ABDUL REHMAN ANTULAY ETC. ETC. v. R.S. NAYAK AND ANR. ETC. ETC

Citation: [1991] SUPP. 3 S.C.R. 325

Court: Supreme Court of India

Bench: K.N. SINGH, P.B. SAWANT, N.M. KASLIWAL, B.P. JEEVAN REDDY, G.N. RAY

Case summary

There has never been a dissenting note: It is held that violation ofthis right entails quashing of charges and/or conviction.

Judgment text

The Judgment of the Court was delivered by B. P. JEEVAN REDDY, J. It is more than 12 years since this Court declared in Hussain Ara Khatoon [1979] (3) S. C. R. 169 that right to speedy trial is implicit in the broad sweep and content of Article 21. Many a decision thereafter re-affirmed the principle. There has never been a dissenting note: It is held that violation ofthis right entails quashing of charges and/or conviction. It is, however, contended now before us that no such fundamental right flows from Article 21. At any rate, it is argued, it is only a facet of a fair and reasonable procedure guaranteed by Article 21 and nothing more. It is also argued that violation ofthis right does not result in quashing of the charges and/ or conviction. It is submitted that the right, ifat all there is one, is an amorphous -one, a right which is something less than other fundamental rights guaranteed by our Constitution.

On the other hand, proponents of the right want us to go a step forward and prescribe a time limit beyond which no. criminal proceeding should be allowed to go on. Without such a limit, they say, the right remains a mere illusion and a platitude. Proponents of several view points have put forward their respective contentions. ·we had the benefit of elaborate arguments addressed by counsel on both sides of the spectrum. A large number of cases have been cited. Different view points have been presented. We shall refer to them at the appropriate stage. First, how these matters have come to be posted before the Constitution Bench. 2. Writ Petition No. 268/87 and a few other criminal appeals came up before a bivision Bench when it was urged for the accused that a time limit be fixed for concluding·all criminal proceedings. Without such a time limit, it was argued. the guarantee of right to speedy trial will remain a mere platitude.

The Division BC(nch was of the opinion that the said contention "raises a very important constitutional question" which "is likely to arise more often in many cases and that, the decision on the question will have far-reaching consequences in tens of thousands of criminal cases pending in courts all over the t country". Accordingly, the Bench directed the cases to be placed before a I Constitution Bench. Subsequently, other cases too were added. Though several cases are posted before. us, we indicated to the counsel that we will not enter into or in¥estigate the factual aspects in all the cases but shall take the facts of only the first two cases. We indicated . that we will dispose of. these two cases, namely, W.. P. No. 268of1987 (Ranjan Dwivedi v. State) and W. P. No. 833 of ·B 1990 (A. R. Antulay v. State) and relegate the other cases to a Division Bench, after laying down the appropriate principles.

We shall first notice the facts of these two cases before 'ile advert to respective contentions of the parties. 3. FACTS IN W. P. NO. 833! 90 The petitioner in W. P. No. 833 of 199C, A. R. Antulay was the Chief Minister ofMaharashtra from 1980 to January, 1982. The complainanl/respoi:i- ~• dent. R. S. Nayak moved the Governor of Maharashtra by his application dated September 1, 1981 requesting him to grant sanction to prosecute the accusedpetitioncr as required by Section 6. of Prevention of Corruption Act, 1947 (hereinafter referred to as '1947 Act') for various. offences alleged-to have been committed by him. Without waiting for the Governor's response on his appli- J cation he ijled a complaint in the Court of Chief Metropolitan Magistrate, Bombay on September 11, 1981 (Criminal Case No. 76 (Misc. )/81) against the accused and some othen;. I:Iis case was that the petitioner-accused was a public servant within the meaning of Section 21 I. P. C.

and that he has committed several offences punishable under Sections 161, 165 l. P. C. and Section 5 of Prevention of Corruption Act, 1947 as also under Sections 383 and 420 I. P. C. read with Sections 109 and 120-B I. P. C. The learned Magistrate called upon the complainant to satisfy him as to how the complaint is maintainable without a valid sanction required by Section 6 of 1947 Act. After hearing the parties, he held that in atisence of such a sanction, the complaint was not maintainable except with reference to offences under Sections 384 and 420 read with 109 and 120-B: I. P. C. This order was questioned by the complainant in the High Court of Bombay by way ofSpecial Criminal Application No. 1742·of 1981. 4. Meanwhile one Sri P. B. Samant filed a Writ Petition against the l petitioner-accused alleging several act<> of abuse of power including many of l those alleged in the complaint filed by R. S. Nayak. The Writ Petition was allowed.

on 12th January; 1982 as a result of which the petitioner resigned from the office of the Chief Minister. 5. Special Criminal Application No. 1742of1981 filed by the. complainant was dismissed by the High Court on April 12, 1982. Against the order, State of Maharashtra applied to this Court for Special Leave, which was decline4 on r ,~t r ' A. R. ANTULAY v. R. S. NAYAK [REDDY, J. ) 337 July 28, 1982. On the same day, however, the Governor of Maharashtra granted sanction under Section 6 of 1947 Act in respect of offences_set out therein. On this basis the complainant/respondent filed a fresh complaint in the Court of Special Judge, Bombay (created under the Criminal Law Amendment Act, 1952, hereafter referred to as '1952 Act') which was registered as Criminal Case No. 24 of 1982, against f:he accused and some other persons.

The main allegation in this complaint was that the accused had embarked upon a scheme · _of aggrandisement involving obtaining of funds from public in the name of certain trustS and that he was misusing his office for collecting funds for such~ -_ trusts. All his activity was characterised as flagrant abuse of'his official' position as Chief Minister. Several instances were also cited in support of the allegations. The Special Judge (Sri P. S. Bhutta) took cognizance of the same and issued process by directing bailable warrant to the accused. In response to the process issued, the accused appeared and raised two objections to the jurisdiction of the Special Judge viz. : · . . . J . . ' f ·- . (i) the specijll Judge has no jurisdiction to take cognizance of 'o~fences mentioned in Section. 6(1) (a) and (b) of 1952 Act (which include offences punishable under Sections 161and165 I. P. C.

and Section 5 of 1947 Act) on the basis of aprivate complaint; and (ii) where there is more than one Special Judge for an area, in the absence of a notification;by the State Government. specifying the local area under Section 7(2) of 1952 Act, Sri Bhutta had no jurisdiction to entertain Criminal Case No. 24 of 1982. (Section 7(2) provides that "every offence specified in Sub-section (1) of Section 6 shall be tried by the Special Judge for the area within ·which it was committed, or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the State Government. ") 6. The Special Judge, Sri P. S. Bhutta over-ruled both the said objections whereup0n the accused approached the Bombay High C-ourt by way of CriminalRevision Application No. 510of1982. Pending the said Revision, the Government of Maharashtra issued a notification under Section 7(2) of the 1952 Act empowering Sri S. B.

Sule, Additional Special Judge, to try the said Special Criminal Case No. 24/82. Criminal Revision Application No. 510 of 1982 came up for disposal before the Division Bench of Bombay High Court which dismissed the same on 7th March, 1983. The two learned Judges comprising the Division Bench delivered two ! l~parate but concurring opinions. With respect to first objection of accuse. ~ ~mentioned hereinbefore) they held that an investigation by a Police Officer under Section 5-A of 1947 Act was notapre-condition to the Special Judge. taking cognizance of an offence under Section ~ of 1952 ,Act and ·that, . therefore. the SJ>eCial Judge . wa8 competent to take cognizance of an offence mentioned in Section;6(1) upon a priv~te complaint as well. With respect- to the second objecti0n, they did not think 4 necessary to discuss it inasmuch as the required . notification was already issued by the Government of Maharashtr:a. . · :7. : Sri R. B.

Sule took up the matter and sought to proceed with it~ At that stage: 1he peti~oner accused moved two applications before him ori 8th July, 1983 : one to discharge him on the ground that the charge against hirri is groμndless and ~i:i the further ground that since . he wac; a M. L. A. , cogni~ance · ' of offences without the sanction of the Governor was not valid and the other forpostponment of the hearing of the case. The learned Special Judge (Sri R. R Sule) upheld the first contention of the accused and held that without the· sanction ofthe Governor, the case cannot go on. Accordingly, he discharg~ the accus~.. Thereupon, the complainant approached this Court by way of a Special leave Petition as well as a Writ Petition. He· also filed a Criminal ,. R. evision before. the Bombay High Court against the very sarrie order of Sri 0 R. B,,Sule, which Revision Application was subsequently transferred to this Court. These matters were heard by a Constitution· Bench presided over by D. A.

