P. RAMA CHANDRA RAO v. STATE OF KARNATAKA

Citation: [2002] 3 S.C.R. 60

Court: Supreme Court of India

Bench: S.P. BHARUCHA, S.S.M. QUADRI, R.C. LAHOTI, N. SANTOSH HEGDE, DORAISWAMY RAJU, RUMA PAL, ARIJIT PASAYAT

Judgment text

)__ P. RAMA CHANDRA RAO v. STATE OF KARNATAKA APRIL I 6, 2002 r. (S. P. BHARUCHA, CJ. SYED SHAH MOHAMMED QUADRI, R. C. LAHOTI, N. SANTOSH HEGDE, DORAISWAMY RAJU, RUMA PAL AND ARIJIT PASAYAT, JJ. ] Constitution ofIndia, 1950-Article 21-Right to speedy trial-Criminal Proceedings-Limitation bar provided by judgment of smaller Benches of Supreme Court-Held, such bar contrary to law laid down by larger Bench in Antulay's case-Limitation bars not good law, since the same would amount to impermissible legislation and contrary to law ofprecedent-To effectuate the right to speedy trial, powers under Sections 309, 311, 258 and 482 of Code ofCriminal Procedure and Articles 226 and 227 ofConstitution could· be exercised-Code of Criminal Procedure, 1973-Sections 309, 311, 258 and 482. Doctrines: Doctrine of precedent-Pronouncements by smaller Benches contrary to law laid down by larger Bench-Smaller Bench is bound by view expressed by larger Bench.

Judicial Review: Held, is restricted to declaring and interpreting law and removing obvious 1. :icunae and filling the gaps-Not to entrench upon the field of legislation which is meant for legislature-Constitution ofIndia, ... J950-Articles 32, 21, 141, 142-Code of Criminal Procedure, 1973-Chapter XXXVl In Common Cause v. Union ofIndia, [1996) 4 SCC 33, (Common Cause ~ I); Common Cause v. Union ofIndia, [1996) 6 SCC 775 (Common Cause 11); Rajdev Sharma v. State ofBihar, [1998) 7 SCC (Raj Dev Sharma I); Raj Dev Sharma II v. State ofBihar, [1999) 7 SCC 604 (Raj Dev Sharma II), the Court had issued direction fixing outer time limits for conclusion of certain nature of criminal proceedings. P. RAMA CHANDRA RAO v. STATE OF KARNATAKA 61 In the instant appeals, accused facing corruption charges were acquitted by special courts in terms of directions in Raj Dev Sharma I case as there was failure of commencement of trial despite lapse of two years from the date of framing of the charges.

The appeals of the State against the acquittal were allowed by High Court without issuing notice to the respective accused. -- In appeal to this Court, the question for consideration arose as to whether earlier decisions of this Court, in Common Cause I. Common Cause l/, Ra. i Dev Sharma I Raj Dev Sharma II cases would apply to prosecution " under Prevention of Corruption Act, 1988 and other economic offences. The case was, therefore, referred to a Constitution Bench. During the hearing, the Constitution Bench was ofthe opinion that the directions in the Common Cause cases and Raj Dev Sharma cases ran counter to Constitution Bench directions in A. R. Antulay's case, which had laid down the law that an outer time limit for conclusion of all criminal proceedings should not be drawn or prescribed. Since A. R Antu/ay's case was decided by Bench of 5 Judges the instant case was referred to seven Judges Bench.

The question for consideration therein was whether a Court in its zeal to protect the right to speedy trial of an accused, can devise and almost enact such bars oflimitation though the legislature and the statutes have not choosen to do so. Answering the question and allowing the appeals, the Court. HELD : (Per Lahot( J for himselfS. P. Bharucha, CJ! , Quadri, Hegde, Ruma Pal and Pasayat, JJ) 1. 1. It is neither advisable or feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (/), Raj Deo Sharma(/) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal Courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma Cases (I) and (II).

At the most the periods of time J. prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed . ').. _ - out in A. R. Antulay's case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any Court as a bar to further continuance ofthe trial or proceedings and as mandatorily obliging the Court to terminate the same and acquit or discharge the accused. [84-F, G, H; 85-AJ 1. 2.

Prescribing periods oflimitation at the end of which the trial court would be obliged to terminate the· proceedings and necessarily acquit or discharge the accused and further, making such directions applicable to all the cases in the present and for the future amounts to legislation, which cannot be done by judicial directives and within the arena of judicial law-making power available to constitutional courts, however liberally Articles 32, 21, 141 and 142 of the Constitution may be interpreted. Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of ~egislation properly meant for the legislature. Judiciary may not, like legislature, enact a provision akin to or on the lines ofChapter XXVI of the Code of Criminal Procedure, 1973. [82-F, G, H; 83-A-B] 1. 3.

Bars oflimitation enacted in Common Cause {/), Common Cause {JI), Raj Deo Sharma {/) and Raj Deo Sharma (//) cannot be sustained also because the decisions though two or three-Judge Bench decisions, run counter to that extent to the dictum ofConstitution Bench in A. R. Antu/ay's case and therefore cannot be said to be good law to the extent they are in breach of the doctrine of precedents. The well settled principle of precedents which has crystalised into a rule of law is that a Bench of lesser strength is bound by the view expressed by a Bench oflarger strength and cannot take a view in departure p or in conflict therefrom. [83-B, CJ 1. 4. The dictum in A. R. Antulay's case is correct and holds the field. The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in the case, adequately take care of right to speedy trial. The guidelines are not exhaustive but only illustrative.

