CHAPTER III

CONSTITUTIONAL AND STATUTORY PROVISIONS

REGARDING SPEEDY JUSTICE

“Quality of justice suffers not only when an innocent person is punished or a

guilty person is exonerated, but when there is enormous delay in deciding the criminal

cases”.

-Committee on Reforms of Criminal Justice System1

Lord Bryce writes- “There is no better test of the excellence of a government

than the efficiency of its judicial system”2.

To quote Prof. Amartya Sen who says that: "to secure a social order without a

perfect justice system is impossibility, what is required is to prevent manifest injustices

prevalent in our social order. One of the most prominent manifest injustices prevalent

in the Indian society is delay in dispensation of justice which invites speedy trial as the

essential aspect of justice system in our country in general and in the criminal justice

system in particular”.3

The concept of speedy trial is not new, it is quite an old concept existing both at

the National and International levels. At the International level the genesis of speedy

trial is found in the concept of modern democratic governments and their Constitutions.

1
Government of India, “Report of the Committee on Reforms of Criminal Justice System” Vol. I
(Ministry of Home Affairs, March 2000).
2
Amit Singh, Administration of Justice, available at:https://www.legalserviceindia.com/legal/article-856-
administration-of-justice.html (last accessed on March 01, 2022).
3
Amartya Sen, Idea of Justice ,56(Penguin Book, New Delhi,2010)

85
The Universal Declaration of Human Rights 1948,4 the International Covenant on Civil

and Political Rights 1966,5 European Convention on Human Rights 19506 and Sixth

Amendment to the Constitution of United States state the concept of speedy trial as a

part and parcel of their system.

In the National perspective, the Preamble to the Constitution of India reflects the

quest of Indian people for justice in all spheres of life such as social, economic and

political and especially those who suffered physical, mental or economic disabilities so

that justice could be done with them.7Justice should not only be promptly delivered but

should also be inexpensive and bearable, to bring fairness, equality and impartiality

ultimately helping to achieve the noble ideal of egalitarian society.

The concept of speedy trial was not explicitly provided in any provision of the

Constitution of India which led to delay in incorporating this noble concept into the

Indian legal system for a long time. There are certain provisions in Indian Criminal

Procedure Code, 1973 which mentions some aspects of speedy trial such as sections

309, section258, and section 468. However, nothing concrete could be done towards

ensuring speedytrialin letter and spirit until the judgementofHon’ble Supreme Court in

HussanairaKhatoon v. Home Secretary State of Bihar8in which the Supreme Court

unequivocally established that the speedy trial is a part and parcel of life and personal

liberty as provided under Article 21 of the Constitution. After the HussanairaKhatoon's

case there have been several of few other cases which have given strength to the

concept of speedy trial in India raising the expectations and faith of the people of India

in general and of the poor and indigent people in particular.

4
The Universal Declaration of Human Right,1948, Art.10
5
The International Covenant on Civil and Political Rights, Art. 14
6
European Convention on Human Rights, Art.3
7
Narendra Kumar, Constitution of India, 329(Allahabad Law Agency, edn. 7th Delhi ,2010)
8
AIR 1979 SC 1369

86
 This new jurisprudence of the concept of speedy trial which has been evolved by

the judiciary through a process of creative interpretation is the result of a case-to-case

development and is the most important basic human right in the field of criminal

jurisprudence.9

3.1. Meaning and Concept of Speedy Trial

Speedy justice has always been the sine qua non of criminal jurisprudence. It is

an important safeguard to prevent undue and oppressive incarceration. It minimises

anxiety and concern accompanying the accusation. It also limits the possibility of

impairing the ability of an accused to defend himself.

The right to speedy trial is an integral and essential part of the fundamental right

to life and liberty enshrined in Article 21 of the Constitution of India. The Supreme

Court, while delivering its Constitutional bench Judgement in the case of Abdul

Rahman Antulay v. R.S. Nayak10 declared that right to speedy trial is implicit in Article

21 of the Constitution of India, and thus constituted a Fundamental Rght of every

person accused of a crime.

In HussainaraKhatoon (I) v. Home Secretary, State of Bihar11 the Supreme

Court observed: "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 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

9
M.P. Jain, Indian Constitutional Law 1096(LexisNexis, edn.5th New Delhi,2008)
10
AIR 1992 SC 1701
11
Supra note 8

87
trial we mean reasonably expeditious trial, is an integral and essential part of the

fundamental right to life and liberty enshrined in Article 21”.

The right to the speedy trial must begin without unnecessary delay within the

time limits established by law. These time limits can be pushed back by valid

postponements for a variety of reasons.

3.2. Delayed Trial – The Prejudice Theory

A speedy trial is always considered a reasonable, fair and just trial but a delayed

trial may not always be an unfair trial. The Supreme Court in State of Maharashtra v.

ChampalalPunjaji Shah12held that while a speedy trial is an implied ingredient of a fair

trial, the converse is not necessarily true. A delayed trial is not necessarily an unfair

trial. The delay may be occasioned by the tactics or conduct of the accused itself. The

delay may have caused no prejudices whatsoever to the accused. The question whether a

conviction should be quashed on the ground of delayed trial depends upon the facts and

circumstances of the case. If the accused is found to have been prejudiced in the conduct

of his defense and it would be said that the accused had thus been denied an adequate

opportunity to defend himself, the conviction would certainly have to go. But if nothing

is shown and there are no circumstances entitling the court to raise a presumption that

the accused had been prejudiced there will be no justification to quash the conviction on

the ground of delayed trial only.

The above proposition was laid down in 1981. Since then much time has passed

and the trend of later judgements lead to the conclusion that even if no prejudice has

been caused to the charged officer or accused, he can still complain of infringement of

12
AIR 1981 SC 1675

88
his right to speedy trial.13 The charge sheet or conviction or punishment imposed can be

quashed or the sentence reduced, if the delay was not caused by the delay tactics of the

accused/charged officer.

3.3. Speedy Trial – A Constitutional Mandate

The Constitution of India is the supreme and fundamental law of the land.14 It

establishes the various branches of government conferring powers on them and at the

same time it imposes limitations on the authority of the state. So far as the Constitution

of India is concerned, starting with the Preamble, there are a large number of provisions

in this important instrument which contain the essential principles as to the organization

and functioning of the institutions having the responsibility of administering justice to

the people. The criminal justice system in India is founded on the bedrock of the

Constitution.

The right to speedy trial is the essence of justice as "justice delayed is justice

denied". Speedy trial is not mentioned as a specific Fundamental Right in the

Constitution; even criminal procedure code does not guarantee specifically any right to

speedy trial. Nor is there any specific provision prescribing the maximum period for

which a magistrate can keep an under trial in jail without trial.

The right to speedy trial has been said to have its roots at the foundation of

criminal proceedings. The right to speedy trial is reflected in the major human right

instruments such as Article 14(3) of International Covenant on Civil and Political

Rights (ICCPR), Article 6(1) of the European Convention on Human Rights (ECHR)

13
Supra note 11 at 1675
14
Durga Das Basu, “Shorter Constitution of India”19(LexisNexis, Gurgaon,14th Edn.2009)

89
and Article 7(5) of the American Convention on Human Rights (ACHR) and is reflected

in the statutes of all of the International criminal courts and Tribunals15.

In the United States speedy trial is one of the constitutionally guaranteed right.

The Sixth Amendment to the Constitution provides that- "In all criminal prosecutions

the accused shall enjoy the right to a speedy and public trial"16.

The Supreme Court of India in its landmark judgment in HussanairaKhatoon v.

Home Secretary State of Bihar17 explicitly held that speedy trial is a part of Article 21

of the Constitution guaranteeing right to life and liberty. The Supreme Court took the

matter up when the Indian Express newspaper carried a news story about the state of

under-trial prisoners in Bihar, some of them were in jail for as many as five, seven or

nine years and few of them for even more than ten years without their trials having

begun. Justice P.N. Bhagwati observed: "There is also one other infirmity of legal and

judicial system which is responsible for this gross denial of justice to the under trial

prisoners and that is the notorious delay in disposal of cases. It is a bad reflection on

the legal and judicial system that the trial of an accused should not even commence for

a long number of years. Even a delay of one year in the commencement of the trial is

bad enough; how much worse could it be when the delay is as long as 3 or 5 or 7 or

even 10 years. Speedy trial is of the essence of criminal justice and there can be no

doubt that delay in trial by itself constitutes denial of justice. We think that even under

our Constitution, though speedy trial is not specifically enumerated as a Fundamental

Right, it is implicit in the broad sweep and content of Article 21 as interpreted by this

15
Gideon Boas, The Milosevic Trial: Lessons for the Conduct of Complex International Criminal
Proceedings64, (Cambridge University Press, Cambridge, 1stedn., 2007).
16
Russell Freedman, In Defence of Liberty: The Story of America's Bill of Rights 21 (Holiday House,
New York, 3rdedn., 2003).
17
AIR 1979 SC 1369

90
court in Maneka Gandhi v. Union of India18. We have held in that case that the Article

21 confers a Fundamental Right on every person not to be deprived of his life or liberty

except in accordance with the procedure prescribed by law and it is not enough to

constitute compliance with the requirement of the Article that some semblance of a

procedure should be prescribed by law, but that the procedure should be "reasonable,

fair and just”.

If a person is deprived of his liberty under a procedure which is not 'reasonable,

fair and just', such deprivation would be violative of his Fundamental Right under

Article 21 and he would be entitled to enforce such Fundamental Right and secure his

release. The 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 does not ensure a reasonable quick trial

can be regarded as "reasonable, fair or just" and it would fall foul of Article 21.19 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.

The state cannot avoid its Constitutional obligation to provide speedy trial to the

accused by pleading financial or administrative inability. The state is under a

Constitutional mandate to ensure speedy trial and whatever is necessary for this purpose

has to be done by the state. It is also the Constitutional obligation of the Supreme court,

as the guardian of the Fundamental Rights of the people, as a sentinel on the qui vive, to

enforce the Fundamental Right of the accused to speedy trial by issuing the necessary

18
AIR 1978 SC 597
19
HassinaraKhatun v. Home Secretary State of Bihar, AIR 1979 SC 1359

91
directions to the state which may include taking of positive action, such as augmenting

and strengthening the investigative machinery, setting up new courts, building new

court houses, providing more staff and equipment to the courts, appointment of

additional judges and other measures calculated to ensure speedy trial.

In Maneka Gandhi v. Union of India and others20, a Constitutional Bench of

the Supreme Court went into the meaning of the expression "procedure established by

law" in Article 21. The court held that the procedure established by law does not mean

any procedure but a procedure that is reasonable, just and fair. The Court read Article

19 and 14 into Article 21 of the Constitution for this purpose.The law is therefore well

settled thatArticle 21 does not exclude Article 19 and that even if there is a law

prescribing a procedure for depriving a person of 'personal liberty' and there is

consequently no infringement of the Fundamental Right conferred by Article 21, such

law, insofar as it abridges or takes away any Fundamental Right under Article 19 would

have to meet the challenge of that Article. If a law depriving a person of 'personal

liberty' and prescribing a procedure for that purpose within the meaning of Article 21

has to stand the test of one or more of the Fundamental Rights conferred under Article

19 which may be applicable in a given situation, it must also be liable to be tested with

reference to Article 14.Article 14 is a founding faith of the Constitution. It is indeed the

pillar on which rests the foundation of our democratic republic.