Desai, J. and disposed of. on Febrμary 16, 1984 (reported in 1984 (2) S. C. }l. 49~). Meanwhile, on aSpecial i. eayeApplication filed by 'the accused against the decision . of the Division Bench: of the Boinbay High Court aforesaid, this Court had granted Specfal Leave, which was registered as Criminal AppealNo. 247; of 1983; . This appeal was also })card by the same Constitution 'Bench and· was disposed of on the same day i. e. 16th February, 1984 (the decision. is reported at page 914 of 1984(2) S. C. R. ). In the firstmentioned decision, this Court held that M. L. A. is nQt a 'pul,)lic servant' within the meaning ofSection 21 I. P. C. and hence question of sanction does not arise. Accordingly, it set aside the order ofSri R. B. Sule discharging tlie accused and . directed that the. trial should proceed from the. stage at which . the accused was discharged. Having so held the Constitution Bench gave the following further direction : · · "The.

accused was the Chief Minister of a preinier State-the Strite of Maharashtra. By a prpsecution launched as early as on September 11, 1981, his character and integrity came under a cloud.. 1 Nearly 2 / years have rolled by and the case hasnotmoved an inch 2 further. An expeditious trial is primarily in the interest of the accusod . and a mandate ·of Article 21. Expeditious dispo5al of a criminal case is in the interest of both, the prosccution-~d the accused. Therefore, Special Case No. 24 of 1982 and Special Case A. R. ANTULAYv. R. S. NAYAK [REDDY, J1] ~39 ,........ No. 3/83 pending in the Court of Special Judge, Greater Bombay, Sri R-:-B. Sule are withdrawn and transferred to the High Court of Bombay with arequest to the leamed. QiiefJustice to assign these two cases to a sitting Judge of the High Court. On being so assigned, the learned Judge may proceed lO expeditiously dispose of the cases preferably by holding the trial from. day to day. " ' B. . 8.

In its decision in Criminal Appeal No. 247 of 1983 (1984 (2) S. C. R,. 914), this Court agreed with the Division Bench of the Bombay Hlgh Court that an investigation by·a Police Officer under Section 5-A of 1947 Act is not 1;1 condition precedent for taldng cognizance under Section 8of1952 Actand that cognizance can be taken by aSpecial Judge even on aprlvate comp,aint. Thu's~ . this court rejected the first of the two objections raised by the. accused before the Special Judge-and rejected by him as well as· the Division Bench of Bombay High Court. So far as the second objection raised by. the accused is · concerned, it was not dealt with by this Court. It merely took note of the observations made by· the Division Bench of Bombay High Court in that behalf. We must reiterate that the entire judgment of. the Constitution Bench deals only with tlte first objection and not with the second.

On page 921 of the report, the court merely noticed the observations of the Division Bench of the •i : 542/86) questioning the constitutional validity of S~tiqn 197 Cr. P. C. S. L. P. No. 2519of1986 :was also filed by him against the orders of Shah, J. framing 79 charges. Another S. L. P. (Crl. ) No. 2518/86 was filed by hii11 against yet another order of Shah, J. holding that the charges framed by h! m do not require the sanction under Section 197 Cr. P. C. Special Leave was granted in the above matters and further proceedings in the High Court stayed. The petition under Article 32 and the appeals arising from the said Special Leave Petitions were referred to and taken up by a Seven-Judge Bench of this court~ The Seven-Judge Bench, however, delinked W. P. No. 542/86 and S. L. P. No. 2518/86 from the other S. L. P. It directed those two matters to be heard separately. It heard only the appeal arising from S. L. P. No. 2519/86.

By its judgment delivered on April 29, 1988, the Bench allowed the Appeal (arising . from Special Leave . Petition (Crl. ) No. 2519 of 1986) and quashed all the proceedings in the said Special Case taken subsequent to the directions of this court contained in its judgment dated 16th February, 1984 (1984 (2) S. C. R. 495). It directed the trial to proceed according to law, that is to say under the 1952 Act. The result of this judgment was that all the proceedings which were taken in the Bombay High Court in pursuance of this Court's direction dated 16th February, 1984-the complainant had practically completed his evidence recorded over a period of one year-became non est and the case had to be proceeded with before the Special Court in accordance with the 1952 Act (fhe facts stated above are drawn from the decisions of this com9. 10. The record does not disclose what happened after 29th April, 1988.

It is not clear whether, and if so when, did the Bombay High Court send the record of the case to Special Judge and if it did so, to which Special Judge. Be that as it may, the fact remains that no further progress was made in the case. It does not even appear that the case was taken up by any of the Special Judge . appointed under the 1952 Act. On 31. 5. 1989, the respondent complainant filed an application (C. M. P. No. 1946of1990) before this court LO treat the evidence received and recorded in Bombay High Court as evidence in the Court of Special Judge. No orders were passed on this application until 1991, when it was tagged on to this matter before us. Meanwhile, an advocate of Bombay, Sri More, filed a writ petition in the Bombay High Court in March, 1990, beirig Writ Petition (Crl. ) No. 281 of 1990 for a direction to the Government of Maharashtra to designate a Special Judge to try the said Special Case No. 24 of 1982.

To this Writ Petition, petitioner-accused was impleaded as the first respondent while R. S. Nayak (complainant) and the State of Maharashtra were impleaded as respondents 2 and 4 respectively. The Writ Petition came up before a Division Bench on 23. 4. 1990 and was disposed of with a direction. It would be appropriate to extract the relevant portion of the order to bring out the circumstances in which that direction was made : "In pursuance of the subsequent decision of the Supreme Court, it A. R. ANTULAYv. R. S. NAYAK [REDDY, J. ] 341 is necessary for the State Government to notify the appointment of the special. judge for conducting trial against the accused in accordance with the Criminal Amendment Act, 1952. Though the decision of the Supreme Court delivered on April 29, 1988 and almost two years had passed, the State· Government has not appointed the Special Judge.

The petitioner is a practicing Advocate and has filed this petition on March 7, 1990 seeking direction to Government of Maharashtra to issue notification appointing a Special Judge to try the offences levelled against the accused by respondent No. 2-complainant. The petition was placed before us on March 12; 1990 and we directed . notice to be issued to respondent No. 2 to explain whether the complainant desires to proceed with the triru before the Special , Judge. Notice was also issued to State Government. On April 16, 1990 the complainant appeared before u_s and informed that he is desirous of continuing prosecution before Special Judge to be appointed by the State Government in accordance with the directions of the Supreme Court. In view of the statement, we admitted p the petition. The complainant-respondent No. 2 and respondent No. 3-State of Maharashtra waived. services of the rule. The rule could not be served on respondent No. 1, the original accused. 5.

Today when the matter is called out Mr. Advocate General appearing on behalf of the State Government made statement ihat · it is not necessary to postpone the hearing 9f this petition as the State Government is appointing Special Judge for conduct of trial ~d requisite notification would be published within a period of two months from today. The learned Advocate General made it clear that this appointment is made in consequence of the directions given by the Supreme Court in judgment reported in A. LR. 1988 Supreme Court 1531. As the appointment is ~o be made in pursuance of the directions of the Supreme Court and as the Advocate General promises to make such appointment within a period of two months, itis not necessary to postpone the hearing . of this petition for want of service on the accused. The statement of the Advocate General is suffieient to dispose of the petition and this statement in no way would cause any prejudiCe to the accused. 6.

