Speedy Trial is Fundamental Right – SC

PETITIONER:HUSSAINARA KHATOON & ORS.
Vs.
RESPONDENT:HOME SECRETARY, STATE OF BIHAR, GOVT. OF BIHAR, PATNA
DATE OF JUDGMENT12/02/1979

BENCH:BHAGWATI P.N.,PATHAK R.S.,KOSHAL A.D.

CITATION:
1979 AIR 1360 1979 SCR (3) 169
1980 SCC (1) 81
CITATOR INFO :
RF 1980 SC1789 (112)
RF 1981 SC 746 (3)
RF 1981 SC 939 (2)
E 1981 SC1675 (1,2)
R 1982 SC1167 (1,2)
R 1983 SC 361 ((2)19)
RF 1985 SC 231 (2)
R 1986 SC 180 (39)
RF 1986 SC1773 (12)
F 1987 SC 149 (9)
RF 1988 SC1531 (87)
F 1989 SC1335 (71)
RF 1992 SC1701 (1,21,28,29,31,32,35)

ACT:Administration of Justice-Pre-trial detention-Right of under-trial prisoner to have a speedy trial-Art. 21 of Constitution of India.

Pre-trial release-Concept of-Determinative factors in grant of bail and release of under-trial prisoner on personal bond without monetary obligation explained.

HEADNOTE:In their petition for the issue of a writ of habeas corpus the petitioners stated that a large number of men and women including children were in jails for years awaiting trial in courts of law and that the offences, even if proved, would not warrant punishment for more than a few months. Although sufficient opportunity was given, the State did not appear before the Court.
Directing the release of the undertrials on their executing a personal bond.

HELD :(Per Bhagwati & Koshal, JJ.)
1. A procedure which keeps large number of people
behind bars without trial for long, cannot possibly be
regarded as “reasonable, just or fair” so as to be in
conformity with the requirement of Art. 21. It is necessary,
therefore, that the law as enacted by the Legislature and as
administered by the courts must radically change its
approach to pre-trial detention and ensure `reasonable, just
and fair’ procedure which has a creative connotation after
the decision of the Supreme Court in Maneka Gandhi’s case.
[174 C-D]
2. Speedy trial is of the essence of criminal justice
and, therefore, delay in trial by itself constitutes denial
of justice. Though speedy trial is not specifically
enumerated as a fundamental right, it is implicit in the
broad sweep and content of Art. 21. Speedy trial which means
reasonably expeditious trial, is an integral part of the
fundamental right to life and liberty enshrined in Art. 21,
[179 H, 180 C, F]
Art. 21 confers fundamental right on every person not
to be deprived of his life or liberty except in accordance
with the procedure prescribed by law and it is not enough to
constitute compliance with the requirement of that Article
that some semblance of a procedure should be prescribed by
law, but that the procedure should be “reasonable, fair and
just”. If a person is deprived of his liberty under a
procedure which is not “reasonable, fair or just”, such
deprivation would be violative of his fundamental right
under Art. 21 and he would be entitled to enforce such
fundamental right and secure his release. Any procedure
prescribed by law for depriving a person of his liberty
cannot be “reasonable, fair or just” unless that procedure
ensures a speedy trial for determination of the guilt of
such person. [180 D-E]
170
Maneka Gandhi v. Union of India, [1978] 2 SCR 621;
referred to.
3. Expeditious trial and freedom from detention are
part of human rights and basic freedoms. The judicial system
which permits incarceration of men and women for long
periods of time without trial is denying human rights to
such undertrials and withholding basic freedoms from them.
