Patna High Court
Surya Narain Singh And Ors. Etc. Etc. vs State Of Bihar on 2 March, 1987
Equivalent citations: AIR1987PAT219, AIR 1987 PATNA 219, (1987) 2 CRILC 280, (1987) EASTCRIC 298, 1987 BLJR 555, (1987) PAT LJR 394
JUDGMENT S.S. Sandhawalia, C.J.
1. Is capital crime punishable with death, a class apart by itself, and thus beyond the majestic sweep of the constitutional right to speedy public trial under Article 21 of the Constitution ? Can a broad lime frame for the original trials of capital offences be indicatively spell out by precedent ? Does the principle and ratio of Madheshwardhari Singh v. State of Bihar, AIR 1986 Pat 324 : (1986 Cri LJ 1771) (FB) extend to capital crimes as well? These indeed are the significant issues which have yet again necessitated this reference to the Full Bench in these five connected criminal writ jurisdiction cases.
2. In Madheshwardhari Singh's case (supra) as a prologue thereto it was said :
"This judgment isnowa part of the (rilogy, beginning with the Division Bench case of the State of Bihar v. Ram Daras Ahir, 1985 Cri LJ 584 : 1984 BBCJ (HO 749, and expanded in the subsequent Full Bench decision in Stale of Bihar v. Maksudan Singh, AIR 1986 Pat 38 : (1985 Cri LJ 1782). It is, perhaps, illustrative of the poet's hope of 'freedom slowly broadening down from precedent to precedent'."
This judgment becomes another integral pan in the series of the said trilogy and hopefully may prove as the epilogue in this context.
3. The terra firma for the factual matrix giving rise to the issues aforesaid may be noticed briefly from Rameshwar Prasad Singh v. State of Bihar, (Criminal Writ Jurisdiction Case No. 192 of 1986). Nearly thirteen years and nine months ago on 9th April, 1973, a case under Sections 148, 149, 452, 382/307 and 34, Penal Code, and other offences under the Indian Arms Act was registered against the petitioners ai Maharajganj Police Station. Subsequently the victim of the crime, Nand Kumar Singh, succumbed to his injuries and the charge under Section 307 was converted to one of murder under Section 302, Penal Code, as well. The petitioners soon after the incident were either arrested or surrendered to police custody and after investigation the, charge-sheet was submitted on the 25th of May. 1974 and the case was committed to the Court of Session on the 15th of July, 1974. Thereafter it would seem that the trial of the petitioners was stalled entirely by the default of the prosecution and, perhaps, because of its tardy pace some of the petitioners were granted bail after having suffered incarceration for more than two years. It was not till seven years after the occurrence that the case was then transferred to the Court of the Third Additional Sessions Judge, Siwan, on 3rd June, 1980 and more than two years later on 30th Sept., 1982 charges under Sections 302 and 396, Penal Code, were framed against the petitioners. The examination of witnesses commenced before the then Additional Sessions Judge, Shri B.D. Jha on 15th Oct., 1982, but on his transfer on the 11th of August, 1983 the case was transferred to the Court of the Fourth Additional Sessions Judge, Shri Ram Avtar Singh. It is not in dispute that before him over a period of two years the prosecution chose to produce only four witnesss. Thereafter it sought and secured as many as 90 adjournments for the production of other prosecution witnesses including that of the Investigating Officer. A forceful grievance has been made that because of the non-production of the Investigating Officer and the inordinate delay and adjournments secured by the prosecution the petitioners were throughout gravely prejudiced in their defence by the absence of the Senior Advocate engaged by them who inevitably could not remain present for nearly a hundred adjournments granted therefor. It was not till 7th Feb., 1985 that the Investigating Officer was examined and because of the absence of Senior Counsel a prayer had to be made that his cross-examination be deferred. However, this request was rejected by the learned Additional Sessions Judge.
4. Inevitably the petitioners for the first time were compelled to take resort to the High Court by way of Criminal Misc. No. 1574 of 1985 on 21st Feb., 1985 which was allowed with expedition on the 21st of March, 1985 and the Additional Sessions Judge was directed to recall the Investigating Officer for cross-examination. Thereafter the prosecution again relapsed into its tardy pace and sought and secured as many as 24 adjournments for producing the Investigating Officer but till now he has not been produced. The petitioners then moved the trial Court seeking a closure of the proceedings on the ground of inordinate delay but no relief was granted. Averments have been made about the unbearable financial strain imposed upon the petitioners, the mental agony of the petitioners in a trial extending over nearly 14 years has been highlighted, and the grave prejudice that has already been caused to the defence and the damage to the proof of their alibi and other allied matters have then been recounted. As yet the trial continues to hang as the proverbial sword of Democles upon the head of the petitioners and seeing no end to the travail the present writ petition has invoked Article 21 against the infraction of the constitutional right to a speedy public trial.
5. Learned counsel for the petitioners' basic reliance herein was on the ratio and rationale of the duo of Full Benches in State of Bihar v. Maksudan Singh, AIR 1986 Pat, 38 : (1985 Cri LJ 38) and Madheshwardhari Singh's case (AIR 1986 Pat 324) (supra). Placing particular reliance on the concluding Para 53 of the latter judgment it was contended that in fact it has already been held that the fundamental right to a speedy public trial extends to all criminal prosecutions for all offences generically irrespective of their nature and including capital crime.
6. Herein one cannot but notice with considerable gratification that there appears to be a change of heart on the part of the respondent-State in this context over the last two years. Earlier in State of Bihar v. Ram Daras Ahar, 1985 Cri LJ 584 a dogmatic stand was sought to be taken by the State that under Article 21 there was no constitutional right to a speedy trial at all, far from the same being applicable to capital crime. However, Mr. J.N.P. Sinha, the learned Government Advocate, now frankly took the stand that the constitutional right to speedy trial is too well established by binding precedent and that it would equally extend to all crimes including those punishable with death. Indeed, he evinced the anxiety of the State itself to expedite as far as possible the murder trials but pleaded only the peculiar limitations within the State to achieve that ideal.
7. Having noticed the State's fair stand herein I may straightway point out that on issues of such significance I am not basing myself at all on any concession as such. Indeed it appears to me that both on principle and on precedent there now remains little manner of doubt that the cloak of constitutional protection under Article 21 pertaining to speedy trials herein extends to capital crimes equally. Perhaps, as a matter of academics, it may be noticed that the concept of speedy trial is not entirely rooted in western legal thought. Our attention was drawn to page 544 of the Legal and Constitutional History of India by M. Rama Jois, Vol. I, 1984 edition, wherein the following dictum of Katyan has been noticed :
"(i) The king should not delay in examining the witnesses. A serious defect, namely, miscarriage of justice, would result owing to delay in examination of witnesses.
(ii) The king should himself examine the witnesses that are present (in Court) and should consider along with the members of the Court the statement made by them."
The seed of the idea of speedy trial is thus hoary in its origin and springs in all civilised climes. But this is a matter for academicians and it suffices our purpose to notice that in i its modern and present aspect the genealogy of the rule can firmly be drawn as far back as the Magna Carta of King John and later concretised in the Sixth Amendment of the American Constitution. This can, perhaps, be best delineated in the words of Chief Justice Warren, delivering the opinion of the United States Supreme Court in Peter H. Klopfer v. State of North Carolina, (1967) 18 Law Ed 2d 1 : 386 US 213:
"We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its root at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta (1215), wherein it was written, 'We will sell to no man, we will not deny or defer to any man either justice or right,' but evidence of recognition of the right to speedy justice in even earlier times is found in the Assiize of Clarendon (1166). By the late thirteenth century, justices, armed with commissions of gaol delivery and/or oyer and terminer were visiting the countryside three times a year.
