PETITIONER:HUSSAINARA KHATOON & ORS.
\nVs.
\nRESPONDENT:HOME SECRETARY, STATE OF BIHAR, GOVT. OF BIHAR, PATNA
\nDATE OF JUDGMENT12\/02\/1979<\/p>\n
BENCH:BHAGWATI P.N.,PATHAK R.S.,KOSHAL A.D.<\/p>\n
CITATION:
\n1979 AIR 1360 1979 SCR (3) 169
\n1980 SCC (1) 81
\nCITATOR INFO :
\nRF 1980 SC1789 (112)
\nRF 1981 SC 746 (3)
\nRF 1981 SC 939 (2)
\nE 1981 SC1675 (1,2)
\nR 1982 SC1167 (1,2)
\nR 1983 SC 361 ((2)19)
\nRF 1985 SC 231 (2)
\nR 1986 SC 180 (39)
\nRF 1986 SC1773 (12)
\nF 1987 SC 149 (9)
\nRF 1988 SC1531 (87)
\nF 1989 SC1335 (71)
\nRF 1992 SC1701 (1,21,28,29,31,32,35)<\/p>\n
ACT:Administration of Justice-Pre-trial detention-Right of under-trial prisoner to have a speedy trial-Art. 21 of Constitution of India.<\/p>\n
Pre-trial release-Concept of-Determinative factors in grant of bail and release of under-trial prisoner on personal bond without monetary obligation explained.<\/p>\n
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.
\nDirecting the release of the undertrials on their executing a personal bond.<\/p>\n
HELD :(Per Bhagwati & Koshal, JJ.)
\n1. A procedure which keeps large number of people
\nbehind bars without trial for long, cannot possibly be
\nregarded as “reasonable, just or fair” so as to be in
\nconformity with the requirement of Art. 21. It is necessary,
\ntherefore, that the law as enacted by the Legislature and as
\nadministered by the courts must radically change its
\napproach to pre-trial detention and ensure `reasonable, just
\nand fair’ procedure which has a creative connotation after
\nthe decision of the Supreme Court in Maneka Gandhi’s case.
\n[174 C-D]
\n2. Speedy trial is of the essence of criminal justice
\nand, therefore, delay in trial by itself constitutes denial
\nof justice. Though speedy trial is not specifically
\nenumerated as a fundamental right, it is implicit in the
\nbroad sweep and content of Art. 21. Speedy trial which means
\nreasonably expeditious trial, is an integral part of the
\nfundamental right to life and liberty enshrined in Art. 21,
\n[179 H, 180 C, F]
\nArt. 21 confers fundamental right on every person not
\nto be deprived of his life or liberty except in accordance
\nwith the procedure prescribed by law and it is not enough to
\nconstitute compliance with the requirement of that Article
\nthat some semblance of a procedure should be prescribed by
\nlaw, but that the procedure should be “reasonable, fair and
\njust”. If a person is deprived of his liberty under a
\nprocedure which is not “reasonable, fair or just”, such
\ndeprivation would be violative of his fundamental right
\nunder Art. 21 and he would be entitled to enforce such
\nfundamental right and secure his release. Any procedure
\nprescribed by law for depriving a person of his liberty
\ncannot be “reasonable, fair or just” unless that procedure
\nensures a speedy trial for determination of the guilt of
\nsuch person. [180 D-E]
\n170
\nManeka Gandhi v. Union of India, [1978] 2 SCR 621;
\nreferred to.
\n3. Expeditious trial and freedom from detention are
\npart of human rights and basic freedoms. The judicial system
\nwhich permits incarceration of men and women for long
\nperiods of time without trial is denying human rights to
\nsuch undertrials and withholding basic freedoms from them.