Law has become for them an instrument of injustice and they
are helpless and despairing victims of the callousness of
the legal and judicial system. [173 C-E, F]
4. One reason why our legal and judicial system
continually denies justice to the poor by keeping them for
long years in pretrial detention is the highly
unsatisfactory bail system, which suffers from a property
oriented approach. It proceeds on the erroneous assumption
that risk of monetary loss is the only deterrent against
fleeing from justice. Even after its re-enactment, the Code
of Criminal Procedure continues to adopt the same antiquated
approach. Where an accused is to be released on his personal
bond, it insists that the bond should contain a monetary
obligation requiring the accused to pay a sum of money in
case he fails to appear at the trial. Moreover, as if this
were not sufficient deterrent to the poor, the courts
mechanically and as a matter of course insist that the
accused should produce sureties who will stand bail for him
and these sureties must again establish their solvency to be
able to pay the amount of bail in case the accused fails to
appear to answer the charge. [174 E-G]
This system of bails operates very harshly against the
poor and it is only the non-poor who are able to take
advantage of it by getting themselves released on bail. The
poor find it difficult to furnish bail even without sureties
because very often the amount of the bail fixed by the Court
is so unrealistically excessive that in a majority of cases
the poor are unable to satisfy the police or the Magistrate
about their solvency for the amount of the bail and where
the bail is with sureties, as is usually the case, it
becomes an almost impossible task for the poor to find
persons sufficiently solvent to stand as sureties. The
result is that either they are fleeced by the police and
revenue officials or by touts and professional sureties and
sometimes they have even to incur debts for securing their
release or, being unable to obtain release, they have to
remain in jail until such time as the court is able to take
up their cases for trial, leading to grave consequences,
namely, (1) though presumed innocent, they are subjected to
psychological and physical deprivations of jail life, (2)
they are prevented from contributing to the preparation of
their defence and (3) they lose their job, if they have one,
and are deprived of an opportunity to work to support
themselves and their family members with the result that the
burden of their detention almost invariably falls heavily on
the innocent members of the family. [174 G-175 D]
The bail system, as it operates today, is thus a source
of great hardship to the poor and if the civil effects of
poverty are to be eliminated and a fair and just treatment
assured to the poor in the administration of justice, it is
imperative that the bail system should be thoroughly
reformed so that it should be possible for the poor, as
easily as the rich, to obtain pre-trial release without
jeopardizing the interest of justice. [177 C-D]
Risk of monetary loss is not the only deterrent against
fleeing from justice. There are also other factors which act
as equal deterrents against fleeing. Therefore, the courts,
even under the law as it stands today, must abandon the
antiquated concept under which pre-trial release is ordered
only against bail with sureties. If the court is satisfied,
after taking into account, on the basis of
information placed before it, that the accused has his roots
in the community and is not likely to abscond, it can safely
release the accused on his personal bond. [177 E, G, H]
5. To determine whether the accused has his roots in
the community which would deter him from fleeing, the court
should take into account the following factors concerning
the accused: (1) The length of his residence in the
community, (2) his employment status, history and his
financial condition, (3) his family ties and relationships,
(4) his reputation, character and monetary conditions, (5)
his prior criminal record including any record of prior
release on recognizance or on bail, (6) the identity of
responsible members of the community who would vouch for his
reliability, (7) the nature of the offence charged and the
apparent probability of conviction and the likely sentence
in so far as these factors are relevant to the risk of non
appearance, and (8) any other factors indicating the ties of
the accused to the community or bearing on the risk of
wilful failure to appear. [178 A-E]
If the court is satisfied on a consideration of the
relevant factors that the accused has his ties in the
community and there is no substantial risk of nonappearance,
the accused may, as far as possible, be released
on his personal bond. If facts are brought to the notice of
the court showing that, having regard to the condition and
back-ground of the accused, his previous record and the
nature and circumstances of the offence, there may be a
substantial risk of his non-appearance at the trial, as for
example, where the accused is a notorious bad character or a
confirmed criminal or the offence is serious, the court may
not release the accused on his personal bond and may insist
on bail with sureties. But in the majority of cases,
considerations like family ties and relationship, roots in
the community, employment status etc. may prevail with the
court in releasing the accused on his personal bond and
particularly in cases where the offence is not grave and the
accused is poor or belongs to a weaker section of the
community, release on personal bond could, as far as
possible, be preferred. But even while releasing the accused
on personal bond it is necessary to caution the court that
the amount of the bond which it fixes should not be based
merely on the nature of the charge. The decision as regards
the amount of the bond should be an individualised decision
depending on the individual financial circumstances of the
accused and the probability of his absconding. The amount of
the bond should be determined having regard to these
relevant factors and should not be fixed mechanically
according to a schedule keyed to the nature of the charge.
