Kesho Ram vs State and Ors.

The petitioner who appears to have been mentally harassed and physically wrecked for a period of about 21 years seeks the quashing of the

proceedings pending against him in the trial court of Addl. Sessions Judge, Ramban. The case reflects the inherent defects in our judicial system

negating the fundamental right of a citizen of getting a criminal prosecution decided expeditiously and without delay. In all the civilized societies it is

now acknowledged that the right to a speedy trial in criminal prosecutions is a basic right available to a person and has been held to be inalienable

fundamental right of the citizens of this country under Article 22 of the Constitution of India.

Some of the startilling facts of the case are that the petitioner along with his wife and one Nand Lal were roped in a criminal case vide FIR No. 19

of 1969 lodged with police Station Ramban on 1841969. The Court of Judicial Magistrate, Ramban committed the accused person to the court of

Sessions for standing their trial vide his order dated 761969. After the prosecution evidence was closed and the statements of the accused person

recorded in Feb. 1970 the case was transferred to Sh. N.K. Ganjoo, the then Sessions Judge, Bbadarwah for disposal according to Jaw. As Sh.

Ganjoo could not conduct the proceedings, a transfer application No. 62 of 1971 was filed in this court by the accused person which was

dismissed on 2171971. However, denovo trial was directed to be held in the case vide court order dated 20101972 under the Old Criminal

Procedure Code and the Prosecution evidence commenced afresh with effect from 30111972. Nand Lal, one of the accused person out of

frustration from life jumped into Chinab River and died. The factum of his death was confirmed by the prosecution only"" on 15101979. For a

further period of 8 years the prosecution evidence could not be recorded which was eventually closed on 2141987 and thereafter the defence

evidence is being recorded. The petitioners who are husband and wife have traversed major part of their life during this period and are admitted to

be old and infirm at this stage, being unable even to attend the court and to face the trial.

The learned counsel for the parties during the arguments agreed that the petition be disposed off at this initial stage without formally admitting it.

Article 21 of the Constitution guarantees the fundamental right of life and liberty of which no person can be deprived of except in accordance with

the procedure established by law. Such a right envisages the absence of restrictions or any diversion in the smooth running of the life and liberty.

Our Judicial system is based upon the AngloAmerican jurisprudence which acknowledges the right of speedy public trial of any person charged of

an offence. The right to speedy trial therefore delves deeply into soul and spirit of Anglo American jurisprudence. Chief Justice Warren in Peter H.

Klopfer V. State of North Carolina (1967) 18 Law Ed. 2d 1 : 386 US 213; held :

We hold here that the right to speedy trial is a fundamental as any of the rights secured by the Sixth Amendment. That fight has its roots at the

Very foundation of our English law heritage. Its first articulation in Modern jurisprudence appears to have been made in Magna Carta (1215),

wherein it was written, ""We will sell to no man, we will not deny or defer to any man either justice or right"", but evidence of recognition of the right

to speedy justice in even earlier times is found in the Assiize of Clarendon (1166) By the late thirteenth Century, justices, armed with commissions

of gaol delivery and/or over and terminer were visiting the countryside three times a year.

These Justices, Sir Edward Coke wrote in Part II of his Institutes, have not suffered the prisoner to be long detained, but at their next coming have

given the prisoner full and speedy justice without detaining him long in prison,'

To Coke, prolonged detention without trial would have been contrary to the law and custom of England; but he also believed that the delay in trial,

by itself, would be an improper denial of justice. In his explication of chapter 29 of the Magna Carta, he wrote that the words ""We will sell to no

man, we will not deny or deter to any man either justice or right' had the following effect :

And therefore, every subject of this realme, for injury done to him in bonis, terries, vel persona, by any other subject be he esclesiaticall, or

temporal), free or bound, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his

remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any denial, and speedily

without delay. 'Colonies by virtuallyevery student of the law. Indeed, Then as Jefferson wrote that at the time he studies law (17621967), 'Coke

Lyttleton was the universal elementary book of law students. And to John Rutedge of South Carolona, the Institute seemed to be almost the

foundation of our law. Coke, in turn, Magna Carta was one of the fundamental bases of English liberty. Thus, it is not rising that when George

Mason drafted the first the colonial bills of rights, he set forth a principle of Magna Carta, using phraseology similar to that Coke's explication:

In all capital or criminal prosecutions, the Virginia Declaration of Rights of 1976 provided, a man hath a right ...... to a speedy trial....... 'That this

right considered fundamental at this early period in out history is evidenced by its guarantee in the constitute of several of the States of the new

nation, a by its prominent position in the Sixth Amendment, each of the 50 states guarantees the right to a speedly trial to its citizens.

The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our

Constitute.