\nLaw has become for them an instrument of injustice and they
\nare helpless and despairing victims of the callousness of
\nthe legal and judicial system. [173 C-E, F]
\n4. One reason why our legal and judicial system
\ncontinually denies justice to the poor by keeping them for
\nlong years in pretrial detention is the highly
\nunsatisfactory bail system, which suffers from a property
\noriented approach. It proceeds on the erroneous assumption
\nthat risk of monetary loss is the only deterrent against
\nfleeing from justice. Even after its re-enactment, the Code
\nof Criminal Procedure continues to adopt the same antiquated
\napproach. Where an accused is to be released on his personal
\nbond, it insists that the bond should contain a monetary
\nobligation requiring the accused to pay a sum of money in
\ncase he fails to appear at the trial. Moreover, as if this
\nwere not sufficient deterrent to the poor, the courts
\nmechanically and as a matter of course insist that the
\naccused should produce sureties who will stand bail for him
\nand these sureties must again establish their solvency to be
\nable to pay the amount of bail in case the accused fails to
\nappear to answer the charge. [174 E-G]
\nThis system of bails operates very harshly against the
\npoor and it is only the non-poor who are able to take
\nadvantage of it by getting themselves released on bail. The
\npoor find it difficult to furnish bail even without sureties
\nbecause very often the amount of the bail fixed by the Court
\nis so unrealistically excessive that in a majority of cases
\nthe poor are unable to satisfy the police or the Magistrate
\nabout their solvency for the amount of the bail and where
\nthe bail is with sureties, as is usually the case, it
\nbecomes an almost impossible task for the poor to find
\npersons sufficiently solvent to stand as sureties. The
\nresult is that either they are fleeced by the police and
\nrevenue officials or by touts and professional sureties and
\nsometimes they have even to incur debts for securing their
\nrelease or, being unable to obtain release, they have to
\nremain in jail until such time as the court is able to take
\nup their cases for trial, leading to grave consequences,
\nnamely, (1) though presumed innocent, they are subjected to
\npsychological and physical deprivations of jail life, (2)
\nthey are prevented from contributing to the preparation of
\ntheir defence and (3) they lose their job, if they have one,
\nand are deprived of an opportunity to work to support
\nthemselves and their family members with the result that the
\nburden of their detention almost invariably falls heavily on
\nthe innocent members of the family. [174 G-175 D]
\nThe bail system, as it operates today, is thus a source
\nof great hardship to the poor and if the civil effects of
\npoverty are to be eliminated and a fair and just treatment
\nassured to the poor in the administration of justice, it is
\nimperative that the bail system should be thoroughly
\nreformed so that it should be possible for the poor, as
\neasily as the rich, to obtain pre-trial release without
\njeopardizing the interest of justice. [177 C-D]
\nRisk of monetary loss is not the only deterrent against
\nfleeing from justice. There are also other factors which act
\nas equal deterrents against fleeing. Therefore, the courts,
\neven under the law as it stands today, must abandon the
\nantiquated concept under which pre-trial release is ordered
\nonly against bail with sureties. If the court is satisfied,
\nafter taking into account, on the basis of
\ninformation placed before it, that the accused has his roots
\nin the community and is not likely to abscond, it can safely
\nrelease the accused on his personal bond. [177 E, G, H]
\n5. To determine whether the accused has his roots in
\nthe community which would deter him from fleeing, the court
\nshould take into account the following factors concerning
\nthe accused: (1) The length of his residence in the
\ncommunity, (2) his employment status, history and his
\nfinancial condition, (3) his family ties and relationships,
\n(4) his reputation, character and monetary conditions, (5)
\nhis prior criminal record including any record of prior
\nrelease on recognizance or on bail, (6) the identity of
\nresponsible members of the community who would vouch for his
\nreliability, (7) the nature of the offence charged and the
\napparent probability of conviction and the likely sentence
\nin so far as these factors are relevant to the risk of non
\nappearance, and (8) any other factors indicating the ties of
\nthe accused to the community or bearing on the risk of
\nwilful failure to appear. [178 A-E]
\nIf the court is satisfied on a consideration of the
\nrelevant factors that the accused has his ties in the
\ncommunity and there is no substantial risk of nonappearance,
\nthe accused may, as far as possible, be released
\non his personal bond. If facts are brought to the notice of
\nthe court showing that, having regard to the condition and
\nback-ground of the accused, his previous record and the
\nnature and circumstances of the offence, there may be a
\nsubstantial risk of his non-appearance at the trial, as for
\nexample, where the accused is a notorious bad character or a
\nconfirmed criminal or the offence is serious, the court may
\nnot release the accused on his personal bond and may insist
\non bail with sureties. But in the majority of cases,
\nconsiderations like family ties and relationship, roots in
\nthe community, employment status etc. may prevail with the
\ncourt in releasing the accused on his personal bond and
\nparticularly in cases where the offence is not grave and the
\naccused is poor or belongs to a weaker section of the
\ncommunity, release on personal bond could, as far as
\npossible, be preferred. But even while releasing the accused
\non personal bond it is necessary to caution the court that
\nthe amount of the bond which it fixes should not be based
\nmerely on the nature of the charge. The decision as regards
\nthe amount of the bond should be an individualised decision
\ndepending on the individual financial circumstances of the
\naccused and the probability of his absconding. The amount of
\nthe bond should be determined having regard to these
\nrelevant factors and should not be fixed mechanically
\naccording to a schedule keyed to the nature of the charge.
