Chapter – 1 Introduction

Introduction

In criminal law, the right to a speedy trial is a human right under which it is asserted that a
government prosecutor may not delay the trial of a criminal suspect arbitrarily and
indefinitely. Otherwise, the power to impose such delays would effectively allow prosecutors
to send anyone to jail for an arbitrary length of time without trial, expressed as the
maxim Justice delayed is justice denied.

Although it is important for the protection of speedy trial rights for there to be a court in
which a defendant may complain about the unreasonable delay of the trial, it is also important
that nations implement structures that avoid the delay.

Article 21 of the Constitution of India provides that no person shall be deprived of his life or liberty
except in accordance with the procedure established by law. It is now well settled, after the decision
of the Apex Court, in Maneka Gandhi v. Union of India1, that it is not enough that there should be
some resemblance of procedure provided by law, but the procedure under which a person may be
deprived of his life or liberty should be ‘reasonable’, ‘fair’ and 'Just'. In Hussainara Khatoon v. Home
Secretary, State of Bihar, Patna2 the Apex Court observe that Speedy trial is 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 to the accused. So
Right to Speedy Trial is one of the essential for protecting life and liberty of a person, where state
initiated a proceeding for depriving a person from life and liberty. The speedy trial of criminal act is
one of the basic objectives of the criminal delivery justice system, because long delay can defeat
justice. Hence, it is said that speedy justice is one of the essence of organised society. It is always
advocated that a case should be decided as early as possible but it is also said that basic norms
which ensure justice cannot be overlooked because it is a common popular proverb that ‘justice
hurried, justice burried’. So there should be proper balance between basic norms and speedy trial
because the main object of every legal system is providing complete justice to all.

Jurimetrics allows to estimate the current judicial efficiency. Speedy justice tends to correlate
with quality and fairness of justice.

Recognition of speedy Trials

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In jurisdictions with strong rule of law, the requirement of a "speedy trial" forces prosecutors
to diligently build cases within a reasonable amount of time commensurate with the
complexity and heinousness of the crimes of which suspects are accused. The right is based
on the notion that long-term incarceration should normally be restricted to situations in which
a judge or jury have determined a suspect has committed a crime.

The right to a speedy trial is codified in fundamental legal documents in several jurisdictions,
and may be further defined by statutory law.

Bangladesh

In Bangladesh, the right to a speedy trial is stated in Article 35(3) of the Constitution of
Bangladesh, which provides: "Every person accused of a criminal offence" to "have the right
to a speedy and public trial by an independent and impartial Court or tribunal established by
law".

The Law and Order Disruption (Speedy Trial) Act (2002), aimed to implement this
constitutional right. The Act requires that trials for specified offenses be concluded within
120 days, with a possible extension of 60 days if necessary. Speedy Trial Courts, presided
over by Judicial or Metropolitan Magistrates, are established under this law to expedite cases.
The act was notably used in The State vs. Mehedi Hasan Rasel and Others criminal case.

In 2024, the Act, initially enacted as a temporary measure, was made permanent, drawing
criticism from legal experts and rights organizations.

Canada

Speedy trial rights are recognized within Section Eleven of the Canadian Charter of Rights
and Freedoms.

In R v Jordan, the Supreme Court of Canada held that these Charter rights are presumed to
have been violated when the trial does not end within 18 months of the charges being filed, or
30 months when there is a preliminary inquiry. When speedy trial rights are violated, the
Crown must drop relevant charges by entering a stay of proceedings.

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Once the presumptive ceiling is exceeded, the burden is on the Crown to rebut the
presumption of unreasonableness on the basis of exceptional circumstances outside the
Crown's control.

Europe

Within Europe, speedy trial rights are recognized by Article 6 of the European Convention on
Human Rights.

In English law, this right was developed by the Assize of Clarendon in 1166 (a judge would
be summoned if one was not immediately available) and Magna Carta in 1215 ("To no one
will we sell, to no one will we refuse or delay, right or justice.").

India

The right to a speedy trial is guaranteed under Article 21 of the Constitution of India. There is
no automatic legal remedy available to defendants who are denied speedy trials, rendering it
difficult to hold judicial officers accountable for violations.

The administration of justice entails conducting trials in a fair and speedy manner. There is
consensus among all parties that a speedy trial is required. In the absence of a speedy trial, it
is impossible to assert that justice has been done. As a result, the right to a swift trial is
elevated to the status of a fundamental individual right . They have been recognised as
legitimate by an overwhelming majority of international treaties and agreements. On April
10th, 1979, India became a signatory to the International Covenant on Civil and Political
Rights (ICCPR). Articles 38(1) through 39 and 39-A provide out the guiding principles for
state policy, which may be found in the state constitution. In accordance with international
law, India is obligated to see to it that justice is carried out in a speedy manner. There are no
statutes or regulations that mandate a trial to be concluded within a particular amount of time.
In the event that there is such a provision, it is advisory. The Supreme Court has issued a
number of opinions in which it has stated that Article 21 of the Constitution provides a fair
trial within a reasonable amount of time

ARTICLE 21

Article 21 of the constitution states that no individual may be deprived of their life or their
liberty unless it is done so in accordance with the law. Protections against judicial as well as

3
parliamentary overreach are provided under Article 21 of the Constitution. The Supreme
Court decided in the case of Munn v. Illinois4 that "life" encompassed more than just the
capacity to maintain one's own existence. In the matter of Maneka Gandhi5 , Justice
Bhagwati stated as follows: Article 21 states that "The phrase 'personal liberty' has the largest
amplitude and embraces a wide range of rights that go to produce the individual liberty."
Some of these rights have been elevated to the status of separate basic rights, and Article 19
has been used to provide them with extra protections. The right to a speedy trial is implicit in
the preservation of "Life and Liberty," both of which are all-encompassing principles6 .
These words, "Life and Liberty," were intended for the people who are currently alive. Every
individual have the natural right to happiness as well as to good health. In this scenario, the
victim must devote a significant amount of time and effort to appearing in court. The trial of
the defendant has been postponed for a significant amount of time. It is common knowledge
that a suspect is deemed innocent unless they are found guilty of a crime. The lawsuits are
being contested by both of the parties. These delays in processes have the potential to inflict
emotional anguish and to infringe their rights to life and personal freedom. It is important to
eliminate unnecessary delays as much as possible because they are a major source of worry,
anxiety, disruption, and expenditure. No one should have their life or their freedom taken
away from them, unless it is specifically authorised for in the law (Article 21). The case of
Maneka Gandhi was brought before the Supreme Court in 1978. The court decided that in
order to deprive a person of their freedom and life, two prerequisites need to be satisfied first.
• It is essential to have some sort of regulation in place. • Legislation is required to adhere to
rational, equitable, and just standards. It is impossible to have a legal system that is
reasonable, fair, or just if a defendant is not promised a speedy trial7 .

Article 21 assures a speedy trial

The legal process in India's criminal cases can stretch on for several years or even decades at
a time. The circumstance in the civil courts is just as dire. It is necessary to have a trial that is
both fair and unbiased if one wishes to safeguard all citizens from being wrongfully
imprisoned or wrongfully miscarried. The fact that an undertrial prisoner had been
incarcerated for an extended period of time was no longer a concern to the courts; however,
the prosecution was compelled to produce an explanation for the ongoing detention of the
defendant. The list of Fundamental Rights was compiled by the Supreme Court after it
became aware of the necessity to ensure that inmates were not subjected to unnecessary

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suffering. The right to a prompt and efficient trial is guaranteed by Article 21 of the
Constitution. Hussainara Khatoon 19798 was appointed to the position of Home Secretary for
the state of Bihar. This petition was for a writ to Habeas Corpus on behalf of individualy
men, women, and children who were being detained in prison for years in expectation of trial,
despite the fact that they would not be sentenced for more than a few weeks at this point. The
petition was filed on behalf of those individuals. Article 21 of the Indian Constitution was
interpreted by the Supreme Court to include the "right to a speedy trial" as one of the
essential rights that must be preserved. This safeguards the individual's right to life as well as
their freedom. The court ordered a shorter average time between arrest and trial, increased
access to bail, improved living conditions, and a speedier process overall from arrest to
trial9 . In addition, the court ordered better housing conditions. The case of Maneka Gandhi
was construed by the court to suggest that no system can be judged fair, just, or reasonable if
it does not guarantee a trial that is conducted in a reasonable amount of time. As a
consequence of this, the government of Bihar was given the instruction to immediately free
all convicts who were awaiting trial. When actions are put off for too long, it can lead to
psychological suffering. The State of Bihar's Hussainara Khatoon is credited with
establishing the Speedy Trial. It was determined that it constitutes an arbitrary detention and
a breach of Article 21 if a defendant is held in jail while awaiting trial for a period of time
that is longer than what is permitted by the law. Since it began, the trial has been completely
dormant for over 11 years. There is no cause for blame to be placed on the accused-petitioner.
This goes against article 21 of the constitution, which cannot be allowed to stand. Everyone
has the right to have their legal problems resolved as speedy as possible. Unless one side can
be held legally liable, this right cannot be rejected or neglected in any way. The accused
person has the right to request bail if the trial is delayed beyond a reasonable doubt.
According to sections 482 and 483, of the Criminal Procedure Code, it is mandatory to make
every attempt to settle the dispute within a period of six months. After, adjournments are not
permitted unless there is a compelling need to do so due to extraordinary circumstances.
Detainees who are awaiting trial are supervised by the judicial system and eventually brought
to trial. It is not possible for a person to be denied their rights due to overcrowded courts,
insufficient resources, or a lack of finances. The judicial system needs to make decisions and
take action on corruption charges more rapidly. According to the decision in P. Ram Chandra
Rao v. State Karnataka10, the High Court does not have the authority to impose a time limit
on the resolution of a dispute. The judgements made by Raj Deo Sharma and common cause
have been overruled by this decision.
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Japan

The Article 37 [ja] of the Japanese Constitution states, "In all criminal cases the accused shall
enjoy the right to a speedy and public trial by an impartial tribunal." Takada case [ja], which
had not held a court for 15 years, was dismissed by Supreme Court of Japan according to
Article 37. After the Takada case, it is considered that dismissing judge should only apply if
the accused ask acceleration of a trial.

New Zealand

There is no guaranteed right to a speedy trial in New Zealand. The New Zealand Bill of
Rights Act states that persons charged have the right to be tried without undue
delay. However the law does not provide a means of enforcing this requirement nor a
definition of what constitutes an "undue delay". Under s79(3), the provisions of the Bill of
Rights Act cannot be enforced when they relate to “an act or omission of a court.”

In 2024, it is estimated that 81% of cases take 15 months to go from initial arrest to trial, with
the remaining cases taking longer, with those defendants often waiting many years for their
cases to be heard. The extreme length of time required to have a trial has caused an increasing
number of people to plead guilty to criminal charges, for which they deny guilt, in order to
have their matters resolved sooner.

Philippine

The Constitution of the Philippines states, "All persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial, or administrative bodies."

United States

In the United States, basic speedy trial rights are protected by the Speedy Trial Clause of
the Sixth Amendment to the United States Constitution. For federal charges, the Speedy Trial
Act of 1974 applies. The trial must commence within 70 days from the date the information
or indictment was filed, or from the date the defendant appears before an officer of the court
in which the charge is pending, whichever is later.

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The consequences of a speedy trial violation may require that the case be dismissed, although
depending upon the circumstances it may be possible for the state to again initiate a criminal
charge against a defendant despite a speedy trial violation.

Defendants may waive their right to a speedy trial for the purposes of negotiation.

State Law

States may offer speedy trial protections in addition to federal protections, which can vary
significantly from the rights available under the federal Constitution and in federal courts
under the Speedy Trial Act. In June 1776, a "speedy trial" provision was explicitly included
in the Virginia Declaration of Rights by George Mason, its principal author.

California's right to a speedy trial is different in several ways from the federal right. In
California, the right to a speedy trial attaches as soon as a felony complaint is filed (that is, as
soon as the criminal action is initiated), while in federal courts, the right attaches at a later
point, in the form of a "formal accusation" by indictment or information. In California,
dismissal is automatic for a violation of the state statute implementing the state constitutional
right to a speedy trial (Penal Code section 1382); no affirmative showing of prejudice is
required. However, where there was no statutory violation but there may have been a state
constitutional violation, then an affirmative showing of prejudice is required and the trial
court can defer evaluation of a motion to dismiss to the end of trial in order to evaluate
whether the evidence presented at trial shows that the defendant suffered actual prejudice
from the delay. Unlike the federal constitutional right to a speedy trial, California does not
treat a "uncommonly long" delay as giving rise to a presumption of prejudice under its state
constitutional right to a speedy trial, meaning the defendant must show actual prejudice in the
sense that evidence material to his defense was actually lost or damaged as a result of the
delay.

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Chapter – 2 History

The right to a speedy trial is a fundamental aspect of a just and efficient legal system,
ensuring that justice is not only done but is seen to be done without undue delay. In India, this
right has evolved through various historical phases, influenced by indigenous traditions,
colonial rule, and post-independence reforms. This comprehensive analysis delves into the
historical background of speedy trials in India, exploring its origins, developments,
challenges, and the legal framework that upholds this essential right.

1. Ancient and Medieval Legal Traditions

In India, during the medieval period, when there was Muslim rule, Muslim law and Muslim Judicial
institution were established. The power to administer law and justice was in hand of Sultan.
Hierarchies of the courts were established in the districts and provinces. Aurangazeb was the first
ruler who evolved the concept of Speedy trial. The ‘Fatwa Namgiri’ was drafted during his time,

8
which shows that no person shall be arrested without permission of kazi and justice shall be done
quickly after arrest of the accused and no person could be anguished in jail for indefinite period
unless the guilt is proved. It is also provided that the Kazi could grant ‘bail’.3 So it can be said the
concept of speedy trial is not new in India, even it was evolved in medieval period.

In ancient India, the concept of justice was deeply intertwined with Dharma, representing
moral order and righteousness. The Arthashastra, attributed to Kautilya (Chanakya), provides
insights into the administration of justice during the Maurya period (c. 3rd century BCE). It
emphasizes timely and fair trials, with provisions for swift punishment to maintain societal
order. Similarly, ancient texts like the Manusmriti outline procedures for legal proceedings,
highlighting the importance of expediency in delivering justice.

During the medieval period, the legal system saw influences from Islamic jurisprudence.
Sultanate and Mughal rulers established courts that combined indigenous practices with
Islamic law. While the speed of trials varied, there was an emphasis on resolving disputes
efficiently to maintain social harmony. However, records from this period are limited,
making it challenging to assess the exact nature and speed of legal proceedings.

2. Colonial Era: Introduction of British Legal Framework

The advent of British colonialism in the 17th and 18th centuries brought significant changes
to India's legal landscape. The British introduced a structured legal system based on English
common law, which emphasized procedural formalities. This shift led to longer trial
processes, as cases became more complex and formalized. The introduction of the Indian
Penal Code (IPC) in 1860 and the Code of Criminal Procedure (CrPC) in 1872 established
standardized procedures, but these often resulted in delays due to their intricate processes.

3. Early 20th Century: Calls for Legal Reforms

The early 1900s witnessed a growing demand for legal reforms, with activists and legal
scholars advocating for a more efficient justice system. The colonial administration's
reluctance to implement significant changes led to public dissatisfaction. Cases like the trial
of Bhagat Singh and his associates in the 1930s highlighted the need for swift justice, as the
proceedings were expedited to suppress nationalist activities. However, these expedited trials
were often criticized for their fairness and transparency.

4. Post-Independence Era: Constitutional Guarantees and Judicial Developments

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After gaining independence in 1947, India sought to establish a legal system that balanced
efficiency with fairness. The Constitution of India, adopted in 1950, enshrined the right to a
speedy trial as part of the right to life and personal liberty under Article 21. The Supreme
Court, in several landmark judgments, emphasized this right:

Sheela Barse vs. Union of India (1986): The Supreme Court held that prolonged detention
without trial violates the fundamental right to a speedy trial, leading to the quashing of
proceedings in certain cases.

Abdul Rehman Antuley v. R S Nayak (1992): The Court ruled that the right to a speedy trial
extends through all stages of the judicial process, including investigation, inquiry, trial,
appeal, revision, and retrial.Legal Service India

P. Ramachandra Rao v. State of Karnataka (2002): The Court identified factors to determine
violations of the right to a speedy trial, such as the length of delay, justification for the delay,
the accused's assertion of the right, and prejudice caused by the delay.Legal Service India

5. Legislative Measures: Establishment of Fast-Track Courts

To address the issue of case backlogs and delayed trials, the Indian government established
fast-track courts in the late 1990s and early 2000s. These courts aimed to expedite trials,
particularly in cases of sexual offenses and other serious crimes. For instance, the 2012 Delhi
gang rape case led to the establishment of a fast-track court to ensure swift justice, reflecting
the public's demand for timely legal proceedings.

6. Contemporary Challenges and Reforms

Despite various reforms, challenges persist in ensuring speedy trials. Issues such as
insufficient infrastructure, shortage of judges, and procedural complexities contribute to
delays. In 2017, the Supreme Court set timelines for lower courts to decide bail applications
within a week and to conclude trials within six months for magisterial cases and within two
years for sessions trials. The Court emphasized that the right to a speedy trial is a
fundamental right under Article 21, and delays cannot be justified by financial constraints.
The Times of India

7. Recent Developments: Technological Integration and Ongoing Reforms

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In recent years, there has been a concerted effort to integrate technology into the judicial
system to expedite trials. E-courts, virtual hearings, and case management software have been
introduced to streamline procedures and reduce delays. However, the effectiveness of these
measures varies, and continuous efforts are needed to address systemic issues.

