Holding

The right to a speedy trial is a fundamental right implicit in Article 21, but no fixed outer time limit can be prescribed; courts must balance the surrounding circumstances and may order expeditious trial rather than automatically quash the proceedings.

Summary

The Supreme Court examined two writ petitions challenging prolonged criminal proceedings – one by former Maharashtra Chief Minister A.R. Antulay and another by advocate Ranjan Dwivedi – alleging violation of the right to a speedy trial under Article 21 of the Constitution. The Court reaffirmed that the right to a speedy trial is implicit in Article 21 and applies to all stages of criminal proceedings, but it refused to prescribe a rigid outer time limit, emphasizing a case‑by‑case balancing of factors such as the accused’s role in the delay, prejudice, and the nature of the offence. Accordingly, the Court ordered the special judge in Antulay’s case to conduct the trial on a day‑to‑day, priority basis, and directed the Delhi High Court to dispose of Dwivedi’s criminal revision within two months and to proceed with the trial expeditiously. Both writ petitions were dismissed, and the related criminal appeal was also dismissed.

Issues considered

The extent to which the right to a speedy trial is incorporated in Article 21.
Whether an outer statutory time limit for the conclusion of criminal proceedings can be prescribed.
The appropriate remedy when the right to a speedy trial is alleged to be violated – quashing of proceedings versus expeditious trial.
The applicability of the right to speedy trial to all stages of criminal procedure, including investigation and appeal.

Legislation cited

Code of Criminal Procedure, 1973s. 197, s. 309, s. 344, s. 468, s. 482
Constitution of Indias. Article 21
Criminal Law Amendment Act, 1952s. 7(2)
Prevention of Corruption Act, 1947s. 6

Subjects

right to speedy trialArticle 21fundamental rightsdelay in criminal proceedingsbalancing testSection 482 CrPCquashing of proceedingsexpeditious trialcriminal procedure

Judgment

ABDUL REHMAN ANTULAY ETC. ETC. A
V.
~.S. NAYAK AND ANR. ETC. ETC.

DE~MBER 10, 1991

[KN. SINGH, C.J., P.B. SAWANT, N.M. KASLIWAL, B.
B.P. JEEVAN REDDY AND GN. RAY, JJ.]

Constitution of India, 1950 :

Article 21-Right to speedy trial-Whether part offair.just and reason-
able procedure implicit in_ Article 21-Whether comprehensive of investiga- c
tion, inquiry, trial, appeal, revision and retrial-Whether any outer limit could
be prescribed for conclusion of the proceedingr-Delay-Prosecution to
justlfY and explain-Failure of accused to demand or insist upon speedy trial-
Whether could result in denial-:-Relief-To be sought first in the lligh Court---
Cqurt to dispose on priority basis instead of staying the proceedings.
D
Code of Criminal Procedure, 1973:

Sections 309 and 482-Right of the a~cused to speedy trial-111ordinate
delay in conclusion of proceedingr-Discretion of Court to quash proceedings
having regard to .attendant circumstances and relevant facts-Guidelines is-
sued. · .,. E

The petitioner in the first of the two Writ Petitions, was the Chief
Minister of Maharashtra. The First Respondent has been iaking steps to
file criminal complaint against the petitioner_ since 1981 for misuse of
office and various offences including corruption charges. Initially he was F
not successful for want of sanction from the Governor. After obtaining the ·
required sanction,from the Governor, the Respondent filed a complaint
in the Court of Special Judge created under the Criminal Law Amend-
ment Act, 1952, against the petitioner and some others. The main allega-
tion was that the petitioner misused his office for collecting funds for
certain tr~sts. The Special Judge took cognizance of the complaint a11d G
issued process. The petitioner appeared before the Special Judge and
rai~ed objections, as regards the jurisdiction of the Speeial Judge. Sine<:
the Special Judge overruled the objections, the petitioner.approached th ..
High Court by way of Criminal Revision. In the meantime the State
Goyernment issued a notification designating a Special Judge to try the ,
said case. The Criminal Revision was dismissed. :l

325
326 SUPREME COURT REPORTS · [1991) SUPP. 3 S. C.R.

