Patna High Court
State Of Bihar vs Ramdaras Ahir And Ors. on 6 August, 1984
Equivalent citations: 1985CRILJ584
JUDGMENT S.S. Sandhawalia, C.J.
1. Whether a callous inordinate delay of a decade or more would render the verdict of a clean acquittal on a capital charge and the consequent double presumption of innocence virtually impregnable against any challenge by way of a State appeal directed against such acquittal is the spinal question herein.
2. In the larger vista of the issue of grievous and inordinate delays fouling the pure stream of criminal justice and even involving a violation of human rights, the facts of this particular case would pale into insignificance. Nevertheless, the law cannot be divorced from the terra firma of its factual foundation and, therefore, a somewhat brief notice of the background thereof is necessary. The prosecution case arose from a somewhat common-place occurrence which allegedly took place as far back as on 11-4-1969, in the sleepy village Chandi English, police station Bikramganj. The suggested motive for the crime is a trivial one being a petty altercation betwixt school boys. On the date of occurrence Hira Lal, son of the deceased Saligram, and, Shrinewas and Sheodayal, sons of the accused-respondent Baijnath Ahir and Ramlochan Ahir, respectively, had fallen out with each other, whilst returning from the village school. On this paltry provocation, it is the case that the thirteen accused persons variously armed went to the Darwaza of Rombyas Singh and amongst them Sheodaras, accused-respondent, was armed with his licensed gun. On the instigation of Janki Ahir, accused-respondent, Ramsakal Ahir, another accused-respondent, assaulted P.W. 5 Tapeshwar Singh, the first informant, on his head and accused-respondent Janki Ahir assaulted Kailashi, whilst Sheodaras, accused-respondent, shot Saligram (deceased) on the chest felling him at the spot. Thereafter all the thirteen accused persons are alleged to have retreated to their houses firing blank shots in the air to terrorise and prevent any attempt at interference. Saligram (deceased) who had been mortally wounded, was carried to Natwar Hospital but succumbed to his injuries on reaching near the Natwar Bridge and thereafter the first informant, with the dead body and his co-villagers, went to Bikramganj Police Station and lodged a first information report on which the case was registered and investigated against the accused persons and they were committed for trial on charges of Sections 302,302/149,323/149,148,323 and 147 of the I.P.C.
3. The positive counter version of the defence is rooted at the very threshold in the fardbeyan (Ext. A) of Mumeshwari Devi, which was recorded in the Arrah Sadar Hospital, at about noon on the day of occurrence. Her dewar Sheolochan Yadav and her jaut Rampukar Yadav had caught hold of 5-6 she buffaloes of Tapeshwar Singh and Bansidhar Singh, which had grazed and damaged 11/2 kathas of Garma seedlings. Whilst they were taking the cattle, aforesaid, away, Tapeshwar Singh, Banshidhar Singh, Kauloshwar Singh, Ramun Singh, Suraj Singh, Baijnath Singh and Jamuna Singh came armed with gun, garasa and lathi and proceeded towards the dewar and jaut, who were following the cattle, which were being driven away by them. She had her natin Dayamanti reached there and within her sight Tapeshwar Singh, who had a gun in his hand, shot at her jaut Sheopukar, which hit him in his abdomen and he fell down. Thereafter she attemped to escape but Bansidhar with his gun shot at her, which hit her at her left arm and her natin in her panjari (region near the loin). Her husband Ramsakal Yadav, Prabhu Yadav, Belas Dhobi, Ramlochan Yadav and others had also arrived at the spot and seen the occurrence. Thereafter the assailants had taken away the she-buffaloes and gone to their houses.
4. The prosecution, in order to establish its own rival version, examined six witnesses : P.W. 1 Bansidhar Singh, P.W. 2 Baijnath Singh, P.W. 3 Ramun Singh, P.W. 4 Kailash Bihari Singh, P.W. 5 Tapeshwar Singh, who is the first informant, and P.W. 6 R.S. Verma, who is the investigating officer. The report of the post-mortem examination conducted by Dr. G.N. Verma has been proved on the record Under Section 509 of the Cr.P.C.
5. The trial Court closely examined the testimony of all the aforesaid witnesses and, in particular, noticed the grievous infirmity therein in so far as the witnesses conceded that on the very day Sheopukar, Muneshwari Devi and her natin Dayamanti had also received gun-shot injuries and Sheopukar and Dayamanti had, in fact, died ; but they pretended ignorance as to how they received the injuries and who had assaulted them. Whilst acquitting the respondents and their co- accused, the trial Court summarised the fatal infirmities in the prosecution case as under :
(i) That the main eye-witnesses, like Rambyas Singh, Hira and Vakil, who were said to be eye-witnesses, were not examined on behalf of the prosecution.
(ii) That curiously none of the family members of the deceased had chosen to come forward to support the prosecution case and all the witnesses examined were the caste men.
(iii) That the occurrence was alleged to have taken place at the door-way of Rambyas Singh and in his presence but, neverthless, he was not examined.
(iv) That the motivating cause of the occurrence about the altercation betwixt the boys was not established at all by any eye-witness.
(v) That the objective and circumstantial features found by the investigating officer were wholly consistent with the defence version and contradictory to the prosecution case.
(vi) That the investigating officer had found grazing marks in the field and blood on the rasta and the trampling marks, etc. in support of the defence.
6. On the aforesaid firm foundation, the trial Court came to the firm conclusion that the defence version was plainly the more probable one and the prosecution had failed to substantiate the charge. Consequently, the learned Additional Sessions Judge acquitted all the accused persons of all charges by his judgment dt. 31-7-1976.
7. Nearly eight years back the present appeal was admitted and bailable warrants issued against the respondents. Thereafter the matter seems to have lain in archives. It came up for hearing only in the end of March, 1984 and the State appeal was dismissed to be followed by a reasoned judgment. Here are the reasons.