XX XX X 'In all capital or criminal prosecutions', the Virginia Declaration of Rights of 1776 provided, 'a man hath a right.... to a speedy trial.....' That this right was considered fundamental at this early period in our history is evidenced by its guarantee in the Constitutions of several of the States of the new nation, as well as by its prominent position in the Sixth Amendment. Today, each of the 50 States guarantees the right to a speedy trial to its citizens.
The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our Constitution."
8. As was said earlier in great detail in Maksudan Singh's (AIR 1986 Pat 38) (FB) and Madheshwardhari Singh's cases (AIR 1986 Pat 324) (FB) (supra), herein basically we draw our inspiration from the Sixth Amendment of the American Constitution and equally the reasoning and rationale of precedent thereunder in that country. It is, therefore, apt to hearken back to the fact that in the application of the speedy trial rule in America without exception it has been extended to capital crimes as well. No finical distinction has been drawn in American jurisprudence betwixt the applicability of the right of speedy public trial to capital crimes and the minor ones. Unhesitatingly it has been there extended to all offences and in particular to the more serious ones. It seems unnecessary to elaborate the matter but reference in this context may be made to Barker v. Wingo, (1972) 407 US 514, which expressly was the case of a murder trial. Equally there is the long line of unbroken precedent of the United States Supreme Court in Beavers v. Haubert, (1905) 198 US 77 : 49 Law Ed 950 : 25 S Ct 573; Pollard v. United States, (1957) 352 US 354 : 1 Law Ed 2d 393 : 77 S Ct 481; United States v. Ewell, (1966) 383 US 116 : 15 Law Ed 2d 627 : 86 S Ct 773; United States v. Marion, (1971) 404 US 307 : 30 Law Ed 2d 468 : 92 S Ct 455; United States v. Provoo, 17 FRD 183 (D Md), affd, (1955) 350 US 857 : 100 Law Ed 761 : 76 S Ct 101; Smith v. Hooey, (1969) 393 US 374 : 21 Law Ed 2d 607 : 89 S Ct 575 and Dickey v. Florida, (1970) 398 US 30 : 26 Law Ed 2d 26 : 90 S Ct 1564. Equally so is the precedent of the Supreme Courts of the federating States wherein the right has always been extended and applied to capital offences as well. There seems thus little manner of doubt that in the country of its origin the constitutional right of speedy trial has always been extended to serious and capital offences equally.
9. It is then refreshing to notice that the principle of speedy trial has recently been authoritatively extended by the Privy Council to the Commonwealth countries as well in 1985 in Bell v. Director of Public Prosecutions of Jamaica, (1985) 2 All ER 585. That was a case from Jamaica and the relevant provision of law was in the following terms :
"Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, he afforded a fair hearing within a reasonable time by an independent and impartial Court established by law.........."
However, dehors the aforesaid provision the Privy Council observed as under on general principles as well :
"Their Lordships do not in any event accept the submission that prior to the Constitution the law of Jamaica, applying the common law of England, was powerless to provide a remedy against unreasonable delay, nor do they accept the alternative submission that a remedy could only be granted if the accused proved some specific prejudice, such as the supervening death of a witness. Their Lordships consider that, in a proper case without positive proof of prejudice, the Courts of Jamaica would and could have insisted on setting a date for trial and then, if necessary, dismissing the charges for want of prosecution. Again, in a proper case, the Court could treat the renewal of charges after the lapse of a reasonable time as an abuse of the process of the Court......"
And again whilst affirming the principles enunciated in Barker v. Wingo, (1972-407 US 514) (supra) it was observed as follows :
"Their Lordships acknowledge the relevance and importance of the four factors lucidly expanded and comprehensively discussed in Barker v. Wingo. Their Lordships also acknowledge the desirability of applying the same or similar criteria to any constitution, written or unwritten, which protects an accused from oppression by delay in criminal proceedings. The weight to be attached to each factor must however vary from jurisdiction to jurisdiction and from case to case."
It is manifest from the above that the principle of speedy public trial has found equal acceptance in the British Commonwealth jurisdiction as well.
10. In the light of the above, it seems somewhat unnecessary to launch on a fresh dissertation on principle because it appears to me that within this jurisdiction the issue herein stands concluded by the trilogy in State of Bihar v. Ram Daras Ahir, 1985 Cri LJ 584; State of Bihar v. Maksudan Singh, AIR 1986 Pal 38 : (1985 Cri LJ 1782) (FB) and Madheshwardhari Singh v. State of Bihar, AIR 1986 Pat 324 : (1986 Cri LJ 1771) (FB). Indeed the petitioners herein are even on a stronger footing. The concept of the constitutional right of speedy trials was initially elaborated in Ram Daras Ahir in the context of capital crimes punishable with death. The reconsideration of the matter by the Full Bench in Maksudan Singh's case (supra) was again rooted in murder trials and the reversal of acquittals (herein. There is thus little manner of doubt that both the Division Bench and the Full Bench had unreservedly extended, and applied the rule to capital offences and indeed had considered it in that context alone. The later Full Bench in Madheshwardhari Singh's case had raised the issue in reverse, namely, whether the principle could be extended to minor offences also or was it to be confined to serious and capital crimes alone. To this question an unswerving answer was made in Para 53 in the following terms :
"(i) That both on principle and precedent the fundamental right toa speedy public trial extends to all criminal prosecutions for all offences generically, irrespective of their nature. It is not confined or constricted to either serious or capital offences only,
(ii) That the right to a speedy public triads applicable not only to actual proceedings in Court but includes within its sweep the preceding police investigation in a criminal prosecution as well."
Within this jurisdiction there thus appears to be no option but to conclude that even earlier precedent in the aforesaid three cases has virtually concluded the matter by holding that the constitutional right of a speedy trial extends to and is applicable to capital offences punishable with death as well.
11. It is refreshing to notice the latest reiteration of the rule from our own State itself in Raghubir Singh v. State of Bihar, (1986) 4 SCC 481 : (AIR 1987 SC 149) wherein O. Chinnappa Reddy, J., speaking for the Court observed :
"The constitutional position is now well settled that the right to aspeedy trial is one of the dimensions of the fundamental right to life and liberty guaranteed by Article 21 of the Constitution, vide Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360 : (1979 Cri LJ 1036), (Per Bhagwati and Koshal, JJ.), Kadra Pehadiya v. State of Bihar, AIR 1981 SC 939 : (1981 Cri LJ 481) (Per Bhagwati and Sen, JJ.), Kadra Pahadiya v. State of Bihar, AIR 1982 SC 1167 (Per Bhagwati and Eradi, JJ.) and State of Maharashtra v. Champalal Punjaji Shah, (1981) 3 SCC 610 : (AIR 1981 SC 1675) (Per Chinnappa Reddy, Sen and Baharul Islam; JJ.). In foreign jurisdiction also, where the right to a fair trial within a reasonable time is a constitutionally protected right, the infringement of that right has been held in appropriate cases sufficient to quash a conviction or to stop further proceedings : Strunk v. United States, (1973) 37 Law Ed 2d 56 and Barker v. Wingo, (1972) 407 US 514 : 33 Law Ed 2d 101 two cases decided by the United States Supreme Court and Bell v. Director of Public Prosecutions, Jamaica, (1985) 2 All ER 585, a case from Jamaica decided by the Privy Council. Several questions arise for consideration. Was there delay? How long was the delay ?....."
Equally instructive it is to recall that in Sunil Batra v. Delhi Administration, AIR 1978 SC 1675 : (1978 Cri LJ 1741) their Lordships have held on principle that even a person sentenced to death does not lose the protection of Article 21 whilst in jail custody. Now if that be so, the scope of Article 21 does not stop at the prison gates and it seems to follow somewhat logically that the umbrella of the speedy trial rule which is an integral part of Article 21, is equally available to the accused during investigation, trial and even the post-trial field of capital offences punishable/with death.
12. To conclude on this aspect it must be held on principle and consistent precedent that capital crime punishable with death is well within the majestic sweep of the constitutional right to speedy public trial under Article 21 of our Constitution.