In Sheela Barse v. Union of India21, a social worker had taken up the case of

helpless children below the age of 16 years illegally detained in jails. She prayed for the

release of such young children from jails, supply of information as to the existence of

20
(1978) (1) SCC 248
21
(1986)(3) SCC 632

92
juvenile courts, homes and schools and other necessary directions for properly looking

after of the children in custody. The Supreme Court, deciding the matter observed that

where the court concludes that the right to speedy trial of an accused has been infringed,

the charge or conviction, as the case must be quashed. The court directed the state

governments to take steps to complete an investigation within three months in cases

where children is a accused. Further, it directed the establishment of an adequate

number of courts to expedite the trial of children detained in various jails.

In Abdul RehmanAntulay and Others v. R.S. Nayak and Another22, a five

judge Constitution Bench of the Supreme Court reiterated the position that a right to

speedy trial is implicit in Article 21 of the Constitution. In this case the court also laid

down detailed propositions of law on speedy trial. The court observed that the

provisions of the Criminal Procedure Code were consistent with the right to speedy trial

and if followed in letter and spirit, there would not be any grievance but, unfortunately,

these provisions are honouredmore in breach than in compliance. The Court specifically

mentioned Section 309 of Cr.P.C, which provides that the proceedings shall be held as

expeditious as possible and in particular that when the examination of witnesses has

begun it shall be held as expeditiously as possible and continue from day to day until all

the witnesses in attendance have been examined.

Another landmark judgment was Supreme Court Legal Aid Committee

Representing Undertrial Prisoners v. Union of India23. In this judgment, the Supreme

Court of India, while dealing with the Narcotic Drugs and Psychotropic Substances Act,

1985, laid down certain conditions for mandatory release of undertrial prisoners on bail

22
(1992)(1) SCC 225
23
1994 (6) SCC 731

93
where trial was not completed within a specified period of time. The court directions

with respect to pending cases are summarized below: -

i. Where the under trial is accused of an offence(s) under the Act

prescribing a punishment of imprisonment of five years or less and fine,

such as under trial shall be released on bail if he has been in jail for a

period which is not less than half of the punishment provided for the

offence with which he is charged and where he is charged with more

than one offence, the offence providing the highest punishment. If the

offence with which he is charged prescribes the maximum fine, the bail

amount shall be 50% of the said amount with two sureties for like

amount. If the maximum fine is not prescribed bail shall be to the

satisfaction of special judge concerned with two sureties for like amount.

ii. Where the under-trial accused is charged with an offence(s) under the

Act providing for punishment exceeding five years and fine such an

under trial shall be released on bail on the term set out in clause (i) above

provided that his bail amount shall in no case be less than Rs. 50,000

with two sureties for the same amount.

iii. Where the under-trial accused is charged with an offence(s) under the

Act punishable with minimum imprisonment of ten years and minimum

fine of rupees one lakh such an under trial shall be released on bail if he

furnishes bail in the sum of rupees one lakh with two sureties for the like

amount.

94
 iv. Where an under-trial accused is charged for the commission of an

offence punishable under Section 31 and 31-A of the Act, such an under

trial shall not been titled to be released on bail by virtue of this order.

The Supreme Court in Common Cause v. Union of India & Others24observed

that it is a matter of common experience that in many cases where the persons are

accused of minor offence punishable for not more than three years or even less with or

without fine, the proceedings are kept pending for years together. If they are poor and

helpless, they languish in jail for long periods either because there is no one to bail them

out or because there is no one to think of them. The very pendency of criminal

proceeding for long periods by itself operates as an engine of oppression. Quite often,

the private complaints institute these proceedings out of oblique motives. Even in the

case of an offence punishable for seven years or less - with or without fine, the

prosecution is kept pending for years and years together in criminal courts. In most of

these cases, whether instituted by police or private complainants, the accused belong to

the poorer sections of society, who are unable to afford competent legal advice.

Instances have also come before courts where the accused, which are in jail, are not

brought to the court on every date of hearing and for that reason also the cases undergo

several adjournments. It appears essential to issue appropriate directions to protect and

effectuate the right to life and liberty of the citizens guaranteed by Article 21 of the

Constitution. It is also necessary to ensure that these criminal prosecutions do not

operate as engines of oppression. The court issued detailed guidelines for the release of

under-trial prisoners and the ending of proceedings. The court ordered the release of

24
1996(4) SCC 33

95
under-trial prisoners on bail in cases involving offences under the IPC or any other law

in force at the time if the offences are punishable with imprisonment not exceeding-

i. three years with or without fine and if trials for such offences have been

pending for one year or more and the accused concerned have been in

jail for a period of six months or more.

ii. five years, with or without fine, and if the trials for such offences have

been pending for two years or more and the accused concerned have

been in jail for a period of six months or more.

iii. seven years, with or without fine, and if the trials for such offences have

been pending for two years or more and the accused concerned have not

been released on bail but have been in jail for a period of one year or

more.

The court ordered the quashing of criminal proceedings and discharge or

acquittal of accused persons in cases involving offences under IPC or any other law in

force at the time in cases of:

i. Traffic offences, if the proceedings have been pending for more than two

years on account of a non-serving summons to the accused or for any

other reason.

ii. Offences compoundable with the permission of the court if the

proceedings have been pending for more than two years and trials have

still not commenced.

iii. Non-cognizable and bailable offences that have been pending for more

than two years and trials have still not commenced.

96
 iv. Offences punishable with fine only and are not of recurring nature, and

have been pending for more than one year and trials have still not

commenced.

v. Offences punishable with imprisonment of up to one year, with or

without fine, and have been pending for more than one year and trials

have still not commenced.

The court said that the period that a criminal case has been pending must be

calculated from the date that the accused are summoned to appear in court. Further, the

court excluded the following offences: -

i. Of corruption, misappropriation of public funds, cheating, whether under

the IPC, Prevention of Corruption Act, 1947, or any other statute;

ii. Concerning smuggling, foreign exchange violation and offences under

the Narcotics Drugs and Psychotropic Substances Act, 1985;

iii. Under the Essential Commodities Act, 1955, Food Adulteration Act, and

acts dealing with the environment or any other economic offences;

iv. Under the Arms Act, 1959, Explosive Substances Act, 1908, and

Terrorist and Disruptive Activities Act, 1987;

v. Relating to the army, navy and air force;

vi. Against public tranquility;

vii. Relating to public servants;

viii. Relating to coins and government stamps;

ix. Relating to elections;

x. Relating to giving false evidence and offences against public justice;

xi. Of any other sort against the state;

97
 xii. Relating to taxation; and

xiii. Of defamation as defined in Section 499 of the IPC.

In the second Common Cause Judgment25, the Supreme Court clarified that the

time-limit mentioned regarding pending criminal cases in the first judgment shall not

apply to cases wherein the delay of criminal proceedings is wholly or partly attributable

to the dilatory tactics adopted by the accused or on account of any other action of the

accused which results in prolonging the trial. It added further categories of offences

from its directions above, regarding offences.

i. Of matrimony under the IPC including Section 498A or under any other

law.

ii. Under the Negotiable Instruments Act, including offences under

Section138.

iii. Relating to criminal misappropriation of property of the complainant as well

as offences relating to criminal breach of trust under the IPC or under any

other law.

iv. Under Section 304A of the IPC or any offence pertaining to rash and

negligent acts which are made punishable under any other law; and.

v. Affecting public health, safety, convenience, decency and morals as listed in

chapter XIV of the IPC or such offences under any other law.

In Raj Deo Sharma v. State of Bihar26the Supreme Court issued certain

directions for effective enforcement of the right to speedy trial as recognized in

Antulay's Case27 and prescribed time limits for completion of prosecution evidence in

25
1996 (6) SCC 775,
26
AIR1998 SC 1131
27
AbdurRhamanAntulayv.R.S. Nayak, 1992 (1) SCC 225

98
criminal trials. During the hearing of this case, it was found that in Bihar alone, several

cases were pending for more than 25 years. A report submitted by the Special Judge,

CBI Court, Patna in December 1996 pointed out that in one case pending from 1982 the

prosecution had cited as many as 40 witnesses but had examined only three witnesses

up to 1996, the last in 1993. The report also pointed out that thereafter, the prosecution

had taken 36 adjournments to examine the remaining witnesses but had not produced

even one of them. The Supreme Court laid down, among other things, that if an offence

is punishable with imprisonment for a period

i. not exceeding seven years, whether the accused is in jail or not, the court

shall close the prosecution evidence on completion of a period of two

years from the date of recording the plea of the accused on the charges

framed, irrespective of whether the prosecution has examined all the

witnesses or not and the court can proceed to the next stage of trial.

Furthermore, if the accused has been in jail for a period of over half of

the maximum period of punishment prescribed for the offence, bail shall

be granted.

ii. exceeding seven years, whether the accused is in jail or not, the court

shall close the prosecution evidence on completion of a period of three

years from the date of recording the plea of the accused on the charges

framed, whether the prosecution has examined all the witnesses or not.

In the second Raj Deo Sharma Case28, the court clarified that if the delay in

trial has been caused on account of the conduct of the accused, no court is obliged to

close the prosecution evidence within the period prescribed. Further, if the trial has been

28
[1997 (7) SCC 604]

99
stayed by the orders of the court or by operation of law, the time during which the stay

was in force shall be excluded from the period established for closing prosecution

evidence.

In T.V. Vatheeswaran v. State of T.N.29 the Supreme Court reiterated the

significance of the right to speedy trial and extended it even to post conviction stage. It

was held that undue delay in carrying out the death sentence entitles the accused to ask

for lesser sentence of life imprisonment.

In KadraPahadiya v. State of Bihar30, while reaffirming the principle of

HussainaraKhatoon that speedy trial is a Fundamental Right implicit in Article 21. The

Supreme Court declared that an accused who is denied the right of speedy trial is

entitled to approach this court for the purpose of enforcing such right. It had power to

give necessary direction to the Government and other appropriate authorities for

securing the right of the accused and gave necessary direction to the Government of

Bihar and High Court including a direction to create additional courts for speedy

disposal of pending cases since long. In the instant case, four boys languished in Bihar

jail as under trial prisoners for over ten years. The court directed the session judge to

proceed with the case immediately.

The Supreme Court has made another significant pronouncement in Anil Rai v.

State of Bihar31 where it took a serious note of the lapse on the part of the High Court,

which delivered the judgement after a long time of the concluding of the arguments.

The court very aptly remarked that while justice delayed is justice denied, Justice

withheld is even worse than that, in the instant case court observed that any inordinate,

29
1983 (2) SCC 68
30
AIR 1981 SC 939
31
AIR 2001 SC 3173

100
unexplained and negligent delay in pronouncing judgement of the High Court was an

infringement of the right guaranteed under Article 21 of the Constitution.

In Kartar Singh v. State of Punjab32, the court has observed 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 in our Constitution. This 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, enquiry, 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 averred.

In Madheshwari Singh v. State of Bihar33 the right to speedy trial is inherent in

and flows from Article 21. The court stated the four principles as flowing from Article

21.

i. That the basic human right to a speedy public trial in all criminal

prosecutions has expressly been written as the rights relating to life and

liberty guaranteed under Article 21 of the Constitution.

ii. That this right is identical in content with the express Constitutional

guarantee inserted by the Sixth Amendment in the American

Constitution.

iii. That once the Constitutional guarantee of a speedy trial and the right to a

fair, just and reasonable procedure under Article 21 has been violated,

then the accused is entitled to an unconditional release and the charges

leveled against him would fall to the ground.

