CNLU LJ (2) (2011-2012) 112 Speedy Trial and Criminal Justice System in India-A Juristic Study S T C J S I - J S

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CNLU LJ (2) [2011-2012] 112
Speedy Trial and Criminal Justice System in India—A Juristic Study
SPEEDY TRIAL AND CRIMINAL JUSTICE SYSTEM IN INDIA—A JURISTIC STUDY

by
Krishna Kant Dwivedi*
ABSTRACT
“Justice delayed is justice denied” is the cornerstone in delivering justice; speedy
trial is the essence of criminal justice system. At the same time, it must be
remembered that if justice is hurried, there is a possibility that it might be buried.
Therefore, there is a need to strike a balance between the two in the delivery of justice
to the people. The Right to speedy trial flows from Article 21 of the Constitution of
India, there is no such specific provision either in the Constitution or in the other
enactments like CrPC etc., which speak of a time limit as a bar beyond which criminal
proceedings or trial should not be continued. On one occasion, the Apex Court
endeavoured to fix the time limit but in subsequent cases, the Court overruled its
earlier decision and observed that it would amount to judicial legislation which is not
permissible by the Constitution of India. The paper elucidates the importance of the
examination of witnesses and the adverse effect on speedy disposal of the cases due
to the absence of protective provisions for the witnesses who come to court from
remote areas at their own expenses.
The author discusses the concept and provisions of plea bargaining in reducing the
pendency of cases, explores its shortcomings and provides suitable suggestions for the
same. This paper draws a comparison between similar provisions in the US and
critically examines the law relating to speedy trial and the role played by the courts in
quashing a number of criminal proceedings, duly protecting the right to speedy trial
under Article 21 of the Constitution of India. It attempts to discuss the powers of the
court to make “such appropriate orders” for the protection of this right and, orders
compensating the victims for the mental agony on account of protracted trial under
“such appropriate orders”.
I. INTRODUCTION
The criminal justice system of a country is designed to protect its citizens from the
onslaught of the criminal activities of a section of the community that indulges in such
acts. An efficient criminal justice system is one of the cornerstones of good
governance. The criminal justice system consists of the police, prosecuting agencies,
various courts, the jail and a host of other institutions connected with the system.
Presently, the Indian justice delivery system is facing the greatest challenge because
of heavy backlog of cases in the courts and consequent delay in dispensing justice to
such an extent that the public has lost faith in the justice delivery system. The State,
as a
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guardian of fundamental rights of its citizens, is duty bound to ensure speedy trial and
avoid excessively long delays in criminal trials cases that could result in grave
miscarriage of justice. It is in the interest of all concerned that the guilt or innocence
of the accused is determined as quickly as possible. Then again, it may not be
incorrect to say that at times “justice hurried is justice buried”. Unfortunately, there
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are a large number of cases pending in various courts and factors such as the role of
investigator, examination and lack of protection for the witnesses, lack of presiding
officers, unnecessary adjournments, etc. contribute to the large pendency of criminal
cases in the subordinate courts. Speedy trial of criminal cases should be recognised as
a pressing need of the day.
II. POSITION IN THE US

A. Right to Speedy Trial: Sixth Amendment of the U.S. Constitution (1791)
Right to speedy trial is a fundamental right guaranteed by the Sixth Amendment of
the U.S. Constitution (1791) and this right has its roots in the English legal system.
The first articulation of the right appears to have been made in Magna Carta (1215)
wherein it was stated, “we will sell to no man, we will not deny or defer to any man
either justice or right.” Evidence of recognition of right to speedy justice even in earlier
times can be traced to the Assise of Clarendon (1166). Sir Edward Coke wrote in Part
11 of his Institutes of the Laws of England—
“… have not suffered the prisoners to be long detained, but at their next coming
have given the prisoner full and speedy justice … without detaining him long in
prison.” Hence, according to Sir Coke, prolonged detention without trial is contrary
to the law and custom of England.
Every student of law in the American colonies read Sir Coke's Institutes. The book
by Coke on Littleton1 was the universal elementary book of law students. Hence the
Institutes of the Laws of England seemed to be almost the foundation of law. It is not
surprising that when George Mason drafted the first of the Colonial Bill of Rights, he
set forth a principle of Magna Carta, using phraseology similar to that of Coke's
explication—In all capital or criminal prosecutions, the Virginia Declaration of Rights of
1776 provided “a man hath a right … to a speedy trial.” That this right was considered
fundamental at this early period in American history, is evidenced by its guarantee in
the constitutions of several of the States of the new nation, as well as by its prominent
position in the Sixth Amendment which guarantees, inter alia, that “in all criminal
prosecutions the accused shall enjoy the right to speedy trial”.
The US Supreme Court has observed that this right arises only after the
Government has arrested, indicted or otherwise formally accused the person of a
crime.
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Before the point of formal accusation, the Government is under no obligation to