13. Coming now to the subsidiary but otherwise more concrete and meaningful issue of a time frame for the original trial of capital offences, one must confess at the outset that the issue is not free from difficulty and indeed presents a somewhat virgin legal soil. On behalf of the State Mr. Madhup made an impassioned plea that even though the rule of speedy trial extends to capital offences, yet the fixing of any time frame, however broad, would still be not impermissible. He highlighted that capital crime was in a class apart by itself and is the symbol of the ultimate societal disapproval which sanctifies even the taking of the life of the offender. Therefore, it was submitted that the social conscience and legal principle in such cases would not be satisfied by a failure of the prosecution for reasons of unwarranted delay alone. On the other hand, learned counsel for the petitioners, with equal vehemence had contended that no rational principle can exclude capital crime from a broad time frame for original trials therefor and indeed it was argued that this is more so where the spectre of death hangs over the head of the accused person. An equally passionate claim was thus raised on behalf of the petitioners to bring the trial of offences punishable with death within the parameters of a reasonable time.
14. Weighty though the considerations be on either side, I am firmly inclined to the view that the requirement of a broad time frame herein is not only necessary on principle but within this jurisdiction is now well settled by precedent as well. Indeed in the total absence thereof, the constitutional right to a speedy trial can become an airy nothing and a mere twinkling star to which deep lip service and homage may be paid but no concrete benefit or result would accrue therefrom. Without aguideline and a rule of presumptive prejudice, after a specific period the golden principle would well be lost in a welter of detail and the individual peculiarities of each case. Having affirmed the principle it seems to me somewhat, unnecessary to tread afresh the beaten path of the desirability of a time frame both in capital and other offences which has now been considered and reconsidered in the trilogy of cases referred to earlier. It, therefore, suffices that at first in Ram Daras Ahir's case (1985 Cri LJ 584) (Pat) (supra) it was considered and concluded as under :
"..........I am firmly inclined to the view that a 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.........."
The issue was exhaustively reconsidered by the Full Bench in Maksudan Singh's case (AIR 1986 Pat 38) (supra) and the majority view in reaffirming Ram Daras Ahir held in terms as follows :
"In the light of the aforesaid discussion, it must, therefore, be held that inordinately prolonged and callous delay of ten years or more occasioned entirely by the prosecutions default, in the context of reversal of clean acquittal on a capital charge, would be per se prejudicial to the accused."
As would be manifest from the above, in the aforesaid two cases the question of the tune frame was considered in the somewhat narrow field of a reversal of an acquittal on a capital charge. However, its logical extension to original trials in the context of cases other than capital ones took place in Madheshwardhari Singh's case (AIR 1986 Pat 324) (FB). Therein it was said in words which bear repetition as under :
'That brings us to the last but not the least of the significant issues, namely, whether an outer limit to concretise the right to speedy trial is envisioned by principle or precedent. Much ado was indeed raised on behalf of the respondent State that laying down any time limit, even an outside one, in this context would be tantamount to legislation hi the thin guise of interpretation. I am unable to agree. Unless the fundamental right to speedy trial is to be whittled down into a mere pious wish, its enforceability in Court must at least be indicated by an outer limit to which an investigation and the trial in a criminal prosecution may ordinarily extend. Holding otherwise 'would, to my mind, be merely paying lip service to a precious right whilst denuding it of the benefits of its actual enforceability. As concretely in the present case, the investigation and trial have already extended to over nearly 20 years and the end is not yet in sight. To still say that even in such a fact situation no time-limit can be suggested appears to me as doctrinaire, and an attitude remote from reality. Perhaps our State of Bihar is symptomatic of the heartrending delays in investigations and trials and the consequential failure of justice occasioned thereby. It is here that even trials on capital charges may drag on and on whilst an indigent accused unable to furnish bail may suffer imprisonment more than the maximum prescribed by law. It is here that investigations sometimes drag on in the dossiers of the police, which may well be called archives and not police records, because cases have languished without any charge-sheet or final report for decades on. It is, therefore, perhaps symbolic that it should be here as well that remedies have to be fashioned to give teeth and a meaning to the right of speedy public trial now enshrined in Article 21 of our Constitution. It is here more than elsewhere that it should be ensured that the meaningful words of the Constitution are not rendered an idle mockery whilst men sit and hear such other groan in sub-human conditions which are called our jails."
Placing reliance on Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360 : (1979 Cri LJ 1036), State of Bihar v. Uma Shankar Kotriwal, AIR 1981 SC 641 : (1981 Cri LJ 159) and with particularity S. Guin v. Grindlays Bank Ltd., AIR 1986 SC 289 : (1986 Cri LJ 255) it was concluded as under :
'That an outer limit to concretise the right to speedy public trial is envisioned both by principle and precedent. A callous and inordinately prolonged delay of seven years or more (which does not arise from the default of the accused or is otherwise not occasioned by any extraordinary or exceptional reason) in investigation and original trial for offences other than capital ones would plainly violate the constitutional guarantee of a speedy public trial under Article 21."
15. Though the aforesaid three cases deal in great depth with the issue, it seems somewhat gratifying to note that on larger principle the seal of approval has been set thereon by the final Court recently in Sheela Barse v. Union of India, AIR 1986 SC 1773 : (1986 Cri LJ 1736). Therein not a single but a double time frame has been rightly laid for the trial of juvenile offenders with regard to cases and offences already pending and those which would be committed or registered thereafter in future. It has been mandatorily prescribed as follows ;
"..........So far as a child accused of an offence punishable with imprisonment of not more than 7 years is concerned, we would regard a period of 3 months from the date of filing of the complaint or lodging of the First Information Report as the maximum time permissible for investigation and a period of 6 months from the filing of the charge-sheet as a reasonable period within which the trial of the child must be completed. If that is not done, the prosecution against the child would be liable to be quashed. We would direct every State Government to give effect to this principle or norm laid down by us in so far as any future cases are concerned, but so far as concerns pending cases relating to offences punishable with imprisonment of not more than 7 years, we would direct every State Government to complete the investigation within a period of 3 months frpm today if the investigation has not already resulted in filing of charge-sheet and if a charge-sheet has been filed, the trial shall be completed within a period of 6 months from today and if it is not, the prosecution shall be quashed."
That their Lordships were not confining the principle to only juvenile offences is further manifest from the following observations in Sheela Barse's case (AIR 1986 SC 1773) (supra) :
"......The problem of arrears of criminal cases in the Court of Magistrates and Additional Sessions Judges has assumed rather disturbing proportions and it is a matter of grave urgency to which no State Government can afford to be oblivious. But, here, we are not concerned with the question of speedy trial for an accused who is not a child below the age of 16 years. That is a question which may have to be considered in some other case where this Court may be called upon to examine as to what is reasonable length of time for a trial beyond which the Court would regard the right to speedy trial as violated....."
In view of the above all discordant voices that the laying down of any time limit even an outside one for the conclusion of original trials is impermissible by precedent and would be tantamount to legislation, now stands authoritatively silenced by the final Court in Sheela Barse's case aforesaid by virtue of Article 141 of the Constitution.
16. However, before parting with this aspect, one must notice the somewhat ingenious submission of Mr. Madhup which he sought to rest on Sheela Barse's case itself. It was contended that therein their Lordships had themselves left the matter entirely open with regard to children and juvenile offenders charged with serious offences punishable above seven years. It was submitted that though expressly a time frame had been laid out for relatively minor offences punishable up to seven years, none was thought fit to be prescribed for more serious crime and in particular for capital crime committed by juvenile offenders.