8. Ere I proceed to the merits of the case, a threshold yet meaningful root question was pointedly raised on behalf of the 12 respondents herein. Their learned Counsel highlighted the fact that it was way back in 1969 that a capital charge was levelled against them and they had to face an excruciating period of 7 years for investigation and trial therefor. It concluded in their clean acquittal of all the charges by the Court of Session, thus doubly reaffirming the presumption of innocence, which is the cardinal principle of criminal jurisprudence. Nevertheless, thereafter a threat of the reversal of this acquittal has been allowed to loom for another long travail of 8 years. In sum, the submission is that where the sentence of death has hung like the proverbial sword of Damocles over the heads of the respondents for nearly 16 years, they cannot now be reasonably called upon to meet the actuality of the sentence of hanging or its worst concommitant of being imprisoned for the rest of their lives in conditions which are patently sub-human within the State. It is the forceful stand that any procedure which allows such a course is plainly unreasonable, arbitrary and oppressive and, therefore, violative of the fundamental right to life and personal liberty.
9. Inevitably, the issue herein revolves centrifugally around Article 21. The cherished and guaranteed right to life and personal liberty stands enshrined in the Constitution in the terms following:
21. Protection of life and personal liberty.-- No person shall be deprived of his life or personal liberty except according to procedure established by law.
It becomes necessary to understand the true scope and import of its brief words as of now at the very threshold.
10. In the dawn of the Constitution, Article 21 came up for consideration in its correlation to Articles 19, 20 and 22 in A.K. Gopalan v. State of Madras (Union of India) . It will appear therefrom that the scope and width of this Article was somewhat narrowly construed by the majority (Fazl Ali, J. dissenting), which gave rise to the theory that the freedoms under Articles 19,21,22 and 31 are exclusive each Article enacting a Code relating to the protection of a distinct fundamental right. However, this view was authoritatively reconsidered by the Full Court in R.C. Cooper v. Union of India (UOI) . Therein, Shah, J., speaking for the majority, exhaustively considered afresh the inter-relation of the various Articles guaranteeing fundamental rights (see paras 48 to 64 of the report), and, in particular the ratio in A.K. Gopalan's case (supra) on the point and concluded as under:
In our judgment, the assumption in A.K. Gopalan's case that certain Articles in the Constitution exclusively deal with specific matters and in determining whether there is infringement of the individual's guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct.
Inevitably, the ratio in R.C. Cooper's case (supra) was followed by the final Court and then reiterated in the landmark case of Maneka Gandhi v. Union of India (UOI) , to hold in no uncertain terms that the procedure established by law in Article 21 was not any and every procedure once enacted, but can only mean a procedure which is not arbitrary, oppressive or unreasonable. Justice Bhagwati, speaking for the majority, had concluded as under with regard to the requirement of Article 21 :
The principle of reasonableness, which legally as well as philosophically is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 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 requirement of Article 21 would not be satisfied.
11. In the wake of Maneka Gandhi's case (supra) Article 21 has now been judicially paraphrased in the following terms by the Constitution Bench in Bachan Singh v. State of Punjab :
If this Article is expanded in accordance with the interpretative principle indicated in Maneka Gandhi, it will read as follows :
No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law.
The aforesaid formulation has then been pointedly reiterated by Chief Justice Chandrachud in Mithu v. State of Punjab .
12. It has been said, and, in my view, rightly, that a Constitution is what the final Court interprets it to be. Although Article 21 has undergone no formal amendment in its language from the date of its original promulgation, yet, undoubtedly, it now stands expanded and enlarged, if not metamorphosed, by the recent judicial interpretation by their Lordships of the Supreme Court. Therefore, it must now be construed as authoritatively formulated in Bachan Singh's case (supra) and reiterated in Mithu's case (supra), and. if authority is needed for what appears to be now plain, it is available in the following words from Mithu's case (supra) :
These decisions have expanded the scope of Article 21 in a significant way and it is now too late in the day to contend that it is for the Legislature to prescribe the procedure and for the Courts to follow it.
Xx xx xx xx xx But these examples serve to illustrate that the last word on the question of justice and fairness does not rest with the Legislature. Just as reasonableness of restrictions Under clauses (2) to (6) of Article 19 is for the Courts to determine, so is it for the Courts to decide whether the procedure prescribed by a law for depriving a person of his life or liberty is fair, just and reasonable.
13. It is thus well settled that the content of the fundamental right to life and liberty now stands expanded and enlarged ever since the Bank Nationalisation case freed it from the shackles of Gopalan's case 1950-51 Cri LJ 1383. A new jurisprudence dawns on the horizon of the old one in the wake of the Constitutional guarantee of life and liberty by the precedential mandate of the final Court, which has virtually re-written Article 21 in more glowing terms. Thereunder, now the procedure established by law has to be necessarily just, fair and reasonable and free from the taints of being fanciful, oppressive or arbitrary.
14. Having noticed the enlarged and expanded concept of Article 21, the question now is as to what is intrinsically envisaged by a fair, just and reasonable procedure in criminal jurisprudence. Would it include within its wide sweep the renowned right to speedy trial? Undoubtedly, an expeditious trial is the very soul and essence of criminal justice and there can be no manner of doubt that notorious delays in such trials would by themselves constitute a denial of justice. It is in recognition of this fundamental principle that the Sixth Amendment to the United States Constitution had long ago provided as follows :
In all criminal prosecutions the accused shall enjoy the right to speedy and public trial.
It is true that in Article 21 this has not been specifically enumerated in terms. Nevertheless, it is now well settled that the identical right is implicit in the broad sweep and content of Article 21. For our purpose it is unnecessary to examine this on principle, because it seems to me as now well settled by binding precedents. In Hussainara Khatoon v. State of Bihar , which was one of the series of cases from this very State arising from the notorious and heart-rending delays in the context of undertrials, Bhagwati, J. had categorically held as follows :
Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonable quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and, by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21." In Hussainara Khatoon v. State of Bihar , it was again reiterated as under :
Speedy trial is, as held by us in our earlier judgment D/- 26th Feb. 1979, an essential ingredient of 'reasonable, fair and just' procedure guaranteed by Article 21 and it is the constitutional obligation of the State to devise such a procedure as would ensure speedy trial to the accused.