discover, investigate, and prosecute a particular defendant within a definite period.
The speedy trial clause is not imported, by implication, in post-trial events like
probation, parole hearing as well as juvenile delinquency or where the Government has
dropped the charges.
So far as fixing of a period for the disposal of cases in the USA is concerned, there is
no provision in the Sixth Amendment which fixes a time limit for the speedy disposal
of cases and the US Supreme Court has also never endeavoured to fix any time limit
but has specifically expressed that the prosecution may not excessively delay the trial
for its own advantages. However, the trial may be delayed in securing the presence of
absent witnesses or defendants or on account of other practical considerations. The US
Supreme Court has held that delay of at least one year in bringing a defendant to trial
following arrest will trigger a presumption that the Sixth Amendment2 has been
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violated, but the defendants are not allowed to benefit from their own misconduct.3
B. The Speedy Trial Act, 1974
In Barker v. Wingo4 the US Supreme Court held that the quashing of criminal
proceedings was the only appropriate remedy for the protection of the right to speedy
trial clause. Responding to the judicial regime, the US Congress enacted “The Speedy
Trial Act, 1974” which provides for a tighter, fixed schedule that regulates the
accusation period. This Act establishes time limits for completing various stages of
criminal prosecution. The information or indictment must be filed within thirty days
from the date of arrest or service of summons. The trial must commence within
seventy days from the date when the defendant appears before an officer of the court
in which charges are pending.
Though the Sixth Amendment and the Speedy Trial Act5 ensure right to speedy
trial, there is no specific remedy available in case of violation of this right. The
Supreme Court of the USA has observed in a number of cases that quashing of
criminal proceeding is an appropriate remedy for the protection of the right to speedy
trial. Although there is no such provision which provides a compensatory clause in
case of infraction of the right to speedy trial, the Supreme Court is of the view that
there must be a compensatory clause as a remedial measure for the protection of the
right to speedy trial just as there are in cases of defamation. Hence, there must be a
legal provision for the payment of compensation as a remedy for violation of the right
to speedy trial.
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III. INDIAN POSITION