32
(1994) 3 SCC 569, 638:1994 SCC (Cri) 899
33
AIR 1986 Pat 324

101
 iv. That a callous and inordinate prolonged delay of ten years or more,

which in no way arises from the accused default in the context of

reversal of a clean acquittal on a capital charge, would be per se

prejudicial to the accused and would plainly violate the Constitutional

guarantee of a speedy trial under Article 21.

In State v. Maksudan Singh34 the court held that Code of Criminal Procedure

provides for an early investigation and for a speedy and fair trial. It is sufficient that the

Constitutional guarantee of speedy trial emanating from Article 21 is properly reflected

in the provision of the code.

In Raghubir Singh v. State of Bihar35 the Court affirmed that the right to

speedy trial is one of the dimensions of Fundamental Right to life and liberty under

Article 21 and to act fairly is one of the essences of the principles of natural justice.

In Anurag Bhatia v. State of Bihar36 a callous and inordinate delay in hearing

appeal, court's inability with no fault of accused and when there is no extraordinary or

exceptional reason for delay is a relevant consideration for quashing of prosecution

case. Further delay in commencement of trial amounts to violation of Fundamental

Right of the accused and the consequences should be borne by the prosecution. All

charges are liable to be quashed. It was further held that once the party is able to prove

that the Constitutional guarantee to Speedy Trial and the right to a fair, just and

reasonable procedure under Article 21 have been violated, the accused is entitled to

unconditional release and charges leveled against him. An unwarranted delay of 20

years in investigation & trial is manifestly a procedure which cannot be said to be fair,

reasonable or just.
34
AIR 1986 Pat 38 (FB)
35
AIR 1987 SC 149: (1986) 4 SCC 481:1986 SCC (Cri) 511
36
AIR 1987 Pat 274

102
 In Madhu Mehta v. Union of India37, the right to speedy trial is implicit in the

broad sweep and content of Article 21 of Constitution of India and is part of a citizen's

Fundamental Right to life and liberty. At the same time it must be remembered that

speedy trial in criminal cases by itself is not a Fundamental Right.

In Mihir Kumar v. State of West Bengal38, it was held that where a criminal

proceeding had been pending for 15 years from the date of the offence it amounted to

violation of the Constitutional right to speedy trial of a fair, just and reasonable

procedure and hence the accused was entitled to be set free.

In Santosh De v. Archana Guha39, the court ruled that an unexplained delay of

8 years in commencing the trial by itself infringes the right of the accused to speedy

trial. The delay being entirely and exclusively on account of the default of the

prosecution, the proceedings were quashed.

In Biswanath Prasad Singh v. State of Bihar40 the court observed that calling

upon the accused persons to enter defense after a period of 16 years was bound to cause

prejudice to them as the right to speedy trial has been infringed and hence quashed the

criminal proceedings.

In Anukul Chandra Pradhan v. Union of India41 it is important to have utmost

expedition in the trial and its early conclusion is necessary for the ends of justice and

credibility of the judicial process. Unless prevented by any dilatory tactics of the

accused, all trials of such kind involving public men should be concluded most

37
AIR 1989 SC 2299
38
1990 Cr LJ 26 (Cal)
39
A.I.R. 1994 SC 1229
40
1994 SCC (Cri) 1663
41
1996 SCC (Cri)1338

103
expeditiously, preferably within three months of commencement of the trial. This is also

the requirement of speedy trial read into Article 21.

In Ibrahim alias Munna Salim Shiekh v. State of Maharashtra42, the trial has

to be conducted according to the procedure established by law, which in turn means that

the procedure has to not only be reasonable, fair and just but it also stipulates that it has

to be a speedy and expeditious procedure.

In Kailash Chand Gupta v. State43 it was held that speedy trial is a Fundamental

Right implicit in the guarantee of life and personal liberty enshrined in the aforesaid

Article 21 of the Constitution of India. This right, i.e., the speedy trial is one of the

dimensions and an integral and essential part of the Fundamental Right to life and

liberty guaranteed under the aforesaid Article. Once the Constitutional guarantee of

speedy trial and the right to a fair, just and reasonable procedure under Article 21 has

not been followed, then the accused is entitled to an unconditional release and the

charge levelled against him would fail.

In Akhtari Bi v. State of Madhya Pradesh44, it was held that to have speedy

justice is a Fundamental Right. Prolonged delays in disposal of and thereafter appeals in

criminal cases, for no fault of accused, confers the trails upon him right to apply for

bail.

In Naminderjit Singh Sahni v. Union of India45, the right of an accused to have

speedy trial is now recognized as a right under Article 21. The procedural fairness

42
1996 (1) Cr.LJ 1419
43
A.IR 996 SC 1819
44
A.I.R. 2001 SC1528
45
A.I.R. 2001 SC 3810

104
required by Article 21, including the right to a speedy trial has, therefore, to be observed

throughout and to be borne in mind.

In Durga Datta Sharma @ Durgalal Sharma v. State46 trial in this criminal

case under section 420/467/477A/120B of the India Penal Code and under Section 5 of

the prevention of Corruption Act had not commenced after a period of 25 years. No

charges had been framed and the chances of commencing and concluding the trial in the

near future were not strong. Observing that the accused persons had already suffered a

lot, both mentally and physically during the last 25 years, the court dropped all charges

against the accused, as the right to speedy trial stood violated.

In Surinder Singh v. State of Punjab47 it was observed that speedy trial is a

Fundamental Right implicit in the broad sweep and content of Article 21. The aforesaid

Article confers a Fundamental Right on every person not to be deprived of his life or

liberty except in accordance with the procedure prescribed by law. If a person is

deprived of his liberty under a procedure which is not reasonable, fair or just such

deprivation would be violative of his Fundamental Right under Article 21. The

procedure so prescribed must ensure a speedy trial for determination of the guilt of such

person. Some amount of deprivation of personal liberty cannot be avoided, but if the

period of deprivation pending trial becomes unduly long, fairness assured by Article 21

would receive a jolt.

In Pankaj Kumar v. State of Maharashtra & Others48 the apex court held that

the Right to Speedy Trial under Article 21 of the Constitution extends to all criminal

46
(2003)2 GLR 461
47
AIR 2005 SC 3669
48
2008 Cr. LJ 3944

105
prosecutions and applicable not only to actual proceedings in court but also in police

investigation.

In VakilParasad v. State of Bihar49 the court opined that the delay clearly

violates the Constitutional guarantee of speedy investigation and trial under Article 21

of the Constitution. The court held that under gross delay further continuance of

criminal proceedings, pending against the appellant in the court of special Judge,

Muzaffarpur is unwarranted and despite the fact that allegation against the accused are

quite serious, they deserve to be quashed.

3.5. Speedytrial in Criminal Procedure Code

In our criminal justice system, the legal ethics are very clear, "let thousands of

criminals be let out but a single innocent should not be punished". Following this

principle, the judiciary requires all cases to be proved beyond reasonable doubt. In our

system, while the onus of proof lies on prosecution to prove the accused guilty, the

benefit of doubt is always given to the accused. Starting from the first step of arrest till

end of trial, in every stage the accused is conferred with several rights by the

Constitution. The Criminal Procedure Code and according to verdicts of the apex court

of the country, before trail began and till his guilt is proved, the accused is also

considered to be innocent and even as an under-trial prisoner any violation of his rights

is considered as Human Rights violation.

To protect human right of the accused, the Supreme Court of India inD.K. Basu

v. State of West Bengal50 has held that transparency of action and accountability are

perhaps the two possible safeguards which courts must insist upon. In this judgment, the
49
2009 (3) SCC 355
50
AIR 1997 SC 610

106
Supreme Court has laid down more concrete and specific guidelines concerning arrest.

The rights available to accused under the Criminal Procedure Code, 1973 (Cr.P.C.) are

as follows-

i. Right to be informed of the ground of arrest and right to bail under Section

50, 55 and 75 Cr. P.C

ii. Right not to be subjected to unnecessary restraint under section 49 Cr. P.C

iii. Right against arbitrary and illegal detention in custody under section 56,

section 57andsection 76 Cr. P.C

iv. Right to be released on bail if arrested under section. 436, section 436A,

section, section 437, section 50(2)and section167 the Cr. P.C

v. Right to be produced before Magistrate within 24 hours of arrest under

section 57 of the Cr. P.C

vi. Right to a fair and speedy trial under section 309theCr. P.C

vii. Right to free Legal Aid at the expense of the State in certain cases under

section 304of the Cr. P.C

Though numerous provisions provided in the form of time limit in the Code of

Criminal Procedure, 1973 to provide for an early investigation and a speedy and fair

trial due to various factors such as overcrowded court dockets, absence of prosecution

motivation, defence tendency to prolong the trial, speedy trial is yet an illusory goal.

There are some provisions aiming at curtailing the delay in investigation and trial of

offences are as follows.

107
 i. Section 157(1) of the Cr.P.C. requires the offices-in-charge of a Police Station

to send forthwith the report of the commission of an offence to the concerned

magistrate.

ii. Section 167(1) of the Cr.P.C. indicates that the investigation is expected to be

completed within 24 hours of the arrest of the accused. In case it appears that

the investigation cannot be completed within 24 hours and the allegation against

the accused is well founded, the investigating officer must forward the case

dairy along with the accused to the magistrate to seek further custody of the

accused. At this stage the magistrate can extend the period of detention of the

accused by 15 days, which can further be extended to 60 or 90 days depending

upon the gravity of the offence51. The accused becomes entitled to be released

on bail on the expiry of the period of 60 or 90 days.

If a case is triable by a magistrate as a Summons case, the investigation is not

concluded within six months from the date on which the accused was arrested, the

magistrate is required to stop further investigation into the offence52. The investigation

is allowed to go on beyond six months only if the investigating officer satisfies the

magistrate that for special reasons and in the interest of justice the continuation of

investigation is not completed within the prescribed time frame, the magistrate will not

take cognizance of such offences.

Section173(1) of theCr.P.C. requires the police officer to complete the

investigation without unnecessary delay and forward the report to the magistrate as soon

as it is completed the investigation. Further section 207theCr.P.C. requires that the

copy of documents like the police report, copy of F.I.R., statements recorded under

51
The Code of Criminal Procedure 1973 (Act 2 of 1974) , s. 167(2)
52
Id, s. 167(5)

108
section 161(3) except those portions for which request for exclusion is made,

confessions and statements under section 164 or any other documents or relevant extract

thereof is to be given free of cost to the accused without delay.

Section 208 requires that where, in a case instituted otherwise than on a police

report, it appears to the Magistrate issuing process under section 204 that the offence is

triable by the Court of Session, the Magistrate shall without delay furnish to the

accused, free of cost, a copy of statements and confession recorded under section 200,

section 202, section 161 and section l64 of the Cr.P.C.

Section 468 of the Cr.P.C. also in a way impose a time limit for completion of

investigation as it debars courts from taking cognizance of certain, minor offences after

expiry of certain period of limitation53.Section 469 of the Cr. P.C marks that the period

of limitation commences from the date of offence, or the first on which such offence

comes to the knowledge of aggrieved person.

All the above-mentioned provisions in the Criminal Procedure Code pertain to

the stage of investigation into an offence. These provisions, besides laying down in

broad terms, certain time limits subject to which investigation is to be carried out, also

put time limits upon detention pending investigation.