17. Though Mr. Madhup may be complimented for his ingenuity, it appears to me that the stand taken by him is wholly untenable- It seems impermissible and unwarranted to read Sheela Barse's case (AIR 1986 SC 1773) as a refusal to lay down a time frame for the trial of offences beyond seven years. Indeed, a close reading of the judgment would disclose that their Lordships were not dealing with any particular offender for any particular offence at all. They were dealing with the public interest litigation in a writ petition under Article 32 of the Constitution seeking the release of children below the age of 16 years detained in any jail within different States and the provision of legal aid to them The relief was being sought with regard to the cases of minor juvenile offenders triable by the Magistracy in juvenile Courts. The hallowed rule is that on the larger constitutional issues precedent must be confined to the question directly in issue. This prevented their Lordships from pronouncing with regard to the more serious or capital offences committed by juveniles, which were not before them. Indeed, that very principle had expressly been adopted in Madheshwardhari Singh's case (AIR 1986 Pat 324) (FB) because therein the Full Bench was considering cases which were other than capital ones and thuyit rightly confined itself and its ratio to the 'class of cases which had directly fallen for adjudication. On this salutary principle, to infer negatively from Sheela, Barse's case that because the pronouncement was limited to juvenile offender before the magistracy, no time frame can be laid with regard to serious and capital crime for juveniles would be wholly unwarranted.
18. To sum up, it can now be authoritatively held that a broad time frame for the original trials of offences including capital ones punishable with death can be spelt out by precedent.
19. Coming now to the brass tacks of concretising the time frame for the original trial of capital offences, one may at the outset notice a brave attempt by Mr. Madhup to reagitate the rule that the concept of speedy trial includes within its sweep the period of police investigation as well. Mr. Madhup had attempted to contend that since serious and intricate crime may sometimes involve a prolonged indepth investigation by the police, the said period is not to be included in the time frame of trials. In essence, counsel faintly assailed and sought a reconsideration of the ratio in this context of Madheshwardhari Singh's case (AIR 1986 Pat 324) (FB).
20. It is unnecessary to tread this beaten path afresh. In Madheshwardhari Singh's case the point was specifically raised, formulated and then answered in the terms following :
'To conclude on this aspect, the answer to question 2 is rendered in the affirmative and it is held that the right to speedy public trial is applicable not only to the actual proceedings in Court but includes within its sweep the preceding police investigation in a criminal prosecution as well."
It now suffices to notice that the aforesaid ratio virtually carries the seal of final approval in Sheela Barse's case (AIR 1986 SC 1773). Therein by the rule of speedy trial under Article 21 itself their Lordships have not only included the period of investigation within the time frame but indeed have gone on to provide a specific time frame for the investigation itself. It was held that for juvenile offences punishable up to seven years the maximum time permissible for investigation would be six months from the filing of the complaint or lodging of the first information report with regard to future cases. As regards pending cases the investigation must be completed within a period of three months from today and if it was not so done the prosecution should be quashed. It is thus manifest that not only police investigation is within the mandate of the rule of speedy trial but an inordinate delay in the police investigation itself may equally attract the rule. I read Sheela Barse's case as a total affirmance of the Full Bench ratio in Madheshwardhari Singh's case that the right to speedy trial includes within it the period of police investigation as well apart from the time of the trial in Court stricto sensu. Indeed if it were held otherwise the right would tend to become a futile one where investigations, as is not unusual in our State, are allowed to extend over decades. The submission of Mr. Madhup, therefore, must necessarily fail.
21. Yet again in this context a whiff of fresh air has now been blown by Sheela Barse's case (AIR 1986 SC 1773). Therein a time frame of three months for investigation and the maximum of six months for trial in Court has been provided. It is true that this concretises the concept of a speedy trial with regard to juvenile offenders only and for offences punishable up to seven years. Even though the State and society being in loco parentis to its children must be more solicitous of their rights and, therefore, comparative expedition has been directed in their case, one can gauge the spirit of the rule and the concern'of the final Court thereby. That the speedier trial rule is not to be viewed in terms of years and decades but more properly in months seems thus manifest. Even if the longest latitude is given to the difference betwixt juvenile offenders and the adult ones, one cannot extend the period for their trials in terms of years and decades. Some indication herein is again given by the final Court by the following observations in Kadra Pehadiya v. State of Bihar, AIR 1981 SC 939 : (1981 Cri LJ 481) which was a case from our own State :
".....We had occasion in Hussainara Khatoon's case (1980) 1 SCC 81 : AIR 1979 SC 1360 : (1979 Cri LJ 1036) to criticise this shocking state of affairs and we hoped that after the anguish expressed and the severe strictures passed by us, the justice system in the State of Bihar would improve and no one shall be allowed to be confined in jail for more than a reasonable period of time, which we think cannot and should not exceed one year for a Sessions trial, but we find that the situation has remained unchanged and these four petitioners, who entered the jail as young lads of 12 or 13 have been languishing in jail for over eight years for a crime which perhaps ultimately they may be found not to have committed. It is obvious that after so many years of incarceration awaiting trial, either their spirit must be totally broken or they must be seething with anger and resentment against the society. We fail to understand why our justice system has become so dehumanised that lawyers and Judges do not feel a sense of revolt at caging people in jail for years without a trial....."
Indeed it appears to me that the graver the offence the greater becomes the need for its speedier trial. This is more so in capital offences, where the horrow of hanging hangs over the head of the accused persons like the proverbial sword of Democles. This aspect was noticed somewhat at length in State of Bihar v. Ram Daras Ahir, 1984 BBCJ (HC) 749 : (1985 Cri U 584) and it suffices to quote the undermentioned observation :
".......... 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 in the attracted 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."
Therefore in the context of capital crime, particularly, the rule of speedier trial is clearly in the interest of the accused, in the interest of the aggrieved relations of the victim and what is more so in the larger societal interest. It is well settled that grave delay caused by the fading of memories and many other factors would hamper a fair trial and hinder the prosecution case. It is true that sometimes the accused persons if on bail impede and prolong the trials for ulterior motives of gaining over witnesses but it is equally in their interest and that of justice that trials of capital charges hanging over them be completed as early as possible. The societal interest in a speedy trial is indeed the largest and the more vital leaving out the sectional interest of the prosecutor or the accused. It is meet and just that serious crime is brought to book immediately which apart from justice betwixt the parties also satisfies the innate sense of justice of the society as a whole and equally buttresses the rule of deterrence and retribution in major crime. Procedurally, the principle stands incorporated in the Cr.P.C. as well. Indeed it is apt to recall that under the old Code once a Sessions trial commenced both the letter and spirit thereof demanded that it should proceed from day to day and by and large this rule was invariably accomplished. There has in this context been some change brought about by the amendments in the Code which in practice have led to the result that even sessions trials have become akin to warrant procedure involving considerable delays therein. But this apart, there is no gainsaying the fact that in serious and, in particular, in capital crime the rule of speedier trial should operate speedily.
22. Now once it is held as above that capital crime punishable with death is within the sweep of a constitutional right to a speedy public trial under Article 21 and a time frame for the original trial of such offences punishable with death can be spelt out, then it is somewhat plain that within this jurisdiction it has already been so done by analogy it not directly. It is true that in Ram Daras Ahir's case (1985 Cri LJ 584) (Pat) and in Maksudan' Singh's case (AIR 1986 Pat 38) (FB) the issue had arisen in the context of a reversal of a clean acquittal on a capital charge. As was noticed by both the Division Bench and the majority in the Full Bench, they were then treading upon and breaking virgin ground on this issue. With commendable judicial restraint the matter was thus sought to be confined to delays in the context of an acquittal on a capital charge and the pendency of Government appeals against them. Within that parameter the time frame spelt out was in the following terms in Ram Daras Ahir's case :
"......that a 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....."
This period of 10 years was reconsidered and reaffirmed in Maksudan Singh's case in virtually identical terms as under :
"..... that inordinately prolonged and callous delay of ten years or more occasioned entirely by the prosecutions default in the context of reversal of clean acquittal on a capital charge would be per se prejudicial to the accused."