\nOtherwise, it would be difficult for the accused to secure
\nhis release even by executing a personal bond, it would be
\nvery harsh and oppressive if he is required to satisfy the
\ncourt-and what is said in regard to the court must apply
\nequally in relation to the police while granting bail-that
\nhe is solvent enough to pay the amount of the bond if he
\nfails to appear at the trial and in consequence the bond is
\nforfeited. The inquiry into the solvency of the accused can
\nbecome a source of great harassment to him and often result
\nin denial of bail and deprivation of liberty and should not,
\ntherefore, be insisted upon as a condition of acceptance of
\nthe personal bond. [178 F-179 D]
\n6. Necessary to provide by an amendment of the penal
\nlaw that if an accused wilfully fails to appear in
\ncompliance with the promise contained in his personal bond,
\nhe shall be liable to penal action. [177 F]
\n7. High time that the State Government realised its
\nresponsibility to the people in the matter of administration
\nof justice and set up more courts for the trial of cases.<\/p>\n
Pathak J. (concurring)
\n(1) The primary principle of criminal law is that
\nimprisonment may follow a judgment of guilt, but should not
\nprecede it. There is also another principle which makes it
\ndesirable to ensure that the accused is present to receive
\nhis sentence in the event of being found guilty. [181 E]
\n(2) It is indisputable that an unnecessarily prolonged
\ndetention in prison of undertrials before being brought to
\ntrial is an affront to all civilized norms of human liberty
\nand any meaningful concept of individual liberty which forms
\nthe bedrock of a civilized legal system must view with
\ndistress patently long periods of imprisonment before
\npersons awaiting trial can receive the attention of the
\nadministration of justice. [181 D]
\n(3) The Code of Criminal Procedure both the old Code
\nand the new include provisions for the release of a person
\non bail or on the execution of a bond without sureties for
\nhis appearance. There is an amplitude of judicial power to
\nrelease a prisoner awaiting trial on bail or on the
\nexecution of a personal bond without sureties for his
\nappearance within the existing provisions of the Code of
\nCriminal Procedure and it is for the Courts to fully
\nacquaint themselves with the nature and extent of their
\ndiscretion in exercising it. It is no longer possible to
\ncountenance a mechanical exercise of the power. What should
\nbe the amount of security required or the monetary
\nobligation demanded in a bond is a matter calling for the
\ncareful consideration of several factors. The entire object
\nbeing only to ensure that the undertrial does not flee or
\nhide himself from trial, all the relevant considerations
\nwhich enter into the determination of that question must be
\ntaken into account. [181 E, 182 B-C]
\n(4) The abuses attendant on the prevailing system of
\npre-trial release in India could be avoided or, in any event
\ngreatly reduced, if considerations like “nature and
\ncircumstances of the offence charged, the weight of the
\nevidence against the accused, the accused’s family ties,
\nemployment, financial resources, character and mental
\ncondition, the length of his residence in the community, his
\nrecord of convictions, and his record or appearance at court
\nproceedings or of flight to avoid prosecution or failure to
\nappear at court proceedings”, are taken into consideration
\nwhen determining pre-trial release and the amount of
\nsecurity or monetary obligation to be imposed. [182 G, E-F]
\nUnited States Bail Reforms Act, 1966: 18 USS 3146
\n(b), Moti Ram & Ors. v. State of M.P. [1978] 4 SCC 47;
\nreferred to.
\n(5) Urgent need for a clear and explicit provision in
\nthe Code of Criminal Procedure enabling the release, in
\nappropriate cases, of an under trial prisoner on his bond
\nwithout sureties and without any monetary obligation.[183 B]
\nJUDGMENT:
\nORIGINAL JURISDICTION: Writ Petition No. 57 of 1979.
\nMrs. K. Hingorani for the Petitioners
\nS. M. Jha and U. P. Singh for the Respondent.
\nThe Judgment of Bhagwati and Koshal, JJ. was delivered
\nby Bhagwati, J. Pathak, J. gave a separate Opinion.<\/p>\n
BHAGWATI, J.-This petition for a writ of habeas corpus
\ndiscloses a shocking state of affairs in regard to
\nadministration of justice in the State of Bihar. An
\nalarmingly large number of men and women, children
\nincluding, are behind prison bars for years awaiting trial
\nin courts of law. The offences with which some of them are
\ncharged are trivial, which, even if proved, would not
\nwarrant punishment for more than a few months, perhaps for a
\nyear or two, and yet these unfortunate forgotten specimens
\nof humanity are in jail, deprived of their freedom, for
\nperiods ranging from three to ten years without even as much
\nas their trial having commenced. It is a crying shame on the
\njudicial system which permits incarceration of men and women
\nfor such long periods of time without trial. We are shouting
\nfrom house tops about the protection and enforcement of
\nhuman rights. We are taking passionately and eloquently
\nabout the maintenance and preservation of basic freedoms.
\nBut, are we not denying human rights to these nameless
\npersons who are languishing in jails for years for offences
\nwhich perhaps they might ultimately be found not to have
\ncommitted ? Are we not withholding basic freedoms from these
\nneglected and helpless human beings who have been condemned
\nto a life of imprisonment and degradation for years on end?