Section 309 of Cr.P.C. mandates expeditious conduct of trial. In particular it

requires that when the examination of witnesses has once begun, the same shall be

continued from day to day until the witnesses in attendance have been examined, unless

the court finds the adjournment of the proceeding beyond the following day to be

necessary for that reasons to be recorded. Though the Code recognizes the power of the

court to adjourn the proceedings from time to time after the cognizance of the offence is

53
The Code of Criminal Procedure 1973 (Act 2 of 1974), s. 468

109
taken or after commencement of the trial after recording reasons for doing so, yet it

provides that when witnesses are in attendance, no adjournment or postponement shall

be granted, without examining them, except for special reasons to be recorded in

writing.

Prior to the judgement of the Supreme Court in the case of HussainaraKhatoon

v. Home Secretary, State of Bihar54, which held the right to speedy trial to be part of

Article 21 of the Constitution, the only solitary provision which empowered the

criminal courts to ensure speedy trial including speedy recording of evidence is Section

309.

The mandate of section 309 has been pointed out by the Supreme Court in

various cases such as State of U.P. v. Shambu Nath Singh55. But the fact remains that

in spite of this legislative mandate, criminal cases are getting prolonged causing

unnecessary harassment to the under trials. As in the said case itself the Apex Court

observed, "Now we are distressed to note that it is almost a common practice and

regular occurrence that trial courts flout the said command with immunity. Even when

witnesses are present, cases are adjourned for less serious reasons or even on flippant

grounds. Adjournments are granted to suit the convenience of the advocate concerned.

We make it clear that the legislature has frowned at granting adjournments on that

ground. At any rate inconvenience of an advocate is not a special reason for bypassing

the mandate of Section 309 of the Code".

As discussed above, the right to speedy trial held in HussainaraKhatoon's Case

to be a part of the right conferred on an accused by Article 21 of the Constitution. In this

case, writ petitions were filed by a number of under trials in the nature of Habeas

54
AIR 1979 SC 1360
55
AIR 2001 SC 1403

110
Corpus under Article 32, seeking directions for their release as they were confined in

jails in the state of Bihar for years awaiting their trials to begin for the offences charged

with. The Supreme Court referred to the Sixth Amendment in the U.S. Constitution

which provides that "In all criminal prosecutions, the accused shall have the right to a

speedy and public trial" and Article 30 of the European Convention on Human Rights

provides that "everyone arrested or detained shall be entitled to trial within a

reasonable time or a release pending trial".

Reiterating the above view, again in HussainaraKhatoon (IV) v. Home

Secretary, State of Bihar56, the Apex Court held that detention of under trials in jails for

a period longer than what they can be sentenced if convicted, was illegal as being

violative of Article 21 of the Constitution.

The scope of the right to speedy trial of a criminal case was widened enough by

the Supreme Court in A.R. Antulay v. R.S. Nayak57, wherein this right was held to

include the stages of investigation, inquiry, trial, appeal, revision and re-trial. Observing

that an accused should not be subjected to unduly or unnecessary or long incarceration

prior to his conviction, it was held by the Supreme Court that 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 and it is in the interest of

all concerned that the guilt or innocence of the accused is determined as quickly as

possible.

The Supreme Court refused to give recognition to the demand rule and held that

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

56
AIR 1979 SC1360
57
AIR 1140 SC 1987

111
accused did not at any time demand a speedy trial and mere none asking of speedy trial

cannot be put against him.58

Though the Apex Court held that it is neither admissible nor practicable to fix

any time limit for trial of offences. But at the same time also held that it is open to the

court to make such appropriate orders including an order to conclude the trial or

reducing the sentence where the trial has concluded as may be deemed to be just and

equitable in the facts and circumstances of the case.

However, despite these judicial pronouncements of the supreme Court, the

executive did not perform its duty of ensuring speedy trial of criminal cases by

improving its prosecution branch, speedy investigation and proper infrastructure in the

courts. As a result, the Apex Court, being concerned about accused persons lodged in

jails for very long periods, passed various directions for release on bail of the under

trials and speedy disposal of their cases.

Though these direction were given by the Apex Court in the year 1992 and

although accused have been released on bail by the Apex Court in cases of undue delays

in the beginning of the trial or during its pendency such as Satya Brat Gain v. State of

Bihar59 and Vivek Kumar v. State of U.P.60 But the fact remains that a large number of

accused persons are still languishing in jails for longer periods due to non-release on

bail, due to various reasons such as past antecedents of the accused, manner of

commission of offence, likelihood of witnesses being tempered with, etc.

Section 437(6) of the Code of Criminal Procedure provides that if the trial of a

person accused of a non-bailable offence is not concluded within a period of sixty days

58
Ibid
59
(2000) 9 SCC 398
60
(2000) 9 SCC 443

112
from the date fixed for taking evidence, such person is to be released on bail if he is in

custody.

3.6. Provision of Speedy Pronouncement of Judgement

In addition to the provisions discussed above which directly provide for

expeditious conduct of trial, there is another provision in the Criminal Procedure Code

for Speedy pronouncement of judgement. Section 353 (1) of the Code provides that the

judgement in every trial in court of original jurisdiction shall be pronounced in open

court by the presiding officer immediately. After the termination of the trial or at some

subsequent time of, which notice, shall be given to the parties or then to the pleaders.

Thus the provision clearly requires that the judgment to be pronounced soon after the

completion of the trial so that there is no delay in the pronouncement of the judgment to

the same.

Delay in pronouncing the judgment after the conclusion of arguments causes

injury to the victim and accused. Such a practice has been strongly disapproved by the

various High Courts61 and they have exercised their supervisory authority quite often to

set aside the judgement or act against erring officers of the subordinate judiciary.

The Calcutta High Court in Surendra Nath Sarkar v. Emperor62 and Patna High

Court in Jagarnath Singh v. Francis Kharia63 had set- aside the judgment holding

them bad in law only on the ground of delay in pronouncing the judgment for a period

banning between six to ten months.

61
Anil Rai v. State of Bihar, (2001)7 SCC 318, Anima Ahmed Dossa v. State of Maharashtra ,AIR 2001 SC
656
62
AIR 1942 Cal 225
63
AIR 1948 Pat 414

113
 The Hon'ble judge of Patna High Court expressed his wrath in Sohagiya v. Ram

BrikshMahto64 in the following words when a magistrate took months to pronounce a

judgement. "The Magistrate who cannot find time to write judgement within reasonable

time after termination of trial ought not to do judicial work at all. This court strongly

disapproves of the magistrate making such a tremendous delay in the delivery of his

judgement".

As Section 353 (1)65 of the Code of Criminal Procedure clearly provides that the

judgement in trial shall be pronounced in court immediately after the close of the trial or

at some subsequent time of which notice shall be given to the parties. The Supreme

Court of India has elaborated that the words some subsequent time mentioned in section

353 contemplate, the passing of the judgement without undue delay, as delay in

pronouncement of judgement is opposed to the principle of law and such subsequent

time can at the most be stretched to a period of six weeks and not beyond that time in

any case.66

In Bhagwandas F. Daszvani v. HPA International67 the Supreme Court

observed thata long delay in delivery of the judgement gives rise to unnecessary

speculation in the minds of the parties.

In Anil Rai v. State of Bihar68 the problem of delay in delivery of judgements

has been elaborately treated. In this case the session's court convicted nine persons on

May 4, 1991. While they remained in Jail, a Division Bench of the Patna High Court

64
(1961) BILR 282
65
The Judgement in every trial in any Criminal Court of original jurisdiction shall be pronounced in open
Court by the Presiding officerimmediately after the termination of the trial or at some subsequent time of
which notice shall be given to the parties or their pleaders
66
Surendra Singh v. State of Uttar Pradesh, AIR 1954 SC 194
67
AIR 2000 SC 775
68
(2001) 7 SC 318, 328

114
heard their appeals. The arguments were concluded on August 23, 1995 and the

judgement was reserved. The judgement was pronounced on August 14, 1997 when one

of the judges reached near the date of his superannuation. One of the appellants had died

in jail by then. In appeal before the Supreme Court Justice Sethi and Thomas JJ took a

serious note of the inordinate, unexplained and negligent delay in pronouncing the

judgement and termed it as a horrible situation and shocking state of affairs prevalent in

some High Courts.

In the words of learned Sethi, J.: "Such a delay is not only against the

provisions of law but in fact infringes the right of personal liberty guaranteed by Article

21 of the Constitution of India. Any procedure or course of action, which does not

ensure a reasonable quick adjudication, has been termed to be unjust. Whereas justice

delayed is justice denied, justice withheld is even worse than that".

The learned judge further said in a country like ours where people consider

judges second to God, efforts make the judges only to strengthen that belief of the

common man. Delay in disposal of cases facilitates the people to raise eyebrows,

sometimes genuinely, which if not checked, may shake the confidence of the people in

judicial System. A time has come when the judiciary itself has to assert for preserving

its stature, respect and regards for the attainment of the rule of law. For the fault of a

few, the glorious and glittering name of the judiciary cannot be permitted to be made

ugly. It is the policy and purpose of law, to have speedy trial for which efforts are

required to be made to come up to the expectation of the society by ensuring speedy,

untainted and unpolluted justice.

115
 Thomas J. felt equally concerned and commented, "It is difficult to comprehend

how the judges would have kept the details and the nuisance of the arguments in their

memory alive after the lapse of a long period." He lamented by saying, it is

disheartening that a handful of few are unmindful of their obligation and the oath of

office they have solemnly taken as they cause such inordinate delay in pronouncing

judgements. He was of the view that the situation, instead of improving, has only

worsened.

For the expeditious pronouncement of judgements, Sethi J. issued detailed

guidelines as mandate of the court by way of remedial measure. In the absence of any

legislation, these instructions of the Supreme Court must be followed and implemented.

However, the chief Justice of the High Court was permitted to substitute these

guidelines if he or she, to slash the interval between conclusion of arguments and

delivery of judgement, evolves more effective measures. These guidelines can be

enumerated succinctly as follows-

i. The Chief Justice of the High Courts will direct that the date of reserving

the judgement and that of its pronouncement be mentioned on the title

page of judgement.

ii. The Chief Justice will ask various Benches in the High Courts to furnish

every month a list of cases in which judgements reserved are not

pronounced within that month.

iii. The Chief Justice shall point it out to the concerned Bench when

reserved judgement is not pronounced within a period of two months.

116
 iv. Where reserved judgement is not pronounced within three months, the

application of either party for early pronouncement shall be listed before

the concerned Bench within two days.

v. When the judgement is not pronounced within six months, either party

may apply to the Chief Justice for putting the case before some other

Bench for fresh arguments; the Chief Justice may grant the said prayer or

pass any other appropriate order.

