Right to Speedy Trial in India A Review

Transcription

1 Right to Speedy Trial in India A Review K. N. CHANDRASEKHARAN PILLAI* Unlike the American Constitution 1 the Indian Constitution does not provide for the right to speedy trial. Probably this accounted for the absence of any litigation by the undertrial prisoners in spite of there being a large number of them languishing in various prisons in this vast country. The unmasking of the horrendous situation prevalent in the Bihar Jails 2 where a few hundreds of undertrial prisoners were waiting for their trials for periods longer than the terms for which they would have been sentenced had they been convicted of the offences charged against them, has made the Indian Supreme Court to read the right of speedy public trial in Article 21 of the Constitution. While interpreting the Article in Hussainara Khatoon & others v. Home Secretary, Bihar the court observed: - "We think that even under our Constitution, though speedy trial is not specifically enumerated as a fudamental right, it is implicit in the broad sweep and content of Article 21 B.Sc. (Kerala), LL.M. (Delhi), LL.M., S.J.D. (Michigan), Reader, Faculty of Law, Cochin University of Science and Technology, Cochin Amendment VI of the 'American Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right to speedy trial". For a history of the litigation leading to the pronouncement that Art. 21 includes right of speedy trial, see Upendra Baxi, "Supreme Court under Trial - Undertrials and the Supreme Court", (1980) 1 S.C.C. Jour. 35. Also see Hussainara Khatoon & Others v. Home Secretary, Bihar, A.I.R S.C

2 110 COCHIN UNIVERSITY LAW REVIEW 101 as interpreted by this Court in Maneka Gandhi v. Union of India, A.I.R S.C. 597".3 This view was reiterated in Hussainara II 4 and Hussainara IV 5. However, the Hussainara ratio was not referred to in Sangma v. State of Meghalaya 6 and this failure of the Court was adversely commented upon in juristic circles' Though subsequent decisions of the Supreme Court do seem to follow the Hussainara ratio, in fact on closer scrutiny, one finds that the Supreme Court has not been showing any uniformity in its reasoning in the application of the right of speedy trial. Nor has it so far indicated any time limit for the completion of trials except in the case of children. 7A It is in this context that the Patna High Court has dealt with the right of speedy public trail in all its ramifications in a series of decisions such as State of Bihar v. Ramdaras Ahir, B State of Bihar v. Maksudan Singh, 9 and Madheshwardhari Singh v. State of Bihar. 0 In A.I.R S.C at A.I.R S.C (1980) 1 S.C.C. 98. A.I.R S.C Supra, n.2. 7A. Sheela Barse v. Union of India, 1986 Cri. L. J (S.C.) The Supreme Court fixed outer time limit for trials involving children. The question of invoking right of speedy trial of persons other than children below 16 years has been reserved for future decision (p. 1742). See also Ragubir Singh & Others v. State of Bihar, 1986 (2) Scale 452 at 457, 458 and 460. At page 457, the Supreme Court has listed out a volley of questions that have to be considered before the application of right of sneedy trial. Apparently this is on the balancing of these questions that the court may decide to apply the right of speedy trial. In this case having regard to the capability of the accused to safeguard their rights and the troubled situations in the country calling for the deployment of police for the maintenance of law and order, the court concluded that the delay did not warrant interference on the ground that there was infringment of right to speedy trial Cri. L.J A.I.R Pat Cri. L.J (Pat.)