\nAre expeditious trial and freedom from detention not part of
\nhuman rights and basic freedoms ? Many of these unfortunate
\nmen and women must not even be remembering when they entered
\nthe jail and for what offence. They have over the years
\nceased to be human beings they are mere ticket-numbers. It
\nis high time that the public conscience is awakened and the
\nGovernment as well as the judiciary begin to realise that in
\nthe dark cells of our prisons there are large numbers of men
\nand women who are waiting patiently, impatiently perhaps,
\nbut in vain, for justice-a commodity which is tragically
\nbeyond their reach and grasp. Law has become for them an
\ninstrument of injustice and they are helpless and despairing
\nvictims of the callousness of the legal and judicial system.
\nThe time has come when the legal and judicial system has to
\nbe revamped and restructured so that such injustices do not
\noccur and disfigures the fair and otherwise luminous face of
\nour nascent democracy.
\nThough we issued notice to the State of Bihar two weeks
\nago, it is unfortunate that on the 5th February, 1979 no one
\nhas appeared on behalf of the State and we must, therefore,
\nat this stage proceed on the basis that the allegations
\ncontained in the issues of the Indian Express dated 8th and
\n9th January, 1979 which are incorporated in the writ
\npetition are correct. The information contained in these
\nnewspaper cuttings is most distressing and it is sufficient
\nto stir the conscience and disturb the equanimity of any socially motivated
\nlawyer or judge. Some of the undertrial prisoners whose
\nnames are given in the newspaper cuttings have been in jail
\nfor as many as 5, 7 or 9 years and a few of them, even more
\nthan 10 years, without their trial having begun. What faith
\ncan these lost souls have in the judicial system which
\ndenies them a bare trial for so many years and keeps them
\nbehind bars, not because they are guilty, but because they
\nare too poor to afford bail and the courts have no time to
\ntry them. It is a travesty of justice that many poor
\naccused, “little Indians, are forced into long cellular
\nservitude for little offences” because the bail procedure is
\nbeyond their meagre means and trials don’t commence and even
\nif they do, they never conclude. There can be little doubt,
\nafter the dynamic interpretation placed by this Court on
\nArt. 21 in Maneka Gandhi v. Union of India(1) that a
\nprocedure which keeps such large numbers of people behind
\nbars without trial so long cannot possibly be regarded as
\n‘reasonable, just or fair’ so as to be in conformity with
\nthe requirement of that Article. It is necessary, therefore,
\nthat the law as enacted by the Legislature and as
\nadministered by the courts must radically change its
\napproach to pretrial detention and ensure ‘reasonable, just
\nand fair’ procedure which has creative connotation after
\nManeka Gandhi’s case supra.
\nNow, one reason why our legal and judicial system
\ncontinually denies justice to the poor by keeping them for
\nlong years in pretrial detention is our highly
\nunsatisfactory bail system. It suffers from a property
\noriented approach which seems to proceed on the erroneous
\nassumption that risk of monetary loss is the only deterrent
\nagainst fleeing from justice. The Code of Criminal
\nProcedure, even after its re-enactment, continues to adopt
\nthe same antiquated approach as the earlier Code enacted
\ntowards the end of the last century and where an accused is
\nto be released on his personal bond, it insists that the
\nbond should contain a monetary obligation requiring the
\naccused to pay a sum of money in case he fails to appear at
\nthe trial. Moreover, as if this were not sufficient
\ndeterrent to the poor, the courts mechanically and as a
\nmatter of course insist that the accused should produce
\nsureties who will stand bail for him and these sureties must
\nagain establish their solvency to be able to pay up the
\namount of the bail in case the accused fails to appear to
\nanswer the charge. This system of bails operates very
\nharshly against the poor and it is only the non-poor who are
\nable to take advantage of it by getting themselves released
\non bail. The poor find it difficult to furnish bail even
\nwithout sureties because very often the amount of the bail
\nfixed by the courts is so unrealistically excessive that in a majority of cases the
\npoor are unable to satisfy the police or the Magistrate
\nabout their solvency for the amount of the bail and where
\nthe bail is with sureties, as is usually the case, it
\nbecomes an almost impossible task for the poor to find
\npersons sufficiently solvent to stand as sureties. The
\nresult is that either they are fleeced by the police and
\nrevenue officials or by touts and professional sureties and
\nsometimes they have even to incur debts for securing their
\nrelease or, being unable to obtain release, they have to
\nremain in jail until such time as the court is able to take
\nup their cases for trial, leading to grave consequences,
\nnamely, (1) though presumed innocent, they are subjected to
\npsychological and physical deprivations of jail life, (2)
\nthey are prevented from contributing to the preparation of
\ntheir defence and (3) they lose their job, if they have one,
\nand are deprived of an opportunity to work to support
\nthemselves and their family members with the result that the
\nburden of their detention almost invariably falls heavily on
\nthe innocent members of the family. It is hero that the poor
\nfind our legal and judicial system oppressive and heavily
\nweighted against them and a feeling of frustration and
\ndespair occurs upon them as they find that they are
\nhelplessly in a position of inequality with the non-poor.