23. It is thus somewhat plain from the aforequoted ratios of Ram Daras Ahir and Maksudan Singh's cases that the principle of presumptive prejudice after the passage of ten years in an analogous context on capital charges has already been firmly laid within this jurisdiction. That this rule of presumptive, prejudice was not to be narrowly confined only to the issue of acquittals but was equally attracted to original trials was later exhaustively explained and expanded by the Full Bench in Madheshwardhari Singh's case (AIR 1986 Pat 324). It is, therefore, unnecessary to tread that ground afresh and it suffices to notice the following observations and conclusions therein :
"one may now advert to question No. 4, namely, whether the ratio in Ram Daras Ahir's case 1985 Cri LJ 584 (Pat) (supra) and Maksudan Singh's case AIR 1986 Pat 38 (FB) (supra) are applicable equally to all offences and irrespective of the fact whether the proceeding is a trial or an appeal against acquittal. A substantial ground under this question stands already covered by the discussion on question 1. Therein it has already been held that the fundamental right to speedy public trial is equally attracted to all offences generically and js not confined to only capital offences. Once that is so, then a fortiori whatever was said in Ram Daras Ahir's and Maksudan Singh's cases in the context of capital offences would be mutatis mutandis attracted to other offences in criminal prosecutions as well. Therefore, as regards the nature of the offence, namely, whether it is punishable with death or imprisonment for life alone no distinction as to the applicability of speedy trial rule can be drawn.
XX XX X To sum up on this aspect, the answer to question 4 is rendered in the affirmative and it is held that the ratios in Ram Daras Ahir's 1985 Cri LJ 584 (Pat) and Maksudan Singh's cases AIR 1986 Pat 38 (FB) are mutatis mutandis applicable equally to all offences and irrespective of the fact whether the proceedings are a trial or an appeal against acquittal."
On the aforesaid logical base the rule of presumptive prejudice was firmly extended to original trials as well in the context of offences other than capital ones in Madheshwardhari Singh's case. It was held that a callous and inordinately prolonged delay of seven years or more (which did not arise from the default of the accused or was otherwise not occasioned by any extraordinary or exceptional reason) in investigation and original trial for such offences would plainly violate the constitutional guarantee of a speedy public trial under Article 21. Therefore, once it is generically accepted that no distinction can be drawn in the context of the rule of speedy trial on the ground of the nature of the offence, whether it is capital or otherwise or whether it is an original trial or an appeal against acquittal, then it seems somewhat plain that the rule of presumptive prejudice after ten years earlier enunciated in this context in Ram Daras Ahir's (1985 Cri LJ 584) (Pat) and in Maksudan Singh's cases (AIR 1986 Pat 38) (FB) would apply mutatis mutandis to the original trials of capital offences as well.
24. I must, however, notice that the learned counsel for the petitioners had been narrowly circumspect to the point of lacking in courage in their stand on this point. They rested themselves on their oars and were more than content with the extension of the ten year rule of presumptive prejudice to the original trials of capital offences already pending. On their behalf no attempt was made for seeking any reduction in this time frame or assailing this period as too long. The issue was thus narrowed down simply to the question whether in th'e pending cases the earlier rule of ten years in Ram Daras Ahir and Maksudan Singh's cases would become applicable to the original trials of capital offences as well. On the other hand, the respondent State apart from contending that there should be no time frame at all did not suggest that the aforesaid existing rule of a decade was too short. Since we have been offered no meaningful assistance on either side on this point, I find no adequate ground to deviate from what already holds the field within this jurisdiction and to reiterate the same.
25. In the light of the above, to put it in the strait-jacket of a formulation analogous to that in Madheshwardhari Singh's case (AIR 1986 Pat 324) (FB), it must be held that a callous and inordinately prolonged delay of ten years or more (which does not arise from the default of the accused or is otherwise not occasioned by any extraordinary or exceptional reason) in the investigation and original trials of pending cases for capital offences punishable with death would plainly violate the constitutional guarantee of a speedy public trial under Article 21.
26. What has been said above, however, can possibly be true only with regard to the pending cases. Plainly the rule was evolved on the basis of the existing common experience regarding the time which was generally occupied by the litigative process in this context within our State. However, to my mind the legal position has now refreshingly and radically changed by the rule laid down in Sheela Barse's case (AIR 1986 SC 1773). Therein their Lordships have rightly and refreshingly drawn a distinction between cases already pending and rooted in an earlier tardy process and those which would come to be registered in the future. One cannot mortgage the future on the foundations of a somewhat decadent past. In the light of the developing law under Article 21 of the Constitution their Lordships in Sheela Barse's case have blazed a new trail for speedier trials in future whilst recognising the existing realities of delay in the somewhat lackadaisical administration of criminal justice earlier. If the spirit of the law under Article 21 is not to become static and moribund, this trial blazing lead of their Lordships has indeed to be followed if not excelled.
27. In accord with the above, it may be noticed that even in the original case of Ram Daras Ahir (1985 Cri LJ 584) (Pat) the Division Bench observed that it was safely erring on the side of conservatism by laying the rule of a decade in that context, influenced basically by the peculiarities of tardy administration of criminal justice which had come to grip our State as if in a vice, which is now being unshackled. The rational given for that view in the words of the Division Bench itself was in the terms following :
"...... 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....."
It was apparently in that context that the Division Bench advisedly thought it right to hasten somewhat slowly. In the later Maksudan Singh's case (AIR 1986 Pat 38) (FB) learned counsel for the respondents Mr. Rash Bihari Singh forthrightly advocated the ideal of two years as the proper rule of presumptive prejudice in such a situation. This was noticed by my learned Brother Shamsul Hasan, J. in the following words:
"Coming to the question of the period of ten years, as has been fixed by Hon'ble the Chief Justice in his judgment, I am inclined to agree with the submission of Mr. Rash Bihari Singh that it should have been fixed at two years. I do not agree with Hon'ble P.S. Sahay, J. that the conditions prevailing in this country and Courts render this suggestion of two years ridiculous. The situation in Court cannot tend to deprive an affected person of his valuable and constitutional right of getting his prosecution speedily disposed of nor can the constitutional mandate be diluted by exigencies of the situation caused by the absence of an adequate infra-structure at the instance of the State for speedy disposal. If necessary infra-structure is not provided, the person facing criminal prosecution should not be made the victim of the situation and the State is alone to be blamed for it....... Frankly speaking much lesser period should have been fixed but that would not have received the approbation of those who are oblivious of the hardship caused and the mental agony inflicted by the delay to a person who may ultimately be acquitted of all charges....."
Yet again in Madheshwardhari Singh's case (AIR 1986 Pat 324) (FB) my learned Brother Shamsul Hasan, J. expressed his concern as under:
"....... In my concurrent judgment in the case of Maksudan Singh, (AIR 1986 Pat 38) (FB) (supra) I had expressed the hope that the principles on which that case was decided would be extended to criminal trials also and I had hoped that generally as in the context of Government appeal the period would come down to two years, instead of ten years, as fixed in that decision. This decision is the fulfilment of that hope, though not in full measure, because speedy decisions in appeals pending in the appellate Courts, wherever they may be, have still to be dealt with on an appropriate occasion."
