ANTHROPOLOGY OF RIGHT TO SPEEDY TRIAL

Abhitosh Pratap Singh*

The time is running out for doing something which has already grown into monstrous form.
If a citizen is told that once you resort to legal procedure for realization of your urgent need you
have to wait and wait for ! to !" years# what else is if it not to inevitably encourage and force
him to resort to e$tra legal measures for realizing the re%uired reliefs. A republic governed by rule
of law# cannot afford to compel its citizens to resort to such e$tra legal means which are very often
contra legal means with counter productive result on the maintenance of law and order in the
country&
' Justice K.T. Thomas

These touching lines of Justice K.T. Thomas depict the urgency of the need of speedy justice
and the tragic end of basic objective of any judicial set-up i.e. justice. Justice delayed is justice
denied truly said, aptly said, but can there really be something like prompt justice, or it is merely
an imaginary term hich e!ists only in articles and lectures. "s delay in justice a concomitant and
unavoidable discomfort of any optimum judicial set up or a man generated disease, hich though
curable is pernicious enough to paraly#e any judicial set up$
%pe! &ourt in various land mark judgments, by ordering 'tate to provide speedier justice has
recogni#ed it as a curable disease. The anser of above mentioned (uestion can be sought in these
lines of ).&. *ahoti former &hief Justice of "ndia.
"t is &onstitutional obligation of the state to dispense speedy justice, more so in the field of
criminal la. +overty and paucity of funds or resources is no defence to denial of right to speedy
justice emanating from %rticles ,-, -., -/ and the +reamble of the &onstitution and also from the
0irective +rinciples of 'tate +olicy.
,
GENESIS OF SPEEDY TRIAL
The concept of speedy trial has been incorporated into the 1irginia
0eclaration of )ights of -.23 and from there it as taken into the 'i!th %mendment of the
&onstitution of 4.'.% hich reads in all criminal prosecutions the accused shall enjoy the right to
a speedy and public trial. "t may be pointed out in this connection that there is a 5ederal %ct of
-.2/ called 'peedy Trial %ct establishing set of limits for carrying out major limits.
The right to speedy trial is recogni#ed as a common la right
floing from 6agna &arta 7-,-89. This is the vie in 4.K, 4.'.%, &anada, :e ;ealand and other
<uropean nations.
4nder %rticle -- of the "nternational &onvention &ivil and +olitical )ights -.33, the right
to have speedy trial is provided. 'imilarly under %rticle = of the <uropean &onvention of >uman
)ights, the right of speedy trial has been given recognition. "n "ndia after the
e!panding hori#ons of the %rticle ,- since 6aneka ?andhi v. 4.@.", the right to speedy trial has
been recogni#ed as an integral part of fundamental right to life and liberty enshrined in %rticle ,-.
DELAYED TRIAL: A NEW PHENOMENON OR AN AGE OLD PROBLEM
*ogically speaking, huge arrears of pending cases cannot be piled up ithin a short span of
time. "t is the result of out dated methods hich ere used for the disposal of cases in past. To
illustrate the point of arrears, " ould like to (uote from a report in hich it is saidA
'o long as such arrears e!ist there is temptation, to hich many +residing @fficers succumb,
to hold back the heavier contested suits and devote attention to the lighter ones. The
turnout of decisions in contested suits is thus maintained somehere near the figure of institution,
hile the real difficult ork is pushed into the background.
This may appear to be a (uotation from report that could have been prepared only yesterday,
but in fact it is from the Justice )ankin report of -.,8. The situation does not seem to have changed
over the last 28 years and that is hy some non-conventional methods have to be adopted to tackle
the huge pendency of cases.
*a &ommission in its ==rd, =8th and =2th reports provided for suggestions to ensure speedy
trial. "n furtherance of implementing these suggestions, &riminal +rocedure &ode, -.2= as
passed. "t is pinching that one of the several reasons behind the enactment of ne &r.+.&. as to
avoid delay and still after a gap of == years our criminal justice system is overloaded ith massive
arrears of cases.