A Before the Speciai Judge, the petitioner raised fresh objections that
the charges against him were groundless and also because he was an
M.L.A. the taking of cognizance without the sanction of the Governor was
not valid. He also prayed_ for postponing the hearing. The Special Judge
took the view that without the sanction of the Governor, the case C(>uld not
go on and accordingly he discharged the accused. The First Respondent
B then approached this Court.

This Court took the view that M.L.A. was not a 'public servant'
within the meaning of Section 21 IPC and so the question of sanction did
not arise. in this view of the matter, it set aside the order of the Special
Judge and directed that the trial should proceed from the stage at which
C the petitioner was discharged. The case was transferred- to High Court.

In the· connected appeal preferred by the petitioner, this Court
confirmed the view that cognizance could be·taken even on private com-
plaint.

D In pursuance of the directions of this Court, the Special case was
assigned to a Judge of the High Court. The petitioner raised an objection
that the. case can be tried only by a Special Judge appointed by· the
Government under the Criminal Law Amendment Act, 1952 and that a
High Court Judge had no jurisdiction to try such a case. This and other
related objections were rejected by the High Court Judge. The petitioner
E ~ppealed against the said order and this Court dismissed the same.
,~ \

· Later, the proceedings were'.transferred to another Judge of the
High Court; who framed 21 charges but declined to frame charges under
22· ether heads proposed by the Respondent. The First Respondent ap-
proached this Cmir"t against the said order in so far as -it declined to frame
F terfain charges. This was allowed by thiS Court. Thereafter, thi: proceed-
ings were transferred to another Judge of the High Court who framed as
mariy as 79 charges and proceeded with the trial. A number of witnesses
were ·examined.· At that stage the petitioner approached this Court ques-
tioniDg the eonstitutfonal validity of Settion 197 Cr. P.C. Two SLPs were
G also filed by the petitioner, against the order framing charges and another
order. ·on 29.4.88, this· Court quashed aH the proceedings in the said
specia'I case taken s·ubsequenfto the direetions of this €ourt issu_ed in 1984.
This resulted in the proceedings becoming non-est after the First Respon-
dent had practically completed his evidence recorded over a period of one
year. The case had now to proceed in the Special Court in accordance with
H Criminal Law Amendment Act, 1952. Since no progress was made in this
A.R. ANTULAY v~ R.S. NAYM 327

case, the First Respondent filed an application before this Court to treat A
the evidence recorded in the High Court as evidence in the Court of
Special Judge. The said application also forms part of the present matters.

Meanwhile, an Advocate filed a Writ Petition before the High Court
for a direction to the State Government to designate a Special Judge to try
the said special case. The High Court pointed out that in view of this B
Court's direction it was necessary for the State Government to notify the
appointment of a Special Judge. Accordingly the State. Government
appointed a Special Judge, and on 16.9.91 the Special Judge issu.ed notices
to the parties to appear before him for further steps. Subsequently
bailable warrants were issued and the petitioner was granted bail.
c
In the other Writ Petition, the petitioner, an Ad".ocate, was arrested
on 6.7.1975 in connection with the murder of th'! then Railway Ministei:
and an attempt to murder the then Chief Justice of India. In the first case,
charge sheet was filed on 10.11.1975. In the second case the petitioner was
convicted and sentenced to four years rigorous imprisonment. Though the
petitioner obtained bail in his appeal before the High Court, he could not D
be released as he was also involved in the other case. On 30.3.1978, this
Court granted bail to the petitioner and also ordered. the transfer of the
case from Patna to Delhi. Petitioner was produced in the Delh.i Court and
charges were framed in January, 1981. The trial took about S years in view
of the large volume of evidence and several intervening interlocutory pro-
ceedings. The prosecution discharged certain witnesses. The petitioner E
filed an application for summoning some of the witnesses discharged. The
trial Court having dismissed the application, the petitioner approached
the High Court by way of a Revision Petition. The High Court admitted
the Writ Petition and stayed all further proceedings in the trial; the stay
continues.
F
&oth the petitioners preferred the present Writ Petitions for quash-
ing the criminal proceedings on the ground that their fundamental right
to speedy trial has been violated.