They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made. [84-C, D, E,] Abdul Rehman Antulay v. R. S. Nayak and Anr. , [1992) 1 SCC 225, affirmed. P. RAMACHANDRARAOv. STATEOFKARNATAKA 63 ... ,,. , Common Cause v. Union ofIndia, [1996] 4 SCC 33; Common Cause v. Union ofIndia, [1996] 6 SCC 775; Raj Deo Sharma v. State ofBihar, (1998) 7 SCC 507 and Raj Deo Sharma v. State ofBihar, (1999) 7 sec 604, overruled. Maneka Gandhi v. Union ofIndia andAnr. , (1978) l sec 248; Hussainara ~' Khatoon and Ors. , (/) v. Home Secretary, State ofBihar, [1980] l SCC 81 and Kartar Singh v. State ofPunjab, (1994) 3 SCC 569, referred to.

'Principles ofJurisprudence' I2th Edition by Salmond; Judicial Activism and 'Comtitutional Democracy in India' by Professor Sir William Wade QC; 'The y Judge (1979) by Patrick Devlin; "Judicial Activism in Jndia-Tramgressing Borders and Enforcing limits", by Professor S. P. Sathe, referred to. 2. The Criminal Courts should exercise their available powers, such as those under Sections 309, 3ll and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial judge can prove to be better protector ofsuch right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 Cr. P. C. and Articles 226 and 227 ofConstitution can be invoked seeking appropriate reliefor suitable directions. (85-B, C] ,. 3. A perception of the cause for delay at the trial and in conclusion of criminal proceedings is necessary so as to appreciate whether setting up bars oflimitation entailing termination oftrial or proceedings can be justified.

Goal ofspeedy justice can be achieved by a combined and result-oriented collective thinking and aetion on the part ofthe Legislature, the Judiciary, the Executive / and representative bodies of members of Bar. (77-E; 79-C] Abdul Rehman Antulay and Ors. , v. R. S. Nayak and Anr. , jl992) l sec 225; Kartar Singh v. State ofPunjab, (I994[ 4 SCC 569 and Raj Deo Sharma II v. State ofBihar, (1999) 7 SCC 604, referred to. I20th Report of law Commission ofIndia on Manpower Planning in Judiciary, referred to. 4. Union of India and the State Government should fulfil their constitutional obligation to strengthen the judiciary-quantitatively and qualitatively by providing requisite funds, manpower and infrastructure. 1-. (85-D) 5.

High Court could not have condoned the delay in filing of the appeals and then allowed the appeals without noticing the respective accused- )-- respondents before the High Court, now the High Court shall hear and decide the appeals afresh after noticing the accused respondent before it in each of the appeals and consistently with the principles oflaw laid down in the instant case. [85-F] Per Raju, J. (Partly dissenting with the observations as regards the powers and jurisdiction of Supreme Court) 1. The declaration of law in A. R. Antu/ay's case still holds the field and its binding force and authority has not been undermined or whittled down or altered in any manner by another decision ofa larger Bench. Consequently, the Benches oflesser number of Constitution of Judges which dealt with the cases could not have laid down any principles in derogation of the ratio laid down in A. R.

Antu/ay's case either by way of elaboration, expansion, clarification or in the process of trying to distinguish the same with reference to either the nature of causes considered therein or the consequences which are likely to follow and which, in their view, deserve to be averted. Even where necessities or justification, if any, were found therefor, there could not have been scope for such liberties being taken to transgress the doctrine of binding precedents. The solitary reason would suffice by itself to overrule the decisions by Bench of lesser strength. All the more so when, there is no reason to doμbt the correctness of the decision in A. R. Antulay's case and this Bench concurs with the principles laid down therein. (87-B-F] Abdul Rehman Antu/ayy. RS. NayakandAnr. , [1992) 1SCC 225, affirmed. Common Cause v. Union ofIndia, [1996) 4 SCC 33; Common Cause v. Union ofIndia, (1996) 6 SCC 775; Raj Deo Sharma v. State ofBihar, [1998) 7 SCC 507 and Raj Deo Sharma v.

State ofBihar, (1999) 7 SCC 604, overruled. 2. Though this Court does not consider itself to be an imperium in impero or would function as a despotic branch ofthe 'State', the fact that the founding fathers ofConstitution designedly and deliberately, perhaps, did not envisage the imposition of any jurisdictional embargo on this Court, except in Article 363 of the Constitution of India is significant and sufficient enough to identify the depth and width or extea1t of its powers. This Court is the ultimate repository of all judicial powers at National level by virtue of it being the Summit Court at the pyremidal height of Administration of Justice in the country and as the upholder and final interpreter ofthe Constitution of India and defender of the fundamentals of 'Rule of Law'. (87-G-H; 88-C] 3. The prospects and scope to achieve the desired object of a speedy t -~ P. RAMACHANDRA RAO v. STATE OF KARNATAKA 65 .

>( trial even within the available procedural relief, have also been indicated in . F the decision in A. R. Antulay's case as well as in the main judgment in the _, present case. This Court should never venture to disown its own jurisdiction ' on any area or in respect of any matter or over any one authority or person, when the Constitution is found to be at stake and the Fundamental Rights of citlzenslpersons are under fire, to restore them to their position and uphold ' the Constitution and the Rule of Law-for which this Court bas been established and constituted with due primacy and necessary powers, authority and jurisdiction, both express and implied. [88-G, H; 89-A] ,,. Abdul Rehman Antulay v. R. S Nayak andAnr. , [lm] 1 SCC 225, referred to. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 535 of 2000. From the Judgment and Order dated 13. 10. 99 of the Karnataka High Court in Cr!. A. No. 693 of 1999. WITH .. Crl. A. Nos. 536, 537, 538, 539, 540, 541 and 542 of 2000. R. N.