3.7. Provision of Summary Trial

Summary trial implies speedy disposal. By Summary trial of a case means a

case, which can be tried and disposed of at once. Summary trial is not intended for a

contentious and complicated case, which necessitates a lengthy inquiry.69Sub-section

(1) of section 26070 has provided discretionary power to a magistrate to try the offences

69
B.M Prasad and Manish Mohan, Ratanlal and DhirajlalThe Code of Criminal Procedure 539
(LexisNexis, Gurgaon, 21st Edn. 2013)
70
Section 260(1) of the Criminal Procedure Code , 1973-
Notwithstanding anything contained in this Code-
(a) any Chief Judicial Magistrate.
(b)any Metropolitan Magistrate.
(c) any Magistrate of the first class specially empowered in this behalf by the High Court, may,
if he thinks fit, try in a summary way all or any of the following offences: -
(i) offences not punishable with death, imprisonment for life or imprisonment for a term
exceeding two years;
(ii) theft, under section 379, section 380 or section 381 of the India Penal Code (45 of 1860),
where the value of the property stolen does not exceed two thousand rupees;
(iii) receiving or retaining stolen property, under section 411 of the Indian Penal Code (45 of
1860), where the value of the property does not exceed two hundred rupees;
(iv) assisting in the concealment or disposal of stolen property under section 414 of the Indian
Panel Code (45 of 1860), where the value of such property does not exceed two hundred rupees;
(v)offences under sections 454 and 456 of the Indian Penal Code (45 of 1860);
(vi) insult with intent to provoke a breach of the peace, under section 504, and criminal
intimidation, under section 506 of the Indian Penal Code (45 of 1860);
(vii)abetment of any of the foregoing offences;
(viii)an attempt to commit any of the foregoing offences, when such attempt is an offence;
(ix)any offence constituted by an act in respect of which a complaint may be made under section
20 of the Cattle- trespass Act, 1871 (1 of 1871 ).

117
specified therein either summarily or in a regular way. This section does not enable the

magistrate to try any case or class of cases which he does not otherwise competent to try

The object of summary trial is to have a record sufficient for the purpose of

justice but not so lengthy as to impede speedy disposal of cases. The procedure

prescribed for trial of summons cases should be followed71. No formal charge is framed.

At the conclusion of the summary trial, the Magistrate enters the accused plea and the

findings in a form prescribed by the Government. There is no appeal in such a trial if

there is a sentence of fine not exceeding two hundred rupees. There can, however, be an

application for revision to the High Court.72

3.7. Compounding of offences

The first step to a speedy trial could be to sit together and sort out the difference.

The purpose of compounding the offences is based on the maxim ‘Interest reipublicaeut

sit finislitium’, which means for the best interest of the state the litigation must come to

an end. The offences that may lawfully be compounded are those that are mentioned in

section 320 of Criminal Procedure Code, 1973. The offences other than those

mentioned in section 320 cannot be compounded. Further, the offences punishable

under laws other than Indian Penal Code are not compoundable. Remedy for speedy

trial for them lies somewhere else.73Section 320(1) specifies the offences which can be

compounded without the permission of the Court. These offences are minor in nature.

71
Section 262 Procedure for summary trials- (I) In trials under this Chapter, the procedure specified in
this Code for the trial of summons- ease shall be followed except as hereinafter mentioned.
(II) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any
conviction under this Chapter.
72
Supra note 68
73
B.L. Arora, Law of Speedy Trial in India 30, (Universal Law Publishing Co. Pvt, Ltd, New Delhi,
10thedn., 2006).

118
The provisions of the Indian Penal Code, name of the offence and the person who can

compound the offence is shown in the table below.74

Who can compound the

Section of IPC Name of the offence
offence

Uttering any word or making

any gesture with the intention People whose religious
Section 298 IPC
of wounding his religious sentiments have been wounded.
feelings.

The one to whom hurt has been

Section 323, 334 IPC Voluntarily causing hurt.
caused.

Wrongfully restraining or The person who has been

Section 341,342 IPC
confining any person. restrained or confined.

Section 352, 355, 358 Assault or use of criminal

The one who has been assaulted.
IPC force.

Mischief is when the only

loss or damage caused is loss Private person to whom damage
Section426, 427 IPC
or damage to a private has been made.
person.

Possessor of the trespassed

Section 447 IPC Criminal trespass.
property.

Possessor of the trespassed

Section 448 IPC House-trespass.
property.

Section 497 IPC Adultery. Husband the woman.

Section 320(2) also contains a table that refers to the second category of

offences that necessitate the court’s consent before the parties can compromise.75 They

are as follows:

74
The Code of Criminal Procedure, 1973(Act of 5 2009) s. 320(1).

119
 Who can compound
Section of IPC Name of the offence
the offence

Voluntarily causing To whom hurt has

Section 325, 335, 337, 338 IPC)
grievous hurt. been caused.

The woman to whom

Section 312 IPC Causing miscarriage. miscarriage has been

caused.

The owner of the

property on which a
Section 406, 408 IPC Criminal breach of trust.
breach of trust has

occurred.

Marrying again during the

The husband or the
Section 494 IPC lifetime of a husband or
wife who is marrying.
wife.

Cheating with knowledge

that wrongful loss may

The person who has
Section 418 IPC ensue to a person whose
been cheated.
interest offender is bound to

protect.

Cheating and dishonestly

The person who has
Section 420 IPC inducing delivery of
been cheated.
property.

75
The Code of Criminal Procedure, 1973(Act of 5 2009) s. 320(2)

120
 Section 320(3)76 of Criminal Procedure Code stipulates that the abetment or

attempt to commit the above said offences described in sub-clauses (1) and (2) may also

be compounded in the like manner. The crucial provision is contained in section 320 (9)

of the Cr. P.C which stipulates that no offence shall be compounded except as provided

by section 320 of the Cr.P.C.Therefore,no offences of I.P.Cwhich are not specified in

section 320(1), section 320(2) and section 320(3) are compoundable. Moreover, the

offences created by special laws not being specified in these two sub-sections, are also

not compoundable. The compounding of offences other than those made compoundable

by section 320(1), section 320(2) and section 320(3) is illegal as it is prohibited by

section 320(9) of the Cr. P.C.

Therefore, under section 320 of the Cr.P.C, only 57 categories of offences can

be compounded out of so many offences mentioned in total 511 sections of the Indian

Penal Code, some with the permission of the court, other without permission.

3.8. Plea Bargaining

The disposal of criminal cases by method of ‘plea bargaining’ is an alternative

method to deal with the huge arrears of criminal cases. It is really a measure and

redressal, as the same has been brought on statute, it has also added new dimension in

the realm of judicial reform.77.The Criminal Law (Amendment) Act, 200578 Procedure,

1973 for the first-time accords recognition to the idea of plea bargaining within the

76
When any offence is compoundable under this section, the abetment of such offence or an attempt to
commit such offence (when such attempt is itself an offence) or where accused is liable under section 34
or 149 of the Indian Penal Code (45 of 1860) may be compounded in like manner.
77
B.M Prassad and Manish Mohan, Ratanlal&Dhirajlal the code of Criminal Procedure Code
543(LexisNexis, Gurgaon, 21stedn. 2013)
78
New Chapter XXI-A, containing section 265A to 265L inserted by the Criminal Law (Amendment)
Act,2005(Act No. 2of 2006) s 4 (Cameinto force w.e.f. 5-7-2006 vide Notfn. No. SO 990(E), dt. 3-7-
2006)

121
Indian Criminal Justice System. Sections 265A to 265L have been introduced with a

view to providing the qualifications for plea bargaining.

Plea bargaining proceeding is a new technique for simplifying the rigor of the

formal system as well as measure for the speedier disposal of cases. But this technique

has immense significance from the point of view of the accused, who is accorded an

option to bargain plea within the existing system. Thus, the rules relating to plea

bargaining have special value not only for the accused, but also for those who are

responsible for operating the system at the ground level79.

The concept of plea bargaining is a significant part of the criminal Judicial

System in U.S.A. The success of plea bargaining as a procedure leading to high

convictions has been proven in the United States, where the apex court of USA in

several cases has upheld its Constitutionality and significance80.

Many of the individuals who are accused of a crime give up their Constitutional

rights to trial and plead guilty. In Brodenkiircher v. Hayes81, the Supreme Court of

USA has held that there should be no element of punishment or retaliation as long as the

accused is free to accept or reject the offer of the prosecution.

Plea bargaining has over the years emerged as a prominent feature of the

American Criminal Justice system where over 97% federal conviction and 94% state

conviction are secured in criminal cases by plea bargaining rather than by a jury trial.82

Thus, less than ten percent of criminal cases go to trial. The United States experiment

79
National Human Rights Commission,Human Rights Best Practices Relating to Criminal Justice in a
Nutshell 30 (NHRC, New Delhi 1stedn. ,2007).
80
Brady v. United States (1970)397 US 724, Santobello v. New York,(1971)404 US 257
81
(1978) 357 US 434.
82
Bureau of Justice statistics,2015

122
shows that plea bargaining helps the disposal of the accumulated cases and expedites

delivery of justice.83

3.9 Concept of Plea Bargaining

Plea bargaining is a concept derived from the USA, there is no perfect or simple

definition of Plea bargaining. As the term implies, it involves an active negotiation

process whereby the offender is allowed to confess his guilt in court if he so desires in

exchange for lighter punishment that would have been fixed for such offence. Plea

bargaining usually occurs prior to trial but may occur any time before a judgement is

rendered.

Black's Law Dictionary defines it as the process whereby the accused and the

prosecutor in a 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

offense or to only one or some of the counts of a multi - count indictment in return for a

lighter sentence that possible for the graver charge84.

From the point of view of the accused, it means that he bargains conviction and

a lesser sentence, for a long, expensive and tortuous process of undergoing trial where

he may be convicted. For many cases, plea bargaining also known as negotiating a

settlement, coping a plea, or coping out is the most important step in the criminal justice

process in United States. Thus, it involves an active negotiation process by which the

defendant offers to exchange a plea of guilty, thereby waiving his right to trial, for some

concessions in charges or for a sentence recommendation. The offender is allowed to

83
Justice A.K. Sikri, “Reforming Criminal Justice System: Can Plea Bargaining be the Answer?”8 Naya
Deep 43-44 (2007).
84
Bryan A. Garner & Henry Campbell, Black's Law Dictionary 1173 (West Publishing Co., United
States, 6thedn., 1990).

123
confess his guilt in court if he so desires in exchange for lighter punishment that would

have been fixed for such offence.85

3.10. Types of Plea Bargaining

There are mainly three types of plea bargaining86:-

i. Charge Bargaining: -Charge bargaining is such bargain in which a defendant

pleads guilty to reduced charges. It occurs when defendant pleads guilty to

necessarily included offences87

ii. Sentence Bargaining: -Sentence bargain occurs when a defendant is told in

advance that his sentence will be reduced if he pleads guilty. This can help a

prosecutor obtain a conviction if, for example, a defendant is facing serious

charges and is afraid of being hit with the maximum sentence.88

iii. Fact Bargaining: -Fact bargaining in which negotiation involves an admission to

certain facts 'Stipulating' to the truth and existence of provable facts, thereby

eliminating the need for the prosecutor to have to prove them in return for an

agreement not to introduce certain facts into evidence.89

1.11. Plea Bargaining –Indian Perspective

Plea bargaining has been introduced in India in the Criminal Procedure Code by

the Criminal Law (Amendment) Act, 2005.90 This lays down a procedure with a distinct

feature of enabling an accused to file an application for plea bargaining in the court

where the trial is pending. The Law Commission in its 154th report recommended the

85
G.Nicholas Herman, Plea Bargaining 25( Juris Pub Inc, Huntington ,NY3rdedn. 2012)
86
Id at 7
87
David Levinson, 3 Encyclopedia of crime and Punishment 10 (Sage Publications, United States, 2003).
88
Ibid
89
ibid
90
Supra note 78

124
introduction of Plea bargaining as an alternative method to deal with huge backlog of

criminal cases.91 Later on, the Malimath Committee Report on criminal reforms also

recommended that a system of Plea bargaining be introduced in the Indian Criminal

Justice System to facilitate the speedy disposal of criminal cases and to reduce burden

of the courts. The committee in its report cited the success of Plea-bargaining system in

USA and other European Countries to support its claim.92

3.12. Position before 2005

There were serious public debates regarding the insertion plea bargaining in the

Indian Criminal Justice delivery system. It is generally criticized on the basis that it is

not recognized under our criminal justice system and is against public policy. The

Supreme Court has also rejected the incorporation of the concept of plea bargaining in

our criminal justice delivery system. In Madanlal Ram Chandra Daga v. State of

Maharashtra93, the Supreme Court for the first time made an observation in regard to

the efficacy of plea bargaining and observed: "In our opinion, it is very wrong for a

court to enter into a bargain of this character. Offences should be tried and punished

according to the guilt of the accused; if the court thinks that leniency can be shown on

the facts of the case, it may impose a lighter sentence. But the court should never be

party to a bargain by which money is recovered for the complainant through their

agency."