A. Constitutional approach
The Constitutional mandate for the timely dispensation of justice is undeniable in
India. Justice, including its timely dispensation, is a constitutional and fundamental
right of the citizens of India guaranteed by the Indian State. It is also a constitutional
obligation of the Indian State in the light of the Directive Principles of State Policy
articulated in Articles 38(1), 39 and 39-A of the Constitution of India and also on
account of India's international legal obligations to guarantee delivery of justice on
time.
The Preamble of the Indian Constitution enjoins the State to secure social,
economic and political justice to all its citizens. Article 38(1) provides that the State
should strive for a social order in which such justice shall inform all the institutions of
national life. While interpreting this provision in L. Babu Ram v. Raghunathji Maharaj,6
the Supreme Court held that “social justice” would include “legal justice” which means
that the system of administration of justice must provide a cheap, expeditious and
effective instrument for realisation of justice by all sections of people irrespective of
their social or economic position or their financial resources.” Article 39-A mandates
the State to provide legal aid. It further states that “the State shall secure that the
operation of the legal system promotes justice … to secure that opportunities for
securing justice are not denied to any citizen by reason of economic or other
disabilities.” The constitutional commitment to speedy justice flows from the combined
reading of Articles 14, 19 and 21 of the Constitution of India.
There are no constitutional or statutory provisions like the Sixth Amendment or
Speedy Trial Act, 1974 in India. Justice P.N. Bhagwati observed7 that unlike the
American Constitution, speedy trial is not specifically enumerated as a fundamental
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right; it is implicit in a broad sweep and content of Article 21 of the Indian
Constitution as interpreted in Maneka Gandhi v. Union of India,8 where it was held that
such procedure which does not ensure a reasonable quick trial cannot be regarded as a
reasonable, just and fair procedure. The Court added that “there can, therefore, be no
doubt that speedy trial, and by speedy trial we mean a reasonably expeditious trial, is
an integral and essential part of fundamental right to life and liberty enshrined in
Article 21”. The learned 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 principles 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
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must answer the test of reasonableness in order to be in conformity with Article 14. It
must be “right, just and fair and not arbitrary, fanciful or oppressive, otherwise, it
would be no procedure at all and the requirement of Article 21 would not be satisfied.”
Hence, the decision in Maneka Gandhi, established in unmistakable terms that 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 established that the procedure
prescribed by law within the meaning of Article 21 must be right, 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.9 So it is
said that the principle of openness of judicial proceedings acts as a check against
caprice or vagaries and builds up the confidence of the public in judicial
administration. Hence, the right to speedy trial is implicit in Articles 14, 19 and 21 of
the Indian Constitution.10
It will not be enough to declare the right to speedy trial as a fundamental right
under Article 21 unless the government perceives it as a constitutional obligation for
the purpose of ensuring this right. In this context, it is appropriate to mention here
the Supreme Court's observation that it is the constitutional obligation of the State to
dispense speedy justice in the field of criminal law, and the paucity of funds or
resources is no defence for denial of right to justice.11 The Supreme Court made it
clear that the courts must take into consideration the fact; whether the accused
himself was responsible for a part of the delay or whether he was prejudiced in the
preparation of his defence by the reason of the delay. Tactics may occasion the delay
in the proceedings or conduct of the accused himself and the court may refuse to
quash the proceedings in such circumstances, because the accused cannot be allowed
to take advantage of his own wrong.12
It may be pointed out that the Supreme Court of India has enlarged the scope of
this right and categorically made it clear that this right flowing from Article 21
encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal,
revision and retrial, whereas compared with the position in USA, the right to speedy
trial arises after arrest or indictment only.13
With regard to the fixation of a time limit within which the trial is to be completed
or the case is to be disposed of, it can be said that both the US and the Indian
Supreme Courts are of the opinion that there should not be any time limit because
factors like the nature of offences, the number of accused and witnesses, the work
load
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in a particular court, means of communication, frequent strikes by advocates and