Again in T.V. Vatheeswaran v. State of Tamil Nadu , it has been held-
The fiat of Article 21, as explained is that any procedure which deprives a person of his life or liberty must be just, fair and reasonable. Just, fair and reasonable procedure implies a right to free legal services where he cannot avail them. It implies a right to a speedy trial. It implies humane conditions of detention, preventive or punitive. 'Procedure established by law' does not end with the pronouncement of sentence ; it includes the carrying out of sentence. That is as far as we have gone so far.
15. It is unnecessary to further elaborate and labour the point, because it seems manifest that now by precedential mandate the basic human right to speedy trial has been expressly written, as if with pen and ink, into the constitutional right of life and liberty, guaranteed by Article 21.
16. Now, once it is held that the constitutional right to a speedy trial is as much within the sweep of Article 21 as it is by the express terms of the Sixth Amendment of the American Constitution, it seems to follow that the word 'trial' herein is not to be confined to the procrustian bed of only the actual original trial proceeding. As Chinnappa Reddy, J., in T. V. Vatheeswaran's case 1983 Cri LJ 481 (SC) (supra) has pithily observed-
Procedure established by law' does not end with the pronouncement of sentence" alone. It would indeed be no satisfaction to the citizen, if an illusory speedy trial is then hung up in the balance by an inordinately delayed appeal hanging perpetually over his head. In this context, the nature of a criminal appeal under the Criminal P.C. calls for somewhat pointed notice.
17. Under Chapter XXIX, the Code confers a substantive right of appeal in convictions on a capital charge by the Sessions Judge to the High Court. By virtue of Section 378 it also confers a right in the Stale to prefer an appeal against acquittal. Equally well it is to recall that under Chap. XXVIII of the Code, when the court of session passes a sentence of death, then, irrespective of any appeal by the convict, the same must be submitted to the High Court for confirmation of the sentence. By statutory mandate it must be heard by two or more High Court Judges. It is well-settled by precedents that in such a reference, the High Court must itself re-appraise the evidence afresh, examine the whole record and then come to its own conclusion whether the conviction is justified or not. It must also see, if additional evidence is necessary and, even if the Counsel for the convicted appellant does not rely upon the defence evidence, the High Court, nevertheless, should appraise the same. See , Bhupendra Singh v. State of Punjab, and Surjit Singh v. State of Punjab (1969) 1 SCWR 1229. The Code provides in detail the mode of preferring appeals and the manner of their admission and hearing thereafter. It is plain from the above that the Code confers a vested and substantive right of apeal in convictions on capital charges. Equally well-settled it is that such appeals are a re-hearing and reappraisal of the evidence and the appellant is entitled to agitate all questions of fact and law before a court of criminal appeal. It would thus be manifest that the nature of a criminal appeal under the Code- whether against conviction or directed against acquittal is a re-hearing and a continuation of the trial. The appellate court is not merely a court of error and the moment the appeal is preferred, the finality of the judgment of the trial court disappears and the whole issue is in a flux afresh. Therefore, there seems to be no option, but to hold that the word 'trial' in the context of the constitutional guarantee of a speedy trial includes within its sweep a substantive appeal provided by the Code to the High Court - whether against conviction or against acquittal. Thus, it would follow that the constitutional right of speedy trial envisages an equally expeditious conclusion of a substantive appeal and not merely a technical completion of the proceedings in the original court alone.
18. Now, once it is held that substantive appeals against convictions or acquittals are but a continuation of the trials, the core issue before us boils down to whether a trial, which is excrusiatingly extended over a period of nearly 16 years (from the date of the offence), with the brooding horror of hanging haunting the respondents, or, in any case, a threat of imprisonment for the rest of their lives, would be violative of the constitutional guarantee of speedy trial and smacks of a procedure which is fanciful, arbitrary and oppressive. Forthrightly, the answer to this question, to my mind, seems to be plainly in favour of the Accused-respondents.
19. Now a considerable delay in even executing the sentence of death (after the trial and conviction and appeal) has been authoritatively held to be a matter germane to the issue. Such delays in offences involving the death sentence are in a way themselves added punishments, which cannot be wholly lost sight of by the court. The dehumanising and degrading aspects of such a situation cannot be better highlighed than in the poignant words of Lord Scarman and Lord Brightman, in Noel Riley v. Attorney General 1982 Cri LJ 679 :
It is no exaggeration, therefore, to say that the jurisprudence of the civilised world, much of which is derived from common law principles and the prohibition against cruel and unusual punishments in the English Bill of Rights, has recognised and acknowledged that prolonged delay in executing a sentence of death can make the punishment when it conies inhuman and degrading. As the Supreme Court of California commented in Anderson's case 1972-493 P. 2d. 888 (supra), it is cruel and has dehumanishing effects. Sentence of death is one thing : sentence of death followed by lengthy imprisonment prior to execution is another.
It is of course true that a period of anguish and suffering is an inevitable consequence of sentence of death. But a prolongation of it beyond the time necessary for appeal and consideration of reprieve is not. And it is no answer to say that the man will struggle to stay alive. In truth, it is this ineradicable human desire which makes prolongation 'inhuman and degrading'. The anguish of alternating hope and despair, the agony of uncertainty, the consequences of such suffering on the mental, emotional, and physical integrity and health of the individual are vividly described in the evidence of the effect of the delay in the circumstances of these five cases. We need not rehear se the facts which are not in dispute. We do not doubt that the appellants have proved that they have been subjected to acruel and de humanising experience ..... ...... ......Prolonged delay when it arises from factors outside the control of the condemned man can render a decision to carry out the sentence of death an inhuman and degrading punishment. It is, of course, for the applicant for constitutional protection to show that the delay was inordinate, arose from no act of his, and was likely to cause such acute suffering that the infliction of the death penalty would be in the circumstances which had arisen inhuman or degrading. Such a case has been established, in our view, by these appellants.
20. The aforesaid view has now the express stamp of approval by the final court in T.V. Vatheeswaran's case 1983 Cri LJ 481 (SC) (supra) (see para 11 of the report) an equally later, in Sher Singh v. State of Punjab (see Para 13 of the report), Even earlier, way back in AIR 1944FC1 : 1944-45 Cri LJ 413, (PiareDusadh v. Emperor), in the context of a delay of only months in the execution of the death sentence, it was observed by Chief Justice Spens as follows :
We do not doubt that this Court has power, where there has been inordinate delay in executing death sentences in cases which come before it to allow the appeal in so far as the death sentence is concerned and substitute a sentence of transportation for life on account of the time factor alone, however right the death sentence was at the time when it was originally imposed.