But modern concept of speedy trial developed in USA, where the main focus was on balancing
between right of accused and demand of justice for victims of crime. In USA the sixth amendment of
the constitution provides Right to Speedy Trial to accused and this has been further ensured by The
Federal Speedy Trial Act 1974. In Baker v. Wingo4, the U.S. Apex Court discussed the various aspect
of Speedy trial. Justice Powell’s observation can be summarised as:

I. The right to a speedy trial is a more vague and generically different concept than other
constitutional right guaranteed to accused persons and cannot be quantified into a specific number
of days or months, and it is impossible to pinpoint a precise time in the judicial process when the
right must be asserted or considered waived; II. While a defendant’s assertion or non assertion of his
right to a speedy trial is one of the factors to be considered in an inquiry in to the deprivation of such
right, the primary burden remains on the courts and prosecutors to assure that cases are speedily
brought to trial; III. A claim that a defendant has been denied to his right to a speedy trial is subject
to balancing test, in which the conduct of the both the prosecution and the defendant are weighed,
and courts should consider such factors as length of the delay, reason for the delay, the defendant’s
assertion or non assertion of his right, and prejudice to the defendant resulting from the delay, in
determining whether a defendant’s right to a speedy trial has been denied; IV. While the petitioner’s
case, involving as it did such extra ordinary delay, was a close one, the facts that prejudice to him
was minimal and that the petitioner himself did not want a speedy trial outweighed the deficiencies
attributable to the state’s failure to try the petitioner sooner; and V. The petitioner was not denied
his right to a speedy trial.

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Chapter – 3 Speedy Trial in India: Challenges, Reforms and the Road Ahead

The Indian judicial system, known for its intricate nature and backlog of cases, has struggled for a
long time to provide prompt justice to its citizens. The pursuit of a fast and efficient legal process has
been a top priority for both the Indian government and the judiciary. Administering justice isn't just
about convicting the guilty and acquitting the innocent; it also involves ensuring a fair and speedy
trial. It's widely acknowledged that a speedy trial is essential, as justice cannot be truly served
without it. This principle has been endorsed in numerous international agreements and conventions.
In India, the delays in the judicial system are substantial, and urgent action is needed from all levels
and branches of government to address them. While the delays can be attributed to various factors
such as the complexity of cases and the type of evidence required, lawyers are also believed to
contribute to these delays. This research paper explores the obstacles that impede the speedy
delivery of justice in India, highlights recent reforms, and puts forward suggestions to expedite the
judicial process. It also evaluates whether the regular courts in India are suitable for delivering
speedy justice and examines the cost involved in administration of justice through regular courts.
The rapid dispensation of justice is a major concern in a thriving nation like India. Enhancing the
timely delivery of justice is a crucial developmental challenge because, without justice, other public
goods and services cannot be effectively provided or accessed. Additionally, our Constitution
mandates that the state must ensure that the legal system promotes justice based on equal
opportunities and that no citizen is denied the chance to seek justice.

Speedy justice is a fundamental tenet of any democratic society, ensuring that citizens can access
justice in a timely manner. In India, the quest for swift and efficient justice has been a longstanding
concern. Over the years, the Indian judiciary has grappled with mounting case backlogs, procedural
delays, and a lack of resources, which have contributed to a significant delay in the disposal of cases.
The fundamental human right to pursue Speedy justice is a direct consequence of the fundamental
principles of the criminal justice system, which include: “Justice delayed is justice denied, justice
withheld is justice withdrawn, and justice should not only be done but should also appear to have
been done” Criminal justice is fundamentally about the right to a speedy trial, and there can be no
debate that justice delayed is justice denied. Although the right to a quick trial is not expressly listed
as a basic right in the Indian Constitution, it is implied by the scope of Article 21 (Sharma, 1999).
Every person has a fundamental right under Article 21 to not have their life or freedom taken away
from them unless doing so follows the legal process. Additionally, the process must be rational,
equitable, and just. The process cannot be fair unless this guarantees a swift trial to determine the

12
accused’s guilt. People desire justice, pure, unpolluted, rapid, and inexpensive, and they have every
right to obtain it, but in reality, there are deplorably long delays in the dispensation of justice, and
the demand for speedy justice cannot be reached because, as stated, if justice is not administered
quickly, men persuade themselves that there is no such thing as justice (Chattaraj, 2011) [3] . While a
case is filed against someone, the alleged offender is taken into custody by the court, and due to the
facts of the case, when the case goes to trial, the alleged offender continues to live as a prisoner
(Sarathe, n.d).

Living as an innocent prisoner for a crime one didn't commit can be a harrowing experience, marked
by prolonged legal battles that may even outlast one of the parties involved. Engaging in the legal
process continuously demands considerable financial resources, time, and emotional energy (Gupta,
2015) [7] . Prison violence poses a real and imminent threat to these incarcerated individuals,
including those who are innocent, subjecting them to physical and emotional suffering and,
tragically, sometimes resulting in their demise within prison walls. The right to a speedy trial, one of
the most ancient and debated principles in American law, holds immense significance. It stands as a
landmark decision, firmly establishing the right to a prompt trial as a fundamental human
entitlement. In essence, it guarantees that anyone facing criminal accusations is entitled to a just,
efficient, and timely trial. This pivotal ruling sets a precedent that can serve as an example for other
nations, emphasizing the importance of ensuring that all individuals accused of crimes are afforded
their right to a speedy trial.

Related Technologies

Justice

To gain a deeper understanding of the necessity for "Speedy Justice," it's essential to begin by
grasping the essence of justice itself. The emphasis here is on the requirement for "Speedy Justice"
rather than hurriedly disposing of cases. The term 'Justice' holds profound significance,
encompassing various interpretations such as truth, morality, righteousness, equality, equity,
impartiality, legality, and more (Dhyani, 1997) [5] . Defining 'Justice' in absolute terms is a
challenging endeavor; instead, it is a relative and evolving concept. According to Lord Wright, the
most satisfactory definition of justice is that it should appear just and fair to a reasonable person
(Keeton, 1930) [8] . To truly embody the principles of justice and fairness, it becomes imperative that
justice is dispensed expeditiously. Without a reasonable and timely delivery of justice to the
concerned individuals, the concept of justice loses its true meaning and significance.

Personal Liberty

Furthermore, the need for "Speedy Justice" finds its basis in an individual's assertion of their Right to
Life, which includes the inviolability of their person, as well as their Right to Dignity. The concept of
the "Right to Speedy Justice" is firmly rooted in one of humanity's fundamental instincts: "Personal
Liberty." In every civilized society, Personal Liberty stands as one of the most cherished aspirations.
"Liberty" is regarded as one of humanity's most treasured inheritances, for life becomes devoid of
meaning and worth without it. To relinquish liberty is to renounce one's humanity, to surrender the
very rights inherent to being human (Ehrlich & Ziegert, 2017) [6] . A life without liberty lacks honour
and dignity, rendering it devoid of significance and purpose. This is precisely why liberty is described
as the essence of a civilized and respectable existence (Khanna, 1978). Under Article 21 of the Indian

13
Constitution, "Personal Liberty" is a comprehensive term. In the case of 'Meneka Gandhi V Union of
India' (AIR 1978 SC 597), the Honourable Supreme Court of India expanded the scope of the term
"Personal Liberty" to its broadest extent. The court asserted that the expression "Personal Liberty" in
Article 21 possesses the widest possible amplitude and encompasses a multitude of rights that
collectively constitute an individual's personal liberty

Fair Trial

A criminal trial that fails to guarantee the "Right to Speedy Justice" cannot be considered a just and
equitable trial. The notion of a fair trial is all-encompassing and encompasses the accused
individual's entitlement to seek a prompt trial (Torrey, 1990) [19] . When it comes to the concept of
a fair trial, the aspect of Speedy Justice can be broken down into four primary dimensions: 1. The
investigation or enquiry officer shall attain promptness in investigations. 2. The adjudicating
authority should receive all relevant materials which the individual wishes to produce against his
opponent. 3. The judiciary should give an opportunity to the accused to rebut these material and
information. 4. The judiciary should conclude its determination of guilt or innocence and the passing
of the appropriate sentence with promptitude.

Speedy Trial

A "Speedy Trial" refers to a reasonably expedited legal proceeding that adheres to all the essential
aspects of a fair trial. It involves the prosecution commencing the trial promptly and conducting it
with due diligence (Vanderbilt, 1953) [20] . The Right to Speedy Justice encompasses all stages of the
criminal justice system, including the investigation, inquiry, trial, appeal, revision, and retrial. In
essence, it covers everything from the initial accusation to the final verdict – these two points
representing the starting and ending points of the journey an accused person must inevitably
undergo when faced with allegations.

In a broader context, "Speedy Trial" implies resolving a case within a "Reasonable Time." However, it
should not be confused with the expedited proceedings observed in situations like the "Khomeini
Trial," where proceedings are conducted secretly and rapidly, leading to immediate execution
without any right of appeal (Mathew, 1976) [12] . While the adage "justice delayed is justice denied"
underscores the importance of timely justice, it's equally vital to exercise caution against excessive
speed or haste, as this would merely replace one problem with another (Khanna, 1990) [10] . In
essence, we must strike a balance between ensuring speedy trial and upholding the principles of
justice and fairness. One of the leading case of speedy trial is followed as under: In the landmark
case of Hussainara Khatoon vs. Home Secretary, State of Bihar, the judiciary delivered a
groundbreaking judgment that emphasized the critical importance of timely justice as an integral
element of a fair trial, thereby expanding the scope of Article 21 of the Indian Constitution. This case
also shed light on the significance of providing free legal aid to the economically disadvantaged
sections of society to ensure their right to be represented in a court of law by an advocate, as
enshrined in Article 39A.

The bench, composed of Justice P.N. Bhagwati, Justice R.S. Pathak, and Justice A.D. Koshal, ruled in
favor of the petitioner. In their judgment, they ordered the immediate release of the under-trial
prisoners, stating that the lists of under-trial prisoners provided by the State of Bihar revealed that
many of them had been in jail for durations longer than the maximum term they could have been

14
sentenced to if convicted. This revelation exposed a deeply troubling state of affairs and reflected a
complete lack of regard for human rights. It laid bare the insensitivity within our legal and judicial
system, which appeared indifferent to the immense suffering and injustice resulting from the
unjustified deprivation of personal liberty. The judgment expressed bewilderment at how the State
Government could have been oblivious to the prolonged incarceration of these under-trial prisoners,
even though their trials had not commenced. The judiciary in the State of Bihar also came under
scrutiny for not addressing the issue of thousands of under-trial prisoners languishing in jails without
their trials starting. In essence, the judgment in the Hussainara Khatoon case highlighted the
pressing need for speedy justice, emphasized the importance of free legal aid for the
underprivileged, and criticized the systemic failures that allowed such injustices to persist within the
Indian legal and judicial framework.

Concept of Speedy justice: in Reality

Speedy justice is always been the sine qua non of criminal jurisprudence. It is an important safeguard
to prevent undue and oppressive incarceration. It minimises anxiety and concern accompanying the
accusation. It also limits the possibility of impairing the ability of an accused to defend himself. There
also remains a keen societal interest in providing speedy justice. The right of speedy justice has been
actuated in the recent past. The courts also, in series of decisions, have opened new vistas of
fundamental rights. The concept of a speedy trial was initially incorporated into the Virginia
Declaration of Rights in 1776. This concept subsequently made its way into the Sixth Amendment of
the United States Constitution, which ensures that "in all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial." Notably, the United States also enacted the Speedy Trial
Act in 1974, which sets specific time limits for key events in criminal cases, such as filing information,
issuing indictments, and arraignments. Similar provisions regarding the right to a speedy trial can be
found in Canadian laws. This right is also recognized as a common law principle, with its origins
traceable back to the Magna Carta. This perspective is held in the United Kingdom, the United
States, Canada, and New Zealand, although it is not accepted in Australia. However, whether as a
common law right or otherwise, the right to a speedy trial does not guarantee an absolute remedy
but is subject to well-established guidelines developed through judicial decisions. Additionally, under
Article 14 of the International Covenant on Civil and Political Rights of 1966, the right to a speedy
trial is protected. Likewise, Article 3 of the European Convention on Human Rights and the Sixth
Amendment to the U.S. Constitution both recognize it as a fundamental right. So far as India is
concerned, the right to speedy trial is an integral and essential part of the fundamental right to life
and liberty enshrined in Article 21 of the Constitution of India. The Supreme Court, while delivering
its constitutional bench judgment in the case of Abdul Rehman Antulay Vs. R.S. Nayak declared that
right to speedy trial is implicit in Article 21 of the Constitution and, thus, constituted a fundamental
right of every person accused of a crime. In Hussainara Khatoon (I) V. Home Secretary, State of Bihar
[(1980) I SCC 81], the Supreme Court observed: 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 reality, the right to Speedy Justice is often one of the most overlooked
aspects of the Criminal Justice System. The importance of swift justice has been recognized in

15
societies throughout history and at all stages of their development. Delayed justice has consistently
been regarded as one of the most significant issues afflicting human societies in all civilized systems.
The problem of legal delays is not a recent phenomenon; it has existed as long as the law itself. It has
been a persistent issue in every judicial system, including the Roman, Greek, English, and American
systems (Bajpayee, 1978)[1] . The concept of the "Right to Speedy Justice" is rooted in natural rights
and was subsequently acknowledged and refined by historical documents such as the Magna Carta
in 1215 AD. The Magna Carta asserted that "To no man will we deny, to no man will we sell, or delay,
Justice or Rights." This idea was subsequently incorporated into various national constitutions and
"Bill of Rights" documents, including the Petition of Rights (1627), Bill of Rights (1689),
Massachusetts Constitution (1780), and the French Declaration of the Rights of Man and of the
Citizen (1789), among others. The Sixth Amendment of the United States Constitution explicitly
states that "In all Criminal Prosecutions, the accused shall enjoy the Right to Speedy and Public
Trial." This concept has been further solidified and given universal significance through various
international and regional declarations and conventions. The denial of Right to Speedy Justice i.e.
delays express out as one of the major reasons for this negative opinion about our Judicial System.
However the problem of delays continues and it assumed gigantic proportions. Delay culminates a
sense of injustice; long periods of denials emanates uncertainty, the problem of judicial delays
seemed of have reached such a climax of notoriety that no one can escape from its vice (Bhatia,
Singh & Singh, 1995) [2] . The mourning arrears in the courts inordinate delays in the administration
of justice and the high cost of litigation have today undermined people’s faith in the judiciary and
threatened the very survival of the system. The Parliamentary Standing Committee on Home Affairs
found that, the position of Subordinate Courts is more alarming, as there is a backlog of over 2 crore
cases pending. Some of them are pending for as long as 25 to 30 years, of these, there are, 1.32
crore criminal cases pending for trial (Venkatesan, 2002)[21] .

The above explanation of the factual situation makes it quite clear that despite many efforts by the
Legislature, the Executive and the Judiciary, the pendency of cases in the courts is piling up with
every passing day. The problem of judicial delays has become an unceasing, unaffected and
unsolvable problem though several intellectuals have done their level best to suggest suitable
solutions, but are in vain.

Constitutional Perespective

Constitutional law, being the fundamental and foundational law of the land, holds exceptional
significance. Every branch of the state aspires to serve the people of India while upholding both the
explicit wording and the underlying principles of the Constitution. The Constitution of India has
articulated a common objective for all its components, which is to ensure that all citizens of India
enjoy Justice - encompassing the social, economic, and political realms - as well as Liberty, Equality,
and Fraternity. At the core of constitutionalism lies the enduring principle of the "rule of law," which
comprises three essential facets: the "rule of law" itself, "rule under law," and "rule according to
law" (Rao, N.D., Wade & Phillips, 1965). As mentioned previously, even though the Constitution of
India does not expressly or separately codify the right to speedy justice, it implicitly acknowledges it
as a fundamental objective of the legal system.

Right to Speedy Justice and Indian judicial System

16
 "There is perhaps no better measure of a government's quality than the effectiveness of its judicial
system, as nothing more directly impacts the well-being and security of the average citizen than
their belief in the prompt and certain administration of justice." - Lord James Bryce in Modern
Democracies. The trust in a judicial system hinges on its ability to deliver accessible, swift, and cost-
effective justice to all without discrimination. Speedy justice should instill a sense of security among
citizens, assuring them that those who transgress the laws of the country will face consequences and
that their legitimate grievances will be addressed, thereby dissuading them from resorting to
vigilantism and taking matters into their own hands. This feeling of security is crucial for maintaining
public order and tranquillity, which are essential for societal progress. Despite the intent for justice
to be "simple, speedy, inexpensive, effective, and substantial," it remains elusive for many Indians.
One of the primary reasons for this is the persistent issue of delays in the dispensation of justice.
This problem is not new to the Indian judicial system; it has existed for a long time but has now
reached alarming proportions. On one hand, this backlog of cases places tremendous strain on the
judicial system, and on the other, it erodes citizens' confidence in the Indian judicial system. Even
the Law Commission of India, in its seventy-seventh report, recognized the backlog of cases as a
major concern. The recurring conflict between the need for speedy trials and the reality of delayed
trials has confounded legal policymakers, legislators, researchers, and the courts themselves. In this
struggle, the courts often find themselves in the role of mere observers (AIR 1991 SC 2176).

Slower resolution and criminal Cases

The issue of expeditious case resolution is particularly acute in criminal cases compared to civil
ones. Achieving a speedy trial in criminal cases, seen as an essential element of the right to a fair
trial, has remained a distant aspiration. A legal procedure that fails to ensure a trial and resolution
within a reasonable timeframe cannot be deemed just, fair, or reasonable. The right to a speedy trial
lies at the core of criminal justice, and it's undeniable that justice delayed equates to justice denied.
Their mission remains incomplete as long as there are individuals enduring tears and suffering
(Sachar, 1999)[14] . Speedy addressing criminal offenses has been a fundamental objective of the
criminal justice system, as excessive delays can thwart the pursuit of justice. The common sayings
"Justice hurried is Justice buried" and "Justice delayed is justice denied" capture this sentiment
(Sourdin & Burstyner, 2014). Therefore, the pursuit of speedy justice should not come at the
expense of legal justice. It is imperative to strike a reasonable balance between the need for
expediency and the need for justice. The expeditious handling of cases benefits both the prosecution
and the accused. For the prosecution, it prevents issues such as the disappearance of witnesses and
evidence. For the accused, it ensures that if they are innocent, they do not suffer needlessly for an
extended period. Consequently, the right to speedy justice possesses a unique nature distinct from
other constitutional rights of the accused. The constitution of India, 1950 does not specifically
guarantee the right to speedy justice, however it is extended in article 21 i.e. right to life of the
constitution to provide speedy justice to the citizens. This extending is purely a judicial effort.