Accordingly, in view of the statement of the learned Advocate General, the relief sought in the petition no longer survives and the · rule earlier issued stands discharged. " ·. PurS11ant to the above direction, the Govem. ment of Maharashtra issued a notification dated 19. 6. 1990 designating a Special Judge to try the case. 11. Meanwhile, on 14. 6. 1990, petitioner filed this writ petition und~~ Article 32 of the Constitution to q1,1ash arties tO appear . before iton a date specified. In this case, however, no such notices were issued. : He also submitted that in view of Sri Sule ceasing to be the Special Judge, the . Government was bound to notify one of the Special Judges at Bombay as the .... Judge competent to try this case; this was not done and, therefore, no Special Judge was seized o(the matter. In such a'situation the complainant could not be found fault with for not proceeding with the trial.

He submitted that until Sri More filed a writ petition and the Bombay High Court gave a direction, the . Government did not issue a notification specifying the Special Judge for trying the said case. He also brought to our notice that the Bombay High Court had, -" " in the said writ petition, asked the complainant whether he was willing· to proceed with the prosecution and that he had made it expressly clear that he was willing to proceed with the case. He submitted that after the Special Judge was designaled, the complainant moved him and the proceedings have now commenced. He also brings to our notice the fact that the complainant has filed an application as far back as 31. 5. 1989 for treating the evidence recorded in the High Court as the evidence before the Special Judge. In Lhe circumstances, he submiued, it cannot be said that the complainant was remiss in proceeding with the prosecution or that he was sleeping over the matter.

He emphasised the conduct of the accused-petitioner in trying to delay and protract the proccl'dings throughout, forwhich purpose he invited our attention to certain passages in the decisions of t~is court referred to hereinbefore. He submitted that at no time had the complainant tried to prolong the matter and that he has always been ready and anxious to go on with the matter. He opposed the idea of prescribing a general time limit for conducting criminal proceedings. No counter~affidavit has been filed by the complainant in the writ petition. 20. Sri Bhasme, learned counsel for the State of Maharashtra also did not dispute the proposition that the right to speedy-trial flows from Art. 21, though he submitted that there ought not to be any outer limit prescribed by this court. He submitLed that the State was in rio way responsibie for the delay, ifany, in proceeding with the case.

The counsel, however, submitted that after the decision of Seven-Judge Bench of this court, ihe complainant ought to have moved either the High Court ofBombay or the Government for appropriate directions or for designating the Special Judge as the case may be, and that his inaction has remain unexplained. ·SUBMISSION IN CR. A. NO. 126187: · 21. Sri Jethmalani, appearing for the State of Bihar in Criminal Appeal NO. 126 of 1987 presented the opposing point of view. While on the facts of the said case, he submitted that the quashing of the charges by the High Court of Patna was the right thing LO do-and thfs is the reason why we agreed LO ) dispose ofthis appeal as well alongwith the aforesaid two writ petitions-he confined himself mainly to questions of law. His submissions are LO the following effect : · "1. -Thc Constitution makers were aware of the Sixth Amendment provisions in the Constitution of the U. S. A. providing in express terms the right ofan 'accused' to be tried speedily.

Yet this was not incorporated in the ·indian Constitution. So long as Gopalan v. State ofMadras held the field in India, only such speedy trial was . available as :i. he provisions of the Code of Criminal Procedure • made possible. No proceeding could ever be quashed on the ground of delay. On a proper grievance being made, or su:o moto, . A. R. ANTULAY v. R. S. NAYAK [REDDY, J. ] 349 court could always ensure speedy trial by suitable directions to the trial court including orders of transfer to a court where expeditious disposal could be ensured. · 2. With the decision of this court in Maneka Gandhi, Art '21 received a new content Procedure ~lating to punishment of crime must be fair, just and reasonable. Hoosein Ara Khatoon and later decisions have spelt out a so-called 'Right to Speedy Trial' from Article 21. It is both a convenient and self-explanatory description. But it does not follow fhat every incident attaching to the Sixth Amendment right ipso facto is to be read.

into Indian Law. In the U. S. A. , the right is express and unqualified. In India it is only component of justice and fairness. Indian. courts have to reconcile justice and fairness to the accused with many other interests which are compelling and paramount. (3) Article 21 cannot be so construed as to m~e mockery of attective principles and another even more fundamental right i. e. , the Right of equality in Article 14. The concept of delay must be totally different depending on the class and character o( the accused and the nature of his offence, the difficulties of a private prosecutor and the. leanings of the Government 4. The court must respect legislative policy unless the policy is unconstitutional. Statutes of limitation, limited though they are on the criminal side, do not apply to: (a) serious offences punishable with more than 3 years' imprisonment; (b) all economic offences. Corruption by high public servants is not protected for both these reasons. 5.

Right to Speedy Trial is not a right not to be tried. Secondly, it only creates an obligation on the prosecutor to be ready to proceed to -trial within a reasonable time; That is to say without any delay attributable to his deviousness or culpa91e negligence. 6. The actual length of time taken hy a trial is wholly irrelevant In each individual case the court. has to perform a balancing act. It has to weigh a variety of factors, some telling in favour of the accused, some in favour of the prosecutor and others wholly neutral. Every decision has to be ad-hoc. It is neither permissible nor possible nor desirable to lay down an outer limit of time. The U. S. Supreme Court has refused to do so. Similar view is taken by our court. There is no precedent warranting such judicial legislation. The following kinds of deJay are to be totally ignored in giving effect to the plea of denial of Speedy Trial·: · (A) Delay wholly due to congestion of the Court. calender, ! .

unavailability of Judges, or other circumstances beyond the control of the prosecutor. . (B) Delay caused by the accused himself not merely by seeking -"'· adjournments but also by legal devices which the prosecutor h~ to counter. (C) Delay caused by orders, whether . induced by the accused or not, of the court, necessitating appeals or revisions or other . appropriate actions or proceedings. (D) Delay caused by legitimate actions of the prosecutor e. g. , getting a key witness who is kept out of the way or otherwise avoids process or appearance or traeing a key. documents or securing evidence from abroad. 7. Delay is usually welcomed by the accused. He postpones the delay of reckoning thereby. It may impair the prosecution's ability to prove the case against him. In the meantime, he remaihs free to indulge in crimes. An accused cannotrii;e this plea if he has never taken steps to dei:nand a speedy trial. A.

plea that proceedings against him be quashed because ·delay has taken place is not sustainable if the record shows that he acquieseed iri the delay and T1ever asked for a expeditious disppsal. In India the demand rule . niu~t be rigorously enforced. No one:can be permitted to complain . H that speedy trial was denied when he never demanded it. A. R. ANTULAYv. R. S. NAYAK [REDDY, J. ] 351 8. The core of 'Speedy Trial' is protection against incarceration. · An accused who has never been incarcerated can hardly complain. · At any·rate, he must show some other very strong prejudice. The right does notprotect an accused from all prejudicial effects caused by ~elay. Its core concern is impairment of liberty. 9. Possibility of prejudice is not enough. Actual prejudice has to be . · proved. · 10. The plea is inexorably and inextricably mixed up with the merits oft. he case. No finding of prejudice is possible without full knowledge of fact8. The plea must first be evaluated by the Trial Coi.

irt. SUBMISSI()NS IN W. P. NO. 268187 : Sri Ashok Sen appearing for the petitioner iri Writ Petition NO. 268 of 1987 supported the reasoning of Sri P. P. Rao and submitted that the prosecution against the petitioner, Ranjan Dwivedi, pending since more than 15 years ought to·be·quashed. The learned counsel emphasised the several features of the ~se.. iri particular : · (a). the allegations of false implication levelled by C. B. I. and the . Bihar Police (C:l. D. ) against one another; (b) the circumstances in which the statement of approvet Vikram was recorded, the way he was rewarded and his retracting of the same lateri · (c) the report of Sri Tarakunde; and · (d) the manner in which the'prosecution was conducted in the court inc~uding the deliberate protr~cting of proceedings. . He submitted that this is eminently a fit case where the charges and all the proceedings held so far ought to be quashed. · 23. Sri Ram Jethmalani supported the contentions of Sr. A. K. Sen. He .......

submitted that this prosecution has been pending since 1975 and has not · concluded so. far. 'For this'delay, he submitted, the prosecution alone is respon- · sible and not the accused. He brought the following facts to our notice : . 4 I [ I. Though the petitioner was arrested on 6. 7. 1975, he was not '\,,.. _ produced before the Patna court in this case till 19. 12. 1976. All this while, it was obtaining extensions Of his remand without producing the petitioner befpre th. e Patna court and without even notice to him. Until he was produced in Patna court in December, 1976, the petitioner did not even know that he was also implicated in L. N. Misra murder case. The charge-sheet was filed only in December, 1975. Long prior thereto, {he accused had become entitled to release under Section 167 Cr. P. C. but he was not aware ofall these facts and', therefore, did not assert the said right.

