SUPREME COURT OF INDIA
Before :- Adarsh Kumar Goel and Uday Umesh Lalit, JJ.
Criminal Appeal No. 509 of 2017 (Arising out of Special Leave Petition (Crl.) No. 4437 of 2016). D/d. 9.3.2017.
Hussain and Anr. – Appellants
Union of India – Respondents
Criminal Appeal No. 511 of 2017 (Arising out of Special Leave Petition (Crl.) No. 348 of 2017).
Aasu – Appellant
State of Rajasthan – Respondent
For the Appellants :- Rauf Rahim and Mohd. Irshad Hanif, Advocates.
For the Respondent :- Sidharth Luthra, ASG. (A.C.), Anoopam N. Prasad, Ali Chaudhary and Rohit K. Singh, Advocates.
Leave granted. Grievance in these appeals is against denial of bail pending trial/appeal where appellants have been in custody for a long period.
Hussainara Khatoon and ors (IV) v. Home Secretary, State of Bihar, Patna – (1980) 1 SCC 98 – para 10
Hussainara Khatoon and ors. (VII) etc. v. Home Secretary, Bihar and ors. etc. -(1995) 5 SCC 326 – para 2
- “2. Since this Court has already laid down the guidelines by orders passed from time to time in this writ petition and in subsequent orders passed in different cases since then, we do not consider it necessary to restate the guidelines periodically
because the enforcement of the guidelines by the subordinate courts functioning in different States should now be the responsibility of the different High Courts to which they are subordinate.
- General orders for release of undertrials without reference to specific fact-situations in different cases may prove to be hazardous. While there can be no doubt that undertrial prisoners should not languish in jails on account of refusal to enlarge them on bail for want of their capacity to furnish bail with monetary obligations, these are matters which have to be dealt with on case-to-case basis keeping in mind the guidelines laid down by this Court in the orders passed in this writ petition and in subsequent cases from time to time. Sympathy for the undertrials who are in jail for long terms on account of the pendency of cases has to be balanced having regard to the impact of crime, more particularly, serious crime, on society and these considerations have to be weighed having regard to the fact-situations in pending cases. While there can be no doubt that trials of those accused of crimes should be disposed of as early as possible, general orders in regard to judge strength of subordinate judiciary in each State must be attended to, and its functioning overseen, by the High Court of the State concerned. We share the sympathetic concern of the learned counsel for the petitioners that undertrials should not languish in jails for long spells merely on account of their inability to meet monetary obligations. We are, however, of the view that such monitoring can be done more effectively by the High Courts since it would be easy for that Court to collect and collate the statistical information in that behalf, apply the broad guidelines already issued and deal with the situation as it emerges from the status reports presented to it. The role of the High Court is to ensure that the guidelines issued by this Court are implemented in letter and spirit.
We think it would suffice if we request the Chief Justices of the High Courts to undertake a review of such cases in their States and give appropriate directions where needed to ensure proper and effective implementation of the guidelines. Instead of repeating the general directions already issued, it would be sufficient to remind the High Courts to ensure expeditious disposal of cases.
Supreme Court Legal Aid Committee representing undertrial prisoners v. Union of India and ors. – 1994(3) R.C.R.(Criminal) 639 : (1994) 6 SCC 731 – para 15
- … … …Therefore, we request the learned Chief Justice of the High Court of Rajasthan as well as the other learned Chief Justices to conceive and adopt a mechanism, regard being had to the priority of cases, to avoid such inordinate delays in matters which can really be dealt with in an expeditious manner. Putting a step forward is a step towards the destination. A sensible individual inspiration and a committed collective endeavour would indubitably help in this regard. Neither less, nor more.”
- “5. … … …it is incumbent upon the High Courts to find ways and means by taking steps to ensure the disposal of criminal appeals, particularly such appeals where the accused are in jails, that the matters are disposed of within the specified period not exceeding 5 years in any case. Regular Benches to deal with the criminal cases can be set up where such appeals be listed for final disposal. We feel that if an appeal is not disposed of within the aforesaid period of 5 years, for no fault of the convicts, such convicts may be released on bail on such conditions as may be deemed fit and proper by the court. In computing the period of 5 years, the delay for any period, which is requisite in preparation of the record and the delay attributable to the convict or his counsel can be deducted. There may be cases where even after the lapse of 5 years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the disposal of the appeals filed by them.
We request the Chief Justices of the High Courts, where the criminal cases are pending for more than 5 years to take immediate effective steps for their disposal by constituting regular and special Benches for that purpose.