'upreme &ourt has time and again recogni#ed the )ight to have 'peedy trial as a part of
fundamental rights emanating from %rticle ,- of the &onstitution. "n >ussainara Khatun v. 'tate of
Bihar
=,
'upreme court considered the problem delayed trials in all its seriousness and declared that
'peedy trial is an essential ingredient of reasonable, fair and just procedure guaranteed by %rt ,-
and that it is &onstitutional obligation of the 'tate to devise such a procedure as ould ensure
speedy trial to the accused. &ourt also observed that the 'tate is under a &onstitutional mandate to
ensure speedy trial. &ourt found that it is &onstitutional obligation of it as the guardian of the
fundamental rights of the people to enforce the fundamental rights of the accused to have speedy
trial by issuing necessary directions to the 'tate hich may include taking positive action, such as
augmenting and strengthening he investigative machinery, setting up ne courts, providing more
staff and e(uipments to the courts, appointments of %dditional judges, and other measures
calculated to ensure speedy trial.
SPEEDY TRIAL AND CRIMINAL PROCEEDINGS
"n %.).%ntuley v. ).'.:ayak
/
, 'upreme &ourt observed that the provisions of &ode of
&riminal +rocedure provide for a speedy trial. "f only these provisions are folloed in their letter
and spirit, there ould be no room for grievances.
&ourt further held that time limit for criminal proceedings cannot be dran. &ourt observed
that in many cases the accused may himself have been responsible for the delay. "n such cases, he
cannot be alloed to take advantage of his on rong. &ourt also said that here neither the
prosecution nor the accused can be blamed for the delay but the system itself, there also delays
cannot be treated as a justification. Broadly speaking each case must be left to be decided on its
on facts having regard to the principles enumerated here in after. 5or the above reasons &ourt
found it neither advisable nor feasible to prescribe an outer time limit for
conclusion of all criminal proceedings.
"t clearly shos that the approach taken by 'upreme &ourt as to handle criminal proceedings
carefully. "n #eal to ensure speedy trial, criminal justice shall not be dealt in a hapha#ard manner
for, these proceedings deal ith a rong hich is not only against a person but against the hole
society and society cannot be e!posed to the risk of being jeopardi#ed by unrestricted offenders. %t
the same time the presumption of innocence, the basis of criminal jurisprudence should be given
fullest import.
%part from providing infrastructural support to judicial system there is also a need for some
procedural changes. )ight to speedy trial pervades through all stages of criminal proceedings.
- , -
SPEEDY TRIAL AND VARIOUS STAGES OF CRIMINAL PROCEEDINGS
% criminal case 7e!cept a summary trial9 on police report in the magistrateCs court broadly
has folloing stages.
8
Stage-1
i )emand and Bail
ii 5iling of police reportDchallanD)egistration .
iii %ppearance of the accusedE
iv +reparation and supply of documents 7'ection ,F2 &r.+.&9
v 'ummon trial 'ubstance of accusation to be stated 7'ection ,8- &.r.+.&9E Garrant trial A
5raming of charges by the 6agistrateE 'ession trialA &ommittal of a case to the 'ession
&ourt.
Stage-2 +rosecution evidenceA itness other than formal itness.
Stage-3: +rosecution evidenceA formal itnesses.
Stage-4: i 'tatement uDs =-=.
ii 0efense evidence.
Stage -5: %rguments.
Stage -6: Judgment D 'entence.
'imilarly in a criminal case 7e!cept a summary trial9 on a complaint in the magistrateCs court
broadly has folloing stages.
Stage-1:
i. 5iling of complaintD)egistration.
ii <n(uiry 7section ,FF to ,F= &r +&.9
iii &ogni#ance 7section -.F &r+&9.
iv %ppearance of the accused, remand and bail.
v. +reparation and 'upply of documents 7'ection ,F2 &r+&9.
vi. 'ummon trialA 'ubstance of accusation to be stated 7section ,8- &r.+&9E Garrant trialE
&omplainantCs evidence 7section ,// &r+&9, 5raming of charges by the 6agistrateE 'ession
trialA committal of case to the 'ession &ourt.
Stage-2 : &omplainantCs D +rosecution evidence Aitnesses other than formal itnesses.
Stage-3: &omplaintCs +rosecution evidenceA formal itness.