Even though he · was granted bail by the Delhi High Court in the appeal preferred against his conviction in the case relating to Chief Justice Ray, he was not released because ofhis implication in L. R Misra case. The petitioner continued to be in jail till 30. 3. 1978, when this court granted bail. The petitioner's incarceration from 21. 1. 1977 (the date ofgrant ofbail by Delhi High Court) upto 30. 3. 1978, is illegal and unconstitutional. It vitiates the entire proceedings. . ,/ 2. From the date of filing of ~e charge-sheet in December, 1975 till the case was transferred to Delhi in 1979, prosecution has been totally negligent in proceeding with the case. It has not explained what was it doing these three years-part of which period, the petitioner was imprisoned illegally. 3. The prosecutor is under an obligation to supply not only the documents relied upon by him but also all those documents which may be favourable to the accused as well.

This obligation flows from Rule 16 of the Rules framed under the Advoeates Act and from the very nature of the office and duties attaching lO the office l of prosecutor. Rule 16 aforesaid prohibits the prosecutor from suppressing the material favourable to the accused, 4. One Sri Ahuja was the main investigating officer for the C. B. I.. l It was he who had interrogated Arun Kumar Misra and Arun Kumar Thakur and got the confession of Arun Kumar Thakur recorded on 21st February, 1975. According to this confession, the said two accused at the instance of a particular political leader of Bihar committed the murder. These facts are established from the applications filed by him before the Patna court which are now part of the record of this writ petition. But then after the imposing of emergency in June, 1975, the case suddenly took a different tum. The original accused were dropped sayfog that they are innocent -' r A. R. ANTULAY v.. R. S. NAYAK [REDDY, J.

] 353 and the entire focus now shifted to Anand Marg. In September,. 1975 Ahuja applied to the court saying so expressly. In such,a situation it is the duty of the prosecution to have placed both the . versions before the court so that the court may be able to decide . which is the correct version. It. is not open to the prosecution to suppr~s the evidence with r((Spect to its first . version altogether and present the second version alone. This is totally unfair. In fact, 'B t. he request for examining 13 witnesses (given up by the prosecution) was precisely to establish this very first version and the fact thatfor more than six months the prosecution has been pursuing Arnn Kumar Misra and Arun Kumar Thakur as the real accused. Witnesses No. 12 and 13 of of the said 13 witnesses are those very accused. The petitioner wanted all of them to be examined as. court . witnesses so that both the prosecution and the defencewill have an opportunity of cross-examining them.

Court would then be in a position to discover the truth. This request was maliciously opposed by the prosecution which obliged_the petitioner to approach · .. the Delhi High Court. The order . dated 13. 2. 1987 shows that the said Revision raise important questions of law and requires an in- . depth consideration. In these. circumstances, the delay offive years on account of pendency of Revision in High _Court must ~ laid at the door of the prosecution since it is the direct consequenceof the unfair opposition ~ the petitioner's reasonable request for sum~ moning the said 13 witnesses as court witnesses. Learned counsel .. relied upon certain decisionsto_emphasise the duty of the prosecu- '. tion io place the entire truth before. the court. According to these decisions, counsel submitted, it was the duty of the prosecution in this case to piace the earlier version and the evidence collected by them in that behalf atso before . the court. He too.

emphasised the strange spectacle of'two stale agencies accusing each other offalse implication and frame-up. 5. The delay occasioned by the prosecution insisting upon prosecuting the accused only before Sri D. C. Aggarwal, (the delay is of : . three months), though short, indica~s the prosecutorial malovolence. This vitiates the prosecution caseand is an additional m-ound for quashing the proceeding. 24. The learned Attorney General, who appeared for the C. B. I. , submitted in the first instance that this court should not lay Jow~ any parameters or guidelines concerning the right to speedy trial. ,According tQ him, the Code of CrimiMl Procedure contains enough provisions which serve as guidelines for · ensuring a speedy trial. He requested that the cases placed before this Bench be disposed of on merits without laying down any general propositions. He submitted that Section 482 of the Code of Criminal Procedure is an adequate remedy.

It can be invoked by an accused who has been denied a speedy trial. He says that the High Court has power to quash criminal proceedings if such a course is found necessary to secure the ends ofjustice. Unjustifiable delay in concluding a criminal case does amount to abuse of process of court and can be quashed under the said provision. He took us through the entire proceedings of this cac;e, both in the Patna court and the Delhi. court and submitted that the charge of delay against the'prosecution is totally baseless and that the deiay has in fact beeri caused by the accused themselves throughout. He submitted that the accused had been repeatedly filing several frivolous interlocutory applications and praying for postponing tpe trial by adopting several tactics. For instance; very often one of the accused used to absent himself and then the other accused would say that the trial should not proceed in the absence of that accused.

Even though they were in good health, they did not attend the court pleading ill-health. This fact has been certified by the jailor of Patna jail, more than once. Their counsel too was not cooperating with the court in going on with the trial five days a we. ek: They were prepared to go on only on three days a week and that too not for the whOle day. The evidence is too voluminous and there are thousands of documents. In the circumstances, he said, naturally the trial took quite some time. The material on record establishes clearly that the prosecution was always anxious to conclude the trial speedily and that in fact the trial proceeded at a record speed, wherein 151 witnesses were examined. It closed itS case in 1986. Then the accused came forw~d with an application to examine certain witnesses who were wholly unnecessary and were accordingly given up by the prosewtion.

When it was rightly refused by the learned Sessions ~udge, they went to the High Court and got all further p~eedings and the trial stayed. Thus, it is the accused and the accused a:Ione who have been protracting the trial and cannot, therefore, complain of infringement of their right to speedy trial, contended the learned Attorney General. 25. Mr. Chatterjee appearing for the petitioner in C. A. No. 3811/90 supported the contentions of Sri P. P. Rao, while Sri Rajeev Dhawan appearing for R. S. Nayak in C. M. P. No. 1946/90 generally supported the contentions of Sri Jeihmalani. Miss Rani Jethmalani appearing for the intervenor, Mahila Dakshata Samiti, stressed in her written arguments the significance of this right from the stand-point of women. 26. Right to 'speedy trial is not enumerat¢ as orie of the fundamental rights in the Constitution of India, unlike the Sixth Amendment to the U. S. Constitution which expressly recognises this right The Sixth Amendment .. . . , ' ' . . .

; J- A. R,. ANTULAY v. R. S. NAYAK [REDDY, I. ] 355 / declares inter alia that 'in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial'. This is in addition to the Fifth Amendment which inter alia declares that "no person shall be deprived of life'', which corresponds broadly to Article 21 (and clause l of Article 31, since deleted). This omission and the holding in A. K. Gopalan v: State ofMadras [1950] S. C. R. 88 probably explains why this right was not claimed or recognised as a fundamental right flowing'from Article 21 so long as Gopalan held the field. Once Gopalan was over-ruled in R. C. Cooper (1970 S. C. 564) and its principle extended to Article 21 in Maneka Gandhi (1978 S. C. 597) Article 21 got unshackled from the restrictive meaning placed upon it in Gopalan. It came to acquire a force and vitality hitherto unimagined.

A burst of creative decisions of this court fast on the heels of Maneka Gandhi gave a new meaning to the Article and expanded its content and connotation. While this· is not the place to enumerate all those decisions, it is sufficient to say that the opinions of this court in Hussainara Khatoon cases decided in the year .. 1979, declaring that right to speedy trial is implicit in Article 21 and thus· constitutes a fundamental right of every person accused of a crime, is one among them. 27. In Gopalan, this court held that the law relating to preventive detention is to be found in Article 22 of the Constitution and that Article 22 is a self-contained code in that behalf. It was also observed. that the law contemplated by Article 21 need not answer the test of reasonableness in Article 19 since both the articles (21 and 19) constitute two different streams.