The other matter, viz., the criminal appeal has been preferred by the G
State of Bihar against the judgment of the High Court of Bihar at Patna.

On behalf of the petitioners, it was contended that they were entitled
to speedy trial, the right to which is derived from Article 21 of the
Constitution; that to make the right to speedy trial meaningful, enforce-
able· and effective, .there ought to be an o_uter limit beyond which. the H
328 SUPREME COURT.REPORTS [1991] SUPP. 3 S. C.R.

A contiimance of the proceedings would be violative of Article 21; that since
this Court has· already prescribed such an outer limit in the case of
children below the age of.16 years, a similar rule has to be evolved ·for
general application.

The ap.pellant~State contended that no proceeding could be quashed
B on the ground of delay," and the Courts could always ensure speedy trial
by' issuing suitable directions to the trial court including orders of transfer
to a Court where expedftious disposal could be ensured; that while the
'Right to speedy trial' in U.S.A. is express and unqualified, in India it is
only a component of justice and fairness; that Article 21 could not be
construed as to make a mockery of the· directive principles and· the
C equality clause; that.it is neither permissible nor possible to lay down any
outer limit and that there was no precedent warranting such judicial
legislation.

On behalf of Respondent-Union of IJ.Jdia, it was contended that this
Court should not lay down any parameters or guidelines concerning the
D right to speedy tr'ial, since the ·code of Criminal Procedure contained
enough provisions in this regard and Section 482 Cr.P.C. could serve as
adequate remedy; and that the petitioners were themselves responsible for
the delay in the trial of the cases and that they could not complain of
infringement of their right to speedy trial.

E · · Dismissing the matters, this Court,

HELD : 1.1 Right to speedy trial is not enumerated as one of the
"fundamental rights in the Constitution of India, unlike the Sixth Amend-
ment to the U.S. Constitution which expressly recognises this right. This
omission and the holding in A.K. Gopalan' s case explains why this right
F
was not claimed or recognised as a fundamental right flowing from Article
21 so long·as Gopaian held the field. Once Gopalan was over-ruled in R.C.
Cooper and its.principle extended to Article 21 in Maneka Gandhi, Article
21 got unshackled from the restrictive meaning placed upon it in Gopalan.
It came to acquire a force and vitality hitherto unimagnied, and with the
G subsequent judicial pronouncements, right to speedy trial came to be
recognised as implicit in Article 21 and now it constitutes a fundamental
right of every person accused of a crime. [354-H; 355A-CJ

· 1.2, Fair, just and reasonable procedure implicit in Article 21 of the
Constitution creaies a right in the accused to be tried speedily. Right to
H speedy'trialis the iight of the accused. The fact that a speedy trial is also
A.R. ANTULAY v .. R.S. NAYAK 329

in public interest or that it serves the societal interest also, does not make A
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. (377-D]

1.3. Right to Speedy Trial flowing from Article 21 encompasses all
the stages, namely the stage of investigation, inquiry, trial, appeal revision B
and retrial. [377-E]
•.