Stage-4A i 'tatement uDs =-=
ii 0efense evidence.
Stage-5: %rguments
Stage-6: JudgmentsD'entence.
<ach of these stages consumes a huge amount of time hich cumulatively leads to delayed
trial. 'upreme &ourt had reali#ed these complications till this time and had started to take a bit
mathematical approach. :e!t case in this line is a proof of this approach.
JUDICIAL LEGISLATION
- = -
"n &ommon &ause a registered society through its directors, petitioner v. 4nion of "ndia,
3
'upreme court issued directions for the release of accused in several cases here the trial as
pending for a specified period of time and accused as in jail for a particular time. This specified
period as different for different offences according to the (uantum of punishment provided for
those offences.
'upreme &ourt in this case provided for the release of accused on bail or on personal bond
here the accused as charged ith an offence punishable ith imprisonment not
e!ceeding three years 7if the case as pending for one year9 and the accused as in jail for a period
of si! months of more. This period of pendency as to years for the offences punishable ith
imprisonment not e!ceeding five years. "t also provided for the release of
accused on bail for offences punishable ith seven years or less, ith or ithout fine if trials for
such offences ere pending for to years or more.
"n this case 'upreme &ourt did hat as termed later as judicial legislation though it as
done ith the intention of ensuring e!peditious trial by prescribing various time limits for the
release of accused on bail and also for closure of several cases. This as the stage hen the need of
e!peditious trial as felt in its full vigor.
"n this case 'upreme &ourt also provided for closure of several kinds of cases here the
trial has still not commenced.
7a9 &ases hich ere compoundable and ere pending for to years
7b9&ases pertaining to non-cogni#able and bailable offences hich ere pending for more
than to years.
7c9 &ases hich ere pertaining to offences punishable ith fine only and ere not of
recurring nature and ere pending for more than one year.
7d9 &ases hich ere pertaining to offences punishable ith imprisonment upto one year
ith or ithout fine and ere pending for more than to years.
This judgment as modified and clarified in &ommon &ause "". % registered society
through its 0irector, petitioner v. 4nion of "ndia and others
2
. &ourt held that the phrase Hpendency
of trialC and phrase Hnon-commencement of trialC shall be construed as under.
i9 "n cases of trial before 'essions &ourt the trials shall be treated to have commenced hen
charges are framed under 'ection ,,I of the &r.+.&
ii9 "n case of trials of arrant cases by magistrates if the cases are instituted up on police reports
the trials shall be treated to have commenced hen charges are framed under 'ection ,/F of
the &r.+.& hile in trials of a arrant cases by magistrates hen cases are instituted
otherise than on police report such trials shall be treated to have commenced hen charges
are framed against the concerned accused under 'ection ,/3 of the &ode of &riminal
+rocedure, -.2=.
iii9 "n cases of trials of summons case by the magistrates the trial ould be considered to have
commenced hen the accused ho appear or are brought before the magistrate are asked
under 'ection ,=- hether plead guilty or have any defense to make.
&ourt in this case also made some additions to the list of offences to hich directions shall not
apply.
%gain in )aj 0ev 'harma v. 'tate of Bihar
I
'upreme &ourt recogni#ed the right to have
speedy trial as a right emanating from the right to life. "n this case 'upreme &ourt by referring to
%.). %ntuleyCs
.
case, prescribed time limits for completion of evidence by prosecution after a
specified time limit. This time limit as to years for the offences punishable ith imprisonment
for a period not e!ceeding seven years, and three years for the imprisonment for a period e!ceeding
seven years.
But at the same time &ourt also provided that if inability for completion of evidence as
attributable to the conduct of accused then no court is obliged to close the prosecution evidence.
- / -
&ourt provided that here the offence is not punishable ith imprisonment of seven years,
and the accused has been in jail for a period not less than one half of the ma!imum period, the
&ourt shall release the accused on bail on such conditions as it deems fit.
&ourt further held that these directions ill be in addition to and ithout prejudice to the
directions issued by this &ourt in H&ommon &ause "C
-F
and H&ommon &ause ""C.