In Maneka Gandhi, the observations in Gopalan with respect to Articles 21 and 19 constituting two different'streams have been held to be either obiter dicta or wrong, as the case may be. It is pointed out that over the years this court has accepted the view that the Constitution-and in particular the several fundamental rights· guaranteed by part III-should be read as au integral whole, with possible over-lappings of the subject-matter of what is sought to be protected by its various provisio~s. Beg, Chief Justice expressed the idea in the following words at page 648 of [1978] 2 S. C. R. : "Article dealing with different fundamental rights contained in Part III of the Constitution do not represent entirely separate streams of rights which do not mingle at many points. They are all parts of an integrated scheme in the Constitution.

Their waters · must mix to constitute that grand flow of unimpeded and impartial Justice (social, economic and political), Freedom (not only of thought, expression, belief, faith and worship, but also of association, ·movement, vocation or occupation as well as of acquisition and possession of reasonable property), of Equality (of status and of opport~nity, which imply. absence of upreaso~able or unfair discrimination betW€ e applicable iri a given situation, ex hypothesi itrnusi also be liable to be tested with. reference to Article 14. " ' . . ' - ' . ' '. . The learned Judge pointed out the integral connection between Artl;les 1~ and 21 in ~e _follqwing wo~ds : . ,.. , "Article ·14 strikes at arbitrariness in ·State action and:ei1sures fairness and equality oftreatment. The principle ofreasonableness, which legally as well as philosophically, is an essential element of .

i' equality-or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, ·fanciful or oppressive; otherwise, it would be no procedure at all " ·. and the requir~ment of article 21. yvould not be satisfied. " 28. This-decision does establish in unmistakable terms that the law and procedurt'. c endency of the Criminal Appeal for six years 'before the High Court itself a regrettable 'featilre of this ,case. ln addition to it, the order ' ' directing re-trial has reiulted in serious prejudice to the appellants.

·We are of the view that having regard to the nature of the acts ' ' alleged to haye been committed by the appellants aQd other attendant circumstances, this was a case in which the High Court should have directed the dropping of the proceedings in exercise of its inherent powers under Section 482, Criminal Procedure Code even if for some reason it came to the conclusion that the acquittal was wrong. A fresh trial nearly seven years after the alleged in~ident is bound t:O result in harassment and abuse. of judicial ·process. " It is significant to notice that the nature of the offenc~ appears to have mainly weighed with the Court in directing that the proceedings ought not to be continued any further. 35. In Sheela Barse & Ors. v. Union ofIndia & Ors. , [1986] 3 S. C. R. 562, a. Division Bench comprising Bhagwati and R. N. Misra, JJ. re-affinned thatthe "right to speedy trial is a fundamental right implicit in.

Article 21 of the Constitution" and observed "the consequence ofviolation of fundamental right to speedy . trial would be that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right" Thus, the court1111swered the question which Bhagwati, J. had posed in the first Hussain ·Ara ~se. Accordingly, they directed that so far as a child accused ofan offence punishable with imprisonment of not more than 7 years is concerned, a period of three months from the date of filing of complaint or lodging of the F. I. R. shall be· deemed tO be the maximum time permissible for investigation and a period of six mont. hs from the filing of the charge-sheet as the reasonable period witI:iin which the triai should be completed. It was specifically directed thCit if these time limits are not obeyed, the prosecution against the child should be quashed. · . , 36. We may now notice the decision of this court in Raghubir Singh and Ors. v.

State ofBihar, [1986] 3 S. C. R. 802. In this case; Sirnranjit Singh Mann and few others applied to this Court for bail and also for quashing the proceedings pending against them before the Special Judge on the ground of violation of right to speedy trial. It was urged that the said right of the petitioners was being frustrated by the tactics adopted by prosecution whose only object was to somehow keep the petitioners in prison. It was also argued that there was no material whatsoever to frame charges under Section 121-A and 124-A. ChinnappaReddy, J. affirmed thatright to speedy trial is one of the dimensions of the fundamental right to life and liberty guaranteed by Article 21 of the Constitution. After examining the decisions of the United State / A. R. ANTULAY v. R. S. NAYAK [REDDY, J. ] 363 Supreme Court in Strunk v. United States, (37 Lawyers Edn. 2nd 56) and Willie . Mae·Barker v. 'John Wingo, (33 lawyers Edn. 2nd 101 and also of the Privy Council in Bell v.

Director ofPublic Prosecutor Jamaica, [1985] 2A. E. R. 585, the learned Judge posed the following relevant questions: ' · "Several question arise for consideration. Was there delay? How long was the delay? Was the delay inevitable having regard to the :B nature of the case, the sparse availability of legal services and other relevant circumstances? Was the delay unreasonable? Was any part of the delay caused by the willfulness or the negligence of the prosecuting agency? Was any part of the delay caused by the tactics of the defence? Was the delay due to cause beyond the control of the prosecuting and defending agencies? Did the accused have the ability and the opportunity to assert his right to speedy trial? Was there a likelihood of the accused being prejudiced in his defence? Irrespective·or any likelihood of prejudice in the conduct of his defence, was the very length of the delay sufficiently prejudicial to the accused? Some of these'factors have been identified in Barker v.

Wingo (supra). A host of other questions may arise which we may not be able tO readily visuAfise just now. The question whether the right to a speedy trial which forms part of the fundamental right to life and liberty guaranteed by Art. 21 has been infringed is ultimately a question of fairness in the administration of criminal justice even as 'acting fairly' is of the essence of the principles of natural justice (In re. H. K. 1967 (1) All ER 226) and a 'fair and reasonable procedure' is what is contemplated by the expression 'procedure established by law' in Art. 21 (Maneka Gandhi). " The approach adopted py the learned Jtidge in this case is practically the · same as was adopted by him in Champa/al Punjaji Shah (supra) to wit, right the speedy trial "is ultimately a question of fairness in the administration of criminal justice. " 37. In Rakesh Saxena v. State through CBI. , [1987] 1 S. C. R.

173, this court quashed the proceedings on the ground that any further continuance of : the prosecution after lapse of more than six years in the case of the appellant who was merely a trader at the lowest rung of the hierarchy in the Foreign Exchange Division of the Bank is uncalled for, particularly in view of the complicated nature of the offence charged. Similarly, in Srinivas Gopal v. Union Territory ofArunachal Pradesh, (Now State) [1988) suppl. 1 S. C. ~. 477~ the court quashed the proceedings against the appellant on the ground of delay in investigation . and commenceme~t of trial. In this case, investigat1on commenced in November, 1976and the case was registered on completion of the investigation in September, 1977. Cognizance was taken by the court in March, 1986. These facts were held sufficient to quash the proceedings particularly when the offence charged was mirior on:e namely, Section. 304Aread;With 338 of the Indian Penal Code. 38. Again inT. i. Stephen & Ors v.

Parle Bottling Co. (P) Ltd. & Ors. , (i988] 3 S. C. R. 296 it was held that though the order of the High Court quashing charges against the accused (Under Section 5 of the Imports and Exports (Control) Act,' 1947) was unsustainable in law it would not be in the interest of ju5tice to allow prosecution to start and trial to be proceeded with after alapse of twenty years even 'though one of the accused was himself responsible· for most of the delay . caused by his ma/a fide tactics. In this decision; there is no reference either to Article 21 or to the right to speedy trial. The order is merely based on the fact that it would not be in the interest of justice to allow a prosecution and trial to recommence after a lapse of 20 years. In Diwan Naubat Rai& Ors. v. State through Delhi Administration and Anr:, [1989) l S. C. C. 297, the court refused to quash the proceedings inasmuch as it was found ihat the accused himself was mainly responsible for the delay of which he was complaining.

' ' ' 39. IQ State ofAndhra. Pradesh v, P. V. Pavithran·, [1990] 2 S. C. C. 340, this court upheld the 'decision of the' High Court quashing the F. I. R. on the grourid ofinordinate detay in completing the investigation. The reipondent was an I. P. S. Officer against whom an: offence urider Section 5(2) read with Section 5(1) (e) of the Prevention ofCorruption Act was registered in March, 1984. He was placed under suspension but then it wa5 revoked iQ Sepi. ember, 1984 and he was reinstated in seJ'Vice. In July, 1985, the government cancdlea its earlier order and called upon the respondent to show cause why he should not be retired from service. The ·respondent challenged the said notice before. the Central Administrative Tribunal which was upheld. The Special Leave PetitiOn presented to this ,court was dismi~sed in view of the fact that respondent had already retired from service on attiiihlng the age of superannuation.