Trivedi, Additional Solicitor General, Subodh Markandeya, Parag P. Tripathi, Ranjit Kumar, P. Parmeswaran, Manish Singhvi for Attorney General for India, Ms. Binu Tamta, Varun Goswami, S. Muralidhar, S. Vallinayagam, Shreyas Jaisimha, V. B. Joshi, Pavi Kini, A. V. L. Ram Prasad Verma, A. P. Singh, Ms. Umang Dara, Nikhil Nayyar, Urmila Sirur, Sanjay R. Hegde, Satya Mitra, Ms. Priya Hegde, Vikrant Yadava, A. Mariarputham, ~ Arona Mathur, G. Prabhakar, (NP. ), H. Wahi, Ranjan Mukherjee, Ms. Rachana Srivastava, Ravindra Shrivastava, for Chattisgarh, Prakash Shrivastava, Anil Kumar Jha, Mrs. Alka Jha, Tarachandra Sharma, Rajdev Sharma, Ms. Neelam Sharma, Ajay Sharma, Rupesh Kumar, Ramesh Babu M. R. , Ashok Potshangbam, K. H. Nobin Singh, Inderbir Singh Alag, Rajeev Sharma, R. P. Goel for U. P. , Ms. Chitra Markandeya, Ms. Feroza Bano, Ms. Vibha Dutta Makhija, Ms. Bharti Tyagi, Rohit Kumar Singh, S. K. Agnihotri, S. S. Shinde, S. V. Deshpande, Ms. Krishna Sharma, Ms. Asha G. Nair, V. K.

Sidatharan, Ms. A. Subhashini, J. M. Khalma and Guntur Prabhakar for the appearing A parties. The Judgments of the Court were delivered by • l ,• ~ R. C. LAHOTI, J. No person shall be deprived of his life or his personal ~ liberty except according to procedure established by law-declares Article 21 'of the Constitution. Life and liberty, the words employed in shaping Article ~ 21, by the Founding Fathers of the Constitution, are not to be read narrowly ' in the sense drearily dictated by dictionaries; they are organic terms to be construed meaningfully. Embarking upon the interpretation thereof, feeling the heart-throb of the Preamble, deriving strength from the Directive Principles , of State Policy and alive to their constitutional obligation, the Courts have allowed Article 21 to stretch its arms as wide as it legitimately -can.

The mental agony, expense and strain which a person proceeded against in criminal ~ law has to undergo and which, coupled with delay, may result iii impairing the capability or ability of the accused to defend himself have persuaded the constitutional courts of the country in holding the right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Article 21. Speedy trial, again, would encompass within its sweep all its stages including investigation, inquiry, trial, appeal, revision and re-trial in short everything commencing with an accusation and expiring with the final verdict the two being respectively the terminus a quo and terminus ad quem--0f the journey which an accused must necessarily undertake once faced with an implication. The constitutional philosophy propounded as right to speedy trial has though grown in age by almost two and a halfdecades, the goal sought to be achieved 7Lis yet a far-off peak.

Myriad fact-situations bearing testimony to denial of such fundamental right to the accused persons, on account of failure on the part of prosecuting agencies and executive to act, and their turning an almost blind eye at securing expeditious and speedy trial so as to satisfy the mandate ofArticle 21 ofthe Constitution have persuaded this Court in devising solutions , which go to the extent ofalmost enacting by judicial verdict bars oflimitation '-- I' beyond which the trial shall not proceed and the arm of law shall lose its hold. In its zeal to protect the right to speedy trial of an accused, can the ~ Court devise and almost enact such bars of limitation though the Legislature and the Statutes have not chosen to do so-is a question of far-reaching implications which has led to the constitution of this Bench of seven-Judge strength. . In Criminal Appeal No. 535/2000 the appellant was working as an Electrical Superintendent in the Mangalore City Corporation. For the check period 1. 5.

1961 to 25. 8. 1987 he was found to have amassed assets disproportionate to his known sources of income. Charge-sheet accusing him -~ '; ofoffences under Section 13 ( l) (e) read with Section 13 (2) ofthe Prevention of Corruption Act, 1988 was filed on 15. 3,1994, The accused appeared before ;. P. RAMACHANDRARAOv. STATEOFKARNATAKA[R. C. LAHOTI,J. ] 67 ~ the Special Court and was enlarged on bail on 6. 6. 1994. Charges were framed on 10. 8. 1994 and the case proceeded for trial on 8. 11. 1994. However, the trial did not commence. On 23 . 2. 1999 the learned Special Judge who was seized of the trial directed the accused to be acquitted as the trial had not commenced till then and the period of two years had elapsed which obliged him to acquit the accused in terms of the directions of this court in Raj Deo .. Sharma v. State ofBihar, (1998] 7 SCC 507 (hereinafter, Raj Deo Sharma- I). The State ofKarnataka through the D. S. P.

Lokayukta, Mangalore preferred an appeal before the High Court putting in issue the acquittal of the accused. y The learned Single Judge ofthe High Court, vide the impugned order, allowed the appeal, set aside the order of acquittal and remanded the case to the Trial Court, forming an opinion that a case charging an accused with corruption was an exception to the directions made in Raj Deo Sharma-I as clarified by this Court in Raj Deo Sharma (II} v. State of Bihar, (1999] 7 SCC 604. Strangely enough the High Court not only condoned a delay of 55 days in filing the appeal against acquittal by the State but also allowed the appeal itself both without even issuing notice to the accused. The aggrieved accused has filed this appeal by special leave. Similar are the facts in all the other appeals. Shorn of details, suffice it to say that in all the appeals the accused persons who were facing corruption charges, were acquitted by the Special ...