several other circumstances have to be kept in mind before drawing such a deadline.
On earlier occasions, the Supreme Court of India endeavoured to fix a time limit but in
its later decisions, the court overruled the same on the ground that the Supreme Court
cannot fix any time limit as a bar beyond which criminal proceedings or trial cannot
continue, thereby entitling the accused to be acquitted on the reason of delay, and
such prescription of limitation period would amount to judicial legislation which is not
permissible under the Constitution of India.14
Following the views of US courts, the Supreme Court of India has quashed a
number of criminal proceedings in order to protect the right of speedy trial. Although
the Supreme Court is of the opinion that it is open to the court to make such an
appropriate order as may be deemed just and equitable in circumstances of the case15
but the court did not lay down any principle as to monetary compensation for the
victims within the ambit of such other appropriate order, though it has awarded
compensation to victims under Article 21 of the Constitution of India in other matters
like unlawful detention, custodial death and rape, etc. But some High Courts have
observed that judicial compassion can play a role and a convict can be compensated
for the mental agony which he undergoes on account of protracted trial due to the
fault of the prosecution. Such an order may be passed by the court in the exercise of
its extraordinary jurisdiction. Hence, monetary compensation clause may also be an
appropriate remedy for the protection of right to speedy trial under Article 21 of the
Constitution of India.16
B. Statutory provisions: Code of Criminal Procedure
There is no specific legislation in Indian legal system which ensures the right to
speedy trial like the Speedy Trial Act 1974 of the United States. As rightly pointed out
by Justice Chandramouli Kumar Prasad, the concern for a speedy trial is not merely an
inherited mandate from the American jurisprudence but equally is the inarticulate
premise underlying our Code of Criminal Procedure, 1973. It was pointed out that both
as regards the investigation and also with regard to trial, the need for speed is
underwritten in express terms or by unequivocal necessary implication and indeed,
permeated the whole gamut of the code in the said context.17
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Certain provisions of the CrPC impose a statutory obligation upon the courts to
proceed the trial “expeditiously” so that the case could be disposed of without
inordinate delay. The procedures under criminal law for dispensing justice commence
from registration of the FIR to investigation, police report, bail, inquiry and trial, etc.
In England, there is a CPS system which decides whether a case should be tried or
not by the court of competent jurisdiction.18 Hence, most of the cases are disposed of
at initial stage, whereas in India, there are complicated procedures as to the
registration of FIR and investigation of offences which are the main causes of delay.
Under Section 309 Cr.P.C, every inquiry or trial, should be held “expeditiously” and
when the examination of witnesses has once begun, the same shall be continued from
day to day until all the witnesses have been examined. Interpreting the provisions of
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the Constitution, the court stressed that expeditious trial is a rule and adjournment is
an exception.
C. Delay in execution of death sentence
The delay in the execution of death sentence is also implicit in the disposal of
criminal proceedings. Whenever the accused is held guilty in a case of death sentence,
certain problems of its execution encroach in the sphere of certain rights of convicted.
The long pendency of mercy petitions, which are to be disposed of by the President or
Governor with the advice of the Governments, is also causing delay in the execution of
death sentences.
The Supreme Court in its decision in T.V. Vatheeswaran v. State,19 once again ruled
that prolonged delay in execution exceeding two years will be a sufficient ground to