Several provisions of the criminal code

In addition to the earlier judgements, the Code of Criminal Procedure (1973) incorporates the
regulations that are listed below. These guidelines were created to guarantee a speedy trial22 .

Restrictions under CRPC • If a police officer becomes aware that a crime has been committed, he or
she is obligated to immediately report the information to the magistrate. • All investigations

17
conducted in accordance with Chapter XII must be finished within the allotted amount of time, as
specified in Section 173.

According to Section 207 of the Criminal Procedure Code, the accused have the right to get free
copies of: • A report to the Police Department • In accordance with Section 154, a First Information
Report needs to be submitted. • In accordance with the mandates of Section 161, every single
person is required to submit a declaration. • Admittance of guilt and the statement required to be
made in accordance with Article 164. • A copy of the police investigation that was presented to the
magistrate in accordance with Section 173, in addition to any additional papers that may be
relevant.

It is impossible to have jurisdiction over an offence after the time limit specified in subsection (a) of
Section 468 of the Criminal Procedure Code has elapsed or been extended. This provision can be
found in Section 468. The statute of limitations for offences that carry a sentence of not more than
one year imprisonment and for offences that have a sentence between one and three years
imprisonment is also six months23 .

Amendment of pre-existing clauses and phrases

The following subsections will be spoken about: The relevant portion of the Criminal Procedure Code
is 167(2)(a). At the beginning of an investigation, a suspect may be taken into custody for a period of
only 15 days. The duration of judicial custody is fifteen days. The accused is placed into this status
after having been detained by the police for a period of 15 days. In the event that the inquiry into
any offence that is punishable by death, imprisonment, or imprisonment for life does not conclude
within ninety days, the accused person will be released on bail24. If the investigation into the
defendant's case does not conclude within sixty days, the defendant will be granted bail and
released from custody. It is very clear that legislators desired to shield those accused of crimes from
harrassment as well as unlawfully extended periods of incarceration. An investigation into a rape
offence must be finished within two months, as stipulated by Section 173(1A) of the Criminal
Procedure Code. This is a mandatory requirement. When the information was recorded and signed
off on by the official in charge of the police station, the beginning of the two-month period was
triggered25 . Provisions for plea bargaining can be found in Chapter XXIA, sections 265-A through
265-L, respectively. Bear in mind that the highest possible term for these offences is seven years in
prison. Seven years in prison is the maximum term for offences committed against women and
children younger than 14 years old. In addition, the punishments for offences that have a negative
impact on the steady economic growth of the nation are not enforced. The process of speedy and
fairly resolving any criminal charges, rather than doing so through drawn-out trials, was one of the
motivations that led to the development of plea bargaining. In order to ensure that the trial is not
drawn out for an excessively long period of time, Section 309 (1) of the Criminal Procedure Code was
revised. Because of this, it is imperative that it be carried out on a regular basis until all witnesses
have been questioned. Within two months of the day the charge sheet was filed, an investigation or
trial must be held for any charge brought under Section 376A, 376B, 376C, 376D. The doc has been
updated to include two additional paragraphs that discuss the circumstances in which adjournments
are not allowed.

The Consequences that could Result from Protracted Legal Action

18
The right to a speedy trial is included in Article 21, which also guarantees one's right to personal
liberties and the right to one's own life. In the event that an individual believes that their
fundamental rights have been violated, they have the ability to file an appeal with either the
Supreme Court (in accordance with article 32) or the High Court (in accordance with article 226,
which is found in our constitution). The case of P. Ramachandra Rao v. State of Karnataka was before
the Supreme Court, and it was then that some ground rules were created. It confirmed that the
criminal courts are required to use Sections 309-311 and 258 of the Code of Criminal Procedure in
order to guarantee that defendants receive fair trials within a reasonable amount of time. It is
possible to make a plea to the High Court for instructions and remedy in accordance with Articles
226 and 227 of the Constitution as well as Section 482 of the Criminal Procedure Code26 . It is
possible to read this entire article in its entirety. It is crucial to note that the right to a fast trial has,
at times, been highlighted as a basic right under Article 21. This has been done in order to strike a
balance between the interests of justice and fairness and the individualy other compelling and vital
interests. The Supreme Court of the United States, through its decisions, has consistently underlined
the aforementioned premises. Our nation's top court determined, in the case of Kartar Singh v. State
of Punjab, that Article 21 of the Constitution provides the right to a prompt prosecution. It is
imperative that no prejudgment be permitted to develop as a result of an unacceptable or
unnecessary delay27. This right to a speedy trial begins with the arrest of the accused, followed by
their confinement, and continues through every stage of the investigation, including the inquiry and
the trial. During the course of criminal proceedings, the defendant has the right to make a request
for a rapid or expedited trial.

Challenges to Speedy Justice

Case Backlog

India's legal system is burdened with an overwhelming backlog of cases. The number of pending
cases in various courts across the country has escalated, leading to significant delays in adjudication.
Cases pending in various courts in the country have crossed the five-crore mark, Rajya Sabha was
informed on Thursday. In a written reply, Law Minister Arjun Ram Meghwal said over 5.02 crore
cases were pending in various courts -- the Supreme Court, the 25 high courts and subordinate
courts. "As per data retrieved from the Integrated Case Management System (ICMIS) by the
Supreme Court of India, as on July 1, there are 69,766 cases pending in the Supreme Court. "Total
number of cases pending in the high courts and the district and subordinate courts as on July 14 are
60,62,953 and 4,41,35,357 respectively, as per information made available on National Judicial Data
Grid (NJDG).

Procedural Delays

Lengthy and intricate legal procedures contribute to the slow pace of justice delivery. The process of
filing, hearing, and judgment can often take years, deterring litigants from seeking redress.

Lack of Infrastructure

Inadequate infrastructure, including insufficient courtrooms, judges, and support staff, exacerbates
the problem. Courts are overwhelmed, leading to further delays.

Limited Access to Legal Aid

19
A large section of the Indian population lacks access to legal representation, resulting in delays as
litigants navigate the complex legal system without assistance.

Inefficiencies in Case Management

The absence of efficient case management systems, use of outdated technology, and bureaucratic
hurdles further contribute to delays.

Way Forward to Speedy Justice

Speedy justice is a critical aspect of any fair and effective legal system. To achieve speedy justice,
several measures and reforms can be implemented:

Case Management Systems: Implement modern case management systems that use technology to
track cases, schedules, and deadlines. This can help reduce delays caused by paperwork and
administrative inefficiencies. Fast-Track Courts: Establish specialized fast-track courts to deal with
specific types of cases that require urgent attention, such as cases involving violence against women,
corruption, or other heinous crimes. Alternative Dispute Resolution (ADR): Encourage the use of
ADR mechanisms like mediation and arbitration to resolve disputes outside of the traditional court
system. ADR can be faster and more cost-effective. Clear Timelines: Set clear and reasonable
timelines for different stages of the legal process, including filing of cases, hearings, and
judgments. Failure to adhere to these timelines should have consequences for the responsible
parties. Reducing Case Backlog: Implement strategies to reduce the backlog of pending cases,
including hiring more judges, appointing additional court staff, and investing in infrastructure and
technology. Simplify Legal Procedures: Streamline and simplify legal procedures to reduce the
complexity and timeconsuming nature of court processes. This can include reducing the number of
adjournments and simplifying documentation requirements. Training and Capacity Building: Invest
in the training and capacity building of judges, lawyers, and court staff to ensure they are well-
equipped to handle cases efficiently. Online Court Proceedings: Expand the use of online
platforms for court proceedings, including virtual hearings and e-filing, to save time and resources.
Legal Aid: Ensure that everyone has access to legal representation, especially those who cannot
afford it. Providing legal aid can help expedite cases by ensuring that they are properly prepared and
presented. Community Engagement: Promote legal literacy and community engagement to
reduce the number of frivolous cases and encourage early settlement of disputes at the local level.
Regular Case Review: Periodically review the progress of cases to identify bottlenecks and
inefficiencies. Courts can conduct internal audits to assess their own performance and make
improvements. Legislative Reforms: Update and amend outdated laws to reflect modern realities
and streamline legal processes. Specialized Courts: Establish specialized courts for specific types of
cases, such as commercial courts, family courts, and labor courts, to ensure that judges have
expertise in the relevant areas of law. Public Awareness Campaigns: Conduct public awareness
campaigns to educate citizens about their rights and responsibilities within the legal system. This can
help prevent unnecessary litigation. Interagency Collaboration: Foster collaboration among
different agencies of the criminal justice system, such as the police, prosecution, and judiciary, to
ensure a coordinated and efficient approach to justice.

20
Speedy justice is essential for upholding the rule of law and building trust in the legal system.
Implementing these measures can help achieve a fair and efficient justice system that serves the
needs of the people.

Further recommendations for Speedy Justice

Case Management System

Implement a robust case management system using modern technology to track cases, manage
schedules, and reduce unnecessary adjournments.

Training and Capacity Building

Invest in training for judges, lawyers, and court staff to improve efficiency in the judicial process.

Clearing Backlogs

Develop a comprehensive strategy to clear the backlog of cases, including the identification of
priority areas.

Legal Education

Enhance legal education to produce skilled lawyers and legal professionals who can navigate the
system effectively.

Public Awareness

Promote awareness among citizens about their legal rights and avenues for redress, reducing
frivolous litigation.

21
Chapter – 4 Laws related to speedy trials

A "speedy trial" is a human right in criminal law that ensures a government prosecutor cannot
delay a criminal suspect's trial arbitrarily or indefinitely, ensuring justice is administered
without undue delay. Here are few cases related to speedy trials

Case – 1 Thangaraj And Others vs State on 30 April, 1991, By Madras High Court:
1992CRILJ4069

Arvind Distillery and Chemicals Ltd., was located at Kadambuliyur, South Arcot District. It
appears that prior to the expiry of the licence, it had applied for renewal of the licence and no
orders appeared to have been passed before the expiry of the licence. As any other distillery,
it was also posted with excise, officials, inclusive of the guards.

Between August, 1979 and 20-10-1979, the personal connected with the distillery, excise
officials and third parties, pursuant to a conspiracy hatched among them, carried on
distillation in the factory, after the expiry of the licence, removed the rectified spirit from out
of the factory premises and clandestinely sold them to third parties with a view to make
illegal profits and gain and thereby offended or violated the relevant provisions of the Tamil
Nadu Prohibition Act then in force read with the Tamil Nadu Distillery Rules, 1960. The
excise officials, besides being the members of the conspiracy, were also stated to have
rendered actual aid in the operation of manufacture, clandestine removal and sale to third
parties.

In respect of such transactions, a case in Crime No. 513/79 for the alleged offences
under sections 4(1)(a), 4(1)(f), 4(1)(jj), 4(1)(i) and 7(iii) of the Tamil Nadu Prohibition Act,
1937 and R. 29 of the Tamil Nadu Distillery Rules, 1960 read with S. 11 of the aforesaid Act
has been registered by the Prohibition Enforcement Wing, Villupuram.

22
After completing the formalities of the investigation, a final report under S. 173(2) Crl. P.C.
had been laid for the aforesaid offences against 29 persons consisting of the factory officials,
excise personnel and other third parties, which was taken on file as C.C. No. 942 of 1980 on
the file of the Sub-Divisional Judicial Magistrate, Villupuram.

Immediately thereafter, accused I filed Crl. M.P. No. 6563 of 1981 and obtained stay of all
further proceedings from this Court. Subsequently, in the year 1983, on transfer to the
Judicial First Class Magistrate, Villupuram, the case was registered as C.C. No. 288 of 1983.

During the year 1984, accused 2 filed before this Court Crl. M.P. Nos. 9019 and 9020 of
1984 and obtained stay of all further proceedings. Likewise accused 7 filed Crl. M.P. No.
1924 of 1988. In all these Crl. M.Ps. final order were passed on 14-7-1988. Within about for
months thereafter viz., on 15-11-1988, accused 8 and 9 the petitioners herein, who are none
else than the excise guards, filed the present petition and obtained stay of all further
proceedings.

Grounds, though manifold appeared to have been taken in the petition in a bid to quash the
criminal proceedings against the petitioners, Learned counsel appearing for the petitioners,
realising the futility of such exercise, thought fit to urge for consideration the sole and lone
ground of right of speedy trial forming an integral part of Art. 21 of the Constitution of India.
In elaboration, what he would submit is that nine long years had elapsed without any further
progress made in the trial for reasons not at all traceable or attributable to the petitioner,
causing inclaculable prejudice to them in the preparation of their defence.

Learned Govt. Advocate would however, repeal such a submission and state there is no
inaptitude or lethargy on the part of the prosecution in protracting trial without any progress
any delay so caused in the trial is solely attributable to one or the other of accused put up in
the case by resorting to filing of quash petitions before this Court at various stages on various
dates one after another till up to the hearing of this petition.

No doubt, speedy trial is an essence of criminal justice and there can be no doubt that delay in
trail by itself constitutes denial of justice. Speedy trial had not been expressly recognised as
an enumerated fundamental right in the Constitution of India, as had been done in the case of
United States. However, the apex of the Judicial Administration of this country had
recognised such a right as implicitly guaranteed under Art. 21 of the Constitution, within its
broad sweep and content of the decision is Hussaninara Khatoon v. Home Secretary, where

23
their Lordships expressed in paragraphs 5 thus "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 Art. 3 of the European Convention of Human Rights provides that: Every one
arrested or detained .... shall be entitled to trial within a reasonable time or to release pending
trial.

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 Art. 21 as interpreted
by this Court in Maneka Gandhi v. Union of India. 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 the procedure should be "reasonable, fair and just If a person is
depirved of his liberty under a procedure which is not "reasonable, fair or just", such
deprivation would be violative of his fundamental right under Art. 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 trail for determination of the guilt of such person. No
procedure which does not ensure a reasonable 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 trail we mean reasonably expeditious trial, is an integral and essential part of
the fundamental right to life and liberty enshrined in Art. 21."

What then is the remedy if a trial is unduly delayed had been answered in a land mark
judgment by the Supreme Court in State of Maharashtra v. Champalal, . The answer had been
provided by their Lordships in paragraph 2 of the judgment by expressing in the following
terms:- "What is the remedy if a trial is unduly delayed ? In the United States, where the
right to a speedy trail is a constitutionally guaranteed right, the denial of a speedy trail has
been held to entitle an accused person to the dismissal of the indictment or the vacation of the
sentence. But in deciding the question whether there has been a denial of the right to a speedy
trial, the Court is entitled to take into consideration whether the dependent himself was

24
responsible for a part of the delay and whether he was prejudiced in the preparation of his
defence by reason of the delay. The Court is also entitled to take into consideration whether
the delay was unintentional, caused by over-crowding of the Court's Docket or under-staffing
of the prosecutors. Strunk v. United States (1973) 37 Law Ed 2d 56 is an instructive case on
this point. As pointed out in the first Hussainara case, the right to a speedy trial is not an
expressly guaranteed constitutional right in India but is implicit in the right to a fair trial
which has been held to be part of the right of life and liberty guaranteed by Art. 21 of the
Constitution. While a speedy trial is an implied ingredient of a fair trial, the converse is not
necessarily true. A delayed trial is not necessarily an unfair trial. The delay may be
occasioned by the tactic or conduct of the accused himself. The delay may have caused no
prejudice whatsoever to the accused. The question whether a conviction should be quashed
on the ground of delayed trial depends upon the facts and circumstances of the case. If the
accused is found to have been prejudiced in the conduct of his defence and it could be said
that the accused had thus been denied an adequate opportunity to defend himself, the
conviction would certainly have to go. But if nothing is shown and there are no circumstances
entitling the Court to raise a presumption that the accused had been prejudiced there will be
no justification to quash the conviction on the ground of delayed trial only."

In the instant case, there is no denial of the fact that there is a delay of about nine long years
without any progress having been made in the trial. The question mooted to be considered
here is as to whether the delay so caused is because of the inaptitude or lethargy of the
prosecution or because of the tactic or conduct of the accused in somehow or other
protracting the trial for no reason whatever. The narration of the facts as above would
indicate that there was no delay at all on the part of the prosecuting agency either during the
course of investigation or subsequent to the filing of the final report before a competent
Court. Considering the nature of the investigation extended to various places in South Arcot
district and examination of as many as 85 witnesses, it cannot be stated that the time taken for
completing the formalities of the investigation from the date of commission of the offences
was unduly long affecting the interests of the accused in causing any prejudice in their
defence.

Even after the filing of the final report nothing is shown as to the delay caused in the further
progress of the trial. The sordid fact is that more or less immediately after the filing of the
final report one or other of the accused from among the arraigned accused in this case

25
resorted to file some petition or other before this Court and obtaining stay of further
proceedings and this sort of an exercise continued except for a small break of four months
from the date of the filing of the final report till up to the hearing of this petition, and that
period of four months is between 14-7-1988 the date on which this Court passed final orders
in Crl. M.P. Nos. 9019 and 9020 of 1984 and 1824 of 1988 and 17-11-1988, on which interim
stay had been obtained in the present action. It appears that it is well nigh possible that the
prosecution could not have made any progress during the period of four months because
before the trial Court could fix a date for trial, on receipt of necessary orders from this Court
and the records, if any, the petitioners seem to have knocked at the doors of this Court and
obtained stay making further progress of the trial an impossible feat.

It is however to be mentioned here that learned counsel for the petitioners went to the extent
of arguing that even if one or the other of the accused had successively obtained orders of
stay from this Court, it is, for the prosecuting agency to be agile and file necessary petition
for vacating order of stay so obtained and their failure or inaction to do so has to be
construed, as the real reason for the delay so caused and in this view of the matter, the
petitioners accused 8 and 9 had been prejudiced in preparation of their defence. Such an
argument cannot at all be countenanced in the set up for the system of administration of
justice we have.