Otherwise, it would be difficult for the accused to secure
his release even by executing a personal bond, it would be
very harsh and oppressive if he is required to satisfy the
court-and what is said in regard to the court must apply
equally in relation to the police while granting bail-that
he is solvent enough to pay the amount of the bond if he
fails to appear at the trial and in consequence the bond is
forfeited. The inquiry into the solvency of the accused can
become a source of great harassment to him and often result
in denial of bail and deprivation of liberty and should not,
therefore, be insisted upon as a condition of acceptance of
the personal bond. [178 F-179 D]
6. Necessary to provide by an amendment of the penal
law that if an accused wilfully fails to appear in
compliance with the promise contained in his personal bond,
he shall be liable to penal action. [177 F]
7. High time that the State Government realised its
responsibility to the people in the matter of administration
of justice and set up more courts for the trial of cases.

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Pathak J. (concurring)
(1) The primary principle of criminal law is that
imprisonment may follow a judgment of guilt, but should not
precede it. There is also another principle which makes it
desirable to ensure that the accused is present to receive
his sentence in the event of being found guilty. [181 E]
(2) It is indisputable that an unnecessarily prolonged
detention in prison of undertrials before being brought to
trial is an affront to all civilized norms of human liberty
and any meaningful concept of individual liberty which forms
the bedrock of a civilized legal system must view with
distress patently long periods of imprisonment before
persons awaiting trial can receive the attention of the
administration of justice. [181 D]
(3) The Code of Criminal Procedure both the old Code
and the new include provisions for the release of a person
on bail or on the execution of a bond without sureties for
his appearance. There is an amplitude of judicial power to
release a prisoner awaiting trial on bail or on the
execution of a personal bond without sureties for his
appearance within the existing provisions of the Code of
Criminal Procedure and it is for the Courts to fully
acquaint themselves with the nature and extent of their
discretion in exercising it. It is no longer possible to
countenance a mechanical exercise of the power. What should
be the amount of security required or the monetary
obligation demanded in a bond is a matter calling for the
careful consideration of several factors. The entire object
being only to ensure that the undertrial does not flee or
hide himself from trial, all the relevant considerations
which enter into the determination of that question must be
taken into account. [181 E, 182 B-C]
(4) The abuses attendant on the prevailing system of
pre-trial release in India could be avoided or, in any event
greatly reduced, if considerations like “nature and
circumstances of the offence charged, the weight of the
evidence against the accused, the accused’s family ties,
employment, financial resources, character and mental
condition, the length of his residence in the community, his
record of convictions, and his record or appearance at court
proceedings or of flight to avoid prosecution or failure to
appear at court proceedings”, are taken into consideration
when determining pre-trial release and the amount of
security or monetary obligation to be imposed. [182 G, E-F]
United States Bail Reforms Act, 1966: 18 USS 3146
(b), Moti Ram & Ors. v. State of M.P. [1978] 4 SCC 47;
referred to.
(5) Urgent need for a clear and explicit provision in
the Code of Criminal Procedure enabling the release, in
appropriate cases, of an under trial prisoner on his bond
without sureties and without any monetary obligation.[183 B]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 57 of 1979.
Mrs. K. Hingorani for the Petitioners
S. M. Jha and U. P. Singh for the Respondent.
The Judgment of Bhagwati and Koshal, JJ. was delivered
by Bhagwati, J. Pathak, J. gave a separate Opinion.

BHAGWATI, J.-This petition for a writ of habeas corpus
discloses a shocking state of affairs in regard to
administration of justice in the State of Bihar. An
alarmingly large number of men and women, children
including, are behind prison bars for years awaiting trial
in courts of law. The offences with which some of them are
charged are trivial, which, even if proved, would not
warrant punishment for more than a few months, perhaps for a
year or two, and yet these unfortunate forgotten specimens
of humanity are in jail, deprived of their freedom, for
periods ranging from three to ten years without even as much
as their trial having commenced. It is a crying shame on the
judicial system which permits incarceration of men and women
for such long periods of time without trial. We are shouting
from house tops about the protection and enforcement of
human rights. We are taking passionately and eloquently
about the maintenance and preservation of basic freedoms.