28. I am now inclined to the view that the plaintively clarion call of the aforesaid observations cannot be at least lost in the future even though it is somewhat muted in the present by the heart rending yet hard realities of delays in the criminal litigative process in the past within our State. In Sheela Barse's case (AIR 1986 SC 1773) their Lordships clearly drew the line betwixt existing delays and the future ones in the context of juvenile offenders. They laid down that in so far as future cases were concerned a speedy period of three months from the date of the filing of the complaint or lodging the first information report was the miximum time permissible for investigation and a period of six months from the filing of the charge sheet as the reasonable period within which the tried of the child must be completed. If that is not done hereafter the prosecution against the child would be liable to be quashed. In the light of this new vista whilst one may not be oblivious to the existing realities of criminal delays in criminal trials, one cannot be unmindful or blind to the needs and hopes of a brighter future. As voiced by my learned Brother Shamsul Hasan, J. earlier and in a way now endorsed by the final Court itself, any static rule of ten years would, far from giving content or meaning to the rule of speedy trial, may become capable of working public mischief in the future. It may appear as if it gave legal sanction to a delay of such magnitude extending to ten years. Indeed, one must hearken back to what was said in this context in Maksudan Singh's case itself that the rule of presumptive prejudice therein must not be misconstrued to mean that a delay of less than ten years would not in any case amount to prejudice. What was sought to be laid therein was an extreme outer limit whereafter grave prejudice to the accused was to be presumed and the infraction of the constitutional right would be plainly established unless rebutted by the other side. It was not even remotely laid down that in a lesser period than ten years an accused person would not be able to show the circumstances pointing to the patent prejudice which may entitle the invocation of Article 21. However, since both in Ram Daras Ahir (1985 Cri LJ 584) (Pat) and in Maksudan Singh's cases (AIR 1986 Pat 38) (FB) the delays were far beyond the outer limit of ten years, the question could not come in for consideration. Observations of almost identical nature were made by the Full Bench in para 50 of the report in Madheshwardhari Singh's case (AIR 1986 Pat 324).
29. In this context it is then instructive to recall that Maksudan Singh's case u nequivocally held that the American precedents on the Sixth Amendment of the Constitution would be equally attracted and applicable as persuasive on this facet of Article 21 of our Constitution as well. Therefore, it is instructive to refer by way of analogy to the quantum of delay which has been held sufficient to invoke the constitutional right of a speedy trial in the analogous American jurisprudence. Directly in the context of capital crime in Barker v. Wingo (1972) 407 US 514 : 33 Law Ed 2d 101 on a murder charge a delay of five years'to bring the accused to trial was held sufficient to entitle him to the relief for the violation of his constitutional rights. In Robert Dean Dickey v. State of Florida (1970) 398 US 30, 26 Law Ed 2d 26, 90 SCT 1564 the delay was around seven years on a charge of armed robbery to provide the foundational base for invoking the rule of speedy trial. In Clarence Eugene Sterunk v. United States (1973) 37 Law Ed 2d 56 patently on a minor charge even a delay of a little more than ten months in the circumstances was held to be 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.
30. In the variegated kaleidoscope of life, perhaps no absolute mathematical precision is either possible or immutable. Therefore, some element of empirical decision making is inevitable in this context. In line with the trail blazing rule in Sheela Barse's case (AIR 1986 SC 1773) and the indicative quantum of time in the celebrated case of Barker v. Wingo (1972-407 US 514), I would hold that as regards the investigation and original trials of capital offences in future a time frame of five years appears to be more than reasonable. To formalise the principle, it must be held that a callous and inordinately prolonged delay of five years or more (which does not arise from the default of the accused or is otherwise not occasioned by any extraordinary or exceptional reasons) in investigation and original trials for capital offences registered hereinafter would plainly attract the constitutional guarantee of a speedy public trial under Article 21.
31. In this context I would wish to reiterate even at the cost of some repetition, in order to keep the scales even. On one hand the rules of presumptive prejudice are not mathematically absolute in the sense of creating any bar in a citizen in an exceptionally peculiar context from showing that in fact the right to speedy trial has been defeated in a period lesser than the one indicated. Indeed, they lay down the outer limit whereafter grave prejudice to the accused must be presumed and the infraction of the constitutional right assumed unless expressly rebutted. It is not to be understood that in a lesser period than the one indicated above for presumptive prejudice an accused person may not in a peculiar case be able to establish circumstances pointing to the patent prejudice which may entitle him to invoke the guarantee of speedy public trial under Article 21. However, as pointed out by the Privy Council in Bell v. Director of Public Prosecutions, Jamaica (1985) 2 All ER 585, the weight to be attached to such circumstances and other factors might well vary from jurisdiction to jurisdiction.
32. On the other hand, it is equally and manifestly true that the rule of presumptive prejudice is not an absolute or conclusive one but is plainly rebuttable. It is permissible and, indeed, the right of the prosecution to show that gross delay was occasioned not only by its own default but equally by the contribution and the machinations of the accused persons themselves. Indeed, as in the field of equity so in the arena of the somewhat sacred constitutional rights the petitioner must come with clean hands. He cannot possibly be allowed to take any advantage of his own wrong. Therefore, where the delay in extending the trial and defeating its speedy course has been occasioned by the absconding of the accused or by such other obstructive and delaying tactics adopted by him including those of resorting to a series of untenable proceedings in the trial court or in the superior courts, these are all factors which have to be taken into consideration for determining the issue of the denial of a constitutional right for such conduct. Nor can the courts be wholly oblivious of the common experience regarding the time which should generally or ordinarily be occupied by the litigative process both in the courts of law and in the investigation before the police. Equally it is possible for the prosecution to show that extraordinary and exceptional circumstances of a particular case rendered the delay not only inevitable but beyond its control and was thus justifiable. To highlight afresh, the essence of the rule herein is one of presumptive prejudice arising from the passage of the prescribed period of time as an outer limit but plainly rebuttable for justifiable causes or by the defaults of the accused person himself.
33. What has been said above is broadly in line with the American law on the point and the principle that any person including an accused cannot possibly be allowed to take advantage of his own wrong. In American jurisprudence they have evolved a somewhat technical waiver doctrine wherein facts may be indicated that the accused by his own conduct has waived his constitutional right to the speedy trial. Because of differences in the law there is also what is called a demand rule where an accused can forthrightly demand to be put on trial. However, as pointed out, these are matters peculiar to American criminal jurisprudence stemming from different procedures prescribed in the various States. Barring the larger principle, the minuscule details of the waiver doctrine are, therefore, not strictly attracted in our criminal jurisprudence.
34. Before closing on the legal aspect, it is perhaps apt for clarity sake to summarise the basic conclusions in a judgment in which some degree of prolixity could not possibly be avoided. It is held -
(i) that on principle and consistent precedent capital crime punishable with death is equally well within the majestic sweep of the constitutional right to speedy public trial guaranteed by Article 21 of our Constitution; -
(ii) that it can now be authoritatively held that a broad time frame for the original trials of of fences including capital ones punishable with death can well be spelt out by precedent;
(iii) that a callous and inordinately prolonged delay of ten years or more (which does not arise from the default of the accused or is otherwise not occasioned by any extraordinary or exceptional reasons) in the nvestigation and original trials of pending cases within our State for capital offences punishable with death would plainly violate he constitutional guarantee of a speedy public trial under Article 21;
(iv) that, in accord with Sheela Barse's case (AIR 1986 SC 1773), a callous and inordinately prolonged delay of five years or more (which does not arise from the default of the accused or is otherwise not occasioned by any extraordinary or exceptional reasons) in the nvestigation and original trial for capital offences registered hereafter within our State would plainly attract the constitutional guarantee of a speedy public trial under Article 21; and
(v) that the aforesaid rules of presumptive prejudice are rebuttable by the prosecution by showing that the delay was wholly or substantially contributed to by the default of the accused or was otherwise justifiable because of extraordinary or exceptional reasons.