It is of course the privilege of the person accused of an offence to rush to this Court and
obtain orders or stay of further proceedings. It is conceivable for the prosecuting agency to
have come forward with petitions for vacating stay so obtained. The fact that no such petition
had been filed by the other side is not proof positive of the fact to show their lethargy or
inaptitude, in further prosecuting the case. Judicial Notice has to be taken note of that in cases
of this nature, even petitions filed for vacating stay are not normally taken up and disposed of
as such an exercise is to consume valuable judicial time and that perhaps is the reason instead
of disposing of vacate-stay petition, the main petition itself is listed for final disposal and
disposed of once and for all terminating the proceedings from this Court enabling the trial
Court to make speedy progress in the trial. Quash the petitions once filed and stay orders
obtained therefor are listed chronologically and disposed of and in this process, of course, an
unduly long time is consumed, for such petitions to reach their terminal points obviously
because of the explosion of Dockets in Courts. The delay so caused is inbuilt in the system of
administration of justice and consequently such delay is unintentional, which cannot at all be

26
avoided despite best of efforts. In such a situation, the delay cannot at all be stated to be
attributable to the prosecuting agency but, if at all to one or the other of the accused arraigned
in this case, including the petitioners.

As such, the petition deserves to be dismissed and is accordingly dismissed. Petition

Case – 2 Ram Das Dwivedi vs State Of U.P. on 23 February, 2021, By Allahabad High Court

Present Anticipatory Bail Application has been filed with the prayer to grant anticipatory bail
to the applicant - Ram Das Dwivedi in Criminal Case No. 182 of 2018, arising out of Case
Crime No.215 of 2005, under Sections 420, 467, 468, 471, 409, 120-B IPC and
13(2) Prevention of Corruption Act, Police Station - Firozabad (Dakshin) District -
Firozabad.

Heard Shri Hari Bans Singh, learned counsel for the applicant as well as the learned AGA
and perused the material available on record.

It is submitted by the learned counsel appearing for the applicant that the applicant is
innocent and has no concern with the present matter. Allegations levelled against the
applicant are false. It is further submitted that though applicant had earlier approached this
Court through application u/s 482 No. 36633 of 2013, which was rejected by the order dated
22.1.2021 directing the applicant to surrender before the trial court within three weeks from
the date of the said order yet the applicant has every constitutional right to approach this
Court directly for anticipatory bail. At this juncture, learned counsel for the applicant referred
to law laid down by the Apex Court in Sushila Aggrawal and others vs. State (NCT of Delhi)
and another, (2020) 5 SCC 1 and in Criminal Misc. Anticipatory Bail Application u/s
438 CrPC No. 2609 of 2020 (Parvez Ahmad vs. State of U.P.), decided on 22.5.2020 by
another Bench of this Court. It is further submitted that order passed on the said
application u/s 482 CrPC will not create any bar to entertain the present application. It is
further submitted that no prima facie case is made out against the applicant. Concerned
official of the department concerned were left out. They were not made accused. Applicant
having no concern with the present matter has been made accused. Cognizance taken on the
charge is illegal and without application of judicial mind. At present bailable warrant is
continuing against the applicant. The applicant has apprehension of his arrest by the police
any time. In support of his submissions, learned counsel has referred to the documents

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annexed with the application and submitted that the applicant be enlarged on anticipatory bail
treating his case as a special case.

Learned A.G.A. opposing the prayer submitted that charge sheet has been submitted in the
matter and cognizance has also been taken thereon. It is not a special case. Applicant has
approached this Court directly. Application u/s 482 CrPC moved by the applicant has been
rejected on merits finding a prima facie case against him. Applicant has not complied with
the directions given in the said order passed in the said application under Section 482 CrPC.
At this juncture, learned AGA referred to annexure-12 to the affidavit filed in support of the
present application.

I have considered the rival submissions made by the learned counsel for the applicant and
perused the entire record carefully.

Before dealing with the submissions made by the learned counsel for the parties, I find it
necessary to quote the order dated 22.1.2021 passed in the application under Section
482 CrPC moved by the applicant, which is as under:

"Heard Shri Hari Bans Singh, learned counsel for the applicants and Shri Vikas Goswami,
learned Additional Government Advocate (''A.G.A.') appearing for the State.

By the instant petitions filed under Section 482 of the Code of Criminal Procedure, 19731
(''Cr.P.C.') applicants seek quashing of the entire proceedings of S.S.T. No. 34 of 2010 (State
vs. Shiv Kumar Chandal and others) under Sections 467, 468, 471, 420, 409, 120B IPC, and
13(2) of Prevention of Corruption Act, 1988, pending in the court of Special Judge/Sessions
Judge, Firozabad.

All the applications, herein, are being heard together on consent. The applicants are
chargesheeted in the same case crime number. For the sake of convenience the facts arising in
Ratan Kumar Saraswat2 (36633/2013) is being referred to.

This Court had granted protection to the applicants from coercive measures. It is informed by
the learned counsel for the applicants that the trial since then has not proceeded.

The facts, briefly stated, is that applicants were employees in the office of Soil Conservation
Firozabad. The first applicant retired from the post of Accountant, on 31 December 2005.
NABARD launched a time bound scheme in 1997-98 for improvement of the denuded and

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banjar (infertile) soil. A meeting of the District Soil and Water Conservation Committee was
held on 25 September 1997, under the Chairmanship of the District Magistrate, Firozabad,
wherein, it was decided that tractor and machinery shall be utilized for completing the work
of the Scheme in a time bound programme. Accordingly, in compliance of the order issued
by the State Government earth work and other related work was carried out on behalf of the
Soil Conversation Officer.

It is urged that entire work was done on the directions passed by the higher authorities and
the work of the Scheme was executed as per the norms of the Government. It appears that
some complaint came to be filed with regard to lapses in the execution of the work and loss
caused to the Government. On the complaint, it is urged that Technical Audit Cell conducted
an enquiry headed by Additional Director of Agriculture (Soil Conservation). Upon
considering the report, Director, Agriculture U.P. informed the State Government that the
work was done as per norms and no loss of any kind was caused to the Government. It,
however, appears that on the complaint, Secretary of the Department, vide communication
dated 14 July 1998, directed the Deputy Inspector General of Police, Economic Offences
Wing3 to inspect the project work and enquire whether there was any loss caused to the
Government in execution of the project. Pursuant thereto, EOW, CID, Kanpur, appointed an
Investigating Officer (''IO') to enquire the matter. After preliminary enquiry, an F.I.R. was
lodged on 6 July 2005. The Investigating Officer recorded statement of the complainant Smt.
Meena Rajpur, Deputy Director of Agriculture (Soil Conservation), Chhedi Lal Gupta, Soil
Conservation Officer, Unit IV Firozabad, who stated that no irregularity was committed in
execution of the project, and statement of the applicant. Applicant stated that work of the
applicant is of supervisory nature and he performed his duty as per orders of the higher
authorities; applicant has not committed any irregularity in performing the work under the
Scheme. After investigation, a charge sheet was submitted to the State Government seeking
sanction to prosecute the applicants. Upon sanction, the learned Court below took cognizance
of the offence vide order dated 5 April 2010. The cognizance order and consequential
proceedings are under challenge.

It is submitted by learned counsel for the applicant that the prosecution is malicious as the
complaint was lodged by a local leader; applicant is a petty employee (Accountant); Scheme
was duly enquired by the Technical Audit Cell, which did not find any irregularity or
financial loss; Scheme was executed as per norms prescribed by the Government; there is no

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evidence against the applicants linking them with the commission of the offence; there is no
complaint by any labour or supplier of tractors employed in execution of the Scheme; work
assigned to the applicant was of inspection, measurement and verification of the work
executed.

It is, further, urged that in departmental enquiry conducted by the Technical Audit Cell,
nothing adverse has been found, consequently, prosecution of the applicant based on the
same material is abuse of the process of the court. It is further urged that the matter pertains
to the year 1997-99, F.I.R. came to be lodged in 2005, thereafter, charge sheet was submitted,
but cognizance was taken in 2010. It is, therefore, submitted that entire prosecution stands
vitiated denying the applicants speedy trial. Reliance has been placed on the decision of the
Supreme Court in Pankaj Kumar vs. State of Maharastra.

In rebuttal, learned A.G.A. submits that allegation against the applicants is of criminal
conspiracy (Section 120 IPC), read with other sections for which the applicants have been
charge sheeted. It is contended that payments were made in cash over and above the
prescribed limit based on manufactured documents; applicant in conspiracy with other
accused persons caused revenue loss to the exchequer. It is further contended that amount
twice the prescribed rate was paid; the money was used for purposes other than for the
purpose prescribed under the Scheme. The delay in trial is not attributable to the prosecution.
There is no such departmental enquiry as is being submitted by the learned counsel for the
applicants. The petition is liable to be rejected being devoid of merit.

Rival submissions fall for consideration. As per the F.I.R., it is alleged that the tractors were
engaged from outside, including, State of Rajasthan. Payments were made in cash, whereas,
payments over and above Rs.2,000/- was to be paid through cheque. It is further alleged that
the cost incurred per hectare, as shown from the record, is at Rs.6983/-, whereas, the
Technical Asset Protection Report, 1997-98, the rate prescribed is at Rs.3100/-, per hectare,
thus, causing revenue loss at Rs.57,14,644/-. Similar allegations have been made for loss
caused under different heads. It is further alleged that the officials conspired and caused loss
to the revenue @ Rs.3883/- per hectare by preparing forged and manufactured documents.
First applicant along with 10 other accused persons are named in the F.I.R.. After
investigation, charge sheet came to be filed against 7 accused persons including the
applicants.

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Learned counsel has placed reliance on the decision rendered in P.S. Rajya vs. State of Bihar,
to submit that pursuing the prosecution against the applicants is not justified for the reason
that the enquiry conducted by the department against the alleged irregularity / loss, nothing
was found. The project was executed as per norms prescribed by the Government. It is further
urged that in the given facts there has been inordinate delay caused by the prosecution in trial.
The applicants have been denied speedy trail, thereby, infringing their right under Act 21.

The following questions arise for consideration from the rival contentions of the parties:

i) whether in view of the departmental enquiry, pursing prosecution against the applicants
would tantamount to abuse of the process of the court;

ii) whether delay in trial in the given facts has violated the principle of speedy trial read into
Act, 21 of the Constitution of India.

It would be apposite to examine the law on the proposition of law being pressed by the
learned counsel for the applicant.

In State of N.C.T. of Delhi Vs Ajay Kumar Tyagi6 (for short "NCT Delhi case"), a three
Judge Bench was called upon to answer a reference whether a person exonerated in
departmental proceeding, no criminal proceedings can be lauched or continued. The issue for
consideration by the Bench reads thus: "The facts of the case are that the respondent has been
accused of taking bribe and was caught in a trap case. We are not going into the merits of the
dispute. However, it seems that there are two conflicting judgments of two Judge Benches of
this Court; (I) P.S. Rajya vs. State of Bihar reported in (1996) 9 SCC 1, in which a two Judge
Bench held that if a person is exonerated in a departmental proceeding, no criminal
proceedings can be launched or may continue against him on the same subject matter, (ii)
Kishan Singh Through Lrs. Vs. Gurpal Singh & Others 2010 (8) SCALE 205, where another
two Judge Bench has taken a contrary view."

On having considered the authority on the proposition of law, Supreme Court, answered the
reference in the following terms: "We are, therefore, of the opinion that the exoneration in the
departmental proceeding ipso facto would not result into the quashing of the criminal
prosecution. We hasten to add, however, that if the prosecution against an accused is solely
based on a finding in a proceeding and that finding is set aside by the superior authority in the
hierarchy, the very foundation goes and the prosecution may be quashed. But that principle

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will not apply in the case of the departmental proceeding as the criminal trial and the
departmental proceeding are held by two different entities. Further they are not in the same
hierarchy."

In P.S. Rajya v. State of Bihar7, (for short ''PS Rajya' case) the question before the Court was
as to whether:- "the respondent is justified in pursuing the prosecution against the appellant
under Prevention of Corruption Act, 1947 notwithstanding the fact that on an identical charge
the appellant was exonerated in the departmental proceedings in the light of a report
submitted by the Central Vigilance Commission and concurred by the Union Public Service
Commission."

The Court clarified in para 23 of the report that "...We have already held that for the reasons
given, on the peculiar facts of this case, the criminal proceedings initiated against the
appellant cannot be pursued..." In other words the Court did not lay down that an exoneration
of an employee in departmental proceedings, the criminal prosecution has to be quashed.

In NCT Delhi, the Court, therefore, was of the opinion that the prosecution was not
terminated in P.S. Rajya case on the ground of exoneration in the departmental proceedings
but on the peculiar facts. The observation is as follows: "The decision in the case of P.S.
Rajya (supra), therefore does not lay down any proposition that on exoneration of an
employee in the departmental proceeding, the criminal prosecution on the identical charge or
the evidence has to be quashed. It is well settled that the decision is an authority for what it
actually decides and not what flows from it. Mere fact that in P.S. Rajya (Supra), the
Supreme Court quashed the prosecution when the accused was exonerated in the
departmental proceeding would not mean that it was quashed on that ground."

P.S. Rajya case came up for consideration before the Supreme Court in State v. M. Krishna
Mohan8, thereafter, in the case of Central Bureau of Investigation v. V.K. Bhutiani's9, the
Supreme Court held that quashing of the prosecution was illegal holding that exoneration in
departmental proceedings would not lead to exoneration or acquittal in criminal case. It is
well settled that the standard of proof in department proceeding is lower than that of criminal
prosecution. It is equally well settled that the departmental proceeding or for that matter
criminal cases have to be decided only on the basis of evidence adduced therein. Truthfulness
of the evidence in the criminal case can be judged only after the evidence is adduced therein.

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The criminal case cannot be rejected on the basis of the evidence in the departmental
proceeding or the report of the Enquiry Officer based on those evidence.

Recently in Ashoo Surendranath Tewari vs. The Deputy Superintendent of Police, EOW,
CBI10, (for short ''Ashoo Tewari case), Supreme Court relying on Radheyshyam Kejriwal
Vs. State of West Bengal and another11 (for short ''Radheyshyam Kejriwal case), set aside
the judgment of the High Court and Special Judge and discharged the appellant from the
offence under the Penal Code. The facts, therein, is that the employer SIDBI did not consider
it a fit case, consequently, declined permission to prosecute the appellant. The Chief
Vigilance Commission (CVC) after having gone through the arguments put forth by the CBI
and SIDBI during the course of joint meeting was of the opinion that the appellant may have
been negligent without any criminal culpability.

In Radhey Shyam Kejriwal, the adjudicating authority under the provisions of the Foreign
Exchange Regulation Act, 197312, was not convinced with the Enforcement Directorate to
impose penalty upon the appellant. In other words, if the departmental authorities themselves,
in statutory adjudication proceedings recorded a categorical and an unambiguous finding that
there is no such contravention of the provisions of the Act, it would be unjust for such
departmental authorities to continue with the criminal prosecution and say that there is
sufficient material. It would be unjust and an abuse of the process of the court to permit
Enforcement Directorate & Foreign Exchange Regulatory Authority to continue with
criminal proceedings on the very same material.

After referring to various decisions the Supreme Court in Radhey Shyam Kejriwal culled out
the ratio of the decisions as follows:- " The ratio which can be culled out from these decisions
can broadly be stated as follows:

(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;

(ii) Decision in adjudication proceedings is not necessary before initiating criminal

(iii) Adjudication proceedings and criminal proceedings are independent in nature to each
other;

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(iv) The finding against the person facing prosecution in the adjudication proceedings is not
binding on the proceeding for criminal prosecution;

(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a

(vi) The finding in the adjudication proceedings in favour of the person facing trial for
identical violation will depend upon the nature of finding. If the exoneration in adjudication
proceedings is on technical ground and not on merit, prosecution may continue; and

(vii) In case of exoneration, however, on merits where the allegation is found to be not
sustainable at all and the person held innocent, criminal prosecution on the same set of facts
and circumstances cannot be allowed to continue, the underlying principle being the higher
standard of proof in criminal cases."

The Court finally concluded: "In our opinion, therefore, the yardstick would be to judge as to
whether the allegation in the adjudication proceedings as well as the proceeding for
prosecution is identical and the exoneration of the person concerned in the adjudication
proceedings is on merits. In case it is found on merit that there is no contravention of the
provisions of the Act in the adjudication proceedings, the trial of the person concerned shall
be an abuse of the process of the court."

In nutshell, to recapitulate, the principle culled out in Radhey Shaym Kejriwal case, is that
where the statutory adjudicating authority did not find prima facie case to impose penalty for
violation of FERA, the prosecution based on the same material was held unjustified and
abuse of the process of the Court. In Ashoo Tewari, CVC agreed with the competent
authority of SIDBI (employer), after hearing the CBI, that complicity and culpability of the
appellant was not found. The Court relying on para 38(vii) of Radhey Shaym Kejriwal and
having regard to the detail order of CVC was of the considered opinion that the "chances of
conviction in a criminal trial involving the same facts appear to be bleak".

Reverting to the facts of the instant case, learned counsel for the applicant is unable to show
from the so called report of the Technical Audit Cell that complicity and culpability of the
applicants was not found. The specific allegation against the applicants is that twice the
amount over and above the sanctioned rate was spent. Further, the accused persons had made

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payment to the labourers and the tractors engaged for the Scheme in-cash by preparing false
and manufactured documents. Reliance has been placed on the communication dated 30 May
2005, of Additional Director Agriculture (Soil Conservation), U.P., Agra Division, Agra,
addressed to Director Agriculture, U.P. Krishi Bhawan, Lucknow, wherein, request was made
that the investigation initiated after lodging of the F.I.R. be halted. It is noted therein that the
Scheme for the year 1997-98 and 1998-99, the EOW was of the opinion that twice the
sanctioned rate was released, whereas, the entire scheme was evaluated in 2001-2002. The
EOW wrongly computed the work at a flat rate at Rs. 3100/-, whereas, as per norms the
payment cannot exceed Rs.7200/- per hectare. In other words, it was stated in the
communication that average of the different payments made per hectare would have to be
taken and that sum should not exceed the upper limit, that is, Rs. 7200/- per hectare. Pursuant
thereof, Director of Agriculture, vide communication dated 2 June 2005, placing reliance
upon the letter of the Additional Director of Agriculture, requested the Government not to
prosecute the officers of the department as there was no loss caused to the Government. It
appears that the State Government did not act upon the communication and on 6 July 2005,
F.I.R. came to be lodged. Thereafter, sanction was granted by the State Government for
prosecution.