But, are we not denying human rights to these nameless
persons who are languishing in jails for years for offences
which perhaps they might ultimately be found not to have
committed ? Are we not withholding basic freedoms from these
neglected and helpless human beings who have been condemned
to a life of imprisonment and degradation for years on end?
Are expeditious trial and freedom from detention not part of
human rights and basic freedoms ? Many of these unfortunate
men and women must not even be remembering when they entered
the jail and for what offence. They have over the years
ceased to be human beings they are mere ticket-numbers. It
is high time that the public conscience is awakened and the
Government as well as the judiciary begin to realise that in
the dark cells of our prisons there are large numbers of men
and women who are waiting patiently, impatiently perhaps,
but in vain, for justice-a commodity which is tragically
beyond their reach and grasp. Law has become for them an
instrument of injustice and they are helpless and despairing
victims of the callousness of the legal and judicial system.
The time has come when the legal and judicial system has to
be revamped and restructured so that such injustices do not
occur and disfigures the fair and otherwise luminous face of
our nascent democracy.
Though we issued notice to the State of Bihar two weeks
ago, it is unfortunate that on the 5th February, 1979 no one
has appeared on behalf of the State and we must, therefore,
at this stage proceed on the basis that the allegations
contained in the issues of the Indian Express dated 8th and
9th January, 1979 which are incorporated in the writ
petition are correct. The information contained in these
newspaper cuttings is most distressing and it is sufficient
to stir the conscience and disturb the equanimity of any socially motivated
lawyer or judge. Some of the undertrial prisoners whose
names are given in the newspaper cuttings have been in jail
for as many as 5, 7 or 9 years and a few of them, even more
than 10 years, without their trial having begun. What faith
can these lost souls have in the judicial system which
denies them a bare trial for so many years and keeps them
behind bars, not because they are guilty, but because they
are too poor to afford bail and the courts have no time to
try them. It is a travesty of justice that many poor
accused, “little Indians, are forced into long cellular
servitude for little offences” because the bail procedure is
beyond their meagre means and trials don’t commence and even
if they do, they never conclude. There can be little doubt,
after the dynamic interpretation placed by this Court on
Art. 21 in Maneka Gandhi v. Union of India(1) that a
procedure which keeps such large numbers of people behind
bars without trial so long cannot possibly be regarded as
‘reasonable, just or fair’ so as to be in conformity with
the requirement of that Article. It is necessary, therefore,
that the law as enacted by the Legislature and as
administered by the courts must radically change its
approach to pretrial detention and ensure ‘reasonable, just
and fair’ procedure which has creative connotation after
Maneka Gandhi’s case supra.
Now, one reason why our legal and judicial system
continually denies justice to the poor by keeping them for
long years in pretrial detention is our highly
unsatisfactory bail system. It suffers from a property
oriented approach which seems to proceed on the erroneous
assumption that risk of monetary loss is the only deterrent
against fleeing from justice. The Code of Criminal
Procedure, even after its re-enactment, continues to adopt
the same antiquated approach as the earlier Code enacted
towards the end of the last century and where an accused is
to be released on his personal bond, it insists that the
bond should contain a monetary obligation requiring the
accused to pay a sum of money in case he fails to appear at
the trial. Moreover, as if this were not sufficient
deterrent to the poor, the courts mechanically and as a
matter of course insist that the accused should produce
sureties who will stand bail for him and these sureties must
again establish their solvency to be able to pay up the
amount of the bail in case the accused fails to appear to
answer the charge. This system of bails operates very
harshly against the poor and it is only the non-poor who are
able to take advantage of it by getting themselves released
on bail. The poor find it difficult to furnish bail even
without sureties because very often the amount of the bail
fixed by the courts is so unrealistically excessive that in a majority of cases the
poor are unable to satisfy the police or the Magistrate
about their solvency for the amount of the bail and where
the bail is with sureties, as is usually the case, it
becomes an almost impossible task for the poor to find
persons sufficiently solvent to stand as sureties. The
result is that either they are fleeced by the police and
revenue officials or by touts and professional sureties and
sometimes they have even to incur debts for securing their
release or, being unable to obtain release, they have to
remain in jail until such time as the court is able to take
up their cases for trial, leading to grave consequences,
namely, (1) though presumed innocent, they are subjected to
psychological and physical deprivations of jail life, (2)
they are prevented from contributing to the preparation of
their defence and (3) they lose their job, if they have one,
and are deprived of an opportunity to work to support
themselves and their family members with the result that the
burden of their detention almost invariably falls heavily on
the innocent members of the family. It is hero that the poor
find our legal and judicial system oppressive and heavily
weighted against them and a feeling of frustration and
despair occurs upon them as they find that they are
helplessly in a position of inequality with the non-poor.