Courts for failure of commencement of trial in spite of lapse of two years from the date of framing of the charges and all the State appeals were allowed by the High Court without noticing the respective accused persons. The appeals came up for hearing before a Bench of three learned Judges who noticed the common ground that the appeals in the High Court were allowed by the learned Judge thereat without issuing notice to the accused and upon this ground alone, of want of notice, the appeals hereat could be ~ allowed and the appeals before the High Court restored to file for fresh disposal after notice to the accused but it was felt that a question arose in these appeals which was likely to arise in many more and therefore the appeals should be heard on their merits. In the order dated September 19, 2000, the Bench of three learned Judges stated: "The question is whether the earlier judgments of this court, principally, in Common Cause v. Union ofIndia, (1996] 4 SCC 33, Common Cause v.

Union of India, [1996] 6 SCC 775), Raj Deo .. l. Sharma v. State ofBihar, (1998] 7 SCC 507 and Raj Deo Sharma (II) v. State of Bihar, [1999) 7 SCC 604, would apply to prosecutions under the Prevention of Corruption Act and other economic offences. - Having perused the judgments afore-mentioned, we are of the view that these appeals should be heard by a Constitution Bench. We take this view because we think that it may be necessary to synthesise the various guidelines and directions issued in these judgment. We are also ofthe view that a Constitution Bench should consider whether time limits of the nature mentioned in some of these judgments can, under the law, be laid down". On 25th April, 200I the appeals were heard by the Constitution Bench and during the course of hearing attention of the Constitution Bench was invited to the decision of an earlier Constitution Bench in Abdul Rehman Antulay and Ors. v. R. S. Nayak and Anr.

, [1992] 1 SCC 225 and the four judgments referred to in the order of reference dated 19th September, 2000 by the Bench of three learned Judges. It appears that the learned Judges of the Constitution Bench were of the opinion that the directions made in the two Common Cause cases and the two Raj Deo Sharma's cases ran counter to the Constitution Bench directions in Abdul Rehman Antulay's case, the latter being five-Judge Bench decision, the appeals deserved to be heard by a Bench of seven learned Judges. The relevant part of the order dated 26th April, 2001 reads as under:- "The Constitution Bench judgement in A. R. Antulay's case holds that "it is neither advisable nor feasible to draw or prescribe an outer time limit for conclusion of all criminal proceedings". Even so, the four judgements afore-mentioned lay down such time limits. Two of them also lay down to which class of criminal proceedings such time limits should apply and to which class they should not.

We think, in these circumstances, that a Bench of seven learned Judges should consider whether the dictum afore-mentioned in A. R. Antulay's case still holds the field; ifnot, whether the general directi9ns of the kind given in these judgements are permissible in law and should be upheld. Having regard to what is to be considered by the Bench of seven learned Judges, notice shall issue to the Attorney General and to the Advocates General of the States. The papers shall be placed before the Hon'ble the Chief Justice for appropriate directions. Having regard to the importance of the matter, the Bench may be constituted at an early date". P. RAMACHANDRARAOv. STATEOFKARNATAKA[R. CLAHOTl,J. ] 69 On 20. 2. 2002 the Court directed, "Common Cause", the petitioner in the two Common Cause cases which arose out of writ-petitions under Article 32 of the Constitution, heard and decided by this Court as public interest litigations, to be noticed.

"Common Cause" has responded and made appearance through counsel. We have heard Shri R. N. Trivedi, the learned Addi. Solicitor General appearing for Attorney General for India, Mr. Ranjit Kumar, Senior Advocate assisted by Ms. Binu Tamta, Advocate for the appellants, Mr. Sanjay R. Hegde and Mr. Satya Mitra, Advocates for the respondents, Mr. S. Murlidhar, Advocate for "Common Cause" and such other Advocates General and Standing Counsel who have chosen to appear for the States. We shall briefly refer to the five decisions cited in the order ofreference as also to a few earlier decisions so as to highlight the issue posed before us. The width of vision cast on Article 21, so as to perceive its broad sweep and content, by seven-Judge Bench of this Court in Mrs. Maneka Gandhi v. Union ofIndia and Anr. , [1978) 1 SCC 248, inspired a declaration of law, made on February 12, 1979 in Hussainara Khatoon and Ors. (I) v. ~.

Home Secretary, State ofBihar, [1980) I SCC 81, that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty, except according to procedure established by law: that such procedure is not some semblance of a procedure but the procedure should be "reasonable, fair and just''; and therefrom flows, without doubt, the right to speedy trial. The Court said - "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 tria~ 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.

" Many accused persons tormented by unduly lengthy trial or criminal proceedings, in any forum whatsoever were enabled, by Hussainara Khatoon (I) statement of law, in successfully maintaining petitions for quashing of charges, criminal proceedings and/or conviction, on making out a case of violation of Article 21 of the Constitution. Right to speedy trial and fair procedure has passed through several milestones on the path of constitutional jurisprudence. In Maneka Gandhi (supra), this Court held that the several fundamental rights guaranteed by Part III required to be read as components of one integral . whole and not as separate channels. The reasonableness of law and procedure, to withstand the test of Articles 21, 19 and 14, must be right and just and fair and not arbitrary, fanciful or oppressive, meaning thereby that speedy trial must be reasonably expeditious trial as an integral and essential part of the fundamental right of life and liberty under Article 21.

Several cases marking the trend and development of law applying Maneka Gandhi and Hussainara Khatoon (/) principles to myriad situations came up for the consideration of this Court by a Constitution Bench in Abdul Rehman Antulay and Ors. v. R. S. Nayan and Ors. , [1992) I SCC 225, (A. R. Antulay, for short). The proponents of right to speedy trial strongly urged before this Court for taking one step forward in the direction and prescribing time limits beyond which no criminal proceeding should be allowed to go on, advocating that unless this was done, Maneka Gandhi and Hussainara Khatoon (/) exposition of Article 21 would remain a mere illusion and a platitude.