\nThe Legal Aid Committee appointed by the Government of
\nGujarat under the chairmanship of one of us, Mr. Justice
\nBhagwati, emphasised this glaring inequality in the
\nfollowing words:
\n“The bail system, as we see it administered in the
\ncriminal courts today, is extremely unsatisfactory and
\nneeds drastic change. In the first place it is
\nvirtually impossible to translate risk of nonappearance
\nby the accused into precise monetary terms
\nand even its basic premise that risk of financial loss
\nis necessary to prevent the accused from fleeing is of
\ndoubtful validity. There are several considerations
\nwhich deter an accused from running away from justice
\nand risk of financial loss is only one of them and that
\ntoo not a major one. The experience of enlightened Bail
\nProjects in the United States such as Manhattan Bail
\nProject and D. C. Bail Project shows that even without
\nmonetary bail it has been possible to secure the
\npresence of the accused at the trial in quite a large
\nnumber of cases. Moreover, the bail system causes
\ndiscrimination against the poor since the poor would
\nnot be able to furnish bail on account of their poverty
\nwhile the wealthier persons otherwise similarly situate
\nwould be able to secure their freedom because they can
\nafford to furnish bail. This discrimination arises even
\nif the amount of the bail is fixed by the Magistrate is not high, for
\na large majority of those who are brought before the
\nCourts in criminal cases are so poor that they would
\nfind it difficult to furnish bail even in a small amount.”
\nThe Gujarat Committee also pointed out how the practice of
\nfixing the amount of bail with reference to the nature of
\nthe charge without taking into account relevant factors,
\nsuch as the individual financial circumstances of the
\naccused and the probability of his fleeing before trial, is
\nharsh and oppressive and discriminates against the poor:
\n“The discriminatory nature of the bail system
\nbecomes all the more acute by reason of the mechanical
\nway in which it is custormarily operated. It is no
\ndoubt true that theoretically the Magistrate has broad
\ndiscretion in fixing the amount of bail but in practice
\nit seems that the amount of bail depends almost always
\non the seriousness of the offence. It is fixed
\naccording to a schedule related to the nature of the
\ncharge. Little weight is given either to the
\nprobability that the accused will attempt to flee
\nbefore his trial or to his individual financial
\ncircumstances, the very factors which seem most
\nrelevant if the purpose of bail is to assure the
\nappearance of the accused at the trial. The result of
\nignoring these factors and fixing the amount of bail
\nmechanically having regard only to the seriousness of
\nthe offence is to discriminate against the poor who are
\nnot in the same position as the rich as regards
\ncapacity to furnish bail. The Courts by ignoring the
\ndifferential capacity of the rich and the poor to
\nfurnish bail and treating them equally produce
\ninequality between the rich and the poor: the rich who
\nis charged with the same offence in the same
\ncircumstances is able to secure his release while the
\npoor is unable to do so on account of his poverty.
\nThese are some of the major defects in the bail system
\nas it is operated to-day.”
\nThe same anguish was expressed by President Lyndon B.
\nJohnson at the time of signing the Bail Reforms Act, 1966:
\n“Today, we join to recognize a major development
\nin our system of criminal justice: the reform of the
\nbail system.
\nThis system has endured-archaic, unjust and
\nvirtually unexamined-since the Judiciary Act of 1789.
\nThe principal purpose of bail is to insure that an
\naccused person will return for trial if he is released after arrest.<\/p>\n
How is that purpose met under the present system ?
\nThe defendant with means can afford to pay bail. He can
\nafford to buy his freedom. But poorer defendant cannot
\npay the price. He languishes in jail weeks, months and
\nperhaps even years before trial.
\nHe does not stay in jail because he is guilty. He
\ndoes not stay in jail because any sentence has been passed.
\nHe does not stay in jail because he is any more
\nlikely to flee before trial.
\nHe stays in jail for one reason only-because he is poor…..”
\nThe bail system, as it operates today, is a source of great
\nhardship to the poor and if we really want to eliminate the
\nevil effects of poverty and assure a fair and just treatment
\nto the poor in the administration of justice, it is
\nimperative that the bail system should be thoroughly
\nreformed so that it should be possible for the poor, as
\neasily as the rich to obtain pretrial release without
\njeopardizing the interest of justice.