In Neti Sreeramulu v. State of Andhra Pradesh a delay of only I year and 5 months betwixt the imposition of the death sentence and its execution was held to be an adequate ground for commuting the same to life imprisonment. To the same term are the observations in Vivian Rodrick v. State of West Bengal , Ediga Anamma v. State of Andhra Pradesh , Bhagwan Bux Singh v. State of Uttar Pradesh and State of Maharashtra v. Manglya Dhayu Kongil . Thus it is precedentially settled that a prolonged shadow of death overcast on the accused persons during the pendency of appellate proceedings is a dehumanising and degrading factor, which is relevant to the issue and indeed germane to the same.
21. In the light of the above, I am firmly inclined to take the view that equally grave inordinate delay in reversing an acquittal on a capital charge, though not identical, is yet akin to the similar delay in the execution of the capital sentence. The brooding horror of hanging haunting the accused person, which has been picturesquely highlighted in the context of the execution of a death sentence is in a way similarly attracted in the case of persons who are facing trial on a capital charge, or, what appears to me as yet more onerous, awaiting a constant threat of reversal of their acquittal therefor. Can it be said that such a horrendous haunting horror hanging over the heads of the respondents, as in the instant case for nearly 16 years, is a factor which can be brushed aside as of no significance and of no consequence at all? I would clearly answer such a question in the negative.
22. A strong note of caution must, however, be sounded in this context. Herein, the matter is not to be and is, in fact, not being considered in any general or abstract dissertation on the reversal of all acquittals. It is being narrowly considered in the specific context of a capital charge, which is punishable with death. It is the incidents of this class of cases to which pointed attnetion is being attracted. We are here concerned with only the narrow group of such heinous offences, which are punishable with death (e.g., murder Under Section 302 of the I.P.C.), and for which the law leaves no choice or option, except to impose either the capital sentence or, in the alternative, an imprisonment for life. In such a situation, the court reversing the acquittal must impose either of the two onerous sentences, of hanging or of imprisonment for life, irrespective of the travail of the accused persons and the shadow of death haunting them for more than a decade and a half. The rigour of law herein cannot be softened by any discretion of the Court, which, in this limited field has been statutorily taken away and circumscribed to the barest minimum.
23. Now the rigour aforesaid has been further heightened by the enactment of Section 433 A of the Code. Even where the court reversing the acquittal exercises the softer option of imprisonment for life this section now provides that such an accused person shall not be released unless he has served at least 14 years of imprisonment. This overrides the power of the State Government Under Section 432 of the Code to any way remit or suspend a sentence of imprisonment for life now, (see , Maru Ram v. Union of India (UOI)). However long the earlier travail of the accused persons may have been (e.g., as in the present case, which is nearly 16 years), once a sentence of imprisonment for life is imposed, he must from that day serve at least 14 years of imprisonment thereafter, and, neither the court, nor the appropriate Government is left with any discretion in the matter. In practical terms, in the event of acquittal, it means the horror of waiting on a capital charge for 16 long years and then undergoing the actuality of imprisonment for 14 years at least, thus pushing the burden to an unbearable limit of 30 years or more and that too in a case where the milder alternative of imprisonment for life is imposed. Where the extreme penalty becomes inevitable, then the long travail of 16 years under impending horror of death is added to the actuality thereof.
24. It then calls for pointed notice now that the final Court has recently settled that the benefit of Section 428 of the Code and the set off of the period of incarceration undergone during the investigation, inquiry or trial would not be available in case of a sentence of imprisonment for life. Section 433-A of the Code and the obligation to serve at least 14 years of imprisonment would thus come into play, irrespective of whatsoever long a period the accused persons may have undergone in custody during the trial or, as in the present case, during the pendency of the appeal. Consequently, the result is that an acquittal, when reversed, on a capital charge, with even the softer option of imprisonment for life, will take no account of the period already undergone as an undertrial prisoner. As in the present case, where the offence took place in 1969, and the trial in the court of session finished only in 1976, the period of detention, if bail were not to be allowed, may well have been 7 years or more. Equally, during the pendency of the appeal, if bail were not to be allowed, or, if an indigent accused may have been unable to furnish the same, he could have well remained in custody from the admission of the appeal in 1976, till today. Yet, as the law now stands, in the event of a reversal of his acquittal, no set off for the period of incarceration undergone in such circumstances, which may extend to years, if not a decade, would be available.
25. Yet again, in this context, one cannot lose sight of the fact that in the eye of law a sentence of imprisonment for life means imprisonment for the rest of the period of the convict's life. There is no right in the accused person to claim a release as such, even after having served the minimum period of 14 years of imprisonment provided Under Section 433-A of the Code. This is so in view of the authoritative pronouncement in Gopal Vinayak Godse's case , which holds the field. Therefore, however long the period spent as an undertrial on a capital charge, with all its horrors of a reversal of the acquittal, the imposition of the sentence of imprisonment for life may imply incarceration long beyond the 14 years, till the discretion to release Under Section 432 of the Code may not come to be exercised.
26. Lastly, it is apt to recall that in T.V. Vatheeswaran's case 1983 Cri LJ 481 (supra), the Supreme Court held in terms that the "fiat of Article 21 implies humane conditions of detention preventive or punitive." Can it possibly be said that these exist at least within our State? Regretfully, the answer has to be in the negative. Barring minuscule exceptions, the prison houses in Bihar State are in a chaotic shambles. There both undertrials and convicts are incarcerated in crumbling structures, sometimes more than a century old, which are unfit for housing human beings. They are crowded beyond numbers, and, not unusually holding ten times the inmates for which they were originally designed, and, wherein there is not even enough space for the prisoners to stretch themselves to sleep at night, (this is being done in turns), without even the most elementary conveniences necessary for a human being. Indeed, it has to be seen to be believed that prison inmates are herded together sometimes worse than animals. Consequently, it was somewhat poignantly contended that many persons would prefer the sentence of actual and instant death to that of imprisonment for life, and a slow death, in such conditions for the rest of the life, or, in any case, for not less than 14 years in such degrading conditions.