quash death sentence since it is unjust, unfair and unreasonable procedure and the
only way to undo the wrong is to quash the death sentence. Justice Chinnapa Reddy
observed that the cause of delay is immaterial when the sentence is that of “death”
and a person under sentence of death may also claim fundamental rights i.e.,
procedure under Article 21 must be just, fair and reasonable.
But soon after in Sher Singh v. State of Punjab,20 the Supreme Court overruled its
earlier ruling in Vatheeswaran's case. Delivering the judgment in this case, Chief
Justice Mr Y.V. Chandrachud observed that no hard and fast rule can be laid down as
far as the question of delay was concerned. If a person was allowed to resort to
frivolous proceedings in order to delay the execution of death sentence, the law laid
down by the court on death sentence would become an object of ridicule. Thus,
dismissing the writ petition the Supreme Court in this case directed the Punjab
Government to explain the delay in execution.
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A survey of available case laws21 on death sentence would reveal that the attention
of the Supreme Court was focused on the question whether inordinate delay in the
execution of death penalty can be considered to be a ground good enough to entitle
the convict to claim commutation of the sentence to that of life imprisonment. In
Triveniben v. State of Gujarat,22 the five-judge Bench of the Supreme Court overruled
the judgment of Vatheeswaran case to the extent it purported to lay down the “two
years” delay rule, and held that no fixed period of delay could be held to make the
sentence of death inexecutable. The Court, however, observed that it would consider
such delay as an important ground for commutation of the death sentence.
In Madhu Mehta v. Union of India,23 the Supreme Court held that a delay of eight
years in disposal of mercy petition would be sufficient to justify the commutation of
death sentence to life imprisonment since right to speedy trial is implicit in Article 21
of the Constitution which operates through all the stages of sentencing including
mercy petition to the President.
The Government of India assured, preparing “Mission Document” and “National
Litigation Policy” (NLP), to reduce the pending of mercy petitions and backlog of court
cases. Ironically, we have before us, the case of Afzal Guru, whose mercy petition is
pending since 4-8-2005 but no decision has been taken by the President till now.
Though certain efforts have been made in this regard, but no specific solution could be
arrived at.
It can be concluded that these provisions impose only duties upon the State
machinery, but no accountability has been fixed in case of non-performance of
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statutory duties by the State.
D. Examination of witnesses and speedy trial
The examination of witnesses during the trial of cases has been another delaying
stage of the criminal proceedings. Section 309 of the CrPC requires that when the
examination of witnesses has once begun, the same shall be continued from day to
day until all the witnesses in attendance have been examined. The examination of
witnesses, on which the entire edifice of criminal castle is built, is a must and without
evidence, the accused cannot be held guilty. Though many provisions are enshrined in
the CrPC for the purpose of examination of witnesses, due to lack of provisions for the
protection of their life and respect, many times either they do not turn up or are not
allowed to turn up before the court. Hence, the provisions as to examination of
witnesses cannot be said to be sufficient, in the absence of such
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provisions; which could ensure the protection of life and respect of the witnesses and
the reimbursement of travel expenses for those witnesses who come to court from
remote areas. Hence, protective provisions may accelerate the entire proceeding for
the speedy disposal of cases.
E. Plea bargaining and pendency of cases