It is evident from the facts emerging from the material placed on record that no departmental
proceeding, and/or disciplinary enquiry was ever conducted against the accused persons,
including, the applicants. Further, the material relied upon by the I.O. is not part of any such
proceedings. The prosecution is based upon an independent enquiry got conducted by the
State Government by the E.O.W.. It is not the case of the applicant/accused that the
prosecution is based upon the very same material relied upon by the department against the
accused that was part of departmental statutory adjudication proceeding. The departmental
enquiry being relied upon by the applicants was never accepted by the Government. The
Government, on the contrary got an independent enquiry conducted to find out whether loss
was caused to the Government. The final report came to be accepted by the Government. The
authorities relied upon by the learned counsel for the applicant to submit that the applicants
have been exonerated in the departmental enquiry lacks merit. The petition is bereft of the
essential pleadings and foundation to that effect. The submission, accordingly, is rejected.

The next point pressed by learned counsel for the applicant is that the prosecution against the
applicants should be quashed due to inordinate delay in concluding the prosecution and trial,

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thus, being violative of the concept of speedy trial enshrined in Article 21 of the Constitution
of India.

In Abdul Rehman Antulay v. R.S. Nayak13 (Abdul Rehman Antulay case) the Court
observed as follows: "While determining whether undue delay has occurred (resulting in
violation of Right to Speedy Trial) one must have regard to all the attendant circumstances,
including nature of offence, number of accused and witnesses, the workload of the court
concerned, prevailing local conditions and so on -- what is called, the systemic delays. It is
true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as
well, but a realistic and practical approach should be adopted in such matters instead of a
pedantic one."

The aforesaid decision came up for consideration before a Seven-Judge Constitution Bench in
the case of P. Ramachandra Rao Vs. State of Karnataka. The Court over ruled four earlier
decisions* on the point, and while approving the ratio, the Court in Paragraph 29 (1) & (2)
observed as follows: "The dictum in Abdul Rehman Antulay v. R.S. Nayak14 is correct and
still holds the field.

The propositions emerging from Article 21 of the Constitution and expounding the right to
speedy trial laid down as guidelines in Abdul Rehman Antulay v. R.S. Nayak15 adequately
take care of right to speedy trial. We uphold and reaffirm the said propositions."

The Constitution Bench, in Abdul Rehman Antulay16, has formulated certain propositions,
11 in number, meant to serve as guidelines. The paragraphs relevant for the instant case are
extracted:

Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of
investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has
understood this right and there is no reason to take a restricted view.

While determining whether undue delay has occurred (resulting in violation of Right to
Speedy Trial) one must have regard to all the attendant circumstances, including nature of
offence, number of accused and witnesses, the workload of the court concerned, prevailing
local conditions and so on -- what is called, the systemic delays. It is true that it is the
obligation of the State to ensure a speedy trial and State includes judiciary as well, but a
realistic and practical approach should be adopted in such matters instead of a pedantic one.

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Ultimately, the court has to balance and weigh the several relevant factors - ''balancing test' or
''balancing process' - and determine in each case whether the right to speedy trial has been
denied in a given case.

Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an
accused has been infringed the charges or the conviction, as the case may be, shall be
quashed. But this is not the only course open. The nature of the offence and other
circumstances in a given case may be such that quashing of proceedings may not be in the
interest of justice. In such a case, it is open to the court to make such other appropriate order -
including an order to conclude the trial within a fixed time where the trial is not concluded or
reducing the sentence where the trial has concluded - as may be deemed just and equitable in
the circumstances of the case.

It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule
is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of
proving justification on to the shoulders of the prosecution. In every case of complaint of
denial of right to speedy trial, it is primarily for the prosecution to justify and explain the
delay. At the same time, it is the duty of the court to weigh all the circumstances of a given
case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly
refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think
that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial.

An objection based on denial of right to speedy trial and for relief on that account, should
first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily
it should not stay the proceedings, except in a case of grave and exceptional nature. Such
proceedings in High Court must, however, be disposed of on a priority basis."

The matter pertaining to reasonably expeditious trial again came up for consideration by
Supreme Court in Ranjan Dwivedi vs. CBI through the Director General17. The Court
relying upon the Constitution Bench and Larger Bench decisions declined to quash the
proceeding which was pending for 37 years. Appellant/accused had approached the Court at
the stage of argument, contending that the right enshrined in Article 21 was infringed. The
Supreme Court held that length of the delay is not sufficient in itself to warrant a finding that
the accused was deprived of the right to a speedy trial. The relevant paras reads thus: "The
length of the delay is not sufficient in itself to warrant a finding that the accused was deprived

37
of the right to a speedy trial. Rather, it is only one of the factors to be considered, and must be
weighed against other factors. Moreover, among factors to be considered in determining
whether the right to speedy trial of the accused is violated, the length of delay is least
conclusive. While there is authority that even very lengthy delays do not give rise to a per se
conclusion of violation of constitutional rights, there is also authority that long enough delay
could constitute per se violation of right to speedy trial. In our considered view, the delay
tolerated varies with the complexity of the case, the manner of proof as well as gravity of the
alleged crime. This, again, depends on case to case basis. There cannot be universal rule in
this regard. It is a balancing process while determining as to whether the accused's right to
speedy trial has been violated or not. The length of delay in and itself, is not a weighty
factor."

Prescribing a time limit for the trial court to terminate the proceedings or, at the end thereof,
to acquit or discharge the accused in all cases will amount to legislation, which cannot be
done by judicial directives within the arena of judicial law making power available to
constitutional courts."

In the given facts of the case in hand, it is not in dispute that the Scheme pertains to the year
1997-98 and 1998-99. The State Government in July 1998 had directed the EOW to conduct
an enquiry with regard to any loss caused to the government. F.I.R. came to be lodged on 6
July 2005 and charge sheet was filed on 13 March 2010. The applicants were summoned to
face trial on 5 April 2010. Thereafter, applicant/accused had approached this Court by filing
criminal writ petition, wherein, arrest of the applicants came to be stayed. Thereafter,
applicant/accused filed petitions under Section 482 Cr.P.C., wherein, the Court, vide order
dated 10 October 2013, had stayed the proceedings by directing no coercive action be taken
against the applicant (36633/2013). The order reads thus: "Heard learned counsel for the
applicant and learned A.G.A. for the State.

The present application under Section 482 Cr.P.C., has been filed for quashing the entire
proceedings of S.S.T. No. 34 of 2010 (State Vs. Shiv Kumar Chandel and others,
under Sections 467, 468, 471, 420, 409, 120B IPC and 13(2) P.C. Act,pending before the
Special Judge/ Sessions Judge, Firozabad.

It is contended by learned counsel for the applicant that in the present case, F.I.R., was
lodged on 06.07.2005 and charge sheet has been filed after a lapse of 5 years i.e. on

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05.04.2010. It is thus, argued that as per settled principles of law of Hon'ble Apex Court,
reported in AIR 2008 SC 3077 in the matter of Pankaj Kumar Vs. State of Maharastra in
which, it has been held that such prolonged investigation which is not attributable to the
applicant and taking note of the fact, the proceedings were quashed in the aforesaid case. It is
thus contended that in the present matter charge sheet has been filed after 5 years, which is
liable to be quashed by this Court.

Issue notice to the opposite party no.2 returnable within a period of four weeks. Steps be
taken within a week.

Learned A.G.A. prays for and is granted four weeks' time for filing counter affidavit.
Opposite party no.2 may also file counter affidavit within the same period. As prayed by
learned counsel for the applicant, two weeks, thereafter, is granted for filing rejoinder
affidavit. List immediately after expiry of the aforesaid period. Till the next date of listing, no
coercive action shall be taken against the applicant in the aforesaid case."

Similar orders came to be passed in respect of other co-accused persons. It appears that the
trial did not proceed thereafter. The trial court vide order dated 3 March 2020, however,
summoned the applicant/accused to face trial pursuant to the direction of the Supreme Court
in Asian Resurfacing of Raod Agency Pvt. Ltd. v. CBI18. Thereafter, the applicants are
pressing the instant petition.

From the facts narrated herein above, it is evident that the delay, if any, has been caused by
the applicants themselves, and the fault cannot be attributed to the prosecution of having
unnecessarily/ deliberately caused delay in pursing the prosecution. The trial has not
proceeded after the stage of cognizance as restrain orders were operating and the
accused/applicants have not submitted to the trial. The delay perse, in the circumstances, has
not violated the rights of the applicants to speedy trial.

The applications being devoid of merit is, accordingly, rejected. The applicants to surrender
before the trial court within three weeks from date. The trial court shall make an endevour to
expedite the proceedings and conclude the trial, at the earliest possible, without granting
unnecessary adjournment to either of the parties, provided there is no other legal
impediment."

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A perusal of the record reveals that the aforesaid application u/s 482 CrPC moved by the
applicant was rejected on 22.1.2021 in which specific direction was given to the applicant to
surrender before the trial court within three weeks from the date of the said order, as has been
submitted by the learned counsel for the applicant, applicant has not complied with the said
directions given in the said order. It is pertinent to mention here that though there is no bar to
entertain the anticipatory bail application directly as laid down by the Apex Court in Sushila
Aggrawal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1 and in Ankit
Bharti vs. State of U.P and another, decided on 2nd March, 2020 by a larger Bench of this
Court, yet facts and circumstances of the present case are not of such as the same be treated
as special case. Applicant has not complied with the directions given in the order passed in
said application under Section 482 CrPC. A perusal of the order sheet also reveals that
bailable warrant is continuing against the applicant, as he is not participating in the
proceedings before the trial court. Hence, taking into consideration the entire facts and
circumstances of the case and the fact that the application under Section 482 CrPC moved by
the applicant was dismissed finding a prima facie case against the applicant and also keeping
in view the conduct of the applicant, in the opinion of the Court, prayer made in this
application is not liable to be granted. The application being devoid of merits is liable to be
dismissed and the same is accordingly dismissed.

The party shall file computer generated copy of such order downloaded from the official
website of High Court Allahabad. The concerned Court/Authority/Official shall verify the
authenticity of such computerized copy of the order from the official website of High Court
Allahabad and shall make a declaration of such verification in writing.

Case – 3 State vs Shree on 30 April, 2012, By Gujrat High Court

The Misc. Civil Application No. 418 of 2012 is one for clarification at the instance of the
State/Respondent nos. 1 to 4 of a Public Interest Litigation, [since disposed of by us]. They
have prayed for clarification of our order dated January 20, 2012 by making it clear that the
direction upon the State to pay the employees' minimum of pay-scale, viz. pay band plus
grade pay, should be effected only from the date of the delivery of the judgment and not
earlier.

Opponent no.1 of this application, on April 28, 2011 filed a Public Interest Litigation
challenging the action of the State government in issuing Government Resolutions dated

40
February 16, 2006 and April 29, 2010. The prayer was for a direction upon the State
Government to pay to the employees recruited under the Scheme of fixed-pay for the initial
contract-period of five years, the minimum pay scale available in the cadre of the employees
who are appointed on regular post and discharging identical duties.

The said application was contested by the present applicants thereby opposing the prayer of
the writ-petitioner.

This court, ultimately, by order dated January 20, 2012 partly allowed the said application by
passing the following direction: "The newly appointed employees, before getting the benefit
of the regular scale on being found to be suitable on completion of the fixed period, should
get at least, the total amount payable to an employee in the lowest grade of pay scale for that
post from the date of their appointment. Similarly, the period during which employees would
remain in the fixed scale before completion of the period of probation should be treated to be
part of their service-period for all future benefits including the retiral ones once they are
found to be suitable on completion of probation period."

By this application, the applicants have submitted that in case the said judgment is interpreted
to have the effect that the same should be retrospective from the date of appointment
encompassing all the fixed-pay-appointments of the post, and that not only the minimum of
the pay band plus grade pay should be given during the fixed period of five years, but also all
the other allowances such as Dearness Allowance, House Rent Allowance should be included
and at the same time, if the fixed period of five years are counted as the period of service for
all purposes including seniority, in that event, the implication of the judgment would be as
under:

[i] All the employees who were appointed on fixed pay basis will have to be paid arrears
from the date of appointment.

[ii] If the 5 years' fixed pay period of the employees is to be counted for all the purposes, then
that would result into the entitlement of such employees of seniority from due date which
would, in turn, result into a large scale of litigations, as inclusion of such fixed pay
employees in the gradation list would adversely affect the prospect of promotion of the other
regular government employees who are already in services either through direct recruitment
or by promotion or by semi-direct recruitment.

41
Besides the above, the seniority from the date of appointment of such fixed-pay-employees
would make them entitled for promotion to higher posts, grant of Higher Grade, etc. which is
also likely to result in indirect financial burden in the form of grant of deemed dates for grant
of Higher Grade from earlier dates, etc. In short, counting of 5 years' fixed-pay-period for all
purposes would have its large-scale ramifications in the administrative matters, which would
likely to lead to certain level of confusion.

[iii] The Government has introduced the Newly Defined Pension Scheme from April1, 2005
for the employees recruited after that date. All the employees who joined in government
service after April1, 2005 are required to join compulsorily in the Newly Defined Pension
Scheme. If 5 years of service of the said fixed-pay-employees are taken into account for all
purposes, then it would be mandatory for the Government to pay the government-
contribution, i.e. 10% of the basic pay plus D.A. for each such fixed-pay-employee.

In the case of fixed-pay-employees, who were recruited before April1, 2005 would have to be
joined in the earlier GPF-cum-Pension scheme. However, such fixed-pay-employees will also
get the pensionary benefits, which government has discontinued from April 1, 2005.

It is further contended that the number of fixed-pay-employees in the employment at the time
of filing of the affidavit dated July 26, 2011 by the State Government was 93,369 and by this
time, the recruitment of 50,000 fixed-pay-employees was under process. Thus, the total
number of about 1, 43,369 employees would get the benefit of our judgment dated January
20, 2012 and consequently, the financial impact would be as follows:

[i] If the said CAV judgment dated January 20, 2012 is interpreted to mean that the
"minimum of the pay-scale" means Pay Band plus Grade Pay, then the annual additional
recurrent additional financial burden would be approximately Rs. 365.00 crore [total
employees taken into consideration are 1,43,369].

[ii] If the said CAV judgment dated January 20, 2012 is made applicable as such and if the
concerned fixed-pay-employees are to be paid minimum of the Pay Band plus Grade Pay
including other allowances, then the recurrent additional annual financial burden on the State
Exchequer would be approximately Rs. 1348.00 crore [ total employees taken into
consideration are 1,43,369].

42
[iii] If the said CAV judgment dated January 20, 2012 is interpreted to mean that the
"minimum of the pay-scale" i.e. Pay Band plus Grade Pay is to be given from the date of
introduction of the fixed pay scheme as per the Government Resolution dated February 16,
2006, then the additional financial burden towards arrears would be approximately Rs.
1754.00 crore [total employees taken into consideration are 93,369].

[iv] If the said CAV judgment dated January 20, 2012 is made applicable as such and if the
concerned fixed-pay-employees are to be paid the minimum of the Pay Band plus Grade Pay
including other allowances from the introduction of the fixed pay scheme i.e. February 16,
2006, then the financial burden of payment of arrears would be approximately Rs. 3360.00
crore [total employees taken into consideration are 93,369].

[v] If the said CAV judgment dated January 20, 2012 is implemented and five years' service
of all the fixed-pay- employees are taken into consideration for all purposes, then the
Government has to pay contribution towards Newly Defined Pension Scheme i.e. 10% of the
basic pay plus D.A. for each of such employee and also the pensionary benefits to be given to
them which will lead to further huge financial burden.

In the above view of the matter, it is contended by Mr. Kamal B. Trivedi, the learned
Advocate General appearing on behalf of the applicants, that we should clarify our earlier
judgment by specifically laying down that the State Government should be required to pay
only the minimum of the pay band plus grade pay but not other allowances payable to the
employees who have been in the service, with further direction that the added benefit should
be payable only from the date of judgment, viz. January 20, 2012.

In support of the above contention, Mr. Trivedi has contended that since the State
Government was so long following the earlier decision of a Division Bench of this Court in
the case of Joshi Tushar Tansukhbhai and others v. State of Gujarat, reported in 2004 [2]
GLR 1188, and we have held that in view of the subsequent decision of the Supreme Court in
the case of U.P. Land Development Corporation and Another v. Mohd. Khursheed Anwar
and Anr reported in AIR 2010 SC 2287, the said decision of the Division Bench is no longer
a good law, the above benefit should be given prospectively from the date of the judgment.
Mr. Trivedi further contended that the employees having accepted the job being fully
conscious that they would be getting less than the amount payable to the regular employees,
the benefit should not be retrospectively given.

43
On the other hand, Mr. D.J. Bhatt, the learned advocate appearing on behalf of the opponent
no.1, opposed the aforesaid contentions of Mr. Trivedi. He has contended that whenever a
policy is held to be ultra vires the Constitution of India and particularly violating any of the
fundamental rights guaranteed by the Constitution, it should be treated to be illegal from the
very beginning and thus, the employees, for whose benefit writ-application was filed, should
get the benefit from the date of their appointment. He further contends that our order is clear
enough to include not only the grade pay and pay band but also other allowances available to
the regular employees. Mr. Bhatt, therefore, prays for dismissal of the application by pointing
out that the benefit is available from the date of employment.

Therefore, the only question that arises for determination in this application is whether we
should clarify our decision in the way suggested by Mr. Trivedi.