27. Now, it is in the backdrop of the aforesaid specific, yet undisputed, conditions that one has to narrowly consider, whether a procedure which allows the imposition of the death sentence or imprisonment for life even after a travail of 16 years of perpertual and brooding horror of death haunting and hanging over the undertrials is just, fair and reasonable procedure, and, whether it suffers from the patent vices of being fanciful, arbitrary and oppressive. The answer, I believe, is plain that it is the latter. If (as was authoritatively said in Noel Riley v. Attorney General 1982 Criminal Law Review 679 (supra)) a sentence of death is one thing, but the sentence of death followed by prolonged imprisonment prior to the execution is another, then, a conviction on a capital charge is one thing, and a reversal of an acquittal on that charge and the imposition of a death sentence or imprisonment for life after a long travail of 16 years is altogether another. It is well to recall that a delay of a few months and even a year and a half has been authoritatively held to be adequate for non-imposition of death sentence upon the waiting convict (though no inflexible time limit can be imposed in view of Sher Singh's case 1983 Cri LJ 803 (SC) (supra)). The prolonged period of somewhat similar travail, in a case of the present kind, is much longer and extends, as in the present one, to nearly 16 years. The intensity of the horror betwixt the infliction of the death sentence and its actual execution may well be matched by the imminent threat of the infliction of such a sentence over a long extended period of a decade and a half. Even when viewed narrowly, if Article 21 now constitutionally guarantees the right to speedy trial, can it be said that a prolonged trial (including the substantive appeal) of 16 years on a capital charge even after an acquittal thereon, is consistent with that right. In my view, it plainly infracts such a right and is thus violative of Article 21 of the Constitution.
28. The harsh and anomalous results of a reversal of an acquittal on a capital charge, after gravely prolonged delay are indeed writ large, though curiously these do not seem to have been highlighted earlier by precedent, apparently, because such situations would be of rare occurrence. It was rightly and forcefully pointed out by learned Counsel on behalf of the respondents that if instead of the acquittal the respondents were to be convicted on the charge in a speedy trial within a year, say by 1970, they would by now have long undergone and completed the sentence imposed, including jail remissions unfettered by the subsequent enactment of Section 433-A of the Code. On the other hand, if the acquittal is now reversed in 1984, nearly 16 years after the commission of the alleged offence, then despite this long travail and the sword of damocles hanging over their heads all this while, they would now be called upon to face the actuality of either death or the minimum period of 14 years of imprisonment.
28A. Even if the milder sentence of imprisonment for life were to be imposed, with the statutory minimum of at least 14 years, this would carry the incarceration of the respondents to the brink of the next Century to 1998, and, complete a hand over of nearly 30 years or more for no other reasons, except that to their misfortune, they stood acquitted of the charge by a judgment of a court of competent jurisdiction. Again, despite the protracted trial and the pendency of the appeal, no set off is now to be given therefore in the execution of the sentence of imprisonment for life, whilst on the other hand, in a case of speedy trial and conviction, any such long drawn out period of under-trial incarceration would be totally obviated. In the present case also, some of the respondents have undergone imprisonment pending the trial. However, the true test of the matter is by carrying it to its logical length. In an abstract situation, where bail were not to be allowed and pending appeal also on a capital charge, either bail is not allowed, or, for the reason of being an indigent, it cannot be furnished, any one of the respondents would by now have remained incarcerated for 16 years. The reversal of the acquittal now would add another statutory period of 14 years of imprisonment to the earlier one even though he may, in fact, have already undergone a longer period, technicaly as an under-trial prisoner, awaiting trial or the result of the appeal. From whichever angle this delay of 16 years is now viewed against the backdrop of the threat of the reversal of the acquittal, it looks all the more horrendous. A procedure, which can allow or sanctify the same, in my view, cannot possibly escape the label of being oppressive and arbitrary. It would run counter to the grist of the criminal jurisprudence and equally to the constitutional guarantee of speedy trial.
29. It must, therefore, be held that such a horrendous deelay, extending beyond a decade and a half in a criminal trial (including a" substantive appeal) on a capital charge, involving the reversal of a double presumption of innocence, would violate the constitutional guarantee of a fair, just and reasonable procedure, and, equally infract the fundamental right to a speedy trial vested in the citizen by Article 21.
30. I have held as above on principle, but, it appears that the issue is virtually res integra within the country and, in any case, no decision directly covering the issue could be brought to our notice. It has, however, to be borne in mind that it is only somewhat recently that the final Court has enlarged and expanded the concept of the protection of life and personal liberty under Article 21, and, by precedential mandate has incorporated the spirit of the Sixth Amendment of the American Constitution with regard to the right of speedy trial implicitly into the same. Once that be so, the American precedent on the constitutional right of speedy trial would be attracted almost directly and in any case by the closest analogy. However, in viewing these judgments, it has to be borne in mind that the procedural aspects of the criminal trials in the United States of America are materially and substantially different from those obtaining in India. The codified law in India in the shape of Criminal P.C. and the specific section to which reference has been earlier made with regard to the substantive right of appeal have obviously no relevance or applicability in that context. Similarly, in the converse, the peculiarities of the American law with regard to the accused's right to specifically claim a trial and the somewhat technical rules of such a demand and express or implicit waiver thereof are not at all attracted to our situation. Thus, though the letter of the Sixth Amendment of the American Constitution may not be there, yet, the very spirit pervading the basic fundamental right of a speedy and public trial is now equally a part of Article 21. This has been authoritatively so held in Hussainara Khatoon's case :
We think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21, as interpreted by this Court in Maneka Gandhi v. Union of India (UOI) Even a delay of one year in the commencement of the trial is bad enough : how much worse could it be when the delay is as long as 3 or 5 or 7 or even 10 years. Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice.