Invoking of the constitutional jurisdiction of this Court so as to judicially forge two tennini and lay down periods of limitation applicable like a mathematical fonnula, beyond which a trial or criminal proceeding shall not proceed, was resisted by the opponents submitting that the right to speedy trial was an amorphous one something less than other fundamental rights guaranteed by the Constitution. The submissions made by proponents included that the right to speedy trial flowing from · Article 21 to be meaningful, enforceable and effective ought to be accompanied by an outer limit beyond which continuance ofthe proceedings will be violative of Article 21. It was submitted that Section 468 of the Code of Criminal Procedure applied only to minor offences but the Court should extend the same principle to major offences as well. It was also urged that a period of IO years calculated from the date of registration of crinie should be placed as an outer limit wherein shall .

be counted the time taken by the investigation. The Constitution Bench, in A. R. Antulay 's case, heard elaborate arguments. The Court, in its pronouncement, fonnulated certain propositions, 11 in number, meant to serve as guidelines. It is not necessary for our purpose to reproduce all those propositions. Suffice it to state that in the opinion of the Constitution Bench (i} fair, just and reasonable procedure implicit in Article 21 ofthe Constitution creates a right in the accused to be tried speedily; (ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and re-trial; {iii) who is responsible for the delay and what factors have contributed towards delay are relevant factors.

Attendant circumstances, including nature of the offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on what is called the systemic delays must be kept in view; (iv) each and every delay does not necessarily pre)udice the accused as some delays indeed work to his advantage. Guidelines P. RAMACHANDRARAOv. STATEOFKARNATAKA[R. C. LAHOTI,l. ] 71 8, 9, I0 and II are relevant for our pwpose and hence are extracted and reproduced hereunder:- "(8) Ultimately, the court has to balance and weigh the several relevant factors 'balancing test' or 'balancing process' and determine in each case whether the right to speedy trial has been denied in a given case. (9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall. be quashed. But this is not the only course open.

The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order including an order to conclude the trial within a fJXed time where the trial is not concluded or reducing the sentence where the trial has concluded as may be deemed just and equitable in the 1 circumstances of the case. (I0) it is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint.

The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial. (I I) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis. " ,• During the course of its judgment also the Constitution Bench made certain observations which need to be extracted and reproduced:i : 'jB;t then speedy trial or other expressions conveying the said concept are necessarily relative in nature. One may ask speedy means, how speedy? How long a delay is too long?

We do not think it is possible to lay down any time schedulesfor conclusion ofcriminal proceedings. The nature ofoffence, the number ofaccused, the number ofwitnesses, the workload in the particular court, means of communication and several other circumstances have to be kept in mind". (para 83). "..................... it is neither advisable nor feasible to draw or prescribe an outer time-limit for conclusion ofall 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 1'imit, the right becomes illusory". (para 83) "............... even apart from Article 21 courts in this country have been cognizant of undue delays in criminal matters and wherever there was inordinate delay or where the proceedings 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". .

A (para 65) [emphasis supplied] In 1986, "Common Cause"-a Registered Society, espousing public causes, preferred a petition under Article 32 of the Constitution of India seeking certain directions. By a brief order ("Common Cause"A Registered Society through its Director v. Union ofIndia and Ors. , [1996] 4 SCC 32, hereinafter Common Cause (I) ), a two-Judge Bench ofthis Court issued two sets of directions: one, regarding bail, and the other, regarding quashing of trial. Depending on the quantum of imprisonment provided for several offences under the Indian Penal Code and the period of time which the accused have already spent in jail, the undertrial accused confined in jails were directed to be released on bail or on personal bond subject to such conditions as the Court may deem fit to impose in the light of Section 437 of Cr. P. C.

The other set ofdirections directed the trial in pending cases to be terminated and the accused to be discharged or acquitted depending on the nature of offence by reference to (i) the maximum sentence inflictable whether fine only or imprisonment, and if imprisonment, then the maximum set out in the law, and (ii) the period for which the case has remained pending in the criminal P. RAMACHANDRARAOv. STATEOFKARNATAKA[R. C. LAHOTl,J. ) 73 court. A perusal of the directions made by the ·Division Bench shows the cases having been divided into tWo categories: (i) traffic offences, and (ii) cases under IPC or any other law for the time being in force.

The Court directed the trial Courts to close such cases on the occurrence of following event and the period of delay:- Category (i) : Traffic Offences: The Court directed the cases to be closed and the accused to be discharged on lapse of more than two years on account of non-serving of summons to the accused or for any other reason whatsoever. Category (ii) : Cases under /PC or any other law for the time being in force: The Court directed that in the following sub-categories if the trial has not commenced and the period noted against each sub-category has elapsed then the case shall be closed and the accused shall be discharged or acquitted- Nature of the cases Period of delay i. e.

trial not commenced for Cases compoundable with the More than two years permission of the Court Cases pertaining to offences which are More than two years non-cognizable and bailable Cases in connection with offences More than two years punishable with fine only and are not of recurring nature Cases punishable with imprisonment More than two years upto one year, with or without fine Cases pertaining to offences punishable with imprisonment upto three years with or without fine The period of pendency was directed to be calculated from the date the ,,.... accused are summoned to appear in Court. The Divis. ion Bench, vide direction 4, specified. certain categories of cases to which its directions would not be applicable. Vide direction 5, this court directed the offences covered by direction 4 to be tried on priority basis and observance ofthi~ direction being monitored by the High Courts.

All the directions were made applicable not only to the cases pending on the day but also to cases which may be instituted thereafter.. Abovesaid directions in Common Cause-I were made on May 1, 1996. Not even a period of6 months had elapsed, on 15. IO. 1996, Shri Sheo Raj ' for legislature they may be said to have legislated, and not merely declared ~ the law. Salmond on Principles of Jurisprudence (12th Edition) goes on to \ say "we must distinguish law-making by legislators from law-making by the courts. Legislators can lay down rules purely for the future and without reference to any actual dispute; the courts, insofar as they create law, can do .... so only in application to the cases before them and only insofar as is necessary for their solution. Judicial law-making is incidental to the soiving of legal disputes; legislative law-making is the central function ofthe legislator" (page ): I 15).