\nIt is high time that our Parliament realises that risk
\nof monetary loss is not the only deterrent against fleeing
\nfrom justice, but there are also other factors which act as
\nequal deterrents against fleeing. Ours is a socialist
\nrepublic with social justice as the signature tune of our
\nconstitution and Parliament would do well to consider
\nwhether it would not be more consonant with the ethos of our
\nconstitution that instead of risk of financial loss, other
\nrelevant considerations such as family ties, roots in the
\ncommunity, job security, membership of stable organisations
\netc., should be the determinative factors in grant of bail
\nand the accused should be in appropriate cases be released
\non his personal bond without monetary obligation. Of course,
\nit may be necessary in such a case to provide by an
\namendment of the penal law that if the accused wilfully
\nfails to appear in compliance with the promise contained in
\nhis personal bond, he shall be liable to penal action. But
\neven under the law as it stands today the courts must
\nabandon the antiquated concept under which pretrial release
\nis ordered only against bail with sureties. That concept is
\noutdated and experience has shown that it has done more harm
\nthan good. The new insight into the subject of pretrial
\nrelease which has been developed in socially advanced
\ncountries and particularly the United States should now
\ninform the decisions of our Courts in regard to pretrial
\nrelease. If the Court is satisfied, after taking into
\naccount, on the basis of information placed before it, that
\nthe accused has his roots in the community and is not likely
\nto abscond, it can safely release the accused
\non his personal bond. To determine whether the accused has
\nhis roots in the community which would deter him from
\nfleeing, the Court should take into account the following
\nfactors concerning the accused:
\n1. The length of his residence in the community.
\n2. his employment status, history and his financial condition,
\n3. his family ties and relationships,
\n4. his reputation, character and monetary condition,
\n5. his prior criminal record including any record or prior release on recognizance or on bail,
\n6. the identity of responsible members of the community who would vouch for his reliability.
\n7. 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.
\nIf the court is satisfied on a consideration of the relevant
\nfactors that the accused has his ties in the community and
\nthere is no substantial risk of non-appearance, the accused
\nmay, as far as possible, be released on his personal bond.
\nOf course, if facts are brought to the notice of the court
\nwhich go to show that having regard to the condition and
\nbackground of the accused his previous record and the nature
\nand circumstances of the offence, there may be a substantial
\nrisk of his non-appearance at the trial, as for example,
\nwhere the accused is a notorious bad character or a
\nconfirmed criminal or the offence is serious (these examples
\nare only by way of illustration), the court may not release
\nthe accused on his personal bond and may insist on bail with
\nsureties. But in the majority of cases, considerations like
\nfamily ties and relationship, roots in the community,
\nemployment status etc. may prevail with the court in
\nreleasing the accused on his personal bond and particularly
\nin cases where the offence is not grave and the accused is
\npoor or belongs to a weaker section of the community,
\nrelease on personal bond could, as far as possible, be
\npreferred. But even while releasing the accused on personal
\nbond it is necessary to caution the court that the amount of
\nthe bond which it<\/p>\n
fixes should not be based merely on the nature of the
\ncharge. The decision as regards the amount of the bond
\nshould be an individualised decision depending on the
\nindividual financial circumstances of the accused and the
\nprobability of his absconding. The amount of the bond should
\nbe determined having regard to these relevant factors and
\nshould not be fixed mechanically according to a schedule
\nkeyed to the nature of the charge. Otherwise, it would be
\ndifficult for the accused to secure his release even by
\nexecuting a personal bond. Moreover, when the accused is
\nreleased on his personal bond, it would be very harsh and
\noppressive if he is required to satisfy the court-and what
\nwe have said here in regard to the court must apply equally
\nin relation to the police while granting bail-that he is
\nsolvent enough to pay the amount of the bond if he fails to
\nappear at the trial and in consequence the bond is
\nforfeited. The inquiry into the solvency of the accused can
\nbecome a source of great harassment to him and often result
\nin denial of bail and deprivation of liberty and should not,
\ntherefore, be insisted upon as a condition of acceptance of
\nthe personal bond. We have no doubt that if the system of
\nbail, even under the existing law, is administered in the
\nmanner we have indicated in this judgment, it would go a
\nlong way towards relieving hardship of the poor and help
\nthem to secure pretrial release from incarceration. It is
\nfor this reason we have directed the undertrial prisoners
\nwhose names are given in the two issues of the Indian
\nExpress should be released forthwith on their personal bond.
\nWe should have ordinarily said that personal bond to be
\nexecuted by them should be with monetary obligation, but we
\ndirected as an exceptional measure that there need be no
\nmonetary obligation in the personal bond because we found
\nthat all these persons have been in-jail without trial for
\nseveral years, and in some cases for offences for which the
\npunishment would in all probability be less than the period
\nof their detention and moreover, the order we were making
\nwas merely an interim order. The peculiar facts and
\ncircumstances of the case dictated such an unusual course.
\nThere is also one other infirmity of the legal and
\njudicial system which is responsible for this gross denial
\nof justice to the undertrial prisoners and that is the
\nnotorious delay in disposal of cases. It is a bad reflection
\non the legal and judicial system that the trial of an
\naccused should not even commence for a long number of years.