After all this; the Anti-corruption Bureau re-started the criminal proceedings in 1987-88 whereupon the· respondent approached. the High Court for quashing·the said proee'edings on the ground of de)ay. The High Couit quashed. th~,same accepting the ground urged. This court affirmed. Of course, while doing so, it took care to observe that while examinfog the plea of delay in' completirig the investigation, the court should have regard to all the relevant circumstances and ,. _ A. R. ANTULAY v. R. S. NAYAK [REDDY, J. ] 365 that it is not p~ssibie to formulate any infle~ible guidelines. or rigid prin~iple8' A. of uniform application for speedy investigation nor is it possible to stipulatt? any arbitrary period of limitation for completing the mvestigation. In short, the pri11cipJe of [? aghubir. Singh was reiterated. · 40. As a matter of fact, right to speedy trial is embedded in the statutory · law ~f this ~~untry. Sub~sections I and 2 ~f Section 309 Ci. P. C.

(corresponding to Sub-sections) and IA of Section 344 of Code of Criminal Procedure,. · 1898) exemplify this rule. They say : ' . , I "309. Power to ·postpone or adjourn proceedings. --(! ) In every . inquiry or trial, the proceeding~ 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 adjournme~t of the same'beyond the followi~g day to be necessary for reason to be recorded. (2) If the Court, after taking. ~ognizance of an offence, or com-. P · mencement of trial, finds it necessary or advisable to postpone the commencement or, or adjourn, any inquiry or trial, it may, from . time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers .. :w . reasonable, and may by a warrantremand the accused if iri c·ustody. . ' . . - .

. - , Provided that no magistrate shal\ ·remand an accused person to · custody under this section for a term exceeding fifteen days at a time. Provided further that when witnesses are in attendance, no adjoumment or postponement shall be granted, without examining . t~em, except for special reason. to be recorded in writing. . ' .. · . ·; Provided also that no adjournment shall be granted for the pui'pose ·only of enabling the accused person to show cause against the ' sentence proposed to be imposed·on him:" · · The provisions must be read with Section 482 ofthe. Code which 'saves the inherent powers of the High Court. The latter provision recognizes the power ofthe High Court to p·ass appropriate orders "toprevent abuse ofprocess, ' of any court or otherwise to secure the ends of justice". In several.

cases, the High Courts and this court have directed dropping or discontinuance of· proceedings where such proceedings constituted an abuse of process of court or where the ends of justice demanded such a course of action. We may refer to some of these cases now. 41. In Machander v. State ofHyderabad, [1955] 2 S. C. R. 524, this court observed that while it is incumbent on the court to see that no guilty person escapes, it is still more its duty to see that justice is not delayed and accused persons are not Indefinitely harassed. The scales, the court observed, must be held even between the prosecution and the accused. In the facts of th~t case, the court refused to order trial on account of the time already spent and other relevant circumstances of that case. .. . ' . , In Veerbhadra v. Ramaswamy Naickilr, [1959]. ~. C. R.

1211, this court refused to send back proceedings on the ground that already a period of five years has elapsed and it would not be just and proper iri the circumstances of the case to continue the proceedings after such a lapse of time. Similarly, in Chajju Ram v. Radhey Sham, [1971] (suppl. ) s:c. R. 172, the court refused to direct a re-trial after a period of 10 years having regard to the facts and circumstances of the case. In State ofU. P. v. Kapil Deo Shukla, [1972] 3S. C. C. 504, though the court found the acquittal of the accused unsustainable, it refused to order a remand or direct a trial after a laps~ of 20 years. It is, thus, clear that even apart from Art. 21 courts in this country have been ~ognizant of undue delays incriminal matter. s and wherever there was · inordinate delay or wh0re the proceedfogs were pending for too long and any further proceedings were deemed to be oppressive and unwarranted, they were put an end . to by making,appropriate orders. 42.

We shall now consider certain American cases upon which botl1 sides placed strong reliance, The first case relied upon is Barker v. Wingo, 33 Lawyers Edn. 101 decided in the year 1972. The petitioner, Barker and another person Silas Manning were arrested in connection with a murder which took place in July, 1958. They were indicated in September and the trial was set fo~ October 21, 1958. The State had a stronger case again. st the other accused Manning and it believed that Barker cannot be convicted unless Manning testified against him. But this was possi~le only if Manning was convicted first; then alone he could be examined as a witness. Therefore, the State delayed the petitioner'$ ~rial and proceeded against Manning,. Ultimately, Manning was convicted in D~ember, 1962 after as many as six trials. Pending the proceeding~ against Manning, prosecution ·was obtaining adjournments of the. trial against the petitioner A. R. ANTULAY v. R. S. NAYAK [REDDY, J.

] 367 (Barker) from time to time. After 10 months, the court released him on executing a bond, since the prosecution continued to obtain adjournments. In March, 1963 i. e. , after obtaining the conviction of Manning, the case against . Barker was sought to be proceeded against The trial was held in October, 1963 and Barker was convicted over-ruling his plea for dismissal of indictment on. the ground of violation of his right to speedy trial. The Appellate Court affirmed. The matter was, then, brought to Supreme Court on certiorari. The main contention of the accused was that the delay of five years in holding the trial was unduly long and that it violated his right to speedy trial. The court rejected this plea. It 'recognised. that more than four years period taken by prosecution for trying tti~ petitioner-accused was .

too long a period but, they held, this factor· must be· weighed against certain counter-balancing factors namely: (1) prejudice to the petitioner was minimal; (2) he was in jail only for a period of 10 months and was free thereafter; and (3) the petitioner himselfdid not rally want a speedy trial. He too was gambling on acquittal of Manning, i11 which case, the prosecution may not have prosecuted him at all. 43. It would be appropriate to notice certain observations of the court with respect to the right to speedy trial. We are referring to this case in somb detail for the reason that this decision has not only been followed in subsequent decisions of the United States Supreme Court but has also been approved by the Privy Council, as we shall presently point out The relevant observations of the court may be set out in their own words : ''The right to a speedy trial is generically different from any of the other rig~ts enshrined in the Constitution for the protection of the accused.

In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is societal interest in providing a speedy trial which exists separate from, and at times in opposition too, the interests of the accused. ......... A second difference between the right to speedy trial and the accussed's other constitutional rights is that deprivation of th~ right may work to the accussed's advantage. Delay is not an un. common defense tactic. As the time between the commission of the crime and trial lengthens, witnesses may become unavailable or their memories may fade ... Deprivation of the right to speedy trial does notper se prejudice the accussed's ability to defend himself......... right to speedy trial is more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system ..

f · where justice is supposed to be swift but deliberate. As a conse-. quence, there is no fixed point in the criminal pr0cess. when the r ' State can put the defend. ant to the Cho. ice of eith. er exercising or . waiving the right to speedy trial · · The amorphous quality of ~he right. also leads to the unsatisfactorily severe remedy ofdismissal of the indictment when the i:ight. has been deprived. This is. indeed aserious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious ·than an exclusionary rule or a reversal for a new trial,. but it is the only possible remedy ......... ' . We reject, therefore, the rule that a defendant who fails to demand a speedy trial forever waives his right. This does not ..... •:.... •... ' mean, however, that the defendant has no responsibility to assert t his right.