It is not difficult to perceive the dividing line between permissible legislation by judicial directives and enacting law the field exclusively reserved for legislature. We are concerned here to determine whether in prescribing various periods of limitation, adverted to above, the Court transgressed the limit of judicial legislation. >. Bars of limitation, judicially engrafted, are, no doubt, meant to provide a solution to the aforementioned problems. But a solution ofthis nature gives -. ;. rise to greater problems like scuttling a trial without adjudication, stultifying -:' access to justice and giving easy exit from the portals ofjustice. Such general remedial measures cannot be said to be apt solutions. For two reasons we hold such bars of limitation uncalled for and impermissible : first, because it P. RAMACHANDRARAOv. STATE OF KARNATAKA [R. C. LAHOTl,1. ] 81 ,. tantamounts to impermissible legislation-an activity beyond the power which .

the Constitution confers on judiciary, and secondly, because such bars of limitation fly in the face of law laid down by Constitution Bench in A. R. . , Antulay's case and, therefore, run counter to the doctrine of precedents and .. , their binding efficacy. .... In a monograph "Judicial Activism and Constitutional Democracy in India", commended by Professor Sir William Wade, Q. C. as a "small book devoted to a big subject", the learned author, while recording appreciation of judicial activism, sounds a note of caution "it is plain that the judi~iary is the least competent to function as a legislative or the administrative agency. For one thing, courts lack the facilities to gather detailed data or to make probing enquiries. Reliance on advocates who appear before them for data is likely to give them partisan or inadequate information. On the other hand if courts have to rely on their own knowledge or research it is bound to be selective '• and subjective.

Courts also have no means for effectively supervising and implementing the aftermath oftheir orders, schemes and mandates. Moreover, since courts mandate for isolated cases, their decrees make no allowance for the differing and varying situations which administrators will encounter in applying the mandates to other cases. Courts have also no method to reverse ... their orders if they are found unworkable or requiring modification". Highlighting the difficulties which the courts are likely to encounter if embarking in the fields of legislation or administration, the learned author advises " the Supreme Court could have well left the decision-making to the other branches of government after directing their attention to the problems rather than itself entering the remedial field". The primary function of judiciary is to interpret the law. It may lay down principles, guidelines and exhibit creativity in the field left open and unoccupied by Legislation.

Patrick Devlin in 'The Judge' (1979) refers to the role ofthe Judge as lawmaker and states that there is no doubt that historically judges did make law, at least in the sense of formulating it. Even now whe,(l they are against innovation, they have never formally abrogated their powers; their attitude is: 'We could if we would but we think it better not. 'But as a matter of history did the English judges of the golden age make law? They decided cases which worked up into principles. The judges, as Lord Wright once put it in an unexpectedly picturesque phrase, proceeded 'from case to case, like the ancient Mediterranean mariners, hugging the coast from point to point and avoiding the dangers ofthe open sea ofsystem and science'. The golden age judges were not rationalisers and, except in the devising of ~ procedures, they were not innovators. They did not design a new machine .. ,...

capable of speeding ahead; they struggled with the aid of fictfons and bits of procedural string to keep the machine on the road. Professor S. P. Sathe, in his recent work (Year 2002) "Judicial Activism ,,. in India Transgressing Borders and Enforcing Limits", touches the topic "Directions : A New Fonn of Judicial Legislation". Evaluating legitimacy of L judicial activism, the learned author has cautioned against Court "legislating" exactly in the way in which a Legislature legislates and he observes by reference to a few cases that the guidelines laid down by court, at times, cross .... the border ofjudicial law making in the realist sense and trench upon legislating like a Legislature. "Directions are either issued to fill in the gaps in the legislation or to provide for matters that have not been provided by any legislation. The Court has taken over the legislative function not in the traditional interstitial sense but in an overt manner and has justified it as ....

, being an essential component of its role as a constitutional court. " (p. 242). .. "In a strict sense these are instances of judicial excessivism that fly in the face of the doctrine of separation of powers. The doctrine of separation of powers envisages that the legislature should make law, the executive should execute it, and the judiciary should settle disputes in accordance with the ~ existing law. In reality such watertight separation exists nowhere and is .... impracticable. Broadly, it means that one organ ofthe State should not perform .. a function that essentially belongs to another organ. While law-making through interpretation and expansion of the meanings of open-textured expressions such as 'due process of law', 'equal protection of law', or 'freedom ofspeech and expression' is a legitimate judicial function, the making of an entirely new Iaw........... through directions......... is not a legitimate judicial function. " (p. 250).

Prescribing periods of limitation at the end of which the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused, and further, making such directions applicable to all the cases in the present and for the ~ture amounts to legislation, which, in our opinion, cannot be done by judicial directives and within the arena of the judicial law-making power available to constitutional courts, howsoever liberally we may interpret Articles 32, 21, 141 and 142 of the Constitution. The dividing line is fine but perceptible. Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they ~ cannot entrench upon in the field of legislation properly meant for the legislature. Binding directions can be issued for enforcing the law and .. • P. RAMA CHANDRA RAO v. STATE OF KARNATAKA [R. C. LAHOTI, J. ) 83 .. ,.

appropriate directions may issue, including laying down of time limits or chalking out a calendar for proceedings to follow, to redeem the injustice done or for taking care of rights violated, in a given case or set of cases, depending on facts brought to the notice of Court. This is permissible for judiciary to do. But it may not, like legislature, enact a provision akin to or on the lines of Chapter XXXVI of the Code of Criminal Procedure, 1973. The other reason why the bars of limitation enacted in Common Cause (I), Common Cause (II) and Raj Deo Sharma (/) and Raj Deo Sharma (II) >- cannot be sustained is that these decisions though two or three-judge Bench decisions run counter to that extent to the dictum of Constitution Bench in A. R. Antu/ay's case and therefore cannot be said to be good law to the extent they are in breach of the doctrine of precedents.

