Mohinder Singh vs State of Punjab

S.D. Bajaj, J.

Criminal Misc No. 7377M of 1988 has been filed by the accused petitioner Mohinder Singh for quashing F.I.R. No. 88 registered against him on 1531980 for irregularities in the sale/distribution of Kerosene oil and the challan filed in the Court against him, on its basis on 511988, It has been asserted therein that the prosecution of the accused had not made any headway till 6th July, 1988 and therefore, fundamental right vested in the accusedpetitioner of having a speedy trial in terms of Article 21 of the Constitution of India has been violated and given a complete go by and therefore, the F.I.R. and the challan put against him in the Court call for being quashed.

I have heard Shri P. S. Hundal, Advocate, for the petitioner, Shri G. S. Kharbanda, Advocate, for the State and perused the relevant record very carefully.

There is no dispute on facts averred in the petition nor has the inordinate delay of over eight years in putting in the challan in Court in any way been explained. In a similar case of unexplained inordinate delay in prosecution, their lordships of the Supreme Court observed in Hussainara Khatoon and others v. Home Secretary, State of Bihar, Patna, AIR 1979 Supreme Court 1360, "There is also one other infirmity of the legal and judicial system which is responsible for this gross denial of justice to the under trial prisoners and that is the notorious delay in disposal of cases. It is a sad reflection on the legal and judicial system that the trial of an accused should not even commence for a long number of years. Even a delay of one year in the Commencement of the trial is bad enough how much worse could it be when the delay is as long as 3 or 5 or 7 or even 10 years. Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice. It is interesting to note that in the United States, speedy trial is one of the constitutionally guaranteed rights. The Sixth Amendment to the Constitution provides that :

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial."

So also Article 3 of the European Convention on Human Rights provides that :

"every one arrested or detained shall be entitled to trial within a reasonable time or to release pending trial."

3A. We think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right it is implicit in the broad sweep and content of Article 21 as interpreted by this Court in Maneka Gandhi v. Union of India, AIR 1978 SC 597. We have held in that case that Article 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 the procedure should be `reasonable, fair and just. If a person is deprived of his liberty under a procedure which is not, reasonable, fair or 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 reason ably quick trial can be regarded as reasonable, fair or just and it would fall foul of Article 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 Article 21. The question which would, however, arise, is as to what would be that consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 2 1. Would he be entitled to be released unconditionally freed from the charge levelled against him on the ground that trying him after an unduly long period off time and convicting him after such trial would constitute violation of his fundamental right under Article 21 ? That is a question we shall have to consider when we hear the writ petition on merits on the adjourned date. But one thing is certain and we cannot impress it too strongly on the State Government that it is high time that the State Government realised its responsibility to the people in the matter of administration of justice and set up more courts for the trial of cases. We may point out that it would not be enough merely to establish more courts but the State Government would also have to man them by competent Judges and whatever is necessary for the purpose of recruiting competent Judges, such as improving their conditions of service, would have to be done by the State Government, if they want to improve the system of administration of justice and make it an effective instrument for reaching justice to the large masses of people for whom justice is today a meaningless and empty word.

Similarly in Madheshwardhari Singh and another v. State of Bihar, AIR 1986 Patna 324, a Full Bench of the Patna High Court observed, "Coming nearest home, it would seem that the right to a speedy public trial as a constitutional guarantee is of a somewhat recent origin in our country." However, by now it is so well settled by precedential mandate of the Final Court itself that the right to a speedy public trial is a part and parcel of the constitutional guarantee under Article 21, that it would be wasteful and unnecessary to examine the issue on principle afresh. In Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360, which was yet one of the series of cases from our own State, arising from the heart rending delays in the context of undertrials, Bhagwati, J. (as he then was), after in terms quoting the Sixth Amendment to the American Constitution and also Article 3 of the European Convention on Human Rights, observed as under :

"We think that even under our Constitution though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by this Court in Meneka Gandhi v. Union of India, AIR 1978 SC 59. We have held in that case that Article 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 the procedure should be, reasonable, fair and just. If a person is deprived of his liberty under a procedure which is not reasonable, fair or 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 Article 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 Article 21."

In the succeeding case of the series Hussainara Khatoon v. State of Bihar, AlR 1979 SC 1360, 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 Article 21 and it is the constitutional obligation of the State to devise such a procedure as would ensure speedy trial of the accused."

The aforesaid view has thereafter been unhesitatingly reiterated in later judgements of the Final Court, to which individual reference at this stage is unnecessary. It would suffice to, mention that within this jurisdiction the issue was pointedly raised and considered in greater detail first in the State of Bihar v. Ramdas Ahir, 1985 Cri LJ 584 (Patna) (supra), Tracing the development of the expanded right to life and personal liberty in Article 21, in paragraphs 9 to 15 of the report, it was concluded therein as under :

"It is unnecessary to further elaborate and labour the point, because it seems manifest that now by precedential mandate the basic human right to speedy trial has been expressly written, as if with pen and ink, into the constitutional right of life and liberty, guaranteed by Article 21."

To the same effect are the observations made by this Court in Amar Nath and others v. State of Punjab, 1987(1) Recent Criminal Reports 257 which read, it has recently been ruled by a Full Bench of the Patna High Court (Madeshwardhari Singh and another v. State of Bihar, 1990(3) RCR(Crl.) 302 (Patna) : 1986 Cri. L.J. 1771) that the right of a speedy public trial is now an inalienable fundamental right of a citizen under Article 21 of the Constitution. It has further teen ruled that a callous and inordinately prolonged delay of seven years or more which does not arise from the default of the accused or is otherwise not occasioned by any extraordinary or exceptional reason in investigation and original trial for offences other than capital ones plainly violates the constitutional guarantee of a speedy public trial under Article 21 of the Constitution. The ratio of this judgment completely supports the case of the petitioners."

In result, Criminal Miscellaneous No. 7377M of 1988 succeeds and is allowed. F.I.R. No. 88 registered against the petitioner on 1531980 and the challan filed against the petitioner in Court on its basis are both quashed.