\nEven a delay of one year in the commencement of the trial is
\nbad enough; how much worse could it be when the delay is as
\nlong as 3 or 5 or 7 or even 10 years. Speedy trial is of the
\nessence of criminal justice and there can be no doubt that
\ndelay in trial by itself constitutes denial
\nof justice. It is interesting to note that in the United
\nStates, speedy trial is one of the constitutionally
\nguaranteed rights. The Sixth Amendment to the Constitution
\nprovides that
\n“In all criminal prosecutions, the accused shall
\nenjoy the right to a speedy and public trial.” So also
\nArticle 3 of the European Convention on Human Rights provides that:
\n“every one arrested or detained-shall be entitled
\nto trial within a reasonable time or to release pending trial.”
\nWe think that even under our Constitution, though speedy
\ntrial is not specifically enumerated as a fundamental right,
\nit is implicit in the broad sweep and content of Article 21
\nas interpreted by this Court in Maneka Gandhi v. Union of
\nIndia. We have held in that case that Article 21 confers a
\nfundamental right on every person not to be deprived of his
\nlife or liberty except in accordance with the procedure
\nprescribed by law and it is not enough to constitute
\ncompliance with the requirement of that Article that some
\nsemblance of a procedure should be prescribed by law, but
\nthat the procedure should be “reasonable, fair and just”. If
\na person is deprived of his liberty under a procedure which
\nis not “reasonable, fair or just”, such deprivation would be
\nviolative of his fundamental right under Article 21 and he
\nwould be entitled to enforce such fundamental right and
\nsecure his release. Now obviously procedure prescribed by
\nlaw for depriving a person of his liberty cannot be
\n‘reasonable, fair or just’ unless that procedure ensures a
\nspeedy trial for determination of the guilt of such person.
\nNo procedure which does not ensure a reasonable quick trial
\ncan be regarded as ‘reasonable, fair or just’ and it would
\nfall foul of Article 21. There can, therefore, be no doubt
\nthat speedy trial and by speedy trial we mean reasonably
\nexpeditious trial, is an integral and essential part of the
\nfundamental right to life and liberty enshrined in Article
\n21. The question which would, however, arise is as to what
\nwould be the consequence if a person accused of an offence
\nis denied speedy trial and is sought to be deprived of his
\nliberty by imprisonment as a result of a long delayed trial
\nin violation of his fundamental right under Article 21.
\nWould he be entitled to be released unconditionally freed
\nfrom the charge levelled against him on the ground that
\ntrying him after an unduly long period of time and
\nconvicting him after such trial would constitute violation
\nof his fundamental right under Article 21 ? That is a
\nquestion we shall have to consider when we hear the writ
\npetition on merits on the adjourned date. But one thing is
\ncertain and we cannot impress it too strongly on the State
\nGovernment that it is high time that the State Government
\nrealised its responsibility to the people in the matter of
\nadministration of justice and set up more courts for the trial of
\ncases. We may point out that it would not be enough merely
\nto establish more courts but the State Government would also
\nhave to man them by competent judges and whatever is
\nnecessary for the purpose of recruiting competent judges,
\nsuch as improving their conditions of service, would have to
\nbe done by the State Government, if they want to improve the
\nsystem of administration of justice and make it an effective
\ninstrument for reaching justice to the large masses of
\npeople for whom justice is to-day a meaningless and empty word.
\nThese are the reasons for which we made our order dated
\n5th February, 1979. We shall now proceed to hear the writ
\npetition on 19th February, 1979.
\nPATHAK, J.-It is indisputable that an unnecessarily
\nprolonged detention in prison of undertrials before being
\nbrought to trial is an affront to all civilized norms of
\nhuman liberty. Any meaningful concept of individual liberty
\nwhich forms the bedrock of a civilized legal system must
\nview with distress patently long periods of imprisonment
\nbefore persons awaiting trial can receive the attention of
\nthe administration of justice. The primary principle of
\ncriminal law is that imprisonment may follow a judgment of
\nguilt. But should not precede it. But there is another
\nprinciple which makes it desirable to ensure that the
\naccused is present to receive his sentence in the event of
\nbeing found guilty. Now, the Code of Criminal Procedure,
\nboth the old Code and the new, include provision for the
\nrelease of a person on bail or on the execution of a bond
\nwithout sureties for his appearance. Nonetheless, as appears
\nprima facie from the record before us, a large number of
\npersons whose names, find mention in copies of the Indian
\nExpress of January 8 and 9, 1979, have been in prison for
\nlong year without even being brought to trial. Although
\nsufficient opportunity was given to the State of Bihar to
\nmeet the allegations made, it is unfortunate that no one has
\nappeared on behalf of the State. In view of the importance
\nof the questions arising on the habeas corpus petition, we
\nhave provided further opportunity to the State to appear and
\naccordingly have posted the petition for final hearing on
\nFebruary 19, 1979. But at the same time we see no reason why
\ninterim relief should be denied to these undertrials. After
\ncarefully considering what has been said in respect of each
\nindividual undertrial, we have considered it appropriate, in
\nthe interests of justice, to make the order of February 5,
\n1979 directing the release of the persons mentioned in that
\norder on their executing a personal bond. The order is
\nsomewhat unusual in that it directs that the personal bond
\nto be taken in each case should not be based on any monetary obligation. The
\ncondition has been included as an exceptional measure, under
\nthe persuasive pressure of the particular facts and
\ncircumstance of the case.