31. In the light of the above, it would inexorably follow that the American decisions on the right to speedy and public trial would now have a direct bearing. In Robert Dean Dickey v. State of Florida (United States Supreme Corut Reports (1970) 26 L. Ed. 2nd 26) Mr. Justice Brennan and Mr. Justice Marshall, in their concurring opinion, observed-
Does the speedy trial guarantee apply to all delays between a defendant's arrest and his sentencing? The view that it does is not without support in the wording of the Sixth Amendment. The Constitution says that an 'accused' is entitled to a speedy trial' in all criminal prosecutions. 'Can it be that one becomes an 'accused' only after he is indicted, or that the Sixth Amendment subdivides 'prosecution' into various stages, granting the right to speedy trial in some and withholding it in others? In related contexts involving other clauses of the Sixth Amendment, we have held that the 'prosecution' of an 'accused' can begin before his indictment ; for example, in Escobedo v. Illinois (1964) 378 US 478,490, 12 L. Ed. 2d. 977,986,84 SCT. 1758, we spoke of the time when 'investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect'. And as regards realization of the purposes of the Speedy Trial Clause, the possibility of harm to interests protected by the clause is certainly great whenever delay occurs after arrest.
In fact, the Court went further to observe that the speedy trial guarnatee even covered a delay prior to the arrest or indictment of the accused in the following words :
Accordingly, some of the interests protected by the Speedy Trial Clause can be threatened by delay prior to arrest or indictment. Thus, it may be that for the purposes of the clause to be fully realized, it must apply to any delay in the criminal process that occurs after the government decides to prosecute and has sufficient evidence for arrest or indictment.
The Court went on further to hold-
The police and prosecutor are not the only governmental officials whose conduct is governed by the Speedy Trial Clause ; it covers that of court personnel as well e.g., Pollard v. United States 1957-352 US 354 (supra). Marshall v. United States (1964) 119 US App DC 83, 337 F 2d 119. And the public officials responsible for delay may not even be associated with law enforcement agencies or the Courts. Delay, for example, may spring from a refusal by other branches of Government to provide these agencies and the judiciary with the resources necessary for speedy trials. See e.g., King v. United States, (1959) 105 US App. DC 193, 195, 265 F 2d. 567, 569.
Then finally, on this aspect it was concluded as follows :
Arguments of some force can be made that the guarantee attaches as soon as the government decides to prosecute and has sufficient evidence for arrest or indictment ; similar arguments exist that an accused does not lose his right to a speedy trial by silence or inaction, that governmental delay that might reasonably have been avoided is unjustifiable, and that prejudice ceases to be an issue in speedy trial cases once the delay has been sufficiently long to raise a probability of substantial prejudice. In so far as these arguments are meritorious, they suggest that the speedy trial guarantee should receive a more hospitable interpretation than it has yet been accorded.
In this very case, on the larger concept of the right to speedy trial, Chief Justice Burger, delivering the opinion of the Court, had earlier observed as follows :
The right to a speedy trial is not a theoretical or abstract right but one rooted in hard reality in the need to have charges promptly exposed. If the case for the prosecution calls on the accused to meet charges rather than rest on the infirmitites of the prosecution's case, as is the defendant's right, the time to meet them is when the case is fresh. Stale claims have never been favoured by the law, and far less so in criminal cases.
Again, later, in Willie Mae Barker v. John W. Wingo : United States Supreme Court Reports (1972) 33 L Ed. 2d. 101, the Court highlighted the fact that the right to a speedy trial was not merely one for the accused, but there was equally a more significant societal interest in upholidng and maintaining the same :
A defendant has no duty to bring himself to trial, the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover, for the reasons earlier expressed, society has a particular interest in bringing swift prosecutions, and society's representatives are the ones who should protect that interest.
It was later concluded as under :
But the rule we announce today, which comports with constitutional principles, places the primary burden on the courts and the prosecutors to assure that cases are brought to trial. We hardly need add that if delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine, the demand rule aside.
32. As to factors to be taken into consideration for gauging the delay, which may infract the guarantee of speedy trial, it was observed in the last lines of para 29 of the report.
We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors. Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.
33. It is unnecessary to multiply the innumerable judgments of the United States Supreme Court on the point, which have now settled beyond cavil that inordinate or prolonged delay in bringing the trial of an accused persons to conclusion would infract the constitutional guarantee incorporated in the Sixth Amendment with regard to the right of a speedy public trial.
34. Now once it is held that the violation of the constitutional guarantee to speedy trial has taken place, what is the result which must necessarily flow therefrom? On principle, it appears to me that the accused in such a case would be entitled to claim their release from the charges levelled against them on the foundational ground that the prolonging of the trial to an inordinate length would constitute a direct violation of Article 21. This question was squarely gone into and though the answer was implicit was not categorically decided with the following observations in Hussainara Khatoon's case :
The question which would however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21. Would he be entitled to be released unconditionally freed from the charge levelled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21? That is a question we shall have to consider when we hear the writ petition on merits on the adjourned date.
However, this question has been authoritatively answered by the Supreme Court of the United States in Clarence Eugene Strunk v. United States : U.S. Supreme Court Reports (1973) 37 L. Ed. 2d. 56, whilst interpreting the ratio in Barker v. Wingo 1972-33 L. Ed. 2d. 101 (supra) in the following terms :
The Government's reliance on Barker to support the remedy fashioned by the Court of Appeals is further undermined when we examine the Court's opinion in that case as a whole. It is true that Barker described dismissal of an indictment for denial of a speedy trial as an 'unsatisfactorily severe remedy'. Indeed, in practice, 'it means that a defendant who may be guilty of a serious crime will go free, without having been tried' (1972) 407 SC 514 at 522,33 L. Ed. 2d. 101. But such severe remedies are not unique in the application of a constitutional standards. In light of the policies which underlie the right to a speedy trial, dismissal must remain, as Barker noted, 'the only possible remedy' Ibid.
35. It thus seems to follow on principle ; on the analogy of the precedents of the final Court referred to above ; and on the categoric declaration of the law by the American Supreme Court ; that once the constitutional guarantee to a speedy trial and the right to a fair, just and reasonable procedure has been violated then the accused is entitled to an unconditional release and the charges levelled against him would fall to the ground.