3 K. N. CHANDRASEKHARAN PILLAI 111 this context it is worthwhile to examine the reasoning in these decisions in the light of the post Hussainara decisions of the Supreme Court inasmuch as this exercise may help us to guess as to the ability of the Patna decisions to be the trend-setters in this arena. In Ramdaras Ahir's Case I I the appeal agaist acquittal of the respondents of serious charges including murder came for decision after 16 years of the occurrence. It was only after a trial of 8 years that the respondents acquitted. The Patna High Court felt that the probability of death sentence had been hanging on the respondents like Dennocle's sword and hence the delay should be taken seriously. It seems that the Court has been trying to equate these appellate proceedings with the proceedings of a deathsentence's appeal. In order to bring the appellate proceedings within the meaning of trial, the Court reasoned 12 that the nature of criminal appeal under the code is a rehearing and a continuation of the trial. The Court thus concluded that the right to speedy trial covers appeal proceedings also It had, however, to quantify the delay for the invocation of the right. "In the light of the above, I am firmly inclined to the view that of callous and inordinately prolonged delay of 10 years or more, which in no way arises from the accused's default (or is otherwise not occasioned due to any extraordinary and exceptional reason), in the context of the reversal of a clean acquittal on a capital charge, would plainly violate the constitutional guarantee of a speedy trial under Art. 21. Any procedure or practice which allows such horrendous delays cannot but be labelled as oppressive, arbitrary and fanciful. Indeed I am somewhat hesitant in spelling out the aforesaid time limit, which perhaps errs on the side of strictitude. However, considering the fact Supra, n.8. The court observes: `It would thus be manifest that the nature of a criminal appeal under the Code - whether against conviction or directed against acquittal - is a rehearing and a continuation of the trial", at 589.

4 112 COCHIN UNIVERSITY LAW REVIEW that herein one seems to be breaking new ground, I would wish to rest content with the same." The Court also categorically made it clear that though the letter of Amendment VI of the American Constitution is not applicable in India, its spirit does apply here. Maksudan Singh's 14 case also presented appeal proceedings which had been delayed for more than 8 years. The total delay from the day of occurrence was 14 years. Repelling the argument that Ramdaras Ahir's case was wrongly decided and refusing to enter into any hypothetical questions, the Court declared that the right of speedy trial available in India was identical in content with the express constitutional guarantee inserted by the VI Amendments to the U.S. Constitution. Holding that the American precedents would have persuasive value in India, the Court concluded: must, therefore, be held that inordinately prolonged and callous delay of ten years or more occasioned entirely by the prosecution's default, in the context of reversal of clean acquittal on a capital charge, would be per se prejudicial to the accused". 15 These reasoning and conclusions received reiteration and further strenghtening in Madheshwardhari Singh v. State of Bihar. 16 It was a case which involved trial of corruption charges levelled against a gazetted officer in the Bihar State Service. In spite of the lapse of 10 years and a large number of adjournments just to help the Government to lead evidence, his trial was not completed. Though the speedy trial right had already been established by the precedents of the Supreme Court and the Patna High 1985 Cri. L.J Supra, n. 9. Id. at 47. Supra, n. 10.

5 K. N. CHANDRASEKHARAN PILLAI 113 Court, the State argued that the right to speedy trial which originated in the affluent countries like the U.S. or U.K. should not be allowed to be imported into India. The Court responded: "This cannot be allowed to be whittled down on an3. finical ground of the hoary origin of this right in the constitutional history of Great Britain and America, nor consideration of affluence of developed countries are even remotely relevant or germane in this context". 17 In this case of Court also ruled that the right to speedy trial cat be invoked even in the case of trials involving lesser charges. With reference to the important question whether the period spent on investigation is to be within the protective coverage of this right, the Court held: "Coming now to Question No. (2), the core issue is as to what does a speedy public trial in a criminal prose,ctuion truly connote? Does it include within it the preceding police investigation in the case also or is it confined only to the period of time when the portals of the Court are entered in a regular trial? On principle I am clearly of the opinion that in the majestic sweep of the fundamental right of a speedy public trial in the context of a criminal prosectuion, intiated at the State's instance, it necessarily connots all the period from the date of the levelling of the criminal charge to the date of the rendering of the judgement in Court. Unless it is so held, the cherished fundamental right herein would be whittled down to a teasing mirage, where the investigation of the offence itself may protract on for years (as is well manifested in the present case), and thus rendering the very concept and purpose of a speedy trial in a criminal prosecution herein includes within it both the police investigation of the crime and the later adjudication in Court based thereon." 18 The facts of this case also compelled the Court to fix an outer time limit for the application of the right of speedy trial. Id. at Id. at 1781.

