Judges: S.P. Bharucha, C.J., S.S.M. Quadri, R.C. Lahoti, N. Santosh Hegde, Doraiswamy Raju, Ruma Pal and Dr. Arijit Pasayat, JJ.

Facts:

In this case, accused facing corruption charges were acquitted by special courts following the directions given in Raj Deo Sharma vs. The State of Bihar MANU/SC/0640/1998, (hereinafter, Raj Dev Sharma I) as there was failure of commencement of trial despite lapse of two years from the date of framing of the charges.

The appeals of the State against the acquittal were allowed by High Court without issuing notice to the respective accused.

In appeal to Supreme Court, the question for consideration arose as to whether earlier decisions of this Court, in Common Cause v. Union of India MANU/SC/1152/1996 (hereinafter, Common Cause I), Common Cause v. Union of India MANU/SC/0976/1996 (hereinafter, Common Cause II), Raj Deo Sharma I case and Raj Deo Sharma (II) v. State of Bihar MANU/SC/0607/1999 (hereinafter, Raj Dev Sharma II) would apply to prosecution under the Prevention of Corruption Act, 1988 and other economic offences.

The case was, therefore, referred to a Constitution Bench. During the hearing, the Constitution Bench was of the opinion that the directions in the Common Cause cases and Raj Dev Sharma cases ran counter to Constitution Bench directions in Abdul Rehman Antulay and Ors. v. R.S. Nayak and Anr. - MANU/SC/0326/1992 (hereinafter, A.R. Antulay's case), which had laid down the law that an outer time limit for conclusion of all criminal proceedings should not be drawn or prescribed. Since A.R. Antulay's case was decided by Bench of 5 Judges, present case was referred to 7 Judges Bench.

Issues:

(i) Whether in its zeal to protect the right to speedy trial of an accused, can the Court devise and almost enact bars of limitation beyond which the trial shall not proceed, though the Legislature and the Statutes have not chosen to do so?

(ii) Whether bars of limitation enacted in Common Cause (I), Common Cause (II), Raj Deo Sharma (II) and Raj Deo Sharma (II) can be sustained?

Laws:

Constitution of India, 1950 - Article 21 - Right to life and personal liberty and includes within its ambit 'right to speedy trial'.

Analysis:

Outer limit for conclusion of all criminal proceedings - Whether judicially permissible

(i) Bars of limitation impermissible because it tantamount to impermissible legislation, an activity beyond the power which the Constitution confers on judiciary.

(ii) Prescribing periods of limitation at the end of which the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused, and further, making such directions applicable to all the cases in the present and for the future amounts to legislation. Same cannot be done by judicial directives and within the arena of the judicial law-making power available to constitutional courts.

(iii) Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature.

(iv) Binding directions can be issued for enforcing the law and appropriate directions may be issued, including laying down of time limits or chalking out a calendar for proceedings to follow, to redeem the injustice done or for taking care of rights violated in a given case or set of cases, depending on facts brought to the notice of Court. This is permissible for judiciary to do. It cannot, like legislature, enact a provision akin to or on the liens of Chapter XXXVI of CrPC.

(v) Bars of limitation in Common Cause (I), Common Cause (II), Raj Deo Sharma (II) and Raj Deo Sharma (II) fly in the face of law laid down by Constitution Bench in A.R. Antulay's case and, therefore, run counter to the doctrine of precedents and their binding efficacy.

(vi) The well settled principle of precedents which has crystalised into a rule of law is that a bench of lesser strength is bound by the view expressed by a bench of larger strength and cannot take a view in departure or in conflict therefore.

(vii) The Constitution Bench, in A.R. Antulay's case, turned down the plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal proceedings or trial shall not proceed. It expressly ruled that it was neither advisable nor practicable (and hence not judicially feasible) to fix a time-limit for trial of offences.

(viii) It must be left to the judicious discretion of the court seized of an individual case to find out from the totality of circumstances of a given case if the quantum of time consumed upto a given point of time amounted to violation of Article 21, and if so, then to terminate the particular proceedings, and if not, then to proceed ahead.

(ix) The test is whether the proceedings or trial has remained pending for such a length of time that the inordinate delay can legitimately be called oppressive and unwarranted, as suggested in A.R. Antulay.

(x) Bars of limitation enacted in Common Cause (I), Common Cause (II), Raj Deo Sharma (I) and Raj Deo Sharma (II) cannot be sustained also because the decisions though two or three-Judge Bench decisions, run counter to that extent to the dictum of Constitution Bench in A.R. Antulay's case and therefore cannot be said to be good law to the extent they are in breach of the doctrine of precedents.