--
"n )aj 0eo 'harma 7""9 v. 'tate of Bihar
-,
also 'upreme &ourt reiterated previous 'upreme
&ourt judgments and held right to speedy trial as an inevitable part of %rticle ,- of the &onstitution
and issued directions that prosecution evidence shall be closed on completion of the to years from
the date of recording the plea of accused on charges, in case of offences punishable for a period not
e!ceeding seven years. "n case of offences punishable ith imprisonment for a period e!ceeding
seven years the evidence shall be closed on completion of three years unless for very e!ceptional
reasons to be recorded.
&ourt observed that it is not obliged to close the prosecution evidence, "f the inability for
completing prosecution evidence as attributable to the conduct of accused. &ourt further held that
poer of court under '-=-- of code has not been curtailed by 'upreme &ourt even if the
prosecution evidence is closed in compliance ith the directions, prosecution can move the poer
of &ourt uDs =-- of the code. &ourt further held that section =F. should be complied in both letter
and spirit
-=
.
"n this case the minority opinion of Justice 6.B. 'aha is orth mentioningA -
It is true that ideal situation may be where criminal cases are tried within si$ months from
the date of institution and appeals are disposed of within a period of one year from the date of
filing. (or achieving this ob)ective if there is lac* of infrastructure or there are some procedural
delays for various reasons# what is re%uired to be done+ In such a situation would it be )ustifiable
to ac%uit the accused after lapse of a particular time if prosecution has failed to e$amine all
witnesses,,,, In view of these directions the accused may get ac%uittal or discharged on the ground
of delay without considering the fact that in number of cases delay might be because large number
of cases pending before the -ourt and insufficient strength of )udges to cope up with the wor* load.
.elay only due to congestion of court calendar# unavailability of )udges and on occasions non,
availability of the counsel for either party or any other circumstance beyond the control of
prosecution cannot be a ground for closure of prosecution evidence.&
CONSTITUTIONAL BENCH ON SPEEDY TRIAL
*ater this minority opinion of justice 6.B. shah, as affirmed in +. )amachndra )ao v.
'tate of Karnataka
-/
by &onstitutional Bench. "n this case, apart from reiterating that it is
&onstitutional obligation of 'tate to dispense speedy justice and paucity of funds or resources is no
defense to denial of right to speedy justice emanating from %rticle -/, ,- and -. of constitution,
&ourt held that 4nion of "ndia and states should reali#e their constitutional obligation and do
something concrete to strengthen the justice delivery system. &ourt also deleted the bars of
limitation earlier provided for criminal proceedings.
"n this ay &ourt made a clear departure from H&ommon &auseC 7" and ""9
-8
and )aj 0eo
'harmaCs7" and ""9
-3
case la. &ourt accounted to grounds for deleting the bar of limitation firstly
it amounted to judicial legislation and because they run counter to doctrine of binding precedents.
&ourt also held that guidelines laid don in %.). %ntuleyCs case
-2
are not e!haustive but only
illustrative. They are not intended to operate as hard and fast rules or to be applied like a straitjacket
formula.
&ourt further held that directions made in the case of )aj 0eo 'harma
-I
and H&ommon &auseC
7" and ""9
-.
related to bail are not subject to this reference or these appeals. &ourt in this case
abstained itself from dealing ith legality, propriety or otherise of directions in regard to bail,
- 8 -
because different considerations arise before the &riminal &ourt hile dealing ith termination of a
trial or proceedings and hile dealing ith right of accused to be enlarged on bail.
PRESENT SITUATION
Though the right to have speedy trial is a recogni#ed part of fundamental rights emanating
from %rticle ,- of the &onstitution but the direction regarding the closure of cases are no more
valid. 'tate should make every attempt to ensure speedy trial by augmenting strength of courts by
providing legal aid to prisoners languishing in jails, by implementing suggestions of 6alimath
&ommittee, but there can not be strait jacket formulae for criminal cases.
"n the same line an %mendment
,F
has been made for the release of under trial prisoners. :e
section /=3 % has been inserted to provide that here under trial prisoner 7other than the one ho is
an accused of an offence for hich death has been prescribed as one of the
punishments9 has been under detention for a period e!tending to one half of the ma!imum period of
imprisonment provided for the alleged offence, he should be released on his personal bond ith or
ithout sureties.