We think the better rule is tl)at the defendant's assertion 'of or failure to assert his right to a speedy trial is on~ of the f11ctors to be considered in ·an inquiry into the deprivation of the right The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed. A balancing test J)ecessarily compels courts to· approach speedy trial cases on an ad hoc basis. We can to little more than identify some of the factors which· courts should assess in determining [ . )Vhether a particular defendant has been. depriv~d of his right. Though some might express them in different ways, we identify r · four such factors : length ofdelay, the reason for the delay, the . defendant's assertion of. his right, and prejudjce t~ th. e defendant r The length of the delay. is to some extent a trigerring mechanism. Until there is some delay which is presumptively.

prejudicial, there is no necessity for inquiry into the other factors that go into the balance ......... r The foui factors identified above ......... are related factors and must be considered together with such other circumstances as may be relevant ......... Courts must still. engage in. a difficult and . sensitive balancing process. But, because we are dealing with a AR. ANTULAYv. R. S. NAYAK [REDDY; J. ] 369 fundamental right of the accused, this pi:ocess must be earned out with full recognitionthat the accussed's interest in·a speedy trial·is speeifically affirmed in the Constitution. " · 44. In Strunk v. United States, 37 Lawyers Edn. 2nd 56 it was held that an accussed's right to a prompt inquiry into criminal charges is fundame.

ntal arid the duty of the charging authority is to provide a prompt trial: It was observed that the desires or convenience of the accused or o'ther individuals are of little relevance and make no differenee to the prosecutor's obligation to ensure a prompt trial. The main question considered in this case was whether "'\ the violation of th_e said guarantee entails disiriissal . of th~ charges. It was held that dismissal of charges is the only possible remedy where a speedy trial has been denied. Indeed, in this case, the court of appeals was also of opinion that the accused's right to speedy trial was denied. but it did not quash the charges . ; but drrected merely that the sentence awarded to the accu~d should be reduced by the period of unconstitutional delay. (The matter was taken to appellate court arter the district collrt had 'convicted at! d senteryced the accused). 45. inBell v. Director ofProsecution, Jamaica, [1985] 2A. E. R..

585; the Privy Council expressely affirmed the principles enunciated in Barker in the following words : ' ' "Their Lordships acknowledge ttie relevance and importance of · the four factors· focidly expanded and comprehensively discussed :E 7 I in Barker v. Wingo. Their Lordships also acknowledge the desirability of applying the same or similar criteria to any constitution, written or unwritten, which protects an accused from oppression by delay in criminal proceedings. Th weight to be attached to each factor must however vary fiomjtJrisdiction to jurisdictionand from case to case. " · · · · In this-case, the Privy Council emphasised the necessity of taking notice of the delays inherent in a particular system. The Privy Council was dealing with a case from Jamaica. The ·court of Appeals of Jamaica held that having regard to the circumstances obtaini~g in that country, a delay of 32 months cannot be said to infringethe constitutional right of an accused to speedy triat.

The Privy Council observed th. at this opinion of the Jamaican court, which must be deemed to be acquainted with the conditions in that country, must be accepted. But, inasmuch as, it was a case of re-trial, the Privy Council held that the said delay must be held to have infringed the said right. The Board empha. Sised that a re-trial must be held with greater speed and that the delay which may be ignored i~ the case irial may not be ignored jn the case ofre-lrial. 46. In United States v. Hawk 88 Lawyers End. 2nd 640, the accused were indicated in November, 1975 for illegal possession offire-anns and explosives. The accused moved for suppression of all evidence as to their alleged possession ofdynamite on the ground that the dynamite had been destroyed by the State Law Ei:iforcement Officers. When the case was called for trial in May, the prosecution reported not ready. The di~trict court dismissed the indictment 1 with prejudice.

During the next seven years, there were numerous proceedings in the Court of Appeals as well as in the District court following -orders of remand. During a 46 month period . i. e. , from the date of dismissal of the indictment, until the re-instatement of indictment following the Appeal Court order, the defendants were unconditionally released. After remand from the Appeal Court, the District Court dismissed the indictment in May, 1983 on the C. ground of violation of the accussd's right to speedy trial. The matter was, ultimately, brought to the Supreme Court where a majority of Judges (5 : 4) held that the time during which the defendants were neither under indictment nor subject to any. official restraint and where . the delays were caused . on account of interlocutory appeals; cannot be counted. towards delay and do not entitle the accused to any relief on that basis.

The minority, however, held that D, though· the indictment against the defendant was dismissed and they were unconditionally released, their case remained on the . trial court's docket . and· that the time taken for appeals in their case was patently unreasonable. For the said delay, the prosecution ought to suffer and not the accused. We do not think itnecessary·to refer to the reasoning . of this case in any detail since it, besides affirming the Barker principles in all respects; mainly deals with the question r whether the time:taken in prosecuting interlocutory appeals should or should not count. towards delay, particularly where the accused are released unconditionally. during that period. · Besides .

the above, certain other American cases and articles by several Professors of Law in America have been brought to out notice but we do not F· wish to burden this judgment with all those opinions since most of them either affirm or criticize the principles enunc~ated in Barker, Hawk and. other cases. . "I ~7. At this stage, we think it appropriate to deal-with the facts of and the principles enunciated in MadheswardhariSinghv: State ofBihat,(A. LR. 1986 Pa! Jla 324) (Full Bench) which decisipn is the subject matter ofcriminal appeal No. 126of1987 preferred by the State of Bihar. In fact, the learned counsel for the petitioners-accused strongly·relied upon it. Five questions were referred to the full Bench, namely : ' ' . ~·1·. Whether-the. fundamental right to a speedy trial enshrincd·in, Ar~icle 2l of the Constitution by precedential mandate is confined · to only capital offences or is attracted to all offences generically? ••1 A. R. ANTULAY v. R. S. NAYAK [REDDY, J. ] 371 '2.

Whether the aforesaid righno a speedy trial is applicable only to the proceedings in Court strict<> senso or includes within its sweep the preceding 'Police investigation as well? · 3, Is a speedy trial 'equally mandated by both the letter and spirit of the Code of Criminal Procedure, 1973? E' 4. Whether the ratio fo. Ramdaras Ahir's case (1985 Cri U 584) (Pat) (supra) and in Mil. ksudan Singh' s case (A. LR. 1986 Pat. 38 (FB) (supra) are applicable equally to all offences and irrespeetive of the fact whether the proceedings are a trial or an appeal against. · acquittal? ' . . ,, I . 5. Whether an outer limit to concretise the right to a speedy publi'c ' trial is envisioned by principle of precedent? The facts of the case are -rather unusual-may be not so unusual in·the State of Bihar. The petitioner in'. the said writ petition', Madheshwardhari Singh·' was a Class I GovemmentOfficer. During the year 1964-65, he was posted as' · the Assistance Director, Central Poultry Farm, Pama.

On Satyanarayana Sharn'la, Store Keeper was his subordinate on the said farm. On the basis of a written :complaint made by his successor, a first information report was registered agrunst Satyanarayana'Sharma under Sections 467,409 and . 120B I. P. C:on 20th'Nov~mber, 1906. The. pei. itionerwas not named as an accused E· in that report. ' The allegations made therein, however, raised a cloud of suspiCion against the petitioner as well. The investigati~n by police went on and ultimately Of! 29th September, 1975 the petitioner was also made an accused in the said case. According to the petitioner, this was ~one ma/a fide and with a view to jeopardise his career and prospects of promotion. Be that as it may, he was airested and produced before the Magistrate who granted him F· provisional bail on 20th April, 1975 which was confirm·e·d later on. On 30th January, 1976, a charge-sheet was filtxl against the petitioner. Proceedings thereafter went on at a very Ieisure1y pace.

Charges were framed in'July, 1977. Inspite ofdireetions of the cotirt, prosecution did not examine the wiLnes·ses in quick succession but in driblets. Finding that the prosecution was not heeding its orders nor was adducing evidence; the·learned Magistrate closed the prosecution case in April, 1984. It is necessary to point out that between July, 1977 (when the charges were framed against him) and April, 1984 (when the learned Magistrate dosed the:prosecution case) only about 9 out of the 40 witnesses cited were examined. Aggrieved by the trial-court's -order closing its case, the prosecution preferred a revision which was allowed directing the Magistrate to give an Opportunity to the prosecution. Even so, the prosecutioirdid not avail H' of the opportunity. The learned Magistrate closed the prosecution case once again in September, 1984.