After hearing the learned counsel for the parties and after going through the materials on
record, we find that in our judgment indicated above, we specifically made it clear that in
view of the decision of the Supreme Court in the case of U.P. Land Development
Corporation (supra), the newly appointed employees should get at least, the total amount
payable to an employee in the lowest grade of pay-scale in that post from the date of their
appointment. We specifically clarified at para-18 of our judgment that the newly appointed
employees, before getting the benefit of the first increment in the scale, should get the total
amount payable to an employee in the lowest grade of the scale for the post, which means,
the same is inclusive of all the allowances as well as grade pay plus pay band. Thus, there is
no necessity of further clarification of our order regarding total quantum of amount directed
to be paid by the State Government.

The next question is whether the amount payable should be given from the date of
appointment or from the date of our judgment as contended by Mr. Trivedi.

On the above aspect, we first propose to deal with the question of financial implication of the
matter as strenuously contended by Mr. Trivedi.

So far as the issue of financial implication is concerned, it is now settled by the Supreme
Court that constitutional obligation cannot be avoided on the plea of financial implication.

At this stage, we may profitably refer to the decision of the Supreme Court in the case
of Haryana State Minor Irrigation Tubewells Corporation and others v. G.S. Uppal and

44
others, reported in [2008] 7 SCC 375. The Supreme Court, in the above decision, made the
following observations at paragraph 33:

"The plea of the appellants that the Corporation is running under losses and it cannot meet the
financial burden on account of revision of scales of pay has been rejected by the High Court
and, in our view, rightly so. Whatever may be the factual position, there appears to be no
basis for the action of the appellants in denying the claim of revision of pay scales to the
respondents. If the Government feels that the Corporation is running into losses, measures of
economy, avoidance of frequent writing off of dues, reduction of posts or repatriating
deputationists may provide the possible solution to the problem. Be that as it may, such a
contention may not be available to the appellants in the light of the principle enunciated by
this Court in M.M.R. Khan v. Union of India 5 and Indian Overseas Bank v.

However, so long as the posts do exist and are manned, there appears to be no justification
for granting the respondents a scale of pay lower than that sanctioned for those employees
who are brought on deputation. In fact, the sequence of events discussed above clearly shows
that the employees of the Corporation have been treated on a par with those in Government at
the time of revision of scales of pay on every occasion."

Even more than 30 years ago, the Supreme Court in the case of Hussainara Khatoon and
others v. Home Secretary, State of Bihar, Patna, reported in [1980] 1 SCC 98 = AIR 1979 SC
1369, made the following observations: "The State cannot be permitted to deny the
constitutional right of speedy trail to the accused on the ground that the State has no adequate
financial resources to insure the necessary expenditure needed for improving the
administrative and judicial apparatus with a view to ensuring speedy trial. The State may
have its financial constraints and its priorities in expenditure, but, as pointed out by the Court
in Rhem v. Malclm, 377 F Supp 995 : 'The law does not permit any Government to deprive
its citizens of constitutional rights on a plea of poverty'. It is also interesting to notice what
Justice, then Judge, Blackmum said in Jackson v. Biship, 404 F Supp. 2d 571 : "Humane
considerations and constitutional requirements are not, in this day, to be measured by dollar
considerations.""

Subsequently, in the case of All India Judges' Association and others v. Union of India and
others, reported in AIR 1993 SC 2493, the Supreme Court in paragraph-6 dealt with similar
contention in the following way:

45
"The contention with regard to the financial burden likely to be imposed by the directions in
question is equally misconceived. Firstly, the Courts do from time to time hand down
decisions which have financial implications and the Government is obligated to loosen its
purse recurrently pursuant to such decisions.

Secondly, when the duties are obligatory, no grievance can be heard that they cast financial
burden.

Thirdly, compared to the other plan and non-plan expenditure, we find that the financial
burden caused on account of the said directions is negligible. We should have thought that
such plea was not raised to resist the discharge of the mandatory duties. The contention that
the resources of all the States are not uniform has also to be rejected for the same reasons.

The directions prescribe, the minimum necessary service conditions and facilities for the
proper administration of justice. We believe that the quality of justice administered and the
calibre of the persons appointed to administer it are not of different grades in different States.

Such contentions are ill-suited to the issues involved in the present case."

On consideration of the above decisions of the Supreme Court, we are, therefore, of the
opinion that on the plea of financial implication, a "State" within the meaning of Article 12 of
the Constitution of India should not be permitted to take the plea that notwithstanding
exploitation of labour at its instance, such abuse in the past should not be remedied.

The next question is whether we can deny the benefit of just pay simply on the ground that
the employees, with full knowledge of their disadvantage and violation of fundamental right,
agreed to accept the fixed wages.

On this question, there is a direct judgment of the Supreme Court in the case of Dhirendra
Chamoli and another v. State of U.P., reported in [1986] 1 SCC 637.

In the said case, two letters were received with a complaint that there were number of persons
who were engaged by Nehru Yuvak Kendra as casual workers on daily wage basis and
though they were doing the same work as was performed by Class-IV employees appointed
on regular basis, they were not being given the same salary and allowances as were being
paid to those Class-IV employees.

46
In such a case, the contention before the Supreme Court on behalf of the State of U.P. was
that the Nehru Yuvak Kendras were started at different places of the country as temporary
organizations and that they have not been made permanent, that there were no sanctioned
posts of Class-IV employees and the employees who were engaged by different Nehru Yuvak
Kendras were taken as casual employees on daily wage basis.

It was further argued that since there were no sanctioned posts to which regular appointments
could be made, the casual employees employed by different Kendras could not claim the
same salary and perquisites as Class-IV employees appointed regularly to the sanctioned
post. It was further argued before the Supreme Court that such persons took up employment
with the Nehru Yuvak Kendras knowing fully well that they would be paid only daily wages,
and therefore, the could not claim more.

In such a case, the Supreme took cognizance of an important fact that the persons engaged by
the Nehru Yuvak Kendras performed the same duties as were performed by Class-IV
employees appointed on regular basis against sanctioned post and came down heavily on
such attitude exhibited by the government by observing as follows:

"The argument envisaged in the counter-affidavit is that since there are no sanctioned posts to
which regular appointments can be made, the casual employees employed by different Nehru
Yuvak Kendras cannot claim to receive the same salary and perquisites as Class IV
employees appointed regularly to sanctioned posts. But while raising this argument, it is
conceded in the counter-affidavit that "the persons engaged by the Nehru Yuvak Kendras
perform the same duties as is performed by Class IV employees appointed on regular basis
against sanctioned posts". If that be so, it is difficult to understand how the Central
Government can deny to these employee the same salary and conditions of service as Class
IV employees regularly appointed against sanctioned posts. It is peculiar on the part of the
Central Government to urge that these persons took up employment with the Nehru Yuvak
Kendras knowing fully well that they will be paid only daily wages and therefore they cannot
claim more. This argument lies ill in the mouth of the Central Government for it is an all too
familiar argument with the exploiting class and a welfare State committed to a socialist
pattern of society cannot be permitted to advance such an argument. It must be remembered
that in this country where there is so much unemployment, the choice for the majority of
people is to starve or to take employment on whatever exploitative terms are offered by the
employer. The fact that these employees accepted employment with full knowledge that they

47
will be paid only daily wages and they will not get the same salary and conditions of service
as other Class IV employees, cannot provide an escape to the Central Government to avoid
the mandate of equality enshrined in Article 14 of the Constitution. This article declares that
there shall be equality before law and equal protection of the law and implicit in it is the
further principle that there must be equal pay for work of equal value. These employees who
are in the service of the different Nehru Yuvak Kendras in the country and who are
admittedly performing the same duties as Class IV employees, must therefore get the same
salary and conditions of service as Class IV employees. It makes no difference whether they
are appointed in sanctioned posts or not. So long as they are performing the same duties, they
must receive the same salary and conditions of service as Class IV employees.

We therefore allow the writ petitions and make the rule absolute and direct the Central
Government to accord to these persons who are employed by the Nehru Yuvak Kendras and
who are concededly performing the same duties as Class IV employees, the same salary and
conditions of service as are being received by Class IV employees, except regularisation
which cannot be done since there are no sanctioned posts. But we hope and trust that posts
will be sanctioned by the Central Government in the different Nehru Yuvak Kendras, so that
these persons can be regularised. It is not at all desirable that any management and
particularly the Central Government should continue to employ persons on casual basis in
organisations which have been in existence for over 12 years. The salary and allowances of
Class IV employees shall be given to these persons employed in Nehru Yuvak Kendras with
effect from the date when they were respectively employed.

The Government of India will pay to the petitioners costs of the writ petitions fixed at a lump
sum of Rs 1000."

It may be mentioned here that in paragraph-3 of the judgment quoted above, the Supreme
Court made it clear that the salary and allowances of Class-IV employees should be given to
such persons employed in Nehru Yuvak Kendras with effect from the date they were
respectively employed.

At this stage, it will also be profitable to refer to the decision of the Supreme Court in the
case of Sanjit Roy v. State of Rajasthan, reported in AIR 1983 SC 328, where challenge
before the Supreme Court was as to validity of Rajasthan Famine Relief Works Employees
[Exemption from Labour Laws] Act, 1964 in so far as it excluded the applicability of

48
the Minimum Wages Act, 1984 by reason of Section 3 of the Famine Relief Act. The
principal grounds on which the constitutionality of the Exemption Act was challenged were
based on Articles 14 and 23 of the Constitution of India. In such a case, the Supreme Court,
relying on the judgment in the case of Peoples' Union for Democratic Rights v. Union of
India, reported in AIR 1982 SC 1473, held as follows: "If this be the correct position in law,
it is difficult to see how the constitutional validity of the Exemption Act in so far as it
excludes the applicability of the Minimum Wages Act, 1948 to the workmen employed in
famine relief works can be sustained. Article 23, as pointed out above, mandates that no
person shall be required or permitted to provide labour or service to another on payment of
anything less than the minimum wage and if the Exemption Act, by excluding the
applicability of the Minimum Wages Act 1948, provides that minimum wage may not be paid
to a workman employed in any famine relief work, it would be clearly violative of Article
23. The respondent however contended that when the State undertakes famine relief work
with a view to providing help to the persons affected by drought and scarcity conditions, it
would be difficult for the State to comply with the labour laws, because if the State were
required to observe the labour laws, the potential of the State to provide employment to the
affected persons would be crippled and the State would not be able to render help to the
maximum number of affected persons and it was for this reason that the applicability of
the Minimum Wages Act, 1948 was excluded, in relation to workmen employed in famine
relief work. This contention, plausible though it may seem is, in my opinion, unsustainable
and cannot be accepted. When the State undertakes famine relief work, it is no doubt true that
it does so in order to provide relief to persons affected by drought and scarcity conditions but
nonetheless, it is work which enures for the benefit of the State representing the society and if
labour or service is provided by the affected persons for carrying out such work, there is no
reason why the State should pay anything less than the minimum wage to the affected
persons. It is not as if a dole or bounty is given by the State to the affected persons in order to
provide relief to them against drought and scarcity conditions nor is the work to be carried
out by the affected persons worthless or useless to the society so that under the guise of
providing work what the State in effect and substance seeks to do is to give a dole or bounty
to the affected persons. The Court cannot proceed on the basis that the State would undertake
by way of famine relief, work which is worthless and without utility for the society and
indeed no democratic State which is administered by a sane and sensible Government would
do so because it would be sheer waste of human labour and resource which can usefully be
diverted into fruitful and productive channels leading to the welfare of the community and
49
creation of national asset or wealth. It is difficult to appreciate why the State should require
the affected persons to provide labour or service on work which is of no use to the society,
instead of simply distributing dole or bounty amongst the affected persons. There is no reason
why the State should resort to such a camouflage. The presumption therefore must be that the
work undertaken by the State by way of famine relief is useful to the society and, productive
in terms of creation of some asset or wealth and when the State exacts labour or service from
the affected persons for carrying out such work, for example, a bridge or a road, which has
utility for the society and which is going to augment the wealth of the State, there can be no
justification for the State not to pay the minimum wage to the affected persons. The State
cannot be permitted to take advantage of the helpless condition of the affected persons and
exact labour or service from them on payment of less than the minimum wage.

No work of utility and value can be allowed to be constructed on the blood and sweat of
persons who are reduced to a state of helplessness on account of drought and scarcity
conditions. The State cannot under the guise of helping these affected persons exact work of
utility and value from them without paying them the minimum wage. Whenever any labour
or service is taken by the State from any person, whether he be affected by drought and
scarcity conditions or not, the State must pay, at the least minimum wage to such person on
pain of violation of Article 23 and the Exemption Act in so far as it excludes the applicability
of the Minimum Wages Act, 1948 to workmen employed on famine relief work and permits
payment of less than the minimum wage to such workmen, must be held to be invalid as
offending the provisions of Article 23. The Exemption Act cannot in the circumstances be
relied upon by the respondent as exempting it from the liability to pay minimum wage to the
workmen engaged in the construction work of Madanganj Harman Road."

At this stage, we cannot resist the temptation of quoting some portion of paragraph-14 of the
judgment in the case of Peoples' Union for Democratic Rights [supra].

"What Article 23 prohibits is 'forced labour' that is labour or service which a person is forced
to provide and 'force' which would make such labour or service 'forced labour' may arise; in
several ways. It may be physical force which may compel a person to provide labour or
service to another or it may be force exerted through a legal provision such as a provision for
imprisonment or fine in case the employee fails to provide labour or service or it may even be
compulsion arising from hunger and poverty, want and destitution. Any factor which deprives
a person of a choice of alternatives and compels him to adopt one particular course of action

50
may properly be regarded as 'force' and if labour or service is compelled as a result of such
'force', it would be 'forced labour'.

Therefore, we find no substance in the contention of Mr. Trivedi, the learned Advocate
General, appearing on behalf of the State, that the employees being fully aware of their
disadvantageous position having accepted the job with their eyes open, they should not get
the benefit of our judgment from the very date of the appointment. Approval of the above
contention of Mr. Trivedi amounts to endorsement of "forced labour" or exploitation at the
instance of the State.

The other contention of Mr. Trivedi that we having relied upon the decision of the Supreme
Court in the case of U.P. Land Development Corporation and Another v. Mohd. Khursheed
Anwar and Anr (supra) and the said decision being a new decision on the question deviating
from the earlier one, the same should be given effect prospectively is also bereft of any
substance. As pointed out by the Supreme Court in the case of Assistant Commissioner,
Income Tax, Rajkot vs. Saurastra Kutch Stock Exchange Limited reported in (2008) 14 SCC
171, the judicial decisions are generally retrospective unless specifically declared to be
prospective. We propose to rely upon the following observations of C. K. Thakkar J
delivering the judgment for the bench:

"In our judgment, it is also well settled that a judicial decision acts retrospectively. According
to Blackstonian theory, it is not the function of the court to pronounce a "new rule" but to
maintain and expound the "old one". In other words, Judges do not make law, they only
discover or find the correct law. The law has always been the same. If a subsequent decision
alters the earlier one, it (the later decision) does not make new law. It only discovers the
correct principle of law which has to be applied retrospectively. To put it differently, even
where an earlier decision of the court operated for quite some time, the decision rendered
later on would have retrospective effect clarifying the legal position which was earlier not
correctly understood.

Salmond in his well known work states: "The theory of case law is that a judge does not
make law; he merely declares it; and the overruling of a previous decision is a declaration
that the supposed rule never was law. Hence any intermediate transactions made on the
strength of the supposed rule are governed by the law established in the overruling decision.

51
The overruling is retrospective, except as regards matters that are res judicatae or accounts
that have been settled in the meantime."

It is no doubt true that after a historic decision in Golak Nath v. State of Punjab 13 this Court
has accepted the doctrine of "prospective overruling". It is based on the philosophy:

"The past cannot always be erased by a new judicial declaration."

It may, however, be stated that this is an exception to the general rule of the doctrine of
precedent."

In the above case of Golak Nath, the majority of the judges expressed the following view as
regards the prospective overruling of the decisions:

"In 1ndia there is no statutory prohibition against the court refusing to give retroactivity to the
law declared by it. Indeed, the doctrine of res judicata precludes any scope for retroactivity in
respect of a subject matter that has been finally decided between the parties. Further, Indian
Courts by interpretation reject retroactivity to statutory provisions though couched in general
terms on the ground that they affect vested rights. The present case only attempts a further
extension of the said rule against retroactivity.

50. Our Constitution does not expressly or by necessary implication speak against the
doctrine of prospective overruling. Indeed, Arts. 32, 141 and 142 are couched in such wide
and elastic terms as to enable this Court to formulate legal doctrines to meet the ends of
justice. The only limitation thereon is reason, restraint and injustice. Under Art. 32, for the
enforcement of the fundamental rights the Supreme Court has the power to issue suitable
directions or orders or writs. Article 141 says that the law declared by the Supreme Court
shall be binding on all courts: and Art. 142 enables it in the exercise of its jurisdiction to pass
such decree or make such order as is necessary for doing complete justice in any cause or
matter pending before it. These articles are designedly made comprehensive to enable the
Supreme Court to declare law and to give such directions or pass such orders, as are
necessary to do complete justice.

The expression "declared" is wider than the words "found or made". To declare is to
announce opinion. Indeed, the latter involves the process, while the former expresses result.
Interpretation, ascertainment and evolution are parts of the process, while that interpreted,

52
ascertained or evolved is declared as law. The law declared by the Supreme Court is the law
of the land. If so, we do not see any acceptable reason why it, in declaring the law in
supersession of the law declared by it earlier, could not restrict the operation of the law as
declared to future and save the transactions, whether statutory or otherwise that were effected
on the basis of the earlier law. To deny this power to the Supreme Court on the basis of some
outmoded theory that the Court only finds law but does not make it is to make ineffective the
powerful instrument of justice placed in the hands of the highest judiciary of this country.

As this Court for the first time has been called upon to apply the doctrine evolved in a
different country under different circumstances, we would like to move warily in the
beginning.

