi v. State) and W.P. No. 833 of 1990 (A. R. Antulay v. State) and relegate the other cases to a Division Bench, after laying down the appropriate principles. We shall first notice the facts of these two cases before we advert to respective contentions of the parties.

3. FACTS IN W. P. No. 833/90

The petitioner in W. P. No. 833 of 1990, A. R. Antulay was the Chief Minister of Maharashtra from 1980 to January, 1982. The complainant/respondent R. S. Nayak moved the Governor of Maharashtra by his application dated September 1, 1981 requesting him to grant sanction to prosecute the accused petitioner are required by Section 6 of Prevention of Corruption Act, 1947 (here in after referred to as 1947 Act') for various offences alleged to have been committed by him, without waiting for the Governor's response on his application he filed a complaint in the Court of Chief Metropolitan Magistrate,

Bombay on September 11, 1981 (Criminal Case No. 76 (Mise) 181) against the accused and some others. His case was that the petitioner-accused was a public servant within the meaning of section 21 I. P. C. and that he has committed several offences punishable under Sections 161, 165 I.P.C. and Section 5 of Prevention of Corruption Act, 1947 as also under Sections 383 and 420 I.P.C. read with Sections 109 and 120 B. I.P.C. The learned Magistrate called upon the complainant to satisfy him as to how the complaint is maintainable without a valid sanctio

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Cases Referred (19)