Chief Justice: Burger, held in Robert Dean Dickey. V. State of Florida, (1970) 26 Law Ed 2d 26: 398 US, 30, that right speedy trial is not

theoretical or abstract right but one hard reality in the need to have a charge promptly exposed decided It was held by the United States Supreme

Court in another case that all accused persons be treated according to fair procedure and there was a societal interest in providing a speedly trial

which exists, separate, from and, at times in opposition to the interest of the accused. It is acknowledged under the AngloAmerican Legal System

that the criminal law must prevent undue and oppressive and incarceration prior to trial, minimize an anxiety and concern and to limit the possibility

that long delay shall impair the ability of an accused to defend himself. The Supreme Court in State of UP. Vs. Kapil Deo Shukla, AIR 1973 SC

494 held that protracted trial for over 20 years was unwarranted which was likely to prevent the trial being fair. It was found that trial of an

accused person after 20 years was neither expedient nor in the larger interests of justice. The Supreme Court had earlier held in Manchander Vs.

State of Hyderabad AIR 1955 SC 792 :

We are not prepared to keep persons who are on trial for their lives under indefinite suspense because trial judges omit to do their duty. Justice is

not one sided. It has many facets and we have to draw a nice balance between conflicting rights and duties while it is indumbent on us to see that

the guilty do not escape it is even more necessary to see that person accused of crime are not indefinitely harassed. They must be given a fair and

impartial trial and while every reasonable latitude must be given to those connected with the detection of crime and entrusted with the

administration of justice, limits must be placed on the lengths to which they may go"".

Quoting Sixth Amendment to the American Constitution and Article 3 of the Suropean Convention of Human Rights, Justice Bhagwati (as he then

was) held in Hussainara Khatoon V. State of Bihar : AIR 1979 S.C. 1360 :

We think that under our Constitution though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and

content of Art. 21 as interpreted by this Court in Maneka Gandhi Vs. Union of India, AIR 1978 SC 5927. We have held in that case that Art. 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 procedure should be reasonable, fair and just. If a person is deprived of his liberty under a procedure which is not reasonable, fair and 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 reasonably quick trial can be

regarded as reasonable, fair or just and it would fall foul of Art. 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 Art. 21"".

In the succeeding case of the series Hussainara Khatoon V. State of Bihar, AIR 1979 SC 1359, it was again reiterated as under :

Speedy trial is, as held by us in our earlier judgment dated 26th February, 1979, an essential ingredient of reasonable, fair and just procedure

guaranteed by Art. 21 and it is the constitutional obligation of the State ensure speedy trial of the accused.

As speedy criminal trial is held to be inalienable fundamental right arising out of Art. 21 of the constitution, protracted criminal proceedings are

required to be set aside in appropriate cases where it is proved that the prosecution has been responsible for the delay in the conclusion of the trial

or had made the speedy trial impracticable by adopting delaying tactics or under the cover of the procedural wrangles. No accused person can be

deprived of such a benefit where the court itself has been guilty for not concluding the trial within the reasonable time. However where the accused

person himself is found to be guilty for the delay or responsible for protracting the litigation no discretion can be exercised in his favour. Art. 21 of

the constitution guaranteeing freedom of life and liberty envisages not only a speedy trial but also fair, just and reasonable procedure to be followed

for the trial of the case. The delay of 20 years in the instant case partly on account of the acts of commission and omission attributable to the

prosecution and partly on account of the defective procedure prescribed and followed cannot be allowed to hand any more on the heads of the

petitioner as democles sword particularly when one of the accused has died and the others have knocked the doors of justice in this court before

they are taken away by the cruel hands of the death. The prejudice on account of the delay is apparent and the consequences are writ large to be

seen and noticed on the fading lights in the eyes of the accusedpetitioners. Before they go to their maker, they need to be exonerated of the

charges levelled against them which have consumed major part of their life not to be compensated by any court of law or by any other mode. The

callous attitude adopted by the Courts below speaks of volumes about the defective system of procedure adopted by our country regarding the

trial of criminal cases which sometimes results in the acquittal of even guilty person and sometimes may result in the conviction of those who are not

connected with the commission of the crime. Human memory cannot be allowed to be faded in the wilderness resulting in failure of justice to the

parties to criminal litigation. The right to speedy trial cannot be limited to any specified type of cases but extends to all criminal prosecution

irrespective of their nature. This right cannot be restricted only to the actual proceedings in the court but in cludes. within its ambit the time

consumed and spent during police investigation.

It has been found on facts in the instant case that the petitioner, have already suffered a lot on account of he pendancy of the criminal case against

them for about 21 years in which they were forced to approach this court five time and were made shuttle cock between courts at Bhadarwah and

Ramban. There is no justification for continuing the criminal prosecution against the petitioner and his wife any further. The proceedings of the

criminal case No.17/Session entitled State V. Kesho Ram and Anr. filed on the basis of FIR No 19/1969 Police Station Ramban, pending in the

court of Sessions Judge Ramban are therefore quashed and the petitioner along with his wife are acquitted of the charge.