91 th
Law Commission of India, 2 “154 report on Code of Criminal Procedure ,1973”32(Ministry of law,
Government of India ,1996)
92
V.S. Malimath, “Committee on Reform of Criminal Justice System” (Ministry of Home Affairs,
Government of India , 2003)
93
AIR 1968 SC 1267

125
 On the same line plea bargaining was further disapproved in Ganesh

MaiJashraj v. Govt of Gujarat94and Thippaswamy v. State of Karnataka95. The

Hon'ble Supreme Court in Kasambhi Abdul Rehman Bhai Sheikh and Others v. State

of Gujarat and Another96 has held the practice of plea bargaining to be

unconstitutional, illegal and which would tend to encourage corruption, collusion and

pollute the pure fount aim of justice. In the year 2000, in Uttar Pradesh v. Chandrika97,

the Apex Court reiterated its earlier view holding that the concept of plea bargaining is

not recognized and is against public policy under our criminal justice system. Further, it

was observed that on the basis of Plea bargaining court cannot dispose of the criminal

cases. The court has to decide it on merits. If the accused confesses his guilt, an

appropriate sentence is required to be implemented.

On the other hand, the Law Commission of India in several reports98 and other

committee recommended for insertion of Plea bargaining in the criminal Justice system

to deal with increasing numbers of pending cases and to curb the delay in dispensing

justice.

3.13. The Provisions of Criminal Law Amendment Act, 2005

The newly introduced chapter XXI-A has incorporated the concept of plea

bargaining.

Section 265A states as to against whom this chapter is applicable. The section

elaborates that this chapter is inapplicable where the offender is accused with an offence

94
AIR 1980 SC 264
95
1983 Cr. LJ 1271 (SC)
96
AIR 1980 SC 854
97
AIR 2000 SC 164
98 nd th th
Kindly see 142 Report of law Commission of India, 154 Report of law Commission of India, and 177
Report of law Commission of India

126
punishable with more than seven years of imprisonment and/or where the offence is one

which affects the socio-economic condition of the country or has been committed

against a woman or child below the age of fourteen years.

Section 265B makes it mandatory for the accused to move an application for

plea bargaining before the trial court and places the discretion on the trial court to

determine whether such application has been moved voluntarily. The trial courts is also

obligated to reject any application where it finds that the accused has been previously

convicted by a court in a case in which he had been charged with the same offence.

Section 265C ensures mutually satisfactory disposition of the case by retaining

voluntary participation of all concerned parties in the proceedings.

Section 265D envisages the preparation of a report in the event of satisfactory

disposition of a case.

Under section 265E the court is bound to dispose of a case in the event of

satisfactory disposal, by awarding compensation to the victim and after hearing the

parties on the aspect of quantum of punishment and thereafter awarding appropriate

sentence which is applicable in the cases, and which may range from one-half to one-

fourth of prescribed punishment for the said offence.

Section 265F makes it mandatory to pronounce the judgement in open court.

Section 265G provides that the judgement cannot be appealed against unless by

means of a special leave petition or writ petition thereby ensuring a degree of finality.

127
 Section 265 H gives certain powers unto the court in plea bargaining and Section

265-I provides that period of detention, if any, undergone by the accused shall be set off

against the sentence of punishment imposed.

Section 265J is a non-obstinate clause and gives effect to the provisions of the

chapter as against any other provision of the Code.

Section 265K is a beneficial clause in favour of the accused and states that any

statements or facts used by an accused in an application under this chapter shall not be

used for any purpose other than that prescribed under the chapter.

Section 265L states that nothing in this chapter shall apply to any juvenile or

child as defined in clause(k) of section 2 of the juvenile Justice (Care and Protection of

Children) Act, 2000.

These are the statutory provisions, in a nutshell, for the use of Plea bargaining in

the Indian Criminal Justice Process. It would be pertinent herein to deal with the

challenges which the above procedure entails for the judiciary to ensure that the process

does develop into a fruitful and beneficial reality.

In a country, like India, where there is a large number of cases pending for

disposal, the concept of Plea bargaining will help to reduce the backlog by expediting

the disposal of the cases. The ultimate aim of introducing plea bargaining is that it will

reduce the burden of judiciary by disposing of the cases through plea bargaining. Plea

bargaining will ensure quick resolution of cases involving petty offences and courts will

be able to concentrate on the cases involving serious offences and fulfilling their

constitutional obligation to provide a speedy trial. It will lead to load reduction as well

as productivity enhancement as shown by the experience of United States. Plea

128
bargaining apart from facilitating speedy justice and reducing the pendency of cases in

the court, it will also reduce the number of under trials in the prisons.

3.14. Speedy Investigation

Investigation is the most important part of criminal jurisprudence. An

investigation means search for material and facts in order to find out whether or not an

offence has been committed.99 Unless there is an efficient, prompt, fair and impartial

investigation, justice in criminal cases cannot be ensured.

If investigation and trial of cases are delayed the chances of miscarriage of

justice and expenses of litigation increase tremendously. Delay in investigation gives an

opportunity to the accused to tamper the evidence influence the witnesses and thus to

deflect the course of justice. Then again, many a time even the remedy provided by the

law becomes infructuous due to flux of time. In Santa Singh v. State of Punjab100

where there was inordinate delay in sending the sealed parcels of -

(a) The empty cartridge case recovered from the scene of occurrence and

(b) The rifle recovered from the house of the accused for the opinion of the

ballistic expert and

(c) There was also a delay of several days in the interrogation of the suspect

after his arrest.

The Supreme Court acquitting of the charge of murder despite the evidence of

three eyewitnesses, observed: “The suspicious delays that have occurred as regards

99
Supra note 77 at 7
100
1956 Cr.LJ 930(SC)

129
important steps in the course of the investigation render it unsafe to hold that the case

of the prosecution has been established beyond reasonable doubt”.

Similarly in R.P. Kapur v. State of Punjab101, where there was extraordinary

delay in the investigation and in submitting the charge-sheet, the Supreme Court

remarked: "It is an utmost importance that investigation into criminal offences must

always be free from any objectionable features or infirmities which may legitimately

lead to the grievance of the accused that the work of investigation is carried on unfairly

or with an ulterior motive". Even three days unexplained delay in examining

eyewitnesses has been held to be fatal as it casts doubt on the veracity of such

witnesses”102.

Article 21 of the Constitution of India confers upon every individual a

fundamental right not to be deprived of his life or liberty except in accordance with due

procedure prescribed under law. The procedure prescribed under the lawmust be

reasonable, fair and just. Under Article 21 of the Constitution, the right to speedy

investigation is a fundamental requirement.103

Speedy and expeditious investigation and trial, which have been envisaged

under section 309(1) of the Code of Criminal Procedure, 1973104 reflect the spirit of

Article 21 of the Constitution of India. A procedural prescription for securing speedy

investigation is given under section 173 of the Criminal Procedure Code,1973 which

101
1960 Cr. LJ 1239(SC)
102
Basudev Sahu vs. State, 1985 Cr. LJ (NOC) 29 (Orissa)
103
Supra note 19
104
Section 309(1) -In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and
in particular, 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, unless the Court finds the adjournment of
the same beyond the following day to be necessary for reasons to be recorded

130
directs that every investigation shall be completed without unnecessary delay.105

Sections157106,section 168107and section 173 should be read conjointly for speedy

105
Section 173. Report of police officer on completion of investigation.(1) Every investigation under this
Chapter shall be completed without unnecessary delay.
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate
empowered to take cognizance of the offence on a police report, a report in the form prescribed by the
State Government, stating-
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, weather with or without sureties;
(g) whether he has been forwarded in custody under section 170.
(ii) The officer shall also communicate, In such manner as may be prescribed by the State Government,
the action taken by him, to the person, if any, by whom the information relating to the commission of the
offence was first given.
(3) Where a superior officer of police has been appointed under section 158, the report shall, in any case
in which the State Government by general or special order so directs, be submitted through that officer,
and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make
further investigation,
(4) Whenever it appears from a report forwarded under this section that the accused has been released on
his bond, the Magistrate shall make such order- for the discharge of such bond or otherwise as he thinks
fit.
(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward
to the Magistrate alongwith the report-
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those
already sent to the Magistrate during investigation;
(b) the statements- recorded under section 161 of all the persons whom the prosecution proposes to
examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-
matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and
is inexpedient in the public interest, he shall indicate that part of the statement and append a note
requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his
reasons for making such request.
(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the
accused copies of all or any of the documents referred to in sub- section (5).
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after
a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation,
the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward
to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the
provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as
they apply in relation to a report forwarded under sub- section (2).
106
Section 157Procedure for investigation preliminary inquiry.
(1) If, from information received or otherwise, an officer in charge of a police station has reason to
suspect the commission of an offence which he is empowered under section 156 to investigate, he shall
forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a
police report and shall proceed in person, or shall depute one of his subordinate officers not being below

131
investigation. In cases of investigation relating to summons cases, if the investigation is

not concluded within a period of six months from the date of arrest of the accused the

magistrate is bound to make an order stopping further proceedings in the investigation

unless the investigating officer satisfies the Magistrate that for some special reasons and

in the interest of justice continuation of the investigation beyond six months is

necessary.

. In Sushil Kumar v. State of West Bengal108 the Calcutta High Court took the

view that principle behind this provision is that the investigation agency may not harass

a person for long by binding him over in less serious cases.

So far as the investigation of cases triable as warrant cases is concerned, there is

no specific provision in the Code analogous to section 167 (5) of the Criminal

Procedure Code where the Magistrate could enforce speedy investigation. However, the

Code only prescribes statutory protection against prolonged custodial detention of the

accused pending investigation, such protection are in the form of right to be released on

bail after detention in custody for a specific period.109 If the police do not file a final

such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed,
to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for
the discovery and arrest of the offender; Provided that-
(a) when information as to the commission of any such offence is given against any person by name and
the case is not of a serious nature, the officer in charge of a police station need not proceed in person or
depute a subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on
an investigation, he shall not investigate the case.
(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub- section (1), the officer in
charge of the police station shall state in his report his reasons for not fully complying with the
requirements of that sub- section, and, in the case mentioned in clause (b) of the said proviso, the officer
shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State
Government, the fact that he will not investigate the case or cause it to be investigated
107
Section 168. Report of investigation by subordinate police officer. When any subordinate police officer
has made any investigation under this Chapter, he shall report the result of such investigation to the
officer in charge of the police station
108
1987 Cri LJ. 1517 (Cal. H.C.)
109
The Code of Criminal Procedure ,1973 (Act No. 2 of 1974) s 167

132
report against the accused within the period of sixty or ninety days, as specified in

section 167, a valuable right to be released on bail accrues to the accused.