35. Now applying the above, one may revert back to the salient features in Criminal Writ Jurisdiction Case No. 192 of 1986 even at the risk of some repetition as these have been recounted in some detail at the outset. It was nearly 14 proverbial years ago that on the alleged date of occurrence of 9th April, 1973 the case against the petitioners was registered on non-capital charges. However, much later the death of the alleged victim of the crime Nand Kumar Singh led to the conversion of the charge to the capital one under Section 302 Penal Code. The petitioners either surrendered or were arrested soon after the date of occurrence on the 9th of April, 1973 and most, if not all, suffered two years of incarceration as under-trial prisoners before being granted bail by the High Court. Without any default whatsoever on the part of the petitioners it was not till 9 1/2 years from the date of occurrence that on the 30th Sept. 1982 the charges were framed against the petitioners and the trial purportedly commenced. Without any explanation being offered by the prosecution the case was kicked around like a ball from one place to another and its tardy pace can be well imagined from the fact that before Shri Ramautar Singh, 4th Additional Sessions Judge, Siwan, for nearly a period of two years the prosecution chose to put in only four witnesses in the box despite a host of them. The prosecution sought and secured 30 adjournments within 21 months for the examination of the Investigation Officer who being a police employee could always be at its beck and call. The petitioners rightly highlight the unbearable financial and mental strain of a trial extending over 14 years and their inability to sustain the presence of senior counsel in the proceedings for more than 100 adjournments granted therein. Their justifiable prayer for the cross-examination of the material Investigation Officer by senior counsel was declined by the trial court which was challenged and rightly reversed by the High Court in Cr. Misc. No. 1574 of ,1985 on 21st March, 1985 directing the recall of the Investigation Officer for further cross-examination. Despite the High Court's mandate the prosecution failed to produce the Investigation Officer and in spite of 24 adjournments granted therefor he has still not been produced. Indeed, learned counsel at the Bar asserted and could not be controverted that more than 90 adjournments for the production of prosecution witnesses including the Investigating Officer had been granted to the prosecution without as yet completing its case.
36. It is further the petitioners' case that petitioner Rameshwar Prasad Singh is a permanent employee of the Indian Tube Co. and his firm stand was a plea of alibi that on the date of occurrence he was at Jamshedpur. Even in course of investigation this plea was accepted by three police officers who were investigating the case including Mahendra Jha, the last Investigating Officer, who came to the conclusion that the charge sheet should not be submitted against him. Nevertheless, he was latter charged for the offence and after a passage of nearly 14 years it is well-nigh rendered impossible for him to establish his defence by virtue of the absence of or the fading memory of the witnesses, and documents and papers which were taken over by the prosecution and are now no longer traceable. Irretrievable damage has thus been caused to the defence of this petitioner and its inevitable consequence on the whole case in the event of the same being established. It is common ground that the prosecution as yet has not closed its case and the petitioners have to enter their defence and, inter alia, establish the plea of alibi.
37. No counter-affidavit has been filed on behalf of the respondent State in this case. Indeed, learned counsel for the respondent State was hard put to meet the self-evident and the glaring delay of well-nigh 14 years in the trial of the capital offence, the end whereof is still not in sight. There is not a hint of a suggestion that the delay herein was in any way caused by the default of the accused-petitioners nor the remotest ground that the case was of a kind in which such extraordinary or exceptional reasons existed which can possibly warrant the extension of a trial for 14 years and the hovering of a sentence of death over the petitioners for nearly a decade and a half. To my mind, the constitutional right of the petitioners to a speedy trial now inflexibly guaranteed to them by Article 14 stands plainly and manifestly violated. The charges against them must fait on that sole ground and have, therefore, to be inevitably quashed. This Criminal Writ Jurisdiction Case No. 192 of 1986 is accordingly allowed.
38. It is unnecessary to recount the facts in Criminal Writ Jurisdiction Case No. 236 of 1986 (Ram Ishwar Kahar v. State of Bihar). Therein valuminous pleadings resting on the authentic certified copies of the order sheets have been filed on the record by the prosecution and the first informant. From the certified copies of the orders on the record it has been rightly averred on behalf of the prosecution and the first informant as under :
"20. That the haziries died 29-6-78, 20-7-78, 12-8-78, 1-9-78, 30-9-78, 18-11-78, 8-12-78, 1-1-79, 25-1-79, 13-2-79, 19-3-79, 27-3-79, 9-4-79, 2-5-79, 11-6-79, 3-7-79, 24-7-79, 17-8-79, 79-79, 19-9-79, 10-10-79, 5-11-79, 15-11-79, 4-12-79, 20-12-79, 12-1-80, 28-1-80, 15-2-80, 4-3-80, 18-3-80, 23-4-80, 8-4-80, 8-5-80, 13-6-80, 26-6-80, 11-7-80, 28-7-80, 9-8-80, 26-8-80, 1-10-80, 31-10-80, 28-11-80, 19-12-80, 8-1-81, 13-2-81 show that none appeared in the court and signed on the haziries except Ganga Pd. on 8-12-78 (Flag 50), 13-9-80 (Flag 51) and 6-7-77 (at Flag 52) signed on haziries in support of his presence in the court.
21. That from the above facts and circumstances of the case it is quite clear that the case was delayed due to the default of the accused persons, on account of filing bogus haziries and their non-availability in the court. The records will also show that the accused persons always appeared after the cancellations of their bail bond and after issue of warrants. The order sheets of the committing court were recorded on the basis of the bogus haziries filed on behalf of the accused persons and under such circumstances the plea of the accused that they were always present in the court and copies of the diary were not supplied is unwarranted and unacceptable. Annexure 'R' series also support the fact that the accused persons always avoided to appear physically in the court. Annexure N clearly indicates that the accused persons stated in para 3 page 56 of the counter-affidavit that they are ready for commitment now. This means that they were not ready for commitment before 6-4-81. At least on 80 dates bogus haziries were filed. Haziries also indicate that the haziries were filed by forged signatures. The court also issued notices against the bailor for non-appearances in the court even on 30-8-75. The court also cancelled bail bond of 1-9-75 the writ petitioners and issued warrants of arrest. The order sheet of thesession trial also proves the fact that the trial was totally delayed by the writ petitioners. Sections 207 & 209 support the facts that the presence of the accused is necessary in the court so that the court may pass the commitment order. Section 205(1) is not applicable in the murder case especially at the time of passing the commitment order.
22, That from the facts and circumstances of the case it is clear that the case was delayed due to the default of the writ petitioners."
It is manifest from the above and needs no wasteful elaboration to hold that herein the prosecution has been able to show that the delay in the trial was substantially contributed to by the default of the accused-petitioners themselves and they cannot even remotely be said to have come within this jurisdiction with clean hands to claim a constitutional right of this nature. It must, therefore, be held that they are disentitled to the relief claimed and Criminal Writ Jurisdiction Case No. 236 of 1986 must be dismissed.
39. In the remaining Criminal Writ Jurisdiction Cases Nos. 158, 193 and 250 of 1986 it is unnecessary to delve into details and get bogged down into individual orders and innumerable dates. It suffices to say that from what has been forcefully and rightly pointed out on behalf of the prosecution from the pleadings and the authentic order sheets themselves, it is somewhat more than plain that the petitioners were equally, if not more, guilty in the contribution of delay which has taken place in the conclusion of these trials on capital offences. The petitioners-herein do not even remotely come within the ambit of what has been earlier elaborated in para 32 of the judgment and the Court cannot possibly allow them to take a constitutional advantage of their own wrong in obstructing and delaying the passage of criminal trials. The prosecution in all these cases has been able to amply rebut the presumption of prejudice by showing that the delay herein was due to the contribution and the machinations of the accused persons themselves and they cannot consequently make a grievance of the same to wriggle out from the consequences of a full trial for a capital crime. These applications are also consequently dismissed.
S. Shamsul Hasan, J.
40. The juridical treatment, that the matter in issue has received at the hands of Hon'ble the Chief Justice, hardly needs to be garnished and I am privileged to agree with the reasonings and the conclusions arrived at by him in all the cases. The concept of speedy trial so enthusiastically adopted at a distant age, when the world was still quivering under a medieval concept of criminology, was jealously guarded by a historical process and handed down to the modern age in the form of sixth amendment of the American Constitution and in India by its induction into Article 21 of the Constitution by the Supreme Court and its inherent and latent omni presence in the laws of the land. It seems incredible that a concept born nearly a thousand years ago, when dungeon would be filled for the theft of a loaf of bread would require reiteration in the years . just before the 21st century in India and that too rather hesitantly in the initial stage. But I may say with pride, boldly and categorically, that this aspect has been endowed with practical applicability by this Court in the famous triology of decisions in the cases of the State of Bihar v. Ram Daras Ahir, 1985 Cri LJ 584 : 1984 BBCJ (HC) 749, State of Bihar v. Maksudan Singh, AIR 1986 Pat 38 : (1985 Cri LJ 1782) (FB) and Madheshwardhari Singh v. State of Bihar, AIR 1986 Pat 324 : (1986 Cri LJ 1771) (FB).