- [12* (2015) 13 SCC 605]
- “22. Having regard to the above background, we now proceed to formulate our directions in the following terms :
- i) Until NCMSC formulates a scientific method for determining the basis for computing the required judge strength of the district judiciary, the judge strength shall be computed for each state, in accordance with the interim approach indicated in the note submitted by the Chairperson, NCMSC;
- ii) NCMSC is requested to endeavour the submission of its final report by 31 December 2017;
- iii) A copy of the interim report submitted by the Chairperson, NCMSC shall be forwarded by the Union Ministry of Law and Justice to the Chief Justices of all the High Courts and Chief Secretaries of all states within one month so as to enable them to take follow-up action to determine the required judge strength of the district judiciary based on the NCMSC interim report, subject to what has been stated in this judgment;
- iv) The state governments shall take up with the High Courts concerned the task of implementing the interim report of the Chairperson, NCMSC (subject to what has been observed above) and take necessary decisions within a period of three months from today for enhancing the required judge strength of each state judiciary accordingly;
- v) The state governments shall cooperate in all respects with the High Courts in terms of the resolutions passed in the joint conference of Chief Justices and Chief Ministers in April 2016 with a view to ensuring expeditious disbursal of funds to the state judiciaries in terms of the devolution made under the auspices of the Fourteenth Finance Commission;
- vi) The High Courts shall take up the issue of creating additional infrastructure required for meeting the existing sanctioned strength of their state judiciaries and the enhanced strength in terms of the interim recommendation of NCMSC;
- vii) The final report submitted by NCMSC may be placed for consideration before the Conference of Chief Justices. The directions in (i) above shall then be subject to the ultimate decision that is taken on receipt of the final report; and
- viii) A copy of this order shall be made available to the Registrars General of each High Court and to all Chief Secretaries of the States for appropriate action.”
”  DELAY AND ARREARS COMMITTEE:
- xxx xxx xxx
- (i) all High Courts shall assign top most priority for disposal of cases which are pending for more than five years;
- (ii) High Courts where arrears of cases pending for more than five years are concentrated shall facilitate their disposal in mission mode;
- (iii) High Courts shall progressively thereafter set a target of disposing of cases pending for more than four years;
- (iv) while prioritizing the disposal of cases pending in the district courts for more than five years, additional incentives for the Judges of the district judiciary be considered where feasible; and
- (v) efforts be made for strengthening case-flow management rules.”
- [14* Prison Statistics India-2015]
- [15* Circular dated 2.4.2011 from Registrar Rules, Punjab and Haryana High Court. As per resolution of Full Court meeting dated 29.3.2011, the plan was to be monitored every three months and performance of judicial officers was to be reflected in ACRs.]
- [16* Report of the monitoring Committee is that targets were achieved to the extent of 90%, 98110 old cases were disposed of out of 117880 targeted.]
- [17* See the information on website of Punjab and Haryana High Court under the caption “Action Plans”]
“Trial in absentia
- [339B. (1) Where after the compliance with the requirements of section 87 and section 88, the Court has reason to believe that an accused person has absconded or concealing himself so that he cannot be arrested and produced for trial and there is no immediate prospect of arresting him, the Court taking cognizance of the offence complained of shall, by order published in at least two national daily Bengali Newspapers having wide circulation],
- direct such person to appear before it within such period as may be specified in the order,
and if such person fails to comply with such direction, he shall be tried in his absence.
- (2) Where in a case after the production or appearance of an accused before the Court or his release on bail, the accused person absconds or fails to appear, the procedure as laid down in sub-section (1) shall not apply and the Court competent to try such person for the offence complained of shall, recording its decision so to do, try such person in his absence.”
- (i) The High Courts may issue directions to subordinate courts that –
- (a) Bail applications be disposed of normally within one week;
- (b) Magisterial trials, where accused are in custody, be normally concluded within six months and sessions trials where accused are in custody be normally concluded within two years;
- (c) Efforts be made to dispose of all cases which are five years old by the end of the year;
- (d) As a supplement to Section 436A, but consistent with the spirit thereof, if an undertrial has completed period of custody in excess of the sentence likely to be awarded if conviction is recorded such undertrial must be released on personal bond. Such an assessment must be made by the concerned trial courts from time to time;
- (e) The above timelines may be the touchstone for assessment of judicial performance in annual confidential reports.
- (ii) The High Courts are requested to ensure that bail applications filed before them are decided as far as possible within one month and criminal appeals where accused are in custody for more than five years are concluded at the earliest;
- (iii) The High Courts may prepare, issue and monitor appropriate action plans for the subordinate courts;
- (iv) The High Courts may monitor steps for speedy investigation and trials on administrative and judicial side from time to time;
- (v) The High Courts may take such stringent measures as may be found necessary in the light of judgment of this Court in Ex. Captain Harish Uppal (supra).