Inordinate delay by the police in the investigation of criminal cases is violative

of fundamental right under Article 21 of the Constitution and gives rise to a right in

favour of the accused to move the High Court under Article 226 or to the Supreme

Court under article 32 of the Constitution for the enforcement of his right.110 In cases of

inordinate delay there are two approaches followed by the courts. The first approach is

to release the accused on personal bond or without any bond, where an accused had

been in jail for the maximum term which could have been awarded to him if found

guilty of the offence he was charged with, he was ordered to be released from custody

forthwith. In cases where no charge sheet had been filed for three years, accused

remaining in jail custody, they were ordered to be released on furnishing personal bonds

in meagre amount111.

The second approach is somewhat radical and revolutionary. In Krishna

Bahadur v. State112 where the accused was in jail for over 40 months without any

charge sheet having been filed by the police, it held that the delay in submission of final

report was not bonafide but really in pursuance of malafide exercise of investigational

powers obviously designed to keep the prisoner under detention for an indefinite period.

In this case, the petitioner was set free.

In Madheshwardhari Singh v. State of Bihar113 it was held that speedy trial is a

Constitutional right. The right to speedy trial is applicable not only to the trail before

110
Babu Singh v. State of U.P., AIR 1978 SC 527
111
Mohd. Saleem Khan v. State of UP, AIR 1982 SC 1996
112
1981 Cr, LJ NOC 208 Mad.
113
AIR 1986 pat. 324 (FB): 1986, Cr. LJ 1771

133
court but also to police investigation . In the case of Raghubir Singh v. State of

Bihar114, it was held that right to speedy trial which is a fundamental right of an accused

shall be construed as including period of investigation.

. In Abdul RehmanAntulay v. R.S. Nayak115, the Supreme Court has finally settled the

position that right to speedy trial flowing from Article 21 of the Constitution of India

encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal,

revision and retrial, by this decision the Apex Court has broadened the scope of this

right.

The Criminal Procedure Code of 1973 too has emphasized the need for speedier

investigation in criminal cases and in the case of petty offences has either barred

investigation beyond a certain period or barred the taking of cognizance thereof by the

court after a fixed time schedule116.

For the effective discharge of its duties, police have the power to arrest any

person in certain circumstances117. Arrest of an alleged offender even before magistrate

issues Summons or warrants against him is thus provided so as to secure his presence

during the trial. Police may take a long time for the investigation into an offence and

thus delay the initiation of the process of trial, which begins on the filing of charge sheet

by the prosecution in court. To check this, Cr.P.C. imposes certain restrictions with

114
AIR 1987 SC 194:1987 Cr. LJ 157: (1986) 4 SCC 481
115
AIR 1992 SC 1630
116
The Code of Criminal Procedure 1973 (Act 2 of 1974), s. 167(5) &(6) and s. 468-473;
NimeonSangma v. Govt, of Meghalaya, 1979 Cr, LJ 944 (SC), HussainaraKhatoon v. State of Bihar, 1979
Cr.LJ 1036, MantooMajumdar v. State of Bihar, 1980 Cr. LJ 546 (SC)
117
The Code of Criminal Procedure 1973 (Act 2 of 1974), s. 41

134
respect to time to be taken for investigation by police and incarceration of accused

pending such investigation.118

Section 57 of the Code of Criminal Procedure ,1973119prescribes the time limit

of twenty-four hours within which an arrested person should produce before the nearer

magistrate. Thearrestee cannot be detained in custody beyond the said period without

the authority of a magistrate.

The mandatory provision of section 57 of the Cr.P.C says that the police officer

has no authority to detain a person arrested without warrant in custody for a period

longer period than twenty-four hours120. But if it appears to the officer in charge of the

Police Station or the police officer making the investigation (not below the rank of the

sub-inspector) that the investigation cannot be completed within the said period and

there are grounds for believing that the accusation is well founded he is required to

transmit a copy of the entries made in his diary and at the same time forward the

accused to the nearest judicial magistrate121. Such magistrate, whether he has or has not

the jurisdiction to try the case, from time to time may authorize the detention of the

accused in such custody for a term not exceeding fifteen days in the whole122. The

magistrate, who has jurisdiction to try the case, may authorize the detention of the

accused person otherwise than in the custody of the police, beyond the period of fifteen

days if he is satisfied that adequate grounds exist for doing so but even the magistrate

118
The Code of Criminal Procedure ,1973 (Act No. 2of 1974) s.173
119
Section 57 of the Code of Criminal Procedure - Person arrested not to be detained more than twenty-
four hours. No police officer shall detain in custody a person arrested without warrant for a longer period
than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a
special order of a Magistrate under section 167, exceed twenty- four hours exclusive of the time necessary
for the journey from the place of arrest to the Magistrate' s Court.
120
Supra note.118
121
Id, s. 167(1)
122
Id, s. 167(2)

135
cannot authorize the detention of the accused person in custody for a total period

exceeding:

• Ninety days, where the investigation relates to an offence punishable with

death imprisonment for life or imprisonment for a term of not less than ten years123.

• Sixty days, where the investigation relates to any other offence124.

The police are required to complete investigation without unnecessary delay125.

On the completion of investigation if there is not sufficient evidence or reasonable

ground of suspicion the accused is to be released on executing a bond to appear when so

required before a magistrate empowered to take cognizance126 and if there is sufficient

evidence or reasonable ground of suspicion then the officer in charge of the Police

Station forwards the accused under custody to a magistrate empowered to take

cognizance of the offence upon a police report and to try the accused or commit him for

trial127. On completion of investigation the officer in charge of the Police Station is also

required to send a report to a competent magistrate128. Such a report is known as 'police

report'129 or popularly called 'charge-sheet' or 'challan'. When a charge sheet is filed in a

case in respect of this, there is sufficient evidence to forward the accused person to a

magistrate. Then along with the charge sheet all the documents or their extracts on

which the prosecution proposes to rely other than those already sent to the magistrate

123
Supra note 116, s.167 proviso (a)(i)
124
The Code of Criminal Procedure 1973 (Act 2 of 1974) s.167 proviso (a)(ii)
125
Id., s. 167(1), s. 173(1)
126
Id.,s. 169
127
Id.,s. 170(1)
128
Id.,s. 173(2)
129
Id., s. 2(v)

136
during investigation130 and statement of witnesses whom the prosecution proposes to

examine must be forwarded to the magistrate131.

3.15. Speedy Services of Summons

The summons is a milder form of process. It is either for appearance or for

producing a document or thing. A summons for appearance may be issued to an accused

or a witness.132The delay in the delivery of Summons contributes in delaying the

process of trial Where Summons is disobeyed, it is the duty of the court to act according

to law for disobedience to Summons.

Section 62 of the Code of Criminal Procedure,1973133 deals with personal

service. Mere showing a witness of a summons is not sufficient service. The process

server must satisfy himself that the right man has been found and then deliver or tender

him one of the duplicates of the Summons and showing him the original, if asked.

Section 69(1) of the Code of Criminal Procedure,1973134 was inserted with an intention

to avoid delay in the service of summons on witness by providing for service of such

summons by post in addition to or simultaneously with the issue of summons in the

usual way.

130
Id, s. 173(5)(a)
131
Id,s. 173(5)(b)
132
Supra note 68 at 74
133
Section 62 Summons how served-(1) Every summons shall be served by a police officer, or subject to
such rules as the State Government may make in this behalf, by an officer of the Court issuing it or other
public servant.
(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or
tendering to him one of the duplicates of the summons.
(3) Every person on whom a summons is so served shall, if so, required by the serving officer, sign a
receipt therefor on the back of the other duplicate.

137
 Section 202 of the Code of Criminal Procedure Code empowers a magistrate to

postpone the issue of process for compelling the attendance of the person complained

against if he is satisfied that there is no prima- face case or direct a local investigation

by a police officer.

Section 204 of the Code of Criminal Procedure, 1973 empower the

magistrate to issue summons for attendance of the accused in summon case if he

satisfied that there are sufficient grounds to proceed with case.

At the time of the issuing process, the accused has no locus standi to participate

in the inquiry and the case must be judged exclusively from the point of view of the

complainant only. The accused is not entitled to be heard on the question whether the

process should be issued against him or not. He has no right to participate in

proceedings135 either in police case or in complaint case.

Where on the dismissal of a complaint by the Magistrate, the sessions Judge

held that there are sufficient materials to proceed, the Magistrate has no option but to

direct the summoning of the accused in the light of the order of the superior court.136

Where the accused in a complaint case are of different districts of state, the

Magistrate should invariably issue Summons to the accused dispensing his personal

attendance and permitting him to appear through pleader. This will automatically

minimize mischievous and vexations complaints simply filed for causing harassing and

humiliation to the accused.137

135
The Code of Criminal Procedure 1973 (Act 2 of 1974), s. 202
136
Anil Saran v. State of Bihar, AIR 1996 SC 204
137
Ibid,

138
3.16. Speedy Inquiry

In common parlance, 'investigation' and 'inquiry' are used as synonymous or

inter-changeable terms. The Code of Criminal Procedure, however, uses the terms

differently and with specific distinct connotations138. An 'Inquiry', according to the

Code, means every inquiry which is conducted by a magistrate or court and which is not

a trial139.The terms inquiry relates to a matter other than the determination of guilt or

innocence in respect of any alleged offence. Section 309 (1) of the Code of criminal

Procedure,1973140 make provisions for speedy inquiry.

3.17. Reports of Law Commission

The 14th Law Commission Report attempts to track several reasons that

contribute to the delay crisis and makes suggestions to address the same. The Report in

Volume II exploring the reasons for delay in criminal cases, identifies the over-reliance

of the courts on the police forces and consequent issues concerning service of summons

and non-appearance of witnesses as a major cause141. Lack of Magisterial strength142,

prosecutors143 and support staff144 was also alleged to be contributing factor and

recommended to improve their respective ratios. It further advocates the establishment

of mobile courts to handle petty cases, such that its surge in the magisterial courts could

138
R.V. Kelkar’s, Lectures on Criminal Procedure 46 (Eastern Book Company, Lucknow, 4thedn., 2011).
139
The Code of Criminal Procedure 1973 (Act 2 of 1974), s. 2(g)
140
Section 309(1)-In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and
in particular, 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, unless the Court finds the adjournment of
the same beyond the following day to be necessary for reasons to be recorded.
141
Law Commission of India,“14th Report on Reforms of Judicial Administration”780 (Ministry of Law,
Government of India, 1958).
142
Ibidat 782
143
Ibidat 780 & 781
144
Ibid at 780

139
be reduced to a considerable extent145. Supervisory system by High Court over

subordinate courts to prevent delays arising out of unmethodological postings, was also

recommended146.

The observations and recommendations in the 41st Law Commission report is

quite unique and is an identification of a greater ground reality. Commission stated that

the hardship caused by the frequent transfer of sessions judges, leaving behind partly

heard cases, contribute to the pendency of cases, where the newly appointed judge

would be required to hear the matter afresh at times to pronounce a decision therein. It

was as a result recommended that sessions trial may be conducted on a day-to-day basis

and the decision be rendered within a few days. It also requires the formulation of

systematic transfer scheme to avoid such hardships147.