The well settled principle of precedents which has crystalised into a rule of law is that a bench of lesser strength is bound by the view expressed by a bench of larger strength and cannot take a view in departure or in conflict therefrom. We have in the earlier part of this judgment extracted and reproduced passages from A. R. Antulay's case. The Constitution Bench turned down the fervent plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal proceeding or trial shall not proceed and expressly ruled ... that it was neither advisable nor practicable (and hence not judicially feasible) T to fix any time-limit for trial of offences. Having placed on record the exposition of law as to right to speedy trial flowing from Article 21 of the Constitution this Court held that it was necessary to leave the rule as elastic and not to fix it in the frame of defined and rigid rules.

It must be left to the judicious discretion of the court seized of an individual case to find out from the totality ofcircumstances ofa given case if the quantum of time consumed upto a given point of time amounted to violation ofArticle 21, and if so, then .. to terminate the particular proceedings, and if not, then to proceed ahead. The test is whether the proceedings or trial has remained pending for such a length oftime that the inordinate delay can legitimately be called oppressive and unwarranted, as suggested in A. R. Antulay. In Kartar Singh 's case (supra) the Constitution Bench while recognising the principle that the denial of an accused's right of speedy trial may result in a decision to dismiss the indictment or in reversing of a conviction, went on to state, "Of course, no length of time is per se too long to pass scrutiny under this principle nor the accused is called upon to show the actual prejudice by delay of disposal of cases. On ...

the other hand, the court has to adopt a balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the accused by avoidable delay ar. d to determine whether the accused in a criminal proceeding has been deprived of his right of having speedy trial with unreasonable delay ywhich could be identified by the factors (1) length ofdelay, (2) the justification for the delay, (3) the accused's assertion of his right to speedy trial, and (4) prejudice caused to the accused by such delay. " (para 92). For all the foregoing reasons, we are of the opinion that in Common . Cause case (I) (as modified in Common Cause (II) ) and Raj Deo Sharma (I) and (JI), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging ..... the accused. In conclusion we hold:- (I) The dictum in A. R. Antulay's ca.

se is correct and still holds the field. (2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A. R. Antulay's case, adequately take care of right to speedy trial. We uphold and re~affirm the said propositions. (3) The guidelines laid down in A. R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard A and fast rules or to be applied like a strait-jacket formula. Their i' applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made. (4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (!

), Raj Deo ~ Sharma (I) and Raj Deo Sharma (JI) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case(! ), Raj Deo Sharma case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial .. ;.. _ mind to the facts and circumstances of the case before them and determine by taking into consideration the several ,relevant factors as pointed out in A. R. Antulay's case and decide whether the trial P. RAMA CHANDRA RAO v. STATE OF KARNATAKA [R. C. LAHOTI, l. ] 85 . or proceedings have become so inordinately delayed as to be called oppressive and unwarranted.

Such time-limits cannot and will not by themselves be treated by any Court as a bar to further continuance ofthe trial or proceedings and as mandatorily obliging the court to terminate the same and acquit or discharge the accused. (5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to ~ffectuate the right to speedy trial. A watchful and diligent trial judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr. P. C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions (6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary-quantitatively and qualitatively by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act.

We answer the questions posed in the orders of reference dated September 19, 2000 and April 26, 2001 in the abovesaid terms. The appeals are allowed. The impugned judgments of the High Court are set aside. As the High Court could not have condoned the delay in filing of the appeals and then allowed the appeals without noticing the respective accused-respondents before the High Court, now the High Court shall hear and decide the appeals afresh after noticing the accused-respondent before it ~ in each of the appeals and consistently with the principles of law laid down hereinabove. Before we may part, we would like to make certain observations ex abundanti cautela : Firstly, we have dealt with the directions made by this Court in Common Cause Case-I and // and Raj Deo Sharma Case I and II regarding trial of cases. The directions made in those cases regarding enlargement of accused ....

persons on bail are not subject matter of this reference or these appeals and we have consciously abstained from dealing with legality, propriety or otherwise of directions in regard to bail. This is because different considerations ,).. ,... arise before the criminal courts while dealing with termination of a trial or proceedings and while dealing with right of accused to be enlarged on bail. Secondly, though we are deleting the directions made respectively by two and three-Judge Benches of this Court in the cases under reference, for reasons which we have already stated, we should not, even for a moment, be considered as having made a departure from the law as to speedy trial and speedy conclusion ofcriminal proceedings ofwhatever nature and at whichever stage before any authority or the court.

It is the constitutional obligation of the State to dispense speedy justice, more so in the field of criminal law, and paucity of funds or resources is no defence to denial of right to justice emanating from Articles 21, 19 and 14 and the Preamble of the Constitution as also from the Directive Principles of State Policy. It is high time that the Union of India and the various States realize their constitutional obligation and do something concrete in the direction ofstrengthening the justice delivery system. We need to remind all concerned ofwhat was said by this Court in Hussainara Khatoon (JV) [1980] l SCC 98, "The State cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus ' with a view to ensuring speedy trial.