We would lay down the following propositions: (1) The doctrine of prospective overruling
can be invoked only in matters arising under our Constitution; (2) it can be applied only by
the highest, court of the country, i.e., the Supreme Court as it has the constitutional
jurisdiction to declare law binding on all the courts in India; (3) the scope of the retroactive
operation of the law declared by the Supreme Court superseding its "earlier decisions" is left
to its discretion to be moulded in accordance with the justice of the cause or matter before it."

The above principles are still the law of the land as regards the doctrine of prospective
precedent.

We find that in the case of U.P. Land Development Corporation and Another v. Mohd.
Khursheed Anwar and Anr (supra) relied upon by us in our judgment, the Supreme Court did
not lay down the law prospectively; on the other hand, as it appears from paragraph 18 of the
judgment, the Supreme Court directed the Government to pay to the respondents minimum of
the pay-scale prescribed for the post of Assistant Engineer (as revised from time to time)
from the date of their appointment till they continued in the employment of the Corporation.
We are also not impressed by the submission of Mr. Trivedi that as we have not declared the
entire resolution as ultra vires but only part of the same by accepting the other part as valid,
we can, in the special fact of the case, save even the vitiated part of the resolution by
declaring that part as ultra vires prospectively.

Thus, there is no scope of applying the above principle prospectively as suggested by Mr.
Trivedi.

53
We, now propose to deal with the decisions cited by Mr. Trivedi.

In the case of Orissa Cement Ltd. v. State of Orissa and Ors. (supra), the Supreme Court held
that although the levy of cess involved therein was unconstitutional, still, there should not be
any direction to refund to the assessees any amount of cess collected until the date on which
the levy in question had been declared unconstitutional. According to the Supreme Court,
although it had found that the assessment was void, yet it was not bound to exercise its
discretion directing repayment. By relying upon the said decision, Mr Trivedi strenuously
contended before us that we should also pass direction for arrears payment only from the date
of the judgment.

We have already pointed out that the power to declare an ultra vires act only prospectively
lies with the Supreme Court alone but not conferred on High Courts. Therefore, the said
decision is not an authority for the proposition that even the High Court, after holding that an
act of a "State" is unconstitutional, can nevertheless grant relief only prospectively.

In the case of South Eastern Coalfields Ltd. and etc. etc. v. Century Textiles & Industries Ltd.
and others etc. etc., (supra), the Supreme Court took a similar view.

In our opinion, the Supreme Court in those cases decided to exercise such discretion in the
facts of those cases by exercising its power under Article 142 of the Constitution of India.

Similarly, in the case of Somaiya Organics [India] Ltd. and Another v. State of U.P. and
Anr. (supra), the Supreme Court specifically exercised prospective overruling in exercise of
power under Article 142 of the Constitution of India.

In the case of Ramchandra Shankar Deodhar and ors. v. The State of Maharashtra and ors.
(supra), the Supreme Court held that the relevant statutory provision involved in the said
matter was violative of Article 16 of the Constitution. Therefore, the Supreme Court held that
the reassessment should be made with retrospective effect and the petitioners should be given
benefit of seniority, pay and other allowances from respective dates on which they would had
been promoted, had the promotion been made on correct post indicated in the judgment. The
Supreme Court, however, clarified that as far as arrears of pay and other allowances were
concerned, those should not be given for a period prior to the filing of the petition.

54
It is, therefore, apparent that in the facts of the said case, the Supreme Court passed such
order prospectively to a limited extent and that this direction was passed in exercise of power
under Article 142 of the Constitution.

In the case of State of U.P. and others v. U.P. Sales Tax Officers Grade II
Association (supra), it appears from paragraph 15 of the judgment that even after declaring a
particular provision as unconstitutional, for the ends of justice, the Supreme Court directed
that arrears of pay based on refixation in the revised scale should be given from the date of
filing of the petition in the High Court. Thus, the said direction was passed in exercise of
power under Article 142 of the Constitution.

In the case of State of Haryana and Ors. v. Charanjit Singh and Ors. (supra), while remanding
the matter, the Supreme Court directed the High Court that on the basis of material placed
before it if it was convinced that there was equal work of equal quality and all other relevant
factors were fulfilled then it might direct payment of equal pay from the date of filing of the
respective petition. Therefore, the said case is also one passed by the Supreme Court in
exercise of power under Article 142 of the Constitution.

In the case of State of Kerala and others v. E.K. Bhaskaran Pillai (supra), the Supreme Court
granted benefit from the date of filing of the petition before the Court without, however,
giving any reason. Therefore, the said decision cannot be treated to be a precedent
authorizing even the High Courts to exercise power similar to the one prescribed
under Article 142 of the constitution.

Lastly, in the case of Gajaji Gopalji Jadeja v. State of Gujarat (supra), a learned Single Judge
of this Court while allowing a writ-application on service matter, after accepting the
allegation of violation of Article 14 of the Constitution of India, ultimately, passed direction
that the petitioner would be given arrears of service benefits and fixation of pay-scale from
the date on which the petition had been filed.

By relying upon the above decisions, Mr. Trivedi tried to convince us that we should also
exercise such discretion. We have already held that once an Act has been held to be ultra
vires and that too on the basis of a decision of the Supreme Court, which did not enforce the
said law prospectively, but specifically applied the same retrospectively, the said principle
cannot be applied prospectively on the ground of adverse financial implication on the

55
exploiter or for the reason of estoppel against an exploited employee which we have already
discussed in detailed above.

All the decisions cited by Mr. Trivedi are thus of no assistance to his clients.

In view of what has been stated above, we find that there is no necessity of modifying or
clarifying our judgment by giving prospective benefit to the employees, as suggested by the
State. Similarly, in our original order, we have held with sufficient clarity that the employees
should get the entire amount including all allowances and grade pay from very date of their
joining.

The application for modification is thus dismissed. However, having regard to the fact that
this application was pending, we extend the time for compliance of our order by further one
month from today. The other application for extension of time of compliance of our order is
also disposed of in terms of this order.

Case – 4 Raja Babu vs Income-Tax Officer on 13 February, 2001, By Madras High Court:
[2001]251ITR206(MAD)

The above petitions are filed by the second accused in C.Cs. Nos. 183 to 186 of 1985 on the
file of the Additional Chief Metro politan Magistrate (Economic Offences) Egmore, Chennai,
and the proceedings in the above calendar cases came to be initiated by way of a private
complaint by the respondent against the petitioner and another for offences punishable
under Sections 276C(1), 277 and 278 of the Income-tax Act, 1961, and Sections
120B, 177, 193, 196 and 420 of the Indian Penal Code, 1860, read with Sections 511 of the
Indian Penal Code on the allegation that the petitioner and the other accused in the case
cheated the Income-tax Department by opening accounts in ficititious names, with the banks,
they did not disclose their income, etc.

After the filing of the complaint, the petitioner and the other accused appeared before the
court and received copies of the documents. Thereafter, they filed a petition to quash the
proceedings before the court and the same was dismissed by an order dated January 24, 1989.
The records in the case were received by the learned Magistrate from the High Court in June,
1990. Thereafter, the petitioner and the other accused absconded and did not appear before
the court for several hearings, forcing the trial court to issue a non-bailable warrant, which
was executed in the year 1993. Later, the petitioner and the other accused surrendered before

56
the court and took time. Thereafter, they moved the Income-tax Department with a request to
compound the offences. The Department granted permission to compound the offences
except for the assessment year 1985-86 and asked them to pay Rs. 64 lakhs. That amount was
not deposited, but on the contrary, the petitioner and the other accused moved a writ petition
before this court questioning the order of the Income-tax Department refusing to grant them
permission to compound the offence for the assessment year 1985-86. That was dismissed
with a direction to the trial court to proceed with the trial and dispose of the matter
expeditiously. Then, the trial commenced and witnesses were examined on a day-to-day
basis.

In the meantime, the petitioners have filed another writ petition in W. P. No. 1814 of 2001
and obtained stay of the trial in all the calendar cases. Now, the present petition is filed to
quash the proceedings on the ground that there is inordinate delay in proceeding with the trial
and a speedy trail is a right guaranteed under article 21 of the Constitution of India. I have
considered the submission and the facts extracted above clearly show that the petitioner
cannot invoke article 21 of the Constitution of India since the right for speedy trail is denied
not by the prosecution and the petitioner and the other accused in the case are alone
responsible for the delay. In fact, they have been putting spokes at every stage and trying to
protract the proceedings. It does not lie in the mouth of the petitioner to say that there is no
expeditious disposal of the cases and the proceedings have to be quashed.

In fact, the Supreme Court in Common Cause, A Registered Society v. Union of India [1996]
AIR 1996 SC 1619 ; [1996] SCC (Crl) 589 ; [1998] 94 Comp Cas 770 while dealing with the
similar situation, held that directions (1) and (2) made in the judgment will not apply to cases
involving offences under the taxing enactments. Later, the Supreme Court, while clarifying
the earlier judgment referred to supra, reported in Common Cause. A Registered Society v.
Union of India, held that the time limit mentioned regarding the pendency of criminal cases
in paragraphs 2(a) to 2(f) in the judgment reported in Common Cause, A Registered Society
v. Union of India. AIR 1996 SC 1C19 ; [1996] SCC (Crl) 589 ; [1998] 94 Comp Cas 776,
shall not apply to cases wherein such pendency of the criminal proceedings is wholly or
partly attributable to the dilatory tactics adopted by the accused concerned or on account of
arty other action of the accused which results in prolonging the trial.

At the risk of repetition, it may be stated that the petitioner and the petitioner alone is
responsible for the delay of the trial and, therefore, it is not for him to now says that the

57
proceedings are protracted and hence, they have to be quashed. I find no merit in the
contention. The petitions, are therefore dismissed. Consequently Crl. M. P. No. 6599, 6601,
6603 and 6605 of 2000 are dismissed.

Case – 5 George Ashok vs The State on 30 August, 2016, Madras High Court

on the file of the learned Judicial Magistrate, Vadipatti, aggrieved by the dismissal of his
petition in Cr.M.P.No.5097 of 2014 in C.C.No.25 of 2013 which has been filed to split up his
case, has directed this revision.

This revision is directed under Section 397 r/w Section 401 of Criminal Procedure Code. The
Sessions Court as well as this Court exercised this revisional jurisdiction. This jurisdiction is
different from the appellate jurisdiction. The revisional jurisdiction is intended to scrutinize
the legality, propriety and regularity of an order passed by an inferior Court/Subordinate
Court.

Now, in this case, the Petitioner is A5. It is alleged that 13 persons including the Petitioner
indulged in transporting liquor bottles and have violated the provisions of the Tamil Nadu
Prohibition Act. The Investigation Officer completed the investigation and filed the final
report before the learned Judicial Magistrate, Vadipatti for offence under Section 4(i)(aaa)
(Transport)(ii) of Tamil Nadu Prohibition Act.. The learned Judicial Magistrate took
cognizance thereon in C.C.No.25 of 2013. The Petitioner/A5 is regularly attending the Court.
For the past three years, summons have not been served on the other accused. In the
circumstances, the trial could not be started.

On the other hand, the Petitioner/A5 is is a regular visitor to the Magistrate Court and
interacts with his counsel. In the circumstance, he filed Cr.M.P.No.5097 of 29014 for
splitting up his case from the rest of the accused and trial may be conducted as against him.

The learned Judicial Magistrate, Vadipatti passed the impugned order on 2.3.2016 dismissing
his petition on the ground that the petitioner and other accused are relatives, they belongs to
the same village, the other accused have wilfully refused to receive the summons and if the
case as against the petitioner is split up, it will result in multiplicity of cases and it will result
in waste of Court's time.

58
The learned counsel for the Revision Petitioner would contend that none of the reasons stated
in the impugned order is sustainable in law. He would submit that for the fault of other
accused,the petitioner cannot be blamed, he cannot be asked to put up with untold miseries
and mental agony, when especially, he is ready to defend himself and also engaged a defense
counsel.

The learned Government Advocate(Crl.side) submitted that there seems to be some unholistic
alliance between the petitioner and the other accused since all belong to the same village. If
the case is split up, it will result in giving birth to one more case.

I have anxiously considered the rival submissions, perused the impugned order and also the
materials on record.

Splitting up of the criminal case is not an uncommon event in Criminal Courts. Naturally,
split up case will have a new case number, while the remaining case will become its mother
case. Though both will have different case numbers, but the nature of the case, type of
evidence will be same.

By routine practice in fit and appropriate cases, splitting up of the case came to be ordered.
But it depends upon the facts and circumstances of each case and a case cannot be simply
split up on the mere request of the accused. It is one aspect of the matter.

There is another aspect of this matter. It is the fundamental right of an accused to have a
speedy trial and speedy justice. It emanates from Article 21, Constitution of India. The
benefit of speedy trial is two-folded. One, innocent will be freed quickly and secondly, the
guilty will be dealt with appropriately, at an early date. Thus, in criminal jurisprudence, now
'speedy investigation', 'speedy trail' and 'speedy justice' has become a facet of human rights of
the accused.

Now coming to the present case, there are 13 accused. Petitioner/A5 is regularly attending the
hearings before the learned Judicial Magistrate, Vadipatti for the past three years. He has also
engaged a Lawyer to defend himself. For the past three years, Vadipatti Police struggles to
execute the summons on the other accused It is quite a laconic when the prosecution himself
says that the said persons are available in the same village. It is also stated by the prosecution
that the other accused are wilfully evading the receipt of summons. For their such fault or of

59
inability of the Vadipatti Police to serve the summons on the other accused, the petitioner
cannot be asked to suffer.

The Courts are meant for delivery of justice. Justicing business is a difficult business. It is a
difficult task. It takes some time. Since the Court has to do some additional work, it cannot
deny splitting up of the case when it is a fit case. In this view of the matter, the impugned
order suffers from legality and propriety.

Case -6 Ajay Kumar Choudhary vs Union Of India Thr Its Secretary & Anr on 16 February,
2015, Supreme Court of India: AIR 2015 SUPREME COURT 2389

Appellant assails his suspension which was effected on 30.9.2011 and has been extended and
continued ever since. In November, 2006, he was posted as the Defence Estate Officer (DEO)
Kashmir Circle, Jammu & Kashmir. During this tenure it was discovered that a large portion
of the land owned by the Union of India and held by the Director General Defence Estates
had not been mutated/noted in the Revenue records as Defence Lands. The Appellant alleges
that between 2008 and 2009, Office-notes were prepared by his staff, namely, Shri Vijay
Kumar, SDO-II, Smt. Amarjit Kaur, SDO-III, Shri Abdul Sayoom Technical Assistant, and
Shri Noor Mohd., LDC, that approximately four acres of land were not Defence Lands, but
were private lands in respect of which NOCs could be issued. These NOCs were accordingly
issued by the Appellant. Thereafter, on 3.4.2010, the Appellant was transferred to Ambala
Cantt. However, vide letter dated 25.1.2011 the Appellant was asked to give his explanation
for issuing the factually incorrect NOCs. In his reply the Appellant admitted his mistake,
denied any mala fides in issuing the NOCs, and attributed the issuance of the NOCs to the
notes prepared by the subordinate staff of SDOs/Technical Officer. It was in this background
that he received the Suspension Order dated 30.9.2011. Various litigation was fruitlessly
initiated by the Appellant in the Central Administrative Tribunal, Chandigarh Bench, as well
as in the Punjab & Haryana High Court, with which we are not concerned. The Appellant
asserts that since the subject land was within the parameter wall of the Air Force Station, no
physical transfer thereof has occurred. On 28.12.2011 the Appellant's suspension was
extended for the first time for a further period of 180 days. This prompted the Appellant to
approach the Central Administrative Tribunal, Chandigarh Bench (CAT), and during the
pendency of the proceedings the second extension was ordered with effect from 26.6.2012 for
another period of 180 days. The challenge to these extensions did not meet with success
before the CAT. Thereafter, the third extension of the Appellant's suspension was ordered on

60
21.12.2012, but for a period of 90 days. It came to be followed by the fourth suspension for
yet another period of 90 days with effect from 22.3.2013.

It appears that the Tribunal gave partial relief to the Appellant in terms of its Order dated
22.5.2013 opining that no employee can be indefinitely suspended; that disciplinary
proceedings have to be concluded within a reasonable period. The CAT directed that if no
charge memo was issued to the Appellant before the expiry on 21.6.2013 of the then
prevailing period the Appellant would be reinstated in service. The CAT further ordered that
if it was decided to conduct an Inquiry it had to be concluded "in a time bound manner". The
Appellant alleges that the suspension was not extended beyond 19.6.2013 but this is not
correct. The Respondent, Union of India filed a Writ Petition before the Delhi High Court
contending that the Tribunal had exercised power not possessed by it inasmuch as it directed
that the suspension would not be extended if the charge memo was served on the Appellant
after the expiry of 90 days from 19.3.2013 (i.e. the currency of the then extant Suspension
Order). This challenge has found favour with the Court in terms of the impugned Judgment
dated September 04, 2013. The Writ Court formulated the question before it to be "whether
the impugned directions circumscribing the Government's power to continue the suspension
and also to issue a chargesheet within a time bound manner can be sustained". It opined that
the Tribunal's view was "nothing but a substitution of a judicial determination to that of the
authority possessing the power, i.e., the Executive Government as to the justification or
rationale to continue with the suspension". The Writ Petition was allowed and the Central
Government was directed to pass appropriate orders "as to whether it wishes to continue with
the suspension or not having regard to all the relevant factors, including the report of the CBI,
if any, it might have received by now. This exercise should be completed as early as possible
and within two weeks from today."

This has led to the filing of the Appeal before this Court. In the hearing held on 11.07.14, it
was noted that by letter dated 13.6.2014 the suspension of the Appellant had been continued
for a period of 90 days with effect from 15.6.2014 (i.e. the fourth extension), and that
investigation having been completed, sanction for prosecution was to be granted within a
period of two weeks. When the arguments were heard in great detail on 9th September, 2014
by which date neither a Chargesheet nor a Memorandum of Charges had been served on the
Appellant. It had been contended by learned counsel for the Appellant that this letter, as well

61
as the preceding one dated 8.10.2013, had been back-dated. We had called for the original
records and on perusal this contention was found by us to be without substance.