The Legal Aid Committee appointed by the Government of
Gujarat under the chairmanship of one of us, Mr. Justice
Bhagwati, emphasised this glaring inequality in the
following words:
“The bail system, as we see it administered in the
criminal courts today, is extremely unsatisfactory and
needs drastic change. In the first place it is
virtually impossible to translate risk of nonappearance
by the accused into precise monetary terms
and even its basic premise that risk of financial loss
is necessary to prevent the accused from fleeing is of
doubtful validity. There are several considerations
which deter an accused from running away from justice
and risk of financial loss is only one of them and that
too not a major one. The experience of enlightened Bail
Projects in the United States such as Manhattan Bail
Project and D. C. Bail Project shows that even without
monetary bail it has been possible to secure the
presence of the accused at the trial in quite a large
number of cases. Moreover, the bail system causes
discrimination against the poor since the poor would
not be able to furnish bail on account of their poverty
while the wealthier persons otherwise similarly situate
would be able to secure their freedom because they can
afford to furnish bail. This discrimination arises even
if the amount of the bail is fixed by the Magistrate is not high, for
a large majority of those who are brought before the
Courts in criminal cases are so poor that they would
find it difficult to furnish bail even in a small amount.”
The Gujarat Committee also pointed out how the practice of
fixing the amount of bail with reference to the nature of
the charge without taking into account relevant factors,
such as the individual financial circumstances of the
accused and the probability of his fleeing before trial, is
harsh and oppressive and discriminates against the poor:
“The discriminatory nature of the bail system
becomes all the more acute by reason of the mechanical
way in which it is custormarily operated. It is no
doubt true that theoretically the Magistrate has broad
discretion in fixing the amount of bail but in practice
it seems that the amount of bail depends almost always
on the seriousness of the offence. It is fixed
according to a schedule related to the nature of the
charge. Little weight is given either to the
probability that the accused will attempt to flee
before his trial or to his individual financial
circumstances, the very factors which seem most
relevant if the purpose of bail is to assure the
appearance of the accused at the trial. The result of
ignoring these factors and fixing the amount of bail
mechanically having regard only to the seriousness of
the offence is to discriminate against the poor who are
not in the same position as the rich as regards
capacity to furnish bail. The Courts by ignoring the
differential capacity of the rich and the poor to
furnish bail and treating them equally produce
inequality between the rich and the poor: the rich who
is charged with the same offence in the same
circumstances is able to secure his release while the
poor is unable to do so on account of his poverty.
These are some of the major defects in the bail system
as it is operated to-day.”
The same anguish was expressed by President Lyndon B.
Johnson at the time of signing the Bail Reforms Act, 1966:
“Today, we join to recognize a major development
in our system of criminal justice: the reform of the
bail system.
This system has endured-archaic, unjust and
virtually unexamined-since the Judiciary Act of 1789.
The principal purpose of bail is to insure that an
accused person will return for trial if he is released after arrest.

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How is that purpose met under the present system ?
The defendant with means can afford to pay bail. He can
afford to buy his freedom. But poorer defendant cannot
pay the price. He languishes in jail weeks, months and
perhaps even years before trial.
He does not stay in jail because he is guilty. He
does not stay in jail because any sentence has been passed.
He does not stay in jail because he is any more
likely to flee before trial.
He stays in jail for one reason only-because he is poor…..”