36. That brings us to the crucial but somewhat sensitive question of reasonably quantifying the delay which would ordinarily infract the fundamental right to a speedy trial. I am not unaware that it is no easy task to precedentially lay down a somewhat inflexible rule about the precise quantum of delay which would entitle the accused for the invocation of the constitutional right. Yet, however, great be the difficulties, this significant duty cannot be shirked. Broad guidelines have inevitably to be laid down so that judicial discretion in the matter may not turn into empirical whimsicality. The need for imposing some limit on the delay in trials was prophetically voiced by the final Court nearly three decades back in Machander v. Hyderabad State . Therein even in the context of delay of a little more than four years betwixt the conviction and the matter coming up finally before the Supreme Court it was observed as follows :
We are not prepared to keep persons who are on trial for their lives under indefinite suspense because trial Judges omit to do their duty. Justice is not one-sided. It has many facets and we have to draw a nicee balance between conflicting rights and dutes. While it is incumbent on us to see that the guilty do not escape it is even more necessary to see that persons accused of crime are not indefinitely harassed. They must be given a fair and impartial trial and while every reasonable latitude must be given to those concerned with the detections of crime and entrusted with the administration of justice, limits must be placed on the lengths to which they may go Perhaps after a passage of thirty years from the aforequoted enunciation, when the criminal judicial process at the national level and in any case in our State has got begged down in heart-rending delays, the stage is set for imposing same kind of a judicial limit on its quantum which can be lawfully countenanced. Otherwise what was said somewhat light-heartedly in State of Rajasthan v. Sukhpal Singh AIR 1984 SC 207 : 1983 Cri LJ 1923. (The judgment of the High Court is already a decade old. We are beholden that we are not yet faced with cases in their Silver Jubilee Year") may come to be tragically true. Indeed, it has in fact in exceptional cases nearly come to be so in the State of Bihar as is pointedly evidence by (Rudul Sah v. State of Bihar).
37. Again in a case from our State (State of Bihar v. Uma Shankar Kotriwal) their Lordships upheld the quashing of the trial altogether by this Court for reasons of grave and inordinate delay of 16 years even on a relatively minor charge Under Section 7 of the Essential Commodities Act with the following observation :
We have heard him at length and although there is much to be said against the impugned order in so far as the finding about the police report is concerned, we cannot lose sight of the fact that the trial has not made much headway even though no less than 20 years have gone by. Such protraction itself means considerable harassment to the accused not only monetarily but also by way of constant attention too the case and repeated appearances in court, apart from anxiety. It may well be that the respondents themselves were responsible in a large measure for the slow pace of the case inasmuch as quite a few orders made by the trial Magistrate were challenged in higher courts, but then there has to be a limit to the period for which criminal litigation is allowed to go on at the trial stage.
38. However, the true recognition and the necessity of imposing precedentially a limit on grave and inordinate delays was authoritatively expounded in Vatheeswaran's case 1983 Cri LJ 481 (SC) (supra) where O. Chinnappa Reddy, J., speaking for the Bench, held that the delay of two years, whatever may be the reasons, betwixt the imposition and the execution of a capital sentence was more than enough. It was observed as follows :
What may be considered prolonged delay so as to attract the constitutional protection of Article 21 against the execution of a sentence of death is a ticklish question. In Ediga Anamma's case two years were considered sufficient to justify interference with the sentence of death. In Bhagwan Bux's case two and a half years and in Sadhu Singh's case , three and a half years were taken as sufficient to justify altering the sentence of death into one of imprisonment for life. The Criminal P.C. provides that a sentence of death imposed by a Court of Session must be confirmed by the High Court. The practice, to our knowledge, has always been to give top priority to the hearing of such cases by the High Courts. So also in this Court. There are provisions in the Constitution (Articles 72 and 151) which invest the President and the Governor with power to suspend, remit or commute a sentence of death. Making all reasonable allowance for the time necessary for appeal and consideration of reprieve, we think that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death.
39. In the light of the abovesaid observations, it becomes pointedly necessary to notice the subsequent decision of the larger Bench in Sher Singh 0 State of Punjab . On behalf of the respondent State it was sought to be argued that the later judgment had overruled Vatheeswaran's case 1983 Cri LJ 481 (SC) (supra) in its entirety. In my view, that is not so and the submission stems from some misapprehension of the ratio in Sher Singh's case. A close perusal of that judgment would indeed indicate that their Lordships in a very large measure agreed with the view in Vatheeswaran's case and differed it on the very narrow point of the quantum of the limit imposed and the causes for the same. In terms it was observed as follows :
What we have said above delineates the broad area of agreement between ourselves and our learned Brethren who decided Vatheeswaran . We must now indicate with precision the narrow area wherein we feel constrained to differ from them and the reasons why.
The specific three reasons for not accepting the two years formula were :
(i) that it ran against the teeth of common experience regarding the time generally occupied by the litigative process and the proceedings before the executive ;
(ii) that the Court must find why the delay was caused and who is responsible for it and that the accused has not resorted to a series of untenable proceedings for delaying or defeating the ends of justice ;
(iii) The nature and the gravity of the crime must be taken into account.
40. With these qualifications or limitations, the basic rule of placing a limit on delays in Vatheeswaran's case 1983 Cri LJ 481 (SC) stands affirmed.
41. It would appear that the qualifications laid down in Sher Singh's case 1983 Cri LJ 803 (SC) (supra) are in line with the American law and the precedents quoted above. These are rested on the larger principle that any person including an accused cannot take advantage of his own wrong, therefore, where the delay in defeating a speedy trial has been occasioned by the absconding of the accused or by other obstructive and delaying tactics adopted by him by resorting to a series of untenable proceedings, these factors would necessarily have to be noticed for determining the issue of the denial of the constitutional right.