The State went up in revision to the learned Sessions fodge against this order and yet again the learned Sessions Judge directed the Magistrate to give an opportunity to the prosecutor to examine witnesses. In January 1985, only O! le witness was examined and none thereafter, with the result that the prosecution case was again closed on May 1, 1985. At this stage, the accused-petitioner raised an objection that there was no valid sanction for prosecuting him. For producing a . copy of the. order of sanction, prosecution obtained several adjournments but did not produce it. Ultimately, on Oc~ober 1, 1985, petitioner filed an application before the learned Magistrate claiming that his fundamental right to speedy trial has been violated by the passage of nearly 20 years in investigation and trial and asking for quashing of the proceedings on that ground. The learned Magistrate rejected the said application whereupon he approached the High Court. 48. Sandhawalia, CJ.

, speaking for the Full Rench, held, on a review of . severai' decisions of. this court and of the United States of America; that right '· · · to speedy trial is inherent in and flows from Art; 2L The learned Chief Justice 'stated the following four principles as flowing from ~rticle 21, viz. , ·· - · ·_. .. -.. 1~ That, now by precedential mandate ihe basic human rlght to a speedy public trial in all criminal prosecutions has been expressly Written as if with pen and ink in the constitutional right relating to life and liberty guaranteed under Article 21 een responsible for the delay. In such cases, he cannot be allowed to t:ike advantage of his own wrong. In some cases, delays may occur for which neither the prosecution nor the accused can be blamed but the system itself. Such days too cannot be treated as unjustifiable-broadly speaking.

Of course, if it is a minor offence-not being an economic offence-and the delay is too long, not caused by the accused, different considerations may arise. Each case must be left to be decided on its own facts having regard to the principles enunciated hereinafter. For all the above reasons, we are of the . opinion that it is neither advisable nor feasible _to draw or prescribe an outer time limit for conclusion of all criminal proceedings. It is not necessary to do so for effectuating the right to speedy trial. We are also not satisfied that without such an outer limit, the right becomes illusory: · 52. We may next deal with, what is called the 'demand' rule. The contention is that an accused who docs not demand a speedy trial, who stands by and adquiesces in the delays cannot sud. denly tum round after a lapse of period and complain of infringeme • of his right to speedy·trial. It is not .. possible to accede to this contention either. An accused does not. prosecute himself.

The State or complainant prosecutes him. It is, thus, the obligation of the State or the complainant: as the case may be, to proceed with the case with reasonable promptitude. Particularly, in this country, where the large majority of accused come from and poorer'weaker sections of the society, not versed in the ways of law, where they do not often get competent legal advice, the application of the ·said rule is wholly inadvisable. Of course, in a given case, if an accused demands speedy triai and yet he is not given one, may be a relevant factor in his favour. But we cannot disentitle an accused from complaining_of infringement of his right to speedy trial on the. ground that he did not ask for or insist upori a speedy trial. 53. Another question seriously canvassed before us related to the consequence flowing from an infringement of right to speedy trial.

Counsel for accused argued on the basis of the observations in Sheda Barse and Strunk that the only consequence is·quashipg of charges and/or conviction, as the case may be. Nonnally, it may be so. But we do not think that that is the only order open to court. In a given case, the. facts-including the nature of offence-:-may be such that quashing of charges may not be· in the interest of justice. After all, every offence-:-more so economic offences, those relating to public officials A. R. ANTULAYv. R. S. NAYAK[REDDY,J. ] 377 andfood adulteratiol}-is an offence against society. It is really the societythe state-that prosecutes the offender. We may if1 this connection recall the observations of this court in ChamfJCl. lalPunjaji Shah. In cases, where quashing of charges/convictions may not be in the interest of justice; it shall be open to the court to pass such appropriate orders as may be deemed just in the circumstances of the case.

Such orders may, for example, take the shape of order for expedition of trial and its conclusion within a particular prescribed period, reduction of sentence where the matter comes up after conclusion of trial and conviction, and so on. . 54. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are : · 1. Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that . it serves the societal interest also, does not make it any-the-less the right of the accused.

It is in the interest of all concerned that the guilt or innocence of the a_ccusect is determined as quickly as possible in the circum.! stances. .. 2. Right to Speedy Trial flowing from Article 21 encompasses all thtr stages, namely the stage of investigation, inquiry, trial, appeal, revision and re~ trial. That is how, this court has understood this right and there is no reason to take a restricted view. ' 3. The concerns underlying the Right to speedy trial from the point of view of the accused are : (a) the period of remand and pre-conviction d~tention should be as short '-lS possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction; . (b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and (c) undue delay may well resu.

lt in impairment of the ability of the ·accused to defend himself, whether on account ofdeath, disappearancc or non-availability of witnesses or otherwise. ·378 SUPREME C,OURT REPORTS [1991] SUPP. 3 S. C. R. . 4. At the same. time, one . cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a kn0wn defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be ·B cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the Right to speedy trial is alleged to have been infringed, the first question to be put and answered is-who is responsible for the delay?

Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can thetime taken in pursuing such proceedings be counted towards delay. Itgoes,withoutsaying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that tl;le proceeding is not a frivolous. Very often these stays obtained on ex-parte representation. ·n . 5. While determining whether undue delay has occurred (resulting in violation . of Right to Speedy Trial) one must have regard lo all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so onwhat is called, the systemic delays.

It is true that it is the obligation of the State to ensure a speedy trial and Stale includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead ofa pedantic one. 6. Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barker "it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate". The same ideal has been stated by White,J. in U. S. v. Ewell, 15 Lawyers Edn. 2nd627, in the following words: ... "the sixth amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than more speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an un-constitutional deprivation. of rights depends upon all the circumstances. " However, inordinately long delay may be taken as presumptive proof of prejudice.

In this context, the fact of incarceration of accused will al$o be a relevant fact. The prosecution should not be allowed to become a persecution. A. R. ANTULAYv. R. S. NAYAK [REDDY,. I. ] 379 But when does the prosecution become prosecution, again depends upon the facts of a given case. . 7. We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the court at the behest o_f the prosecution. Hence, an accussed's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it ·would be a plus point in his favour, but the mere. non-asking for a speedy trial cannot be put against the accused. Even in U. S. A. , the relevance of demand rule has been subs~tially watered down in Barker and other succeeding cases. 8.

Ultimately, the court _has to balance and weigh the several relevant factors-'balancing test' or 'balancing process'-and 51etcnnine in each case whether the right to speedy trial has been denied in a given case. 9. Ordinarily speaking, where the court comes to the conclusion that Right to speedy trial of an accused has. been infringed the charges or 'the conviction, as the case may be, shall be quashed. But this i. s not the onl)' course · open. The nature of the offence and Other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is ope! 1 to the court to make such other appropriate orderincluding an order to conclude the trialwithin a fixed time where the trial isi not concluded or reducing the sentence ~here the trial has concluded-as may be deemed·jus·1: and equitable in the circumstances of the case. . 10. It is neither advisable nor practicable to fix any time-limit fo~ trial of offences.

Any such_rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on. to the sh. oul~ers . ofthe p;osecution. Jn every case of complaint of denial ofRight to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the . duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of U. S. A. too as repeatedly refused to fix any such· outer tiine limit inspii. e of ihe Sixth ,\ Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of Right to speedy trial. 11. An objection ba<;ed on denial of Right to,speedy trial and for relief on that account, should first be. addressee! to the High Court. Even if. the High Court entertains such a plea, ordinarily it should not stay the pr~eedings, except in a ca5e. of grave and exceptional nature.

Such proceedings in High Court must, however, be disposed of on a priority basis. 11 55. Now let us exarnine the facts in writ petition No. 833 ofl990 in the light of the above principles. It is true that Special Case No. 24 of 1982 instituted in 1982 is still pending in the year 1991 but then the question arises who is responsible for the delay? As soon as process was issued by the Special Judge (Sri P. S. Bhutta), the accused appeared and raised two objections viz. : (i) that the Special Judge has no jurisdiction to take cognizance of the case on the basis of a private complaint and that an investigation by a Police Officer is the condition-precedent to taking cognizance; and (ii) that unless the State Government issues a notification under Section 7(2) of 1952 Act, neither Special Judge has the jurisdiction to take cognizance of the case. These objections were over-ruled by the Special Judge. The matter was then carried by him to High Court.

High Court too o:ver-rulcd his first objection. So far as the second objection is concerned, it was not necessary for the High Court to go into it inasmuch as pending the proceedings in High Court, the Governme