Further, in order to ensure speedy disposal of criminal cases, the concept of plea
bargaining is considered to be of immense help. Plea bargaining deals with the process
whereby the accused and the prosecutor in criminal case work out a mutually
satisfactory disposition of the case subject to court approval. It usually involves the
defendant's pleading guilty to a lesser offence or only one of some of the court
indictment or a multi-court indictment, in return for a lighter sentence than possible
for serious charges.
The concept of plea bargaining originated in the criminal Court of Middlesex County,
Massachusetts during the period of 1780 to 1900 and slowly begun to catch on
throughout the country24 . The US Supreme Court in Brady v. US25 upheld its
constitutional validity. In India, prior to the amendment of the CrPC there were no
provisions relating to plea bargaining. The Supreme Court too, refused to recognise
the concept of plea bargaining in a number of cases due to the fact that it was
contrary in principle to the right against self-incrimination under Article 20 of the
Constitution and also contrary to the public policy. The Supreme Court observed that
this doctrine of plea bargaining should not be applied in respect of white collar crimes,
i.e,. economic offences, food adulteration, corruption cases etc.26
The Law Commission of India and the Malimath Committee recommended that the
system of plea bargaining should be introduced in Indian criminal justice system to
facilitate the speedy disposal of criminal cases and to reduce the burden on the courts.
Accordingly, the Criminal Law (Amendment) Bill, 2003 was introduced in the
Parliament and the Supreme Court of India referred and supported27 this Amendment
Bill, 2003 and observed that “it is true that the idea of plea bargaining in India was
not permissible, but in view of the changed circumstances and present state of affairs
of the criminal justice system in our country … the system of plea bargaining should
be introduced, as a part of the process of decriminalisation”. The provisions
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were thus finally incorporated in CrPC as Chapter XXI-A through the Criminal Law
(Amendment) Act, 2005 which is applicable only in respect of those offences for which
punishment of imprisonment is prescribed up to a period of seven years and it does
not apply where such offences affect the socio-economic conditions of the country or
have been committed against women and children below the age of fourteen years.
After police report, the complainant and accused are given time to work out
mutually for satisfactory disposal of the case and then the court disposes of the case
by commuting the sentence of the accused to one-fourth of the punishment. The order
of the court is final and there can be no appeal against such order while the confession
of the accused is applicable to the said proceeding only and shall not be considered or
used in any other proceeding.
Though there is plea bargaining provision in CrPC and the courts are willing to
entertain matters on this provision, it is not being effectively used in India because of
the unwillingness of the lawyers and the ignorance of the people (accused). Legal
awareness programmes will be of great help in this regard.
F. Special Courts Acts for Speedy Trial
The State may establish as many courts as it may consider necessary for various
purposes. Accordingly, various State Governments have established special courts by
passing special legislations, for example, West Bengal Special Courts Act, 1950.
Various legislations have been passed from time to time, many Special Courts Acts,
with the object of expeditious disposal of certain cases or class of offences. But in
those legislations, there were no proper guidelines or principles to exercise
discretionary powers by the executive in the selection of the cases for speedy disposal.
When the W.B. Special Courts Act, 1950 was challenged on the ground that the
discretionary powers exercised by the executive for the selection of the cases for
speedy disposal lacked a proper criteria, the Supreme Court laid down certain
principles and guidelines which were to be followed by the executive in referring the
cases or class of cases for speedy trial. And these guidelines have been incorporated in
various subsequent Acts. But these enactments could not achieve the very objective of
the speedy trial, for example, the Bhopal Gas Leak Disaster (Processing of Claims) Act,
1985 and Immoral Trafficking (Prevention) Act, 1956.28
The enactment of Bihar Special Courts Act, 2009 (Act No. 5 of 2010) by Bihar
legislature is a welcome step. According to the Act, the trial of corruption cases should
be completed within a period of one year. Moreover, these courts have to take the
cognizance of the matters of corruption by the government officials. Six such special
courts have been constituted under this Act. For the trial of the cases under this Act,
the
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courts may, if necessary, take some more time than the prescribed one year.
Obviously, the litigants and the lawyers will dilute the spirit of the Act.
It is submitted that the Fast Track Courts, Mobile Courts, Gram Nyayalayas are to
some extent doing better in disposing of the matters speedily.
IV. CONCLUSION AND SUGGESTIONS
This article has undertaken an in depth objective, analytical and comparative study
in the foregoing issues concerning the concept of speedy trial and its various stages
that encompass the process of investigation, inquiry, trial, bail and examination of
witnesses, and the role of plea bargaining in reducing the pendency of cases as
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envisaged in CrPC, 1973, to the extent necessary in respect of the subject matter.
From the foregoing study of the subject and in the light of the plethora of case laws
concerning right to speedy trial and role of the State machinery including special Acts