\nIn regard to the exercise of the judicial power to
\nrelease a prisoner awaiting trial on bail or on the
\nexecution of a personal bond without sureties for his
\nappearance, I have to say this briefly. There is an
\namplitude of power in this regard within the existing
\nprovisions of the Code of Criminal Procedure, and it is for
\nthe Courts to fully acquaint themselves with the nature and
\nextent of their discretion in exercising it. I think it is
\nno longer possible to countenance a mechanical exercise of
\nthe power. What should be the amount of security required or
\nthe monetary obligation demanded in a bond is a matter
\ncalling for the careful consideration of several factors.
\nThe entire object being only to ensure that the undertrial
\ndoes not flee or hide himself from trial, all the relevant
\nconsiderations which enter into the determination of that
\nquestion must be taken into account. A synoptic impression
\nof what the considerations could be may be drawn from the
\nfollowing provision in the United States Bail Reform Act of 1966:
\n“In determining which conditions of releases will
\nreasonably assure appearance, the judicial officer
\nshall, on the basis of available information, take into
\naccount the nature and circumstances of the offence
\ncharged, the weight of the evidence against the
\naccused, the accused’s family ties, employment,
\nfinancial resources, character and mental condition,
\nthe length of his residence in the community, his
\nrecord of convictions, and his record of appearance at
\ncourt proceedings or of flight to avoid prosecution or
\nfailure to appear at court proceedings.
\nThese are considerations which should be kept in mind when
\ndetermining the amount of the security or monetary
\nobligation. Perhaps, if this is done the abuses attendant on
\nthe prevailing system of pretrial release in India could be
\navoided or, in any event, greatly reduced See Moti Ram and
\nOthers v. State of Madhya Pradesh.
\nI consider it desirable to refrain from making any
\nfinal comment or observation on the legality and propriety
\nof the continued detention of the undertrial prisoners
\nwhether on the ground of infringement
\nof Article 21 of the Constitution or on other grounds. That,
\nI think, should await the final determination of the habeas corpus petition.
\nThese are the reasons which have influenced me in
\nmaking the order dated February 5, 1979.
\nWhile concluding, it seems desirable to draw attention
\nto the absence of an explicit provision in the Code of
\nCriminal Procedure enabling the release, in appropriate
\ncases, of an undertrial prisoner on his bond without
\nsureties and without any monetary obligation. There is
\nurgent need for a clear provision. Undeniably, the thousands
\nof undertrial prisoners lodged in Indian prisons today
\ninclude many who are unable to secure their release before
\ntrial because of their inability to produce sufficient
\nfinancial guarantee for their appearance. Where that is the
\nonly reason for their continued incarceration, there may be
\ngood ground for complaining of invidious discrimination. The
\nmore so under a constitutional system which promises social
\nequality and social justice to all of its citizens. The
\ndeprivation of liberty for the reason of financial poverty
\nonly is an incongruous element in a society aspiring to the
\nachievement of these constitutional objectives. There are
\nsufficient guarantees for appearance in the host of
\nconsiderations to which reference has been made earlier and,
\nit seems to me, our law-makers would take an important step
\nin defence of individual liberty if appropriate provision
\nwas made in the statute for non-financial releases.
\nN.V.K.<\/p>\n","protected":false},"excerpt":{"rendered":"
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…<\/p>\n","protected":false},"author":1091,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_customify_content_layout":"","_customify_sidebar":"","_customify_page_header_display":"","_customify_disable_header":"","_customify_disable_header_top":"","_customify_disable_header_main":"","_customify_disable_header_bottom":"","_customify_disable_page_title":"","_customify_disable_content_vertical_padding":"","_customify_disable_footer_top":"","_customify_disable_footer_main":"","_customify_disable_footer_bottom":"","_customify_breadcrumb_display":"","_customify_header_transparent_display":"","footnotes":""},"categories":[65],"tags":[1030,2298,2300,2299,2297],"class_list":["post-526","post","type-post","status-publish","format-standard","hentry","category-judgments","tag-bhagwati-pn","tag-fundamental-right","tag-koshal-a-d","tag-pathak-r-s","tag-speedy-trial"],"_links":{"self":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/526","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/users\/1091"}],"replies":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/comments?post=526"}],"version-history":[{"count":0,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/526\/revisions"}],"wp:attachment":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/media?parent=526"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/categories?post=526"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/tags?post=526"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}