The bail system, as it operates today, is a source of great
hardship to the poor and if we really want to eliminate the
evil effects of poverty and assure a fair and just treatment
to the poor in the administration of justice, it is
imperative that the bail system should be thoroughly
reformed so that it should be possible for the poor, as
easily as the rich to obtain pretrial release without
jeopardizing the interest of justice.
It is high time that our Parliament realises that risk
of monetary loss is not the only deterrent against fleeing
from justice, but there are also other factors which act as
equal deterrents against fleeing. Ours is a socialist
republic with social justice as the signature tune of our
constitution and Parliament would do well to consider
whether it would not be more consonant with the ethos of our
constitution that instead of risk of financial loss, other
relevant considerations such as family ties, roots in the
community, job security, membership of stable organisations
etc., should be the determinative factors in grant of bail
and the accused should be in appropriate cases be released
on his personal bond without monetary obligation. Of course,
it may be necessary in such a case to provide by an
amendment of the penal law that if the accused wilfully
fails to appear in compliance with the promise contained in
his personal bond, he shall be liable to penal action. But
even under the law as it stands today the courts must
abandon the antiquated concept under which pretrial release
is ordered only against bail with sureties. That concept is
outdated and experience has shown that it has done more harm
than good. The new insight into the subject of pretrial
release which has been developed in socially advanced
countries and particularly the United States should now
inform the decisions of our Courts in regard to pretrial
release. If the Court is satisfied, after taking into
account, on the basis of information placed before it, that
the accused has his roots in the community and is not likely
to abscond, it can safely release the accused
on his personal bond. To determine whether the accused has
his roots in the community which would deter him from
fleeing, the Court should take into account the following
factors concerning the accused:
1. The length of his residence in the community.
2. his employment status, history and his financial condition,
3. his family ties and relationships,
4. his reputation, character and monetary condition,
5. his prior criminal record including any record or prior release on recognizance or on bail,
6. the identity of responsible members of the community who would vouch for his reliability.
7. the nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non appearance, and 8. any other factors indicating the ties of the accused to the community or bearing on the risk of wilful failure to appear.
If the court is satisfied on a consideration of the relevant
factors that the accused has his ties in the community and
there is no substantial risk of non-appearance, the accused
may, as far as possible, be released on his personal bond.
Of course, if facts are brought to the notice of the court
which go to show that having regard to the condition and
background of the accused his previous record and the nature
and circumstances of the offence, there may be a substantial
risk of his non-appearance at the trial, as for example,
where the accused is a notorious bad character or a
confirmed criminal or the offence is serious (these examples
are only by way of illustration), the court may not release
the accused on his personal bond and may insist on bail with
sureties. But in the majority of cases, considerations like
family ties and relationship, roots in the community,
employment status etc. may prevail with the court in
releasing the accused on his personal bond and particularly
in cases where the offence is not grave and the accused is
poor or belongs to a weaker section of the community,
release on personal bond could, as far as possible, be
preferred. But even while releasing the accused on personal
bond it is necessary to caution the court that the amount of
the bond which it

fixes should not be based merely on the nature of the
charge. The decision as regards the amount of the bond
should be an individualised decision depending on the
individual financial circumstances of the accused and the
probability of his absconding. The amount of the bond should
be determined having regard to these relevant factors and
should not be fixed mechanically according to a schedule
keyed to the nature of the charge. Otherwise, it would be
difficult for the accused to secure his release even by
executing a personal bond. Moreover, when the accused is
released on his personal bond, it would be very harsh and
oppressive if he is required to satisfy the court-and what
we have said here in regard to the court must apply equally
in relation to the police while granting bail-that he is
solvent enough to pay the amount of the bond if he fails to
appear at the trial and in consequence the bond is
forfeited. The inquiry into the solvency of the accused can
become a source of great harassment to him and often result
in denial of bail and deprivation of liberty and should not,
therefore, be insisted upon as a condition of acceptance of
the personal bond. We have no doubt that if the system of
bail, even under the existing law, is administered in the
manner we have indicated in this judgment, it would go a
long way towards relieving hardship of the poor and help
them to secure pretrial release from incarceration. It is
for this reason we have directed the undertrial prisoners
whose names are given in the two issues of the Indian
Express should be released forthwith on their personal bond.