42. It is instructive to refer by way of analogy to the quantum of delay which has been held sufficient to defeat the constitutional right of a speedy trial in the analogous American Jurisprudence. In Dickey v. Florida 1970-26 L. Ed. 2d. 26 (supra) the delay was around 7 years on a charge of armed robbery. In Barker v. Wingo 1972-33 L Ed. 2d. 101 (supra) even on a murder charge a delay of 5 years to bring the accused to trial was held sufficient to entitle him to the relief for the violation of his constitutional right. In Strunk v. United States 1973-37 L Ed. 2d. 56 (supra) apparently on a minor charge even a delay of a little more than 10 months in the circumstances was held to he a violation of the constitutional guarantee of a speedy trial for which the only appropriate relief was found to be vacation of the sentence and the dismissal of the indictment.
43. It remains to consider a passing observation in para 19 of the report in State of Uttar Pradesh v. Hari Ram on which some tenuous reliance was sought to be placed on behalf of the respondent State. It is manifest that the point before us was not even remotely raised before their Lordships, far from the same being adjudicated upon. There is not even the barest reference to the constitutional guarantee of a speedy trial now read into Article 21. It is well settled ever since the clasic dictum of Earl of Halsbury LC in Quinn v. Leathern 1901 AC 495, which has been approved and followed in State of Orissa v. Sudhansu Sekhar Misra , that what is of the essence in a decision is its ratio and not every observation found therein. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it. This apart, the point of distinction has also to be noticed with regard to cases where the original trial results in a conviction as in Hari Ram's case (supra). These are cases where the original presumption of innocence stands repelled on the accused being found guilty and convicted. The subsequent acquittal by the High Court and its later reversal by the final court to my mind are somewhat on a different footing. Herein we are concerned with the cases where the original trial has resulted in an acquittal thus reinforcing and doubling the presumption of innocence. The statutory appeal against the same is only a continuation of the trial and a reversal thereof after a callous inordinate delays brings sharply into focuss the constitutional right to a speedy trial and the dehumanising aspects thereof when the charge is a capital one with the threat of death brooding over the accused person. Therefore, in my view, the case of Hari Ram (supra) is plainly not attracted and, in any case, is distinguishable.
44. Before parting with this judgment, even at the risk of some repetition, it seems necessary to point out, for clarity of precedent, that the aforesaid discussion must not be viewed as any general dissertation on the reversal of any and every acquittal. It is patently in the context of a capital charge for which the Legislature provides either the sentence of death or of life imprisonment only in the alternative. It is only against the backdrop of a challenge to or reversal of a clean acquittal on a capital charge, (i.e., not merely a State it appeal against acquittal on a major charge), which involves the onerous setting aside of a double presumption of innocence, which runs like a golden thread throughout the web of our criminal jurisprudence. As elaborated earlier, it is in the mosaic of statutory appeals provided against acquittal which renders the proceeding nothing but a continuation or prolongation of a trial on a charge of an offence punishable with death. What has been said in the earlier part of this judgment is confined to the parameters of the aforesaid conditions. Equally, in the context of time limit which may be imposed, the same must operate within the qualifications laid down by the final Court in Sher Singh's case 1983 Cri LJ 803 (SC) (supra). The delay must not be occasioned due to the absconding or the default of the accused, nor must it run against the reasonable norm of time generally occupied in the litigative process and also must take note of the nature and the gravity of the crime.
45. In the light of the above, I am firmly inclined to the view that of callous and inordinately prolonged delay of 10 years or more, which, in no way arises from the accused's default (or is otherwise not occasioned due to any extraordinary and exceptional reasons), in the context of the reversal of a clean acquittal on a capital charge, would plainly violate the constitutional guarantee of a speedy trial under Article 21. Any procedure or practice which allows such horrendous delays cannot but be labelled as oppressive, arbitrary and fanciful. Indeed I am somewhat hesitant in spelling out the aforesaid time limit, which perhaps errs on the side of strictitude. However, considering the fact that herein one seems to be breaking new ground, I would wish to rest content with the same. The answer to the question posed at the very outset is rendered in the affirmative.
46. Now, applying the above, it is common ground that the occurrence took place as far back as 11-4-1969, and the lis has entered in its16th year. The respondents were arrested soon thereafter and following varying periods of confinement, were granted bail. They bore the harrowing ordeal of the prolonged investigation and trial, culminating in their acquittal more than 7 years later, on 31-7-1976. Thereafter, they have been under the cloud of a challenge to their acquittal for nearly 8 years. It is not, even remotely, anybody's case that the delay in the trial or in the hearing of the appeal can at all, even for a moment, be laid at the door of the respondents. There has been no absconding or any other obstructive tactics of the accused persons, which can at all be pointed out, far from being established. In the context of the capital crimes, the offence was a commonplace one originating from a petty altercation betwixt school boys and resulting in a transaction of mutual assault in which injuries were suffered on either side, some of which proved fatal. It is manifest that the case of the respondents comes squarely within the rule enunciated above. Their constitutional right to speedy trial by a fair, just and reasonable procedure now guaranteed by Article21 of the Constitution stands plainly violated. As noticed earlier, the only relief to which they are entitled in such circumtances is that the charges levelled against them must fall to the ground and their acquittal must be maintained. The Government Appeal, therefore, must fail on this score alone.
47. To be fair to the respondents, we must equally notice that even on a factual appraisal of the case, we find not the least modicum of merit in the said appeal challenging the findings of the trial Court. As noticed in Para 5 of the judgment earlier, the trial court relied on six basic circumstances for rejecting the prosecution case. Not the least meaningful challenge could be raised on behalf of the appellant State to the said findings. Even on an independent appraisal we find no option but to affirm the judgment of the trial Court.
48. The Government Appeal consequently fails and is hereby dismissed.
Shamsul Hasan, J.
49. I am entirely in agreement with the reasonings and the conclusions of my Lord the Chief Justice. In my view, the appellant State is entirely responsible for coming into existence of the situation by which speedy disposal of criminal trials and the consequential appeals could not be achieved. Had the necessary infrastructure been provided compatible with the expansion and increase in the number of courts and prosectuions and commensurate with alround expansion in the State, the state of affairs so clearly delineated by Hon'ble the Chief Justice, leading even to the erosion of the requirements of Article 21 of the Constitution of India would not have come into existence. If this state of affairs is allowed to continue. I am afraid, the process of the rule of law will come to a grinding halt.