The 77th Law Commission after carrying out a stage-by-stage introspection,

could throw light into certain startling facts that could potentially threaten the

foundation of justice dispensation mechanism and made several recommendations to

reduce the arrears of cases pending in the subordinate courts. Acknowledging that the

delay crisis shook the public confidence on the system, it recommended the disposal of

criminal cases within a span of six months, including Sessions cases, where entire

proceedings including committal proceedings must be completed within the

aforementioned timeframe148. Advocating to improve the quality of judicial officers, the

Law Commission favoured the handing over of supervisory charge over a district to a

High Court Judge, and inspection by Sessions Judge or High Court judge to the

145
Ibid at 787
146
Ibid at 788
147
Law Commission of India, “41th Report on Code of Criminal Procedure”Vol. I217 (Ministry of Law,
Government of India, 1969).
148
Law Commission of India, “77thReport on Delay and Arrears in Trial” 3 (Ministry of Law,
Government of India, 1978).

140
subordinate court once in a year to improve the quality of performance149. The High

Court Judge in charge of a district should ensure the clearance of backlogging cases150.

It was also urged that prompt consideration should be given to the recommendation

provided by High Court to increase the judge strength and the service of retired judicial

officers may be sought to reduce the backlog151. It was also brought to notice that two

police officers should be appointed to issue summons and procure attendance of

witnesses152. It also advocated separation of an investigating agency of police to that of

law-and-order wing and it must be placed independently153. Prosecution strength was

also advised to be increased to meet the demand154.

The 78th Law Commission report, acknowledging the recommendations made in

the preceding report, places the blame on the investigating agency. Reports identifies

that the deputation of investigating officials for the law-and-order duty, places

additional burden on the investigating officers and hence causes serious delay in

completing the investigation proceedings155. Report further points out the hardship

caused due to the piecemeal recording of evidence and strongly objects to granting of

adjournments except where it is necessary156.

The 120th Law Commission report, after carrying out a comparative analysis,

recommended the determination and constant updation of judge strength considering the

demographic factor and recommended for increasing the judge-population ratio from

149
Ibid at 34
150
Ibid at 34
151
Ibid at 35
152
Ibid at 42
153
Law Commission of India, “77thReport on Delay and Arrears in Trial” 43 (Ministry of Law,
Government of India, 1978).
154
Ibid at 45
155
Law Commission of India, “78th Report on Congestion of Under Trial Prisoners in Jail” 15 (Ministry
of Law, Government of India, 1978).
156
Ibid at 16

141
10.5 to 50 per million over a period of 10 years in 1987. It also advocated considering

litigation rate as well, along with the demographic factor in determining the judge

strength157.

The 142nd Law Commission Report aiming to make criminal justice system

more speedy, efficient and cost-effective, recommended re-examination and re-

redefinition of crime under various penal statutes, so that speedy trial may be given to

those cases depending on their grievousness. Further it also suggested devising

alternative or new procedures to deal with cases that might consume more time and

resources to get finally disposed. Plea bargaining was suggested as an alternative to

handle the huge arrears of criminal cases158.

The 154th Law Commission working to make Criminal Procedure Code, more

effective, made several suggestions to advance the pace at which the criminal cases are

disposed of. Law Commission after exploring various aspects of recommending a time

frame for disposing of cases, refused to fix a time frame for the reason that it would not

be practical to do so for every case that are brought before a Court159.

The Law Commission of India supported the guidelines issued by Supreme

Court of India in Common Cause, a Registered Society v. Union of India160. It

recommended discharge of accused in traffic offences pending for than two years due to

non-service of summons. In compoundable cases, where trial has not commenced for

more than two years, the court shall discharge the accused and close the case.

157
Law Commission of India, “120th Report on Manpower Planning in Judiciary: A Blueprint” 3
(Ministry of Law, Government of India, 1978).
158
Law Commission of India, “142nd Report on Concessional Treatment for Offenders who on their own
initiative choose to Plead Guilty without any Bargaining” (Ministry of Law, Government of India, 1991).
159
Law Commission of India, “154th Report on The Code of Criminal Procedure Code” 90-116 (Ministry
of Law, Government of India, 1996).
160
(1996) 4 SCC 33

142
 The same recommendation was made in the cases involving, and offences

punishable with imprisonment up to three years, so pending. Cases involving bailable

and non-cognizible offences, offences punishable up to one year imprisonment, if

pending for one year without trial, it shall be close and discharge the accused. The

Commission also recommended separation of the investigating agency from the law-

and-order wing of the police, as such a separation would reduce workload and improve

scrutiny and supervision by courts. Further it advocated for effective coordination

between the investigating agency and the prosecution161. Commission also

recommended to avoid granting adjournment on the date fixed for the examination of

the witnesses162. Suggestion for appointment of special magistrate to trial criminal cases

of minor nature163. Service of summons and execution of warrants may be entrusted to a

separate agency, specifically designated for the purpose164. It also recommended

periodic review of judge strength and pending cases165.

he 245th Law Commission Report, advocating for the improvising of judge

strength, after analysing the data on judicial strength, recommended the massive influx,

efficient deployment and periodic assessment of manpower resources in the judiciary

viz., judges and support staff, to tackle the mounting backlog crisis. It also

recommended the creation of special traffic courts staffed with recent law graduates166.

161
Ibid
162
Ibid
163
Common Cause, a Registered Society v. Union of India, (1996) 4 SCC 33Ibid at 117-125
164
Ibid at 90-116
165
Ibid
166
Law Commission of India, “245th Report on Arrears and Backlog: Creating Additional Judicial (wo)
manpower” 47 (Ministry of Law, Government of India, 2014).

143
3.18. Other Reports

The Rankin Committee in 1925, recommended for making improvements in the

then existing method of criminal justice system so as to reduce workload of the judges.

Lack of judicial strength as a contributing factor was also supplemented by Satish

Chandra Committee Report in 1986167, Report of The Arrears Committee (Three Chief

Justices Committee: Kerala, Calcutta & Madras)168 in 1990 and Malimath Committee

Report on Reforms of Criminal Justice System in 2003169.

The Malimath Committee Report on Reforms of Criminal Justice System in

2003 further hints to the delay caused by inefficient court management system170,

adjournment171, inefficient means of service of summons172, delayed investigation173

and the untimely submission of expert and forensic reports174. Committee calls for

easing the procedural complexities that contributes to unnecessary delay175. It was also

highly advocated that quality of judges appointed to the post should be maintained176.

Delay in pronouncement of judgements or orders were also identified as a cause177.

Committee also advocates the efficient use of provisions from Sections 262 to 264 of

167
Satish Chandra Committee, “Report of Satish Chandra Committee” (Government of India, 1986).
168
Justices VS Malimath, PD Desai, and AS Anand, “Report of The Arrears Committee (Three Chief
Justices Committee: Kerala, Calcutta & Madras)” 54-69 (1989-90).
169
Justice VS Malimath Committee, “Committee on Reforms of Criminal Justice System”133-
145(Ministry of Home Affairs, Government ofIndia, 2003).
170
Id at, 141
171
Id at, 142
172
Id at, 149
173
Id at, 100
174
Id at, 106
175
Id at, 130
176
Id at, 134
177
Id at, 140

144
the Criminal Procedure Code to reduce the arrears of cases in which punishment is for

less than 2 years178.

The Report of the National Commission to Review the Working of the

Constitution179 in 2002 also gave equal weightage to the infrastructural shortcomings.

Report of the Working group for the 12th Five Year Plan (2012-2017) prepared by

Department of Justice in 2011, however, besides infrastructural requirements, more

systematically highlights few other points for consideration including lack of adequate

standard to measure performance, and lack of alternative means to handle less grievous

matters180.

Vohra Committee in 1993 travelled in a quite distinct manner. According to the

Committee, the “nexus between the criminal gangs, police, bureaucracy and politicians”

is contributory cause for the inefficiency and delaying of the disposal of criminal cases.

It also recommended simplification of procedure to ensure quick justice181.

The Rajya Sabha Department Related Parliamentary Standing Committee on

Home Affairs, in its 85th Report further welcomed the determination of judge strength

on the basis of demographic factors, as recommended by the 120th Law Commission

Report. Variations were advised to be worked out on the basis of pendency and disposal

rate, in different jurisdictions, wherever necessary, in consultation with the judiciary. In

2001, Committee was granted a period of three years to ensure zero accrual of arrears

178
Id at, 282
179
Justice Manepalli Narayana Rao Venkatachaliah Commission, “Report of the National Commission to
Review the Working of the Constitution” Vol. I (Ministry of Law & Justice, Government of India, 2002).
180
Department of Justice, “Report of the Working group for the 12th Five Year Plan (2012-2017)” 3
(Ministry of Law & Justice, Government of India, 2011).
181
Government of India, “Vohra Committee Report on Criminalisation of Politics” (Ministry of Home
Affairs, 1993).

145
and recommended to increase the judge strength without compromising the quality and

to augment infrastructural requirements in a phased-out manner182.

A Study conducted by Supreme Court Committee in 2006, titled ‘Subordinate

Courts of India: A Report on Access to Justice’ made an attempt to pull out reasons for

long pending litigation in subordinate Courts in India, following a resolution passed by

the Joint Conference of Chief Justices of Supreme Court and High Courts. The

Committee pursued existing data as on 31.12.2015, 30 relevant documents including

reports furnished by various committees and law commission over the years, plan of

action and resolutions to conclude that the infrastructural requirement including

shortage of court halls, inadequate court staff and huge disparity between the vacancies

and working strength of judicial officers are prime causes for delay and backlog of cases

in the subordinate judiciary183.

A study on Court Management Techniques for Improving the Efficiency of

Subordinate Courts submitted by the Department of Justice, identifies that the lack of

efficiency of supporting staffs in the Courts also contributes to the delay crisis. As a

solution for the same, it recommended effective hiring mechanism, creation of separate

cadre and introducing executive program on Court Management184.

The right to speedy trial has been recognized by the constitutions of the different

countries, statues and international instruments. The Constitution of India has not

specifically recognized the right to speedy trial as a fundamental right. The Supreme

182
Rajya Sabha, Department-Related Parliamentary Standing Committee On Home Affairs, “Eighty-Fifth
Report on Law’s Delays: Arrears in Courts” (Rajya Sabha Secretariat, 2002).
183
Subordinate Courts of India: A Report on Access to Justice, available at:
https://main.sci.gov.in/pdf/AccesstoJustice/Subordinate%20Court%20of%20India.pdf (last visited on
April 26, 2023).
184
NALSAR University of Law, “A study on Court Management Techniques for Improving the
Efficiency of Subordinate Courts” 136-146 (Department of Justice, 2016).

146
Court of India through judicial interpretation of article 21 broaden its ambit and bring

right to speedy trail within the ambit of fundamental rights under article 21. The speedy

trial of a criminal case is the touch tone of an effective justice delivery system. It is also

an instrument of securing social justice and essential elements of rule of law. Many

provisions for speedy trial have been incorporated in the Code of Criminal Procedure

,1973 and new provisions have been inserted in the code by the suitable amendment

time to time to curb the delay and expedite the trail of the cases. Numbers of report of

the law commission of India and other committee’s report make efforts and put forward

suggestions and recommendations for speedy trail of the cases. However, it is a fact that

the present justice delivery system somewhere fails to dispense justice as quickly as

expected, and it has been explicit by fact of consistently mounting the backlog and

pendency of the cases. Delayed justice violates the fundamental rights of the accused

and victim under article 21 of the constitution of India.

147