Cause for delay at the trial and in conclusion of criminal proceedings

(i) The root cause for delay in dispensation of justice in our country is poor judge-population-ratio. The judge-population-ratio in India (based on 1971 census) was only 10.5 judges per million populations while such ratio was 41.6 in Australia, 50.9 in England, 75.2 in Canada and 107 in United States.

(ii) Law Commission of India in its 120th Report on Manpower Planning in Judiciary (July 1987) suggested that India required 107 judges per million of Indian population; however to begin with the judge strength needed to be raised to five-fold, i.e., 50 judges per million population in a period of five years but in any case not going beyond ten years.

(iii) Delay is dependent on the circumstances of each case because reasons for delay will vary, such as -

1. delay in investigation on account of the widespread ramifications of crimes and its designed network either nationally or internationally,
2. the deliberate absence of witness or witnesses, 
3. crowded dockets on the file of the court etc.
4. absence of or delay in appointment of, public prosecutors proportionate with the number of courts/cases;
5. absence of or belated service of summons and warrants on the accused/witnesses; 
6. non-production of under trial prisoners in the Court;
7. presiding Judge proceeding on leave, though the cases are fixed for trial; 
8. strikes by members of Bar; and
9. counsel engaged by the accused suddenly declining to appear or seeking an adjournment for personal reasons or personal inconvenience.

(iv) A perception of the cause for delay at the trial and in conclusion of criminal proceedings is necessary so as to appreciate whether setting up bars of limitation entailing termination of trial or proceedings can be justified.

(v) Union of India and the State Government should fulfil their constitutional obligation to strengthen the judiciary-quantitatively and qualitatively by providing requisite funds, manpower and infrastructure.

Available effective mechanisms for terminating trials and proceedings on time

(i) Section 309 of CrPC, dealing with power to postpone or adjourn proceedings, provides generally for every inquiry or trial, being proceeded with as expeditiously as possible. It further says, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.

(ii) Explanation-2 to Section 309 of CrPC confers power on the Court to impose costs to be paid by the prosecution or the accused, in appropriate cases, and putting the parties on terms while granting an adjournment or postponing of proceedings. However, this power to impose costs is rarely exercised by the Courts.

(iii) Section 258, in Chapter XX of CrPC on trial of summons cases, empowers the Magistrate trying summons cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment. It further says, where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, Court to pronounce a judgment of acquittal, and in any other case, release the accused, having effect of discharge. This provision is almost never used by the Courts.

(iv) In appropriate cases, inherent power of the High Court, under Section 482 of CrPC can be invoked to make such orders, as may be necessary, to give effect to any order under CrPC or to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice.

(v) The power is wide and, if judiciously and consciously exercised, it can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inquiry or proceedings.

Dissenting - Doraiswamy Raju, J.

(i) Dictum of A.R. Antulay's case still holds the field and its binding force and authority has not been altered in any manner by decision of any larger Bench of Supreme Court.

(ii) Benches of lesser strength, which dealt with the cases on similar subject, could not have laid down any principles in derogation of the ratio laid down in A.R. Antulay's case.

(iii) The prospects and scope to achieve the desired object of a speedy trial even within the available procedural safeguards and avenues provided for obtaining relief, have also been indicated in A.R. Antulay's case.

(iv) Supreme Court should never venture to disown its own jurisdiction on any area or in respect of any matter or over any one authority or person, when the Constitution is found to be at stake and the Fundamental Rights of citizens/persons are under fire.

Conclusions:

(i) Dictum in A.R. Antulays' case is correct and holds the field.

(ii) Propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulays' case , adequately take care of right to speedy trial.

(iii) Guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case.

(iv) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe outer limit of limitation for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed.

(v) Criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made uncommon Cause Case (I), Raj Deo Sharma case (I) and (II).

(v) Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258, of Code of Criminal Procedure to effectuate the right to speedy trial.

(vi) In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions.

Important Precedents:

(i) AR Antulay and Ors. v. R.S. Nayak and Anr. MANU/SC/0326/1992

(ii) Raj Deo Sharma vs. The State of Bihar, MANU/SC/0607/1999

(iii) Raj Deo Sharma vs. The State of Bihar, MANU/SC/0640/1998

(iv) Common Cause, A Registered Society Throough its Director vs. Union of India and others, MANU/SC/0362/1997

(v) Common Cause, A Registered Society through its Director vs. Union of India (UOI) and Ors., MANU/SC/1152/1996

(vi) Common Cause A Registered Society v. Union of India, MANU/SC/0976/1996