6 114 COCHIN UNIVERSITY LAW REVIEW The Court again looked for Supreme Court precedents for inspiration and found the reasoning and decision in S. Guin and others v. Grindlays Bank Ltd., 18 appropriate for putting an outer time limit, of 7 years. The Court's reading of the Supreme Court's decision is signified in the following observations: "In the light of the above and on depth analysis of the judgement there remains no manner of doubt that the inarticulate premises of the right to speedy trial and the necessity of spelling out an outer limit beyond which a prosecution in original trial cannot be allowed to trespass have been spelt out in the brief and yet categorical judgement. In my view they have rightly held that the mere passage of seven years and the hanging of the sword of Democles over the accused's head entitled him to be released from the trevail of the prosecution. The violation of the fundamental right to speedy public rationable of the judgement. Therefore, without independently investigation and looking for a date (dead?) line, I would read the judgement in S. Guin & Others v. Grindlays Bank Ltd., A.I.R S.C. 289 as a prescription by the final Court of an outer limit of seven years for concluding (Sic) of the original trial in offences other than the capital ones." In this context it is worthwhile to examine the decisions in S. Guin & Others v. National Grindlays Bank Ltd. 20 in some detail. It seems doubtful whether this case stands for the ratio atttributed to it by the Patna High Court. It was a case in which the Operations Manager of the respondent Bank complained against 12 employees of the Bank for having violated on '77 Section 341 of the Indian Penal Code and Section 36 AD of the Banking Regulation Act, They were acquitted of the charges by the Magistrate Court. However, the Bank appealed to the High Court in 1978 and after 6 years on , the High Court concluded that the trial missed 18.A. AIR 1986 S.C Id. at A.I.R S.C. 289.

7 K. N. CHANDRASEKHARAN PILLAI 115 the essence of the offence and hence there was failure of justice. The High Court remanded the case for retrial. It was in this context that the Supreme Court on appeal declared: "The pendency of the criminal appeal for six years before the High Court is itself a regrettable feature of this case. In addition to it, the order directing retrial has resulted in serious prejudice to the appellants. We are of view that having regard to the nature of the acts alleged to have been committed by the appellants and other attendant circumstances, this was a case in which the High Court should have directed the dropping of the proceedings in exercise of its inherent powers under Section 482, Cr. P.C. even if for some reason it came to the conclusion that the acquittal was wrong. A fresh trial nearly seven years after the alleged incident is bound to result in harassment and abuse of judicial process. We may at this stage refer to the decision of this Court in S. Veerabhadran Chettiar v. E. V. Ramaswami Naicker, 1959 S.C.R. 1211: A.I.R S.C The termination of the criminal proceedings in that way would secure the ends of justice as it would bring about reconciliation between the managment and the employees and also put an end to a State Criminal proceeding in which the public had no longer sufficient interest."2' The reasoning in this case thus does not appear to be capable of being adopted for concluding that an outer time limit of seven years is proper for the enforcement of the right to speedy trial. Nor can it be said to be a judgement in which the right to speedy public trial has been categorically mentioned or discussed as in the case of Hussainara Khatoon. The Supreme Court seems to rely much on Section Criminal Proce- Id. at 290. S. 482 Cr. P.C. lays down: "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherw5se to secure the ends of justice".

8 116 COCHIN UNIVERSITY LAW REVIEW nel dure Code rather than on the right to speedy public trial. Even in the comparatively later cases as Raghubir Singh v. State of Bihar 23 and Sheela Barse v. Union of India, 24 the Supreme Court does not appear to take this right seriously. Though it often reiterates that this right is part of Article 21, it seems to toy with the idea of keeping it at a low pedestal. In these circumstances it is felt the High Courts other than the Patna High Court are not likely to be influenced by these fairly reasoned judgements. They may still continue to be guided by the earlier precedents based on section 482 Criminal Procedure Code. The presence of statutory safeguards against undue delay in investigation such as the provisions in Section 167 Criminal Procedure Code may also perhaps make these Courts to seek the help of Section 482 rather than Article 21 of the Constitution. However, it is felt that a move towards the constitutional provision for the protection of the right of the citizen is to be preferred. And it is for the Supreme Court to take initiative in this regard (2) SCALE Cri. L.J (S.C.)