41. If I may be permitted to say so, with the greatest of humility, that concept of criminology, that requires the quickest possible disposal of a criminal indictment without any extraneous consideration howsoever laudable, was gasping for sustenance with the gradual erosion and effacement of the concepts of proof beyond reasonable doubt, the golden thread in the web of criminal trials, and an indicted person is innocent till he is proved guilty and with the delayed criminal investigation and trial becoming a tolerated nuisance leading to persecution of an indicted person and not his prosecution has received a shot in the arm and his once again becoming vibrant with life with the forthright and bold enunciation of the principles of speedy trial by the Hon'ble the Chief Justice in the aforesaid cases motivated primarily by the decisions of the Supreme Court in the case of Hussainara Khatoon v. State of Bihar (AIR 1979 SC 1360) (supra). I may be permitted to reiterate that speedy trial is the only method by which justice can be meted out in its true, natural and legal form. Protracted and delayed investigation and trial negate the very concept of justice and fair play. The duty of a Court of all level is to do justice and the intention of justice can only be to find the truth. Justice is to see that this is done as expeditiously and as quickly as possible. Justice is to see that the innocent get a quick relief from their travail and the guilty their just desert. Justice is not to involve an individual in a criminal case and lead the search for truth to languish for months, years and decades till that person is found either guilty or innocent. Justice is not to prosecute a person by his protracted involvement without the end being in sight for a long period. Truth can only be arrived at if the trial is promptly initiated and speedily concluded because it is only then that the Courts would be able to discover whether the indicted person has committed the crime or has been incorrectly indicted.
42. The aforesaid decisions have been criticised in many quarters on a ground of extreme speciousness, that is, the right of the family of the victim being detrimentally affected by the dropping of the criminal trial after a lapse of time. Critics say that if a trial was to end within a time-bound programme, the guilty may be let off by his own perfidy and justice will be left languishing at the doorsteps of the Courts. To such critics, I can only ask whether the right of the victim family will be protected if the investigations and trials are indefinitely delayed and a person who is suspected to be a participant of the crime is made to face his trial for a long period without receiving any punishment or his release, particularly, when he will have to be considered as innocent till his guilt is proved beyond reasonable doubt. Isn't it likely that a long delayed investigation and trial will lead to the effacement of facts of the crime from the minds of the witnesses and by the process of time, the right of the victim family will suffer more than being protected if the trials are delayed. The only way by which the right of the victim family can be protected is to ensure that the indicted person receives his punishment if he is really involved in the case by speedy collection of evidence by the Police, its production before the Court with equal speed and the conclusion of the trial without delay. The desire of the victim family to delay the early disposal of the case will be indicative of the fact that they have no evidence to prove the indictment and are merely converting the investigation and trial into a prosecution. The right of the victim family can only be thus protected by the State which can provide machinery, infrastructure and wherewithal for the collection of evidence and its production in Courts as early as possible after the occurrence so that the facts are not lost in the dense fog of time.
43. As I have said above, the duty of the Court is not only to punish an indicted person but also to see that an innocent is not punished. The Court is equally concerned with the right of the indicted persons as the right of the victim's family expressed through the informant. To ask the Court to have any other concept it would be making an inroad into the judicial process and entirely undesirable situation. The discretion of the trial court should never be fettered by any circumstance except the consideration of finding the truth in regard to involvement of the persons sent up for trial speedily. The fame and notoriety of a case, the magnitude of an occurrence, the horrendous nature of the crime, its effect on the society at large are matters not for the Courts but which usually speed up the process of investigation, inquiry and trial but in contradistinction between such cases and the others not so famous or infamous, the latter should not be allowed to languish in the manner usual. The Court has, in all cases, to sit and decide whether the occurrence as stated in the prosecution version and unfolded by the prosecution is true and correct and whether the person indicted participated in the crime. The duty of the prosecution is to defend the law and assist the Court in arriving at the truth.
44. Concluding, if I may say with greatest of respect, the Hon'ble the Chief Justice has been very generous to the prosecution in prescribing a period of five years and ten years by introducing a two tier method following the Supreme Court for investigation and trial of capital sentence cases. The period in reality should be much lower. But my approach of exuberance must give way to his matured wisdom and I cannot differ on this issue. I may, however, indicate how the period of five years is more than sufficient. Once an occurrence takes place, either an information is received at the Police Station or on some occasions the Investigating Officer reaches the spot and records the statement. He is then requited to commence the investigation straightway by recording the statement of eyewitnesses particularly and the other corroborative witnesses generally and then examining the place of occurrence and seizing the incriminating materials, etc. There is no reason why this process should not be completed within a week whatever may be the nature of the crime and number of witnesses involved. Then the Police may wait for a little while, say one or two months, for the post mortem report and other reports of experts if they are required. This process also, if proper machinery is provided by the Government, should not take more than a month or two. Once these are all collected, there is no reason why Police should not submit final form one way or the other within two or three months. It is for this reason that Section 167, Criminal P.C. has provided a period of three months after which if no final form is submitted, the accused is entitled to bail. This is based on the concept that if no evidence is available to the Police, it has to submit a final form within three months and if there is no evidence in the case that can be said to be worthy of acceptance in the Criminal Court of the eyewitnesses and corroborative witnesses not examined by the Police at the earliest point of time and examined after a lapse of time without explanation cannot form the basis of any conviction. Once the final form is received by the Court and if some persons have been indicted and sent up, there is no reason why the Court should not complete the commitment proceeding within a month or say two months. Then the records are received by the Sessions Court and they have enough time to finish the trial within the specified period. If the prosecution cannot produce evidence by then and ensure an early disposal of the sessions trial then no person, even if he is truly guilty, can be allowed to languish in jail and be under the suspense of a protracted trial whatever may be its effect on the right of the victim's family. The responsibility lies squarely with the prosecuting agency, that is, the Government, to provide the instruments for an early disposal of the indictment But I may not be understood to mean that the Courts and the counsel appearing for the defence are entirely blame free for the present state of affairs when the criminal trials are there without their end in sight. An onerous duty is cast on the courts to control the proceeding by ensuring day to day trial of cases insisting on the appearance of the witnesses in sufficient quantity on a date instead of one a day at the capaciousness of the Public Prosecutor and refusing unjustified adjournments which appear to be sought merely to delay the process. The counsel appearing for the defence also must ensure that all attempts to delay the trial are resisted and they should not become privy to any fact or any step that will tend to stagnate the trial. The counsel owe responsibility to their clients and parties but the Courts and counsel together to the society at large.
45. Therefore, if such time frame is not fixed, it will be negation of the right of speedy trial and it will give a handle to the prosecution to delay the matter indefinitely acting in a nonchalant way adopting a lackadaisical attitude. I would recommend in the conclusion that (i) the Government should first separate the agencies for investigation and prosecution of criminal indictment from the law and order agency, (ii) it should ensure that the Investigating Officer who has submitted final form is responsible for the appearance of witnesses including the doctor and himself and if they fail to do so, they should be subjected to disciplinary actions and (iii) if the Investigating Officer fails to record the first information report and statement of the witnesses immediately after the occurrence and thereafter fails to forward the copies of the diary to the authorities concerned, severe steps should be taken against him.
46. I, therefore, repeat that I agree entirely with the Hon'ble the Chief Justice for his views and opinion in the cases before us.
Ram Nandan Prasad, J.
47. I entirely agree with Hon'ble Chief Justice.