and Courts, basically the following trends emerge—
1. The Supreme Court quashed a number of criminal proceedings due to inordinate
delay in investigation, inquiry and trial of the cases. Various factors like
complicated procedure, access to police station and problems for registration of
FIR, investigation by police officer not well-versed with law that caused delay,
are no longer relevant in the modern era of science and technology.
2. The provisions of the Cr.P.C. only impose duties upon the state machinery to
conduct investigation, inquiry and trial etc. But no accountability has been fixed
in case of non-performance of the assigned duties by the State machinery.
3. The right to speedy trial is a fundamental right of the people but neither the
relevant provisions in this regard nor the Supreme Court of India have fixed any
time-limit for expeditious disposal of cases. This gives an opportunity to the
parties and State machinery for delaying the criminal proceedings.
4. Section 309 CrPC requires the “examination of witnesses” from day to day but no
provision has been made in order to ensure the protection of life and honour of
the witnesses, or even reimbursement of travel expenditure incurred by the
witnesses who come to the court from distant areas. The witnesses are harassed,
threatened and abducted. Maltreatment in court is common.
5. The provisions of plea bargaining have been incorporated into the CrPC as
Chapter XX-A. But no provision has been made which imposes mandatory
obligations upon the presiding officer and the advocate in order to acquaint and
explain to the parties concerned as to the process of pleabargaining before
commencement of the trial.
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6. Many special Acts for speedy trial of cases were passed by the States which were
challenged on different grounds including arbitrary exercise of discretionary
powers of the Government in selection or classification of classes of cases or
offences and unreasonable procedures to be adopted by the special court. The
Supreme Court has given certain guidelines from time to time for speedy
disposal of the cases by special courts. These guidelines have been incorporated
into various subsequent Acts. But the enactments, which have been made, could
not achieve the very objective of the speedy trial due to the absence of a sense
of responsibility among the machinery concerned. The Bihar Special Courts Act is
a welcome step in this regard.
7. The right to speedy trial is a fundamental right guaranteed by the Sixth
Amendment (US) and the Speedy Trial Act and under Article 21 of the
Constitution of India. The Supreme Court of India has quashed a number of
criminal proceedings in order to protect this right. The Supreme Court is of the
opinion that it is open to the Court to make “such appropriate order” as may be
deemed just and equitable in the circumstances of the cases. But the Court could
not include “compensatory jurisprudence” within the meaning of the term “such
appropriate order” while the other Courts have observed that the convict can be
“compensated” for mental agony on account of protracted trial.
During the research, it was found that there are no express provisions in the CrPC
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for the speedy trial of cases. There are statutory provisions like Section 309 of CrPC
which stand as an ideal only and are ineffective in execution. Hence, the following may
be suggested to render justice within time—
1. As the present investigation agency i.e., the police is one of the reasons for the
failure of the criminal justice system, the same can be rectified if the
investigation is conducted by a legal expert having experience.
2. The time-limit must be fixed at each and every stage of criminal proceedings
such as investigation, inquiry, trial, appeal, revision and review, so that the state
machinery maybe made responsible for delay at any stage in the disposal of
criminal cases.
3. For quick disposal of cases, provisions pertaining to protection of the witnesses,
proper hospitality towards witnesses and reimbursement of expenses incurred by
them for attending the court to give evidence are to be included in CrPC
4. Undoubtedly, plea bargaining is a tool for expediting the justice-delivery system
and reducing the pendency of cases. With some modifications to the present
provisions which have been laid down under Chapter XXI-A of CrPC, it can be
effectively implemented. These are—
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(a) A mandatory provision has to be made to the effect that the Presiding Officer
must inform the accused about the process of plea bargaining before
commencement of trial.
(b) It shall also be made obligatory on the part of the advocates to explain about
the process of plea bargaining to their clients and to that extent to submit an
affidavit in the court concerned.
(c) Legal awareness programmes are to be conducted with effective participation
of Probation Officers, Welfare Officers, Jail Superintendents including officials
of the Legal Services Authority.
5. Class of offences or criteria for selection of offences to be tried by the special
courts must be mentioned clearly in the Act itself which is passed for the
purpose of speedy trial. As directed by the Supreme Court of India, the
discretionary powers of the Government to refer such cases to special courts
should be categorically laid down in the Act and should include the time-limit
within which the trial is to be completed.
6. As compensation is awarded in the case of failure of the State machinery in
protecting the rights of the citizens, on similar lines, compensatory clauses are to
be included in the procedural code to compensate the victims for the prolonged
delay in criminal trials.
———
* The author is an Assistant Professor of Law at Chanakya National Law University, Patna.
1 Sir Edward Coke, The First Part of the Institute of Laws of England/Commentary upon Littleton (1628–1644).
2 Sixth Amendment Act (1791).