We should have ordinarily said that personal bond to be
executed by them should be with monetary obligation, but we
directed as an exceptional measure that there need be no
monetary obligation in the personal bond because we found
that all these persons have been in-jail without trial for
several years, and in some cases for offences for which the
punishment would in all probability be less than the period
of their detention and moreover, the order we were making
was merely an interim order. The peculiar facts and
circumstances of the case dictated such an unusual course.
There is also one other infirmity of the legal and
judicial system which is responsible for this gross denial
of justice to the undertrial prisoners and that is the
notorious delay in disposal of cases. It is a bad reflection
on the legal and judicial system that the trial of an
accused should not even commence for a long number of years.
Even a delay of one year in the commencement of the trial is
bad enough; how much worse could it be when the delay is as
long as 3 or 5 or 7 or even 10 years. Speedy trial is of the
essence of criminal justice and there can be no doubt that
delay in trial by itself constitutes denial
of justice. It is interesting to note that in the United
States, speedy trial is one of the constitutionally
guaranteed rights. The Sixth Amendment to the Constitution
provides that
“In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial.” So also
Article 3 of the European Convention on Human Rights provides that:
“every one arrested or detained-shall be entitled
to trial within a reasonable time or to release pending trial.”
We think that even under our Constitution, though speedy
trial is not specifically enumerated as a fundamental right,
it is implicit in the broad sweep and content of Article 21
as interpreted by this Court in Maneka Gandhi v. Union of
India. We have held in that case that Article 21 confers a
fundamental right on every person not to be deprived of his
life or liberty except in accordance with the procedure
prescribed by law and it is not enough to constitute
compliance with the requirement of that Article that some
semblance of a procedure should be prescribed by law, but
that the procedure should be “reasonable, fair and just”. If
a person is deprived of his liberty under a procedure which
is not “reasonable, fair or just”, such deprivation would be
violative of his fundamental right under Article 21 and he
would be entitled to enforce such fundamental right and
secure his release. Now obviously procedure prescribed by
law for depriving a person of his liberty cannot be
‘reasonable, fair or just’ unless that procedure ensures a
speedy trial for determination of the guilt of such person.
No procedure which does not ensure a reasonable quick trial
can be regarded as ‘reasonable, fair or just’ and it would
fall foul of Article 21. There can, therefore, be no doubt
that speedy trial and by speedy trial we mean reasonably
expeditious trial, is an integral and essential part of the
fundamental right to life and liberty enshrined in Article
21. The question which would, however, arise is as to what
would be the consequence if a person accused of an offence
is denied speedy trial and is sought to be deprived of his
liberty by imprisonment as a result of a long delayed trial
in violation of his fundamental right under Article 21.
Would he be entitled to be released unconditionally freed
from the charge levelled against him on the ground that
trying him after an unduly long period of time and
convicting him after such trial would constitute violation
of his fundamental right under Article 21 ? That is a
question we shall have to consider when we hear the writ
petition on merits on the adjourned date. But one thing is
certain and we cannot impress it too strongly on the State
Government that it is high time that the State Government
realised its responsibility to the people in the matter of
administration of justice and set up more courts for the trial of
cases. We may point out that it would not be enough merely
to establish more courts but the State Government would also
have to man them by competent judges and whatever is
necessary for the purpose of recruiting competent judges,
such as improving their conditions of service, would have to
be done by the State Government, if they want to improve the
system of administration of justice and make it an effective
instrument for reaching justice to the large masses of
people for whom justice is to-day a meaningless and empty word.
These are the reasons for which we made our order dated
5th February, 1979. We shall now proceed to hear the writ
petition on 19th February, 1979.