The learned Additional Solicitor General has submitted that the original suspension was in
contemplation of a departmental inquiry which could not be commenced because of a
directive of the Central Vigilance Commission prohibiting its commencement if the matter
was under the investigation of the CBI. The sanction for prosecution was granted on
1.8.2014. It was also submitted that the Chargesheet was expected to be served on the
Appellant before 12.9.2014, (viz., before the expiry of the fourth extension). However, we
need to underscore that the Appellant has been continuously on suspension from 30.9.2011.

It is necessary to record that all the relevant files were shown to us, on the perusal of which it
was evident that reasons were elaborately recorded for the each extension of suspension and
within the currency of the then prevailing period. Therefore, the reliance of learned Senior
Counsel for the Appellant on Ravi Yashwant Bhoir v. District Collector, Raigad 2012 (4)
SCC 407, is of no avail since the salutary requirement of natural justice, that is of spelling out
the reasons for the passing of an order, has been complied with.

Learned Senior Counsel for the Appellant, however, has rightly relied on a series of
Judgments of this Court, including O.P. Gupta v. Union of India 1987 (4) SCC 328, where
this Court has enunciated that the suspension of an employee is injurious to his interests and
must not be continued for an unreasonably long period; that, therefore, an order of suspension
should not be lightly passed. Our attention has also been drawn to K. Sukhendar Reddy v.
State of A.P. 1999 (6) SCC 257, which is topical in that it castigates selective suspension
perpetuated indefinitely in circumstances where other involved persons had not been
subjected to any scrutiny. Reliance on this decision is in the backdrop of the admitted facts
that all the persons who have been privy to the making of the Office-notes have not been
proceeded against departmentally. So far as the question of prejudicial treatment accorded to
an employee is concerned, this Court in State of A.P. v. N. Radhakishan 1998 (4) SCC 154,
has observed that it would be fair to make this assumption of prejudice if there is an
unexplained delay in the conclusion of proceedings. However, the decision of this Court
in Union of India v. Dipak Mali 2010 (2) SCC 222 does not come to the succour of the
Appellant since our inspection of the records produced in original have established that
firstly, the decision to continue the suspension was carried out within the then prevailing
period and secondly, that it was duly supported by elaborate reasoning.

62
Suspension, specially preceding the formulation of charges, is essentially transitory or
temporary in nature, and must perforce be of short duration. If it is for an indeterminate
period or if its renewal is not based on sound reasoning contemporaneously available on the
record, this would render it punitive in nature. Departmental/disciplinary proceedings
invariably commence with delay, are plagued with procrastination prior and post the drawing
up of the Memorandum of Charges, and eventually culminate after even longer delay.

Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm
and not the exception that they ought to be. The suspended person suffering the ignominy of
insinuations, the scorn of society and the derision of his Department, has to endure this
excruciation even before he is formally charged with some misdemeanour, indiscretion or
offence. His torment is his knowledge that if and when charged, it will inexorably take an
inordinate time for the inquisition or inquiry to come to its culmination, that is to determine
his innocence or iniquity. Much too often this has now become an accompaniment to
retirement. Indubitably the sophist will nimbly counter that our Constitution does not
explicitly guarantee either the right to a speedy trial even to the incarcerated, or assume the
presumption of innocence to the accused. But we must remember that both these factors are
legal ground norms, are inextricable tenets of common law jurisprudence, antedating even the
Magna Carta of 1215, which assures that - "We will sell to no man, we will not deny or defer
to any man either justice or right." In similar vein the Sixth Amendment to the Constitution of
the United States of America guarantees that in all criminal prosecutions the accused shall
enjoy the right to a speedy and public trial. Article 12 of the Universal Declaration of Human
Rights, 1948 assures that - "No one shall be subjected to arbitrary interference with his
privacy, family, home or correspondence, nor to attacks upon his honour and reputation.
Everyone has the right to the protection of the law against such interference or attacks". More
recently, the European Convention on Human Rights in Article 6(1) promises that "in the
determination of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time...." and in its second
sub article that "everyone charged with a criminal offence shall be presumed innocent until
proved guilty according to law".

The Supreme Court of the United States struck down the use of nolle persequi, an indefinite
but ominous and omnipresent postponement of civil or criminal prosecution in Klapfer vs.
State of North Carolina 386 U.S. 213 (1967). In Kartar Singh vs. State of Punjab (1994) 3

63
SCC 569 the Constitution Bench of this Court unequivocally construed the right of speedy
trial as a fundamental right, and we can do no better the extract these paragraphs from that
celebrated decision -

" 86 The concept of speedy trial is read into Article 21 as an essential part of the fundamental
right to life and liberty guaranteed and preserved under our Constitution. The right to speedy
trial begins with the actual restraint imposed by arrest and consequent incarceration and
continues at all stages, namely the stage of investigation, inquiry, trial, appeal and revision so
that any possible prejudice that may result from impermissible and avoidable delay from the
time of the commission of the offence till it consummates into a finality, can be averted. In
this context, it may be noted that the constitutional guarantee of speedy trial is properly
reflected in Section 309 of the Code of Criminal Procedure.

This Court in Hussainara Khatoon (I) v. Home Secretary, State of Bihar while dealing
with Article 21 of the Constitution of India has observed thus:

"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

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 the
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 21. 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 of time and convicting him after such trial would constitute violation of his
fundamental right under Article 21."

The legal expectation of expedition and diligence being present at every stage of a criminal
trial and a fortiori in departmental inquiries has been emphasised by this Court on numerous
occasions. The Constitution Bench in Abdul Rehman Antulay vs. R.S. Nayak, 1992 (1) SCC
225, underscored that this right to speedy trial is implicit in Article 21 of the Constitution and
is also reflected in Section 309 of the Cr.P.C., 1973; that it encompasses all stages, viz.,
investigation, inquiry, trial, appeal, revision and re-trial; that the burden lies on the
prosecution to justify and explain the delay; that the Court must engage in a balancing test to

64
determine whether this right had been denied in the particular case before it. Keeping these
factors in mind the CAT had in the case in hand directed that the Appellant's suspension
would not be extended beyond 90 days from 19.3.2013. The High Court had set aside this
direction, viewing it as a substitution of a judicial determination to the authority possessing
that power, i.e., the Government. This conclusion of the High Court cannot be sustained in
view of the following pronouncement of the Constitution Bench in Antulay:

In view of the above discussion, the following propositions emerge, meant to serve as
guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to
foresee all situations. Nor is it possible to lay down any hard and fast rules. These
propositions are:

(1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a
right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The
fact that a speedy trial is also in public interest or that it serves the social interest also, does
not make it any the less the right of the accused. It is in the interest of all concerned that the
guilt or innocence of the accused is determined as quickly as possible in the circumstances.

(2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage
of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has
understood this right and there is no reason to take a restricted view.

(3) The concerns underlying the right to speedy trial from the point of view of the accused
are:

(a) the period of remand and pre-conviction detention should be as short as possible. In other
words, the accused should not be subjected to unnecessary or unduly long incarceration prior
to his conviction;

(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an
unduly prolonged investigation, inquiry or trial should be minimal; and

(c) undue delay may well result in impairment of the ability of the accused to defend himself,
whether on account of [pic]death, disappearance or non- availability of witnesses or
otherwise.

65
(4) At the same time, one cannot ignore the fact that it is usually the accused who is
interested in delaying the proceedings. As is often pointed out, "delay is a known defence
tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay
ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of
evidence by lapse of time really work against the interest of the prosecution. Of course, there
may be cases where the prosecution, for whatever reason, also delays the proceedings.
Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the
first question to be put and answered is - who is responsible for the delay? Proceedings taken
by either party in good faith, to vindicate their rights and interest, as perceived by them,
cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be
counted towards delay. It goes without saying that frivolous proceedings or proceedings
taken merely for delaying the day of reckoning cannot be treated as proceedings taken in
good faith. The mere fact that an application/petition is admitted and an order of stay granted
by a superior court is by itself no proof that the proceeding is not frivolous. Very often these
stays are obtained on ex parte representation. (5) While determining whether undue delay has
occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the
attendant circumstances, including nature of offence, number of accused and witnesses, the
workload of the court concerned, prevailing local conditions and so on - what is called, the
systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State
includes judiciary as well, but a realistic and practical approach should be adopted in such
matters instead of a pedantic one.

(6) Each and every delay does not necessarily prejudice the accused. Some delays may
indeed work to his advantage. As has been observed by Powell, J.

in Barke 33 L Ed 2d 101 "it cannot be said how long a delay is too long in a system where
justice is supposed to be swift but deliberate". The same idea has been stated by White, J. in
U.S. v. Ewell 15 L Ed 2d 627 in the following words: the Sixth Amendment right to a speedy
trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than
mere speed, as its essential ingredients; and whether delay in completing a prosecution
amounts to an unconstitutional deprivation of rights depends upon all the circumstances.'
However, inordinately long delay may be taken as presumptive proof of prejudice. In this
context, the fact of incarceration of [pic]accused will also be a relevant fact. The prosecution

66
should not be allowed to become a persecution. But when does the prosecution become
persecution, again depends upon the facts of a given case.

(7) We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot
try himself; he is tried by the court at the behest of the prosecution. Hence, an accused's plea
of denial of speedy trial cannot be defeated by saying that the accused did at no time demand
a speedy trial. If in a given case, he did make such a demand and yet he was not tried
speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial
cannot be put against the accused. Even in USA, the relevance of demand rule has been
substantially watered down in Barker 33 L Ed 2d 101and other succeeding cases.

(8) Ultimately, the court has to balance and weigh the several relevant factors - 'balancing
test' or 'balancing process' - and determine in each case whether the right to speedy trial has
been denied in a given case. (9) Ordinarily speaking, where the court comes to the conclusion
that right to speedy trial of an accused has been infringed the charges or the conviction, as the
case may be, shall be quashed. But this is not the only course open. The nature of the offence
and other circumstances in a given case may be such that quashing of proceedings may not be
in the interest of justice. In such a case, it is open to the court to make such other appropriate
order - including an order to conclude the trial within a fixed time where the trial is not
concluded or reducing the sentence where the trial has concluded - as may be deemed just
and equitable in the circumstances of the case.

(10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such
rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden
of proving justification on to the shoulders of the prosecution. In every case of complaint of
denial of right to speedy trial, it is primarily for the prosecution to justify and explain the
delay. At the same time, it is the duty of the court to weigh all the circumstances of a given
case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly
refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think
that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial.

(11) An objection based on denial of right to speedy trial and for relief on that account,
should first be addressed to the High Court. Even if the High Court entertains such a plea,
ordinarily it should not stay the proceedings, except in a case of grave and [pic]exceptional
nature. Such proceedings in High Court must, however, be disposed of on a priority basis.

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State of Punjab v. Chaman Lal Goyal (1995) 2 SCC 570 deserves mention, inter alia, because
action was initiated on 25.3.1992 and a Memorandum of Charges was issued on 9.7.1992 in
relation to an incident which had occurred on 1.1.1987. In the factual matrix obtaining in that
case, this Court reserved and set aside the High Court decision to quash the Inquiry because
of delay, but directed that the concerned officer should be immediately considered for
promotion without taking the pendency of the Inquiry into perspective.

It will be useful to recall that prior to 1973 an accused could be detained for continuous and
consecutive periods of 15 days, albeit, after judicial scrutiny and supervision. The Cr.P.C. of
1973 contains a new proviso which has the effect of circumscribing the power of the
Magistrate to authorise detention of an accused person beyond period of 90 days where the
investigation relates to an offence punishable with death, imprisonment for life or
imprisonment for a term of not less than 10 years, and beyond a period of 60 days where the
investigation relates to any other offence. Drawing support from the observations contained
of the Division Bench in Raghubir Singh vs. State of Bihar, 1986 (4) SCC 481, and more so
of the Constitution Bench in Antulay, we are spurred to extrapolate the quintessence of the
proviso of Section 167(2) of the Cr.P.C. 1973 to moderate Suspension Orders in cases of
departmental/disciplinary inquiries also. It seems to us that if Parliament considered it
necessary that a person be released from incarceration after the expiry of 90 days even though
accused of commission of the most heinous crimes, a fortiori suspension should not be
continued after the expiry of the similar period especially when a Memorandum of
Charges/Chargesheet has not been served on the suspended person. It is true that the proviso
to Section 167(2) Cr.P.C. postulates personal freedom, but respect and preservation of human
dignity as well as the right to a speedy trial should also be placed on the same pedestal.

We, therefore, direct that the currency of a Suspension Order should not extend beyond three
months if within this period the Memorandum of Charges/Chargesheet is not served on the
delinquent officer/employee; if the Memorandum of Charges/Chargesheet is served a
reasoned order must be passed for the extension of the suspension. As in the case in hand, the
Government is free to transfer the concerned person to any Department in any of its offices
within or outside the State so as to sever any local or personal contact that he may have and
which he may misuse for obstructing the investigation against him. The Government may
also prohibit him from contacting any person, or handling records and documents till the
stage of his having to prepare his defence. We think this will adequately safeguard the

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universally recognized principle of human dignity and the right to a speedy trial and shall
also preserve the interest of the Government in the prosecution. We recognize that previous
Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and
to set time limits to their duration. However, the imposition of a limit on the period of
suspension has not been discussed in prior case law, and would not be contrary to the
interests of justice. Furthermore, the direction of the Central Vigilance Commission that
pending a criminal investigation departmental proceedings are to be held in abeyance stands
superseded in view of the stand adopted by us.

So far as the facts of the present case are concerned, the Appellant has now been served with
a Chargesheet, and, therefore, these directions may not be relevant to him any longer.
However, if the Appellant is so advised he may challenge his continued suspension in any
manner known to law, and this action of the Respondents will be subject to judicial review.

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Chapter – 5 Conclusion and Suggestions

It has recognised principle that speedy trial is an essential ingredient for protecting liberty. Concept
of speedy trial is not new in India but modern concept’s evolution took place in USA. In USA Right to
Speedy Trial was given by sixth amendment in constitution, for further enlargement of right Speedy
Trial Act 1974 was enacted. But in India there is no such Special Act, however in Cr.P.C. there are
various provisions for speedy trial like Plea bargaining. Concept of speedy trial is also accepted by
various international instruments like European Commission on human Right. Right to Speedy Trial
in India is accepted as fundamental rights by various cases. The Apex Court has developed various
aspect of Speedy Trail. Recently in Shatrughan Chauhan v. Union of India32 the Apex Court without
referring Right to Speedy Trial has accepted the concept by mentioning that undue delay in
execution of death sentence is amount to infringement of fundamental right under article 21 of the
constitution of India.

After the decision of the Apex Court in Shatrughan Chauhan v. Union of India33, issue of delay in
execution of death sentence has become an issue of debate. This type of problem is arising due to
the absence of any special mechanism for dealing with Mercy Petitions and for execution of death
sentence. So for dealing with this type of petitions, Researcher would like to suggest that there
should be a special procedural law for deciding mercy petitions and for establishing special
mechanism for executing death sentence because after Shatrughan Chauhan case34 it has become
trend to use ground of delay for commutation of death sentence. Petitions are filing for
commutation sentence and there is no certainty in Apex Court’s decision about time limit of delay in
execution of death sentence. It is not a job of Apex court to commute sentence after delivering final
verdict, it is power given to executive by the constitution of India and should be exercised by
executive only. For exercising this power by the executive, it is need of time that Parliament should
legislates a proper procedural law for providing proper mechanism, so mercy petition can be decided
on time and convicted person should get his due on time or otherwise he/she should not be
mentally harassed by waiting for death.

The journey of speedy trials in India reflects the nation's complex legal history, balancing
colonial legacies with indigenous traditions and modern reforms. While significant strides
have been made to ensure timely justice, ongoing challenges require persistent efforts,
including judicial reforms, infrastructural enhancements, and legislative amendments.
Upholding the right to a speedy trial remains a dynamic and evolving endeavor, essential to
maintaining public trust in the legal system and ensuring justice for all.

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The primary objective of the judiciary and the judicial system is to ensure a fair and prompt
trial within the shortest possible timeframe, allowing people seeking justice to receive it
swiftly. The judicial process should be equipped to administer social justice and must align
with constitutional norms. Timely and efficient decisions are crucial in preventing unjust
outcomes and restoring the public's trust in the justice delivery system. Compliance with the
principles of fair and speedy trials is a fundamental requirement. It is not solely the
responsibility of the courts to provide fair and swift justice to the accused; it also falls upon
other components of the criminal justice system, such as the police, public prosecutors, and
defense counsel, to play their respective roles effectively. Simultaneously, the public has a
duty to extend its utmost cooperation to the police and the courts to facilitate speedy
investigations and trials. Without public cooperation, no agency can effectively carry out its
responsibilities. Therefore, for the prompt delivery of justice to the accused, all these
components must collaborate and work together. The executive branch has a critical role in
expediting the criminal justice delivery system. It should safeguard witnesses and victims,
support the prosecution effectively, and avoid political influence. Investigative agencies
should be well-equipped to analyse and address crimes involving sophisticated methods.
Additionally, the legislature needs to address specific areas that require immediate attention,
as access to justice is a vital aspect of social justice.

The courts started taking a greater interest in fast trials in order to prevent criminal processes
from being unduly harassed. The process of law is absolutely necessary in order to safeguard
the legal rights of persons. A person has the right to ask for a fast trial at any point of the
legal process, which includes the investigation, inquiry, and trial stages, as well as the appeal,
revision, or retry stages. The Supreme Court has emphasised on multiple occasions that
anyone can file a petition with either the Supreme Court or the High Court, pursuant to
Article 32 or Article 226, respectively, to obtain a speedier trial. The Court has decided not to
impose any time constraints on the ongoing cases. Even though there are a number of
safeguards in place to ensure that Indian citizens receive prompt justice, the ideal situation
has not yet been achieved. The trial has been drawn out as a result of a number of different
issues. Even though the Constitution ensures that defendants will receive a speedy trial, it is
critical to conduct additional research and develop a more robust legal framework.

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Bibliography

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