The State may have its financial constraints and its priorities ih expenditure, but; 'the law does not permit any government to deprive its citizens ofconstitutional rights on a plea of poverty', or administrative inability. " Thirdly, we are deleting the bars of limitation on the twin grounds that it amounts to judicial legislation, which is not permissible, and because they run counter to the doctrine of binding precedents. The larger question of powers of this court to pass orders and issue directions in public interest or in social action litigations, specially by reference to Articles 32, 141, 142 and 144 of the Constitution, is not the subject matter of reference before us and this judgment should not be read as an interpretation of those Articles of the Constitution and laying down, defining or limiting the scope of the powers exercisable thereunder by this Court.

And lastly, it is clarified that this decision shall not be a ground for reopening a case or proceeding by setting aside any such acquittal or discharge as is based on the authority of 'Common Cause' and 'Raj Deo Sharma' cases -t_ and which has already achieved finality and re-open the trial against the accused therein. l P. RAMACHANDRARAOv. STATEOFKARNATAKA [RAJU,J. ] 87 RAJU, J. l have had the privilege of going through the judgment of esteemed and learned brother RC. Lahoti, J. , ·while I am in respectful agreement that the appeals are to be allowed and remitted to the High Court to be heard and decided afresh, I feel compelled to express my reservation and inability to subscribe to some ofthe observations contained therein relating to the powers and jurisdiction of this Court. The declaration of law made by the Constitution Bench of five learned Judges of this Court in the decision reported in A. R.

Antu/ay's case [1992) I sec 225 still holds the field and its binding force and authority has not been undermined or whittled down or altered· in any manner by an other decision of a larger Bench. Consequently, the Benches of lesser number of Constitution of Judges which dealt with the cases reported in "Common Cause" A Regd. Society through its Director v. Union of India and Ors. , [1996) 4 SCC 33]; "Common Cause" A Regd. Society through its Director v. Union ofIndia and Ors. , [1996] 6 SCC 775]; Raj Deo Sharma v. State of Bihar, (1998) 7 SCC 507) and Raj Deo Sharma {II) v. State ofBihar, [1999) 7 sec 604 could not have laid down any principles in derogation of the ratio laid down in A. R. Antulay 's case (supra) either by way of elaboration, expansion, clarification or in the process of trying to distinguish the same with reference to either the nature of causes considered therein or the consequences which are likely to follow and which, in their view, deserve to be averted.

Even where necessities or justification, if any, were found therefor, there could not have been scope for such liberties being taken to transgress the doctrine of binding precedents, which has come to stay firmly in our method of Administration of Justice and what is permissible even under such circumstances being only to have had the matter referred to for reconsideration by a larger Bench of this Court and not to deviate by no other means. This solitary reason would suffice by itself to overrule the above decisions, the correctness of which stand referred to for consideration by this Bench. All the more so when, there is no reason to doubt the correctness of the decision in A. R. Antulay's case (supra) and this Bench concurs with the principles laid down therein.

Though this Court does not consider itself to be an Imperium in Imperio or would function as a despotic branch of 'The State', the fact that the founding fathers of our Constitution designedly and deliberately, perhaps, did not envisage the imposition of any jurisdictional embargo on this Court, except in Article 363 of the Constitution of India is significant and sufficient enough, in my view, to identify the depth and width or extent of its powers. · The other fetters devised or perceive_d on its exercise of powers or jurisdiction to entertain/~eal with a matter were merely self-imposed for one or the oth,er reason assigned therefor arid they could not stand in the way of or deter this Court in any manner from rising up to respond in a given situation as and when necessitated and effectively play its role .

in accommodating the Constitution to changing circumstances and enduring values as a 'Sentinel on the qui vive' to preserve and safeguard the Constitution, protect and enforce the fundamental rights and other constitutional mandates which constitute the inviolable rights of the people as well as those features, which formed its basic structure too and considered to be even beyond the reach of any subsequent constitutional amendment. In substance, this Court, in my view, is the ultimate repository of all judicial powers at National level by virtue of it being the Summit Court at the pyramidal height of Administration of Justice in the country and as the upholder and final interpreter of the Constitution of India and defender of the fundamentals of 'Rule of Law'. It is not only difficult but impossible to foresee and enumerate all possible situations arising, to provide in advance solutions with any hard and fast rules of universal application for all times to come.

It is well known that where there is right, there should be a remedy. In what exceptional cases, not normally visualized or anticipated by law, what type of an extra-ordinary remedy must be devised or designed to solve the issue arising would invariably depend upon the gravity of the situation, nature of violation and efficacy as well as utility of the existing machinery and the imperative need or necessity to find a solution even outside the ordinary framework or avenue of remedies to avert any resultant damage beyond repair or redemption, to any person. Apparently, in my view, alive to such possibilities only even this Court in A. R.

Antu/ay's case (supra) has chosen to decline the request for fixation of any period of time limit for trial of offences not on any total want or lack of jurisdiction in this Court, but for the reason that it is "neither advisable nor practicable" to fix any such time limit and that the non-fixation does not ineffectuate the guarantee of right to speedy trial. The prospects and scope to achieve the desired object of a speedy trial even within the available procedural safeguards and avenues provided for obtaining relief, have also beefi indicated in the said decision as well as in the judgment prepared by learned brother R. C. Lahoti, J.

I am of the firm opinion that this Court should never venture to disown its own jurisdiction on any area or in respect of any matter or over any one authority or person, when the Constitution is found to be at stake and the Fundamental Rights of citizens/persons are under fire, to restore them to their position and uphold the Constitution and the Rule of P. RAMACHANDRARAOv. STATEOFKARNATAKA[RAJU,J. ] 89 -·Law for which this Court has been established and constituted with due A primacy and necessary powers authority and jurisdiction, both express and implied. Except dissociating myself from certain observations made expressing doubts about the jurisdiction of this Court, for the reasons stated above, I am in entire agreement with the other reasons and conclusions in the judgment. B K. K. T. Appeals allowed. _,