LEGAL AID AND SPEEDY TRIAL
)ight to have legal aid and speedy trial are ine!tricably linked. +roviding legal aid to
indigent accused ho is languishing in jail for a long period, is also a device to ensure speedy trial.
"n our &onstitution there are ample provisions regarding *egal %id, as preamble of the
&onstitution ensures 'ocial, <conomic and political justice to the people of the country.
,F%
5ree legal assistance at 'tate cost is a fundamental right of a person accused of an offence
hich may involve jeopardy to his life or personal liberty and this fundamental right is implicit in
the re(uirement of reasonable, fair and just procedure prescribed by %rticle ,-.
,FB
"n &riminal +rocedure &ode it is statutory obligation of the 'tate to provide legal aid to the
accused in session trial cases. 'ub-sec. 7-9 of sec. =F/ provides A Ghere, in a trial before the &ourt
of 'ession, the accused is not represented by a pleader, and here it appears to the &ourt that the
accused has not sufficient means to engage a pleader, the &ourt shall assign a pleader for his
defense at the e!pense of the 'tate.
'ection =F/7,9 empoers the >igh &ourt to frame rules ith previous approval of the 'tate
?overnment providing for the mode of selecting pleaders for defense as mentioned in sub-section
7-9.
"n -.I2, the *egal 'ervices %uthorities %ct as passed by +arliament ith a vie to
provide free and competent legal services to the eaker section of the 'ociety to ensure that
opportunities for securing justice are not denied to any citi#en by reason of economic or other
disabilities, and to organi#e *ok %dalats to secure that the operation of the legal system promotes
justice on the basis of e(ual opportunity.
PLEA BARGAINING AND SPEEDY TRIAL
Talking about 'peedier trial ith out mentioning the concept of plea bargaining ill be
apparently erroneous, for, this concept had been and is being used as a device to ensure speedy trial
in several nations. Though it may be rejected on some moral grounds but after turning back to the
huge backlog of pending cases one ill be constrained to replace legal pedantry ith legal
pragmatism.
% plea-bargain is an agreement beteen the defense and the prosecutor in hich a
defendant pleads guilty or no contest to criminal charges
,-
. "n e!change, the prosecutor drops some
charges, reduces a charge or recommends that the Judge enter a specific sentence that is acceptable
to the defense. %pproach of "ndian Judiciary has not been very #ealous toards plea bargaining. %
- 3 -
crime is essentially a rong against the society and the 'tate, therefore any compromise beteen
the accused person and the individual victim of the crime, or for that matter the 'tate, should not
absolve the accused from criminal liability.
,,
'upreme &ourt in 6andan *al )am &handra 0aga v. 'tate of 6aharashtra
,=
hich as the
first case in hich issue of plea bargaining as considered, held that it as very rong for a &ourt
to enter into bargain of this character.
%gain in 6urlidhar 6eghraj *oya v. 'tate of 6aharashtra
,=%
&ourt e!pressed its dismay
over this concept and said that these arrangements please everyone e!cept the distant victim, the
silent society.
'upreme &ourt approved same approach in ?aneshmal Jashraj v. ?ovt. of ?ujarat
,/
and
Thippasami v. 'tate of Karnatka
,8
"n ThisppasamiCs case
,3
Justice +.:.Bhagati observed that it ould be violative of
%rticle ,- of the &onstitution to induce or lead an accused to plead guilty under a promise or
assurance that he ould be let off lightly and then in appeal or revision should set aside the
conviction and sentence of the accused and remand the case to the trial court so that the accused
can, if so ishes, defend himself against the charge and if he is found guilty proper sentence can be
passed against him.
This approach continued in K.+.' Koderlal v. 'tate of ?ujarat
,2
&ourt held that practice of
plea-bargaining is unconstitutional illegal and ould tend to encourage corruption, collusion and
pollute the pure foundation of justice.
"n 'tate of 4.+. v. &handrika
,I
'upreme &ourt reiterated the la related to plea bargaining.