3 United States v. Gutierrez, 891 F. Supp. 97 (E.D.N.Y. 1995).
4 33 L Ed 2d 101 : 92 SCt 2182 : 407 US 514 (1972).
5 Ss. 3, 93 of the Speedy Trial Act Amendment of 1979, Pub. L. No. 96-43, Ss. 3, 93.
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6 (1976) 3 SCC 492 : AIR 1976 SC 1734.
7 Hussainara Khatoon (I) v. State of Bihar, (1980) 1 SCC 81 : AIR 1979 SC 1360.
8 (1978) 1 SCC 248 : AIR 1978 SC 597.

9 Hussainara Khatoon (I) v. State of Bihar, (1980) 1 SCC 81 : AIR 1979 SC 1360 at p. 1365.
10 Jagdish Swarup Constitution of India, Vol. 1, 2nd Edn., (Allahabad: Modern Law Publication., 2008)
11
P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578 : AIR 2002 SC 1856.
12 Raghubir Singh v. State of Bihar, (1986) 4 SCC 481 : AIR 1987 SC 149.
13See Pollard v. United States, 337 F.2d. 119 : (1964) 119 US App DC 83; see also State of Bihar v. Ramdaras
Ahir, 1985 Cr LJ 584; State v. Maksudan Singh, AIR 1985 Pat 38; Madheshwardhari Singh v. State of Bihar, AIR
1986 Pat 324; Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225 : AIR 1992 SC 1701 at p. 1729, Pankaj
Kumar v. State of Maharashtra, (2008) 16 SCC 117 : AIR 2008 SC 3077.
14State of A.P. v. P.V. Pavithran, (1990) 2 SCC 340 : AIR 1990 SC 1266, Abdul Rehman Antulay v. R.S. Nayak,
(1992) 1 SCC 225 : AIR 1992 SC 1701 at p. 1729, Common Cause v. Union of India, (1996) 4 SCC 33, Common
Cause (II) v. Union of India, (1996) 6 SCC 775, Raj Deo Sharma (I) v. State of Bihar, (1998) 7 SCC 507, Raj Deo
Sharma II v. State of Bihar, (1999) 7 SCC 604 at p. 606, P. Ramachandra Rao v. State of Karnataka, (2002) 4
SCC 578 at p. 581, State of Rajasthan v. Iqbal Hussen, (2004) 12 SCC 499, Pankaj Kumar v. State of
Maharashtra, (2008) 16 SCC 117 : AIR 2008 SC 3077 at p. 3082.
15 Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225 : 1992 SC 1701, Para 9 of the proposition.
16See Chander Bhan v. State of Haryana, 1996 Cri LJ 811 at p. 813, see also Prabhu v. State of Rajasthan, 2000
Cri LJ 1962.
17
Madheshwardhari Singh v. State of Bihar, AIR 1986 Pat 324 (Cr.WJC No. 22 of 1986).
18 Crown Prosecution Service in England.
19 (1983) 2 SCC 68 : AIR 1983 SC 361.
20
(1983) 2 SCC 344 : AIR 1983 SC 465.
21Ediga Anamma v. State of A.P., (1974) 4 SCC 443 : AIR 1974 SC 799—Two years was considered sufficient to
justify interference with the sentence of death. Bhagwan Bux Singh v. State of U.P., (1978) 1 SCC 214 : AIR
1978 SC 34 Two-and-a-half years; In Sadhu Singh v. State of U.P., (1978) 4 SCC 428 : AIR 1978 SC 1506—
Three and half years were taken as a sufficient to justify altering the sentence of death into life imprisonment.
22 (1989) 1 SCC 678 : AIR 1989 SC 1335.
23
(1989) 4 SCC 62 : AIR 1989 SC 2299.
24 George Fisher, Plea-Bargaining's Triumph: A History of Plea-Bargaining in America (California: Standford
University Press, 2003)
25 25 L Ed 2d 747 : 397 US 742 (1970)
26
See Madanlal Ramchandra Daga v. State of Maharashtra, AIR 1968 SC 1267 : 1968 Cri LJ 1469 at p. 1472, see
also Murlidhar Meghraj Loya v. State of Maharashtra, (1976) 3 SCC 684 : AIR 1976 SC 1929 at p. 1933, Kasham
Bhai Abdulrehman Bhai Sheikh v. State of Gujarat, (1980) 3 SCC 120 : AIR 1980 SC 854 at pp. 855-856,
Ganeshlal Jashraj v. Govt. of Gujarat, (1980) 1 SCC 363 : AIR 1980 SC 264, Thippaswamy v. State of Karnataka,
(1983) 1 SCC 194 : AIR 1983 SC 747, State of U.P. v. Chandrika, (1999) 8 SCC 638 : AIR 2000 SC 164,
Harbhajan Singh v. State of U.P., (2002) 9 SCC 407, Balram Kumawat v. Union of India, (2003) 7 SCC 628 : AIR
2003 SC 3268.
27 State of Gujarat v. Natwar Harchandji Thakor, (2005) Cri LJ 2957.
28 State of Maharashtra v. Prafulla B. Desai, (2003) 4 SCC 601.
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CNLU LJ (2) [2011-2012] 112

Speedy Trial and Criminal Justice System in India—A Juristic Study

SPEEDY TRIAL AND CRIMINAL JUSTICE SYSTEM IN INDIA—A JURISTIC STUDY

II. POSITION IN THE US

Before the point of formal accusation, the Government is under no obligation to

III. INDIAN POSITION

in a particular court, means of communication, frequent strikes by advocates and

E. Plea bargaining and pendency of cases

2 Sixth Amendment Act (1791).

8 (1978) 1 SCC 248 : AIR 1978 SC 597.

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