PATHAK, J.-It is indisputable that an unnecessarily
prolonged detention in prison of undertrials before being
brought to trial is an affront to all civilized norms of
human liberty. Any meaningful concept of individual liberty
which forms the bedrock of a civilized legal system must
view with distress patently long periods of imprisonment
before persons awaiting trial can receive the attention of
the administration of justice. The primary principle of
criminal law is that imprisonment may follow a judgment of
guilt. But should not precede it. But there is another
principle which makes it desirable to ensure that the
accused is present to receive his sentence in the event of
being found guilty. Now, the Code of Criminal Procedure,
both the old Code and the new, include provision for the
release of a person on bail or on the execution of a bond
without sureties for his appearance. Nonetheless, as appears
prima facie from the record before us, a large number of
persons whose names, find mention in copies of the Indian
Express of January 8 and 9, 1979, have been in prison for
long year without even being brought to trial. Although
sufficient opportunity was given to the State of Bihar to
meet the allegations made, it is unfortunate that no one has
appeared on behalf of the State. In view of the importance
of the questions arising on the habeas corpus petition, we
have provided further opportunity to the State to appear and
accordingly have posted the petition for final hearing on
February 19, 1979. But at the same time we see no reason why
interim relief should be denied to these undertrials. After
carefully considering what has been said in respect of each
individual undertrial, we have considered it appropriate, in
the interests of justice, to make the order of February 5,
1979 directing the release of the persons mentioned in that
order on their executing a personal bond. The order is
somewhat unusual in that it directs that the personal bond
to be taken in each case should not be based on any monetary obligation. The
condition has been included as an exceptional measure, under
the persuasive pressure of the particular facts and
circumstance of the case.
In regard to the exercise of the judicial power to
release a prisoner awaiting trial on bail or on the
execution of a personal bond without sureties for his
appearance, I have to say this briefly. There is an
amplitude of power in this regard within the existing
provisions of the Code of Criminal Procedure, and it is for
the Courts to fully acquaint themselves with the nature and
extent of their discretion in exercising it. I think it is
no longer possible to countenance a mechanical exercise of
the power. What should be the amount of security required or
the monetary obligation demanded in a bond is a matter
calling for the careful consideration of several factors.
The entire object being only to ensure that the undertrial
does not flee or hide himself from trial, all the relevant
considerations which enter into the determination of that
question must be taken into account. A synoptic impression
of what the considerations could be may be drawn from the
following provision in the United States Bail Reform Act of 1966:
“In determining which conditions of releases will
reasonably assure appearance, the judicial officer
shall, on the basis of available information, take into
account the nature and circumstances of the offence
charged, the weight of the evidence against the
accused, the accused’s family ties, employment,
financial resources, character and mental condition,
the length of his residence in the community, his
record of convictions, and his record of appearance at
court proceedings or of flight to avoid prosecution or
failure to appear at court proceedings.
These are considerations which should be kept in mind when
determining the amount of the security or monetary
obligation. Perhaps, if this is done the abuses attendant on
the prevailing system of pretrial release in India could be
avoided or, in any event, greatly reduced See Moti Ram and
Others v. State of Madhya Pradesh.
I consider it desirable to refrain from making any
final comment or observation on the legality and propriety
of the continued detention of the undertrial prisoners
whether on the ground of infringement
of Article 21 of the Constitution or on other grounds. That,
I think, should await the final determination of the habeas corpus petition.
These are the reasons which have influenced me in
making the order dated February 5, 1979.
While concluding, it seems desirable to draw attention
to the absence of an explicit provision in the Code of
Criminal Procedure enabling the release, in appropriate
cases, of an undertrial prisoner on his bond without
sureties and without any monetary obligation. There is
urgent need for a clear provision. Undeniably, the thousands
of undertrial prisoners lodged in Indian prisons today
include many who are unable to secure their release before
trial because of their inability to produce sufficient
financial guarantee for their appearance. Where that is the
only reason for their continued incarceration, there may be
good ground for complaining of invidious discrimination. The
more so under a constitutional system which promises social
equality and social justice to all of its citizens. The
deprivation of liberty for the reason of financial poverty
only is an incongruous element in a society aspiring to the
achievement of these constitutional objectives. There are
sufficient guarantees for appearance in the host of
considerations to which reference has been made earlier and,
it seems to me, our law-makers would take an important step
in defence of individual liberty if appropriate provision
was made in the statute for non-financial releases.
N.V.K.

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