&ourt stated that &oncept of H+lea bargainingC is not recogni#ed and is against the policy of "ndian
criminal justice system. &ourt also stated that e!cept the 'ection =,F &r+&
,.
hich provides for
compounding of certain offences concept of negotiated settlement in criminal cases is not
permissible.
"t can be easily borne out from the above mentioned cases that the concept of plea
bargaining had been condemned by %pe! &ourt but the huge backlog of cases, lo pace of
dispensing justice are the reasons hich have compelled the la makers if not la interpreters to
change their mindset. :o it has become a natural compulsion for "ndian legal system to get
introduced to this concept.
+lea bargaining is one of those effective devices hich can save the grand edifice of "ndian
legal system from being collapsed into a heap of debris.
&oncept of plea bargaining has an obvious advantage, of handling the massive burden of
cases. "t is this temptation, hich the la makers have succumbed to. "n accordance ith this a ne
chapter JJ" % has been inserted in &r+&,-.2= by &riminal la 7%mendment9 %ct. ,FF8.
'ection ,38-B provides for the filling of application by accused for plea bargaining. %fter
receiving application the court shall issue notice to the +ublic +rosecutor and to the accused to
appear on fi!ed date for the case.
"t further provides that court shall e!amine the accused in,camera to satisfy itself that
accused has filed the application voluntarily and then it ill provide to +ublic +rosecutor and
complainant to ork out a mutually satisfactory disposition.
'ection ,38 & provides for several guidelines for mutually satisfactorily disposition. 'ection
,38 < provides for final disposal of the case.
CONCLUSION
Thus, after much hesitation "ndian criminal justice system has adopted the concept of plea
bargaining. This shos that the paramount consideration for present legal set up is to ensure speedy
- 2 -
trial rather than upholding legal pedantry and playing stereotyped tunes of legal morality in
indefinite tense. )eason is crystal clear "ndian judicial system can not afford to ruin more hopes and
to shatter more confidences. To survive it has to come out ith an optimum solution. "t is only then
e can e!pect the grand edifice of "ndian legal system to touch great heights and to gain sturdy
substratum. "t is said that hope is the best human companion so e can hope that some years don
the line *ord 0evlin ould be turning in his grave to modify his statement
"f our business methods ere as anti(uated as our legal system, e ould have become a
bankrupt nation long back.
*Student# //.0 1(inal year2# -ampus /aw -entre# 3niversity of .elhi
'. 4aya Prasad v.Pradeep Shrivastava 1""'2 S-- 5"6.
. P.7. 7ao v. State of 8arnata*a 1""2 6 S-- 9:;
!. 1'<;"2 ' S-- <5
6. AI7 '<< S.- ':"'
8. "tCs road to speedier justice by Justice Katindra 'ingh , =T7I =ournal# Issue >>II# =uly ""6
5. AI7 '<<5 S.- '5'<
:. '<<; -r/= 69<5
;. '<<; -r/=69<;
<. Supra note 6
'". Supra note 5
''. Supra note :
'. '<<< 1!<2 A-- 559
'!. Section !"< of -ode of -riminal Procedure# '<:!
'6. Supra note
'9. Supra note 5
'5. Supra note ; and '
':. Supra note 6
';. Supra note '5
'<. AI7 '<<5 S.- '5'<
". -ode of -riminal Procedure 1Amendment Act2# ""9
"A. The e$pression Social =ustice& embraces within its ambit a system of administration of )ustice
which must provide a cheap# e$peditious and effective instrument for realization of )ustice by all section of
the people irrespective of their social or economic position or their financial resources.
, 0abu 7am v. 7aghunath =i ?ahara)# AI7 '<:5 S- ':!6

"0. @ussainara 8hatoon v. State of 0ihar# AI7 '<:< S- '!5<
'. httpAAenB wi*ipedia.com
. 7.C 8el*er# -riminal Procedure# 16th edn. at p. 692
!. '<5; -ri /= '65<
!A. '<:5 -ri /= '9:
6. '<;" -ri /= ";
9. '<;! -ri /= ':'
5. Ibid
:. '<;" -ri /= 99!
;. AI7 """ S- '56
29. Section !" -ode of -riminal Procedure# '<:!
- I -