R.C. Copper v. Union of India, (1970] SCR 564; Maneka Gandhi v.
Union of India, AIR 1978 SC 592; Hussainara Khatoon (I) v. State of Bihar,
(1979] 3 SCR 169; Hussainara Khatoon (II) v. State of Bihar, (1979] 3 SCR
393; Hussainara Khatoon (III) v. State"of Bihar, [1979] 3 SCR 532; Staie of C
Bihar v. Uma Shankar Ketriwal & Ors., [1981] 2 SCR 402; Khadra Paharia
v. State of Bihar, [1983] 2 SCC 104; State of Maharashtra v. Champa/al .
Punjaji Shah, (198211 SCR 299; T. V. Vatheeswaran v. State of Tamil Nadu,
[1983] 2 SCR 348; S. Guin & Ors. v. Grindlaya Bank Ltd., (1985) Suppl. 3 ·
SCR 818; Sheela Barse & Ors. v. Union of India & Ors., [1986] 3 SCR 562;
Raghubir Singh & Ors. v. State of Bihar; [1986] 3 SCR 802; Rakesh Saxena· D
v. State, [1987] lSCR 173; Srinivas Gopal v. Union Territory of Arunachal
Pradesh, [1988] Suppl. (1) SCR 477; T.J. Stephen & Ors. ·v. Parle Bottling
Co. (P)Ltd. & Ors., [1988] 3 SCR 296; State ofA.P. v.P.V. Pavithran,.[1990]
2 sec 340, relied on.

A.K. Gopalan v. State of Madras, [1950] SCR 88, referred to. E

2. As a matter of fact, right to speedy tr.ial is embedded in the
statutory law of this country; Sub-sections 1 and 2 of Section 309 Cr.P.C.
and sub-sections 1 and lA of Section 344 Cr.P.C. are to be read witfr
Section 482 Cr. P.C. which saves the inherent powers of the High Court. F
The latter provision recognises the power of the High Court to pass
appropriate orders "to prevent abuse of process of any court or otherwise
to secure the ends of justice":In several cases, the High Courts and this
Court have. directed dropping or discontinuance of proceedings where
such proceedings constituted an abuse of process of Court or where the
ends of justice demanded such course of action. Thus even apart from G
Article 21, courts in this country have been cognizant of undue delays in
criminal matters and wherever there was inordinate delay or where the
proceedings were pending for too long and any further proceedings were
deemed to be oppressive and unwarranted, they were put an end to by
making appropriate orders. [365 B-H; 366-A,E]
'H
330 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A Manchander v. State of Hyderabad, (1955) 2 SCR 524; Veerbhadra v.
Ramaswa°my Naicker, [1959] SCR 1211; Chajju Ram v. Radhey Shyam,
[1971) Suppl. SCR 172; StateofU.P. v.KapilDeoShukla, {1972) 3S(::C 504,
relied on.

3.1. Article 21 of the Constitution declares that no person shall be
B deprived of his life or liberty except in accordance with the procedure
prescribed by law. The main procedural law in this country is the Code of
Criminal Procedure, 1973. Several other enactments too contain many a
procedural provision. After Manek,a Gandhi, it can hardly be disputed
that the 'law' in Article 21 has to answer the test of reasonableness and
fairness inherent in Articles 14 and 19, that is to say, such law should
C provide a procedure which is fair, reasonable and just. Then alone, it
would be in consonance with the command of Article 21. Indeed, wherever
necessary, such fairness must be read into such law. It cannot be said that
a Jaw which does not provide for a reasonably prompt investigation, trial
and conclusion of a criminal case is fair, j~st and reasonable. It is both in
the interest of the accused as. well as the society that a criminal case is
D concluded soon. If the accused is guilty, he ought to be declared so. Societal
interest lies in punishing the guilty and exoneration of the innocent.but this
determination must be arrived at with reasonable despatch..,-reasonable
in all the circumstances of the case. Since it is the accused who is charged
with the offence and is also the person whose life and/or liberty is at peril,
it is but fair to say that he has a right to be tried speedily. Correspondingly,
E it is the obligation of the State to respect and ensure th~s right. [374D-H]

3.2. The very fact of being accused of a crime is cause for concern.
It affects the reputation and the standing of the person among. his
coJJeagues and in the society. It is a cause for worry and expense. It is more
so, if he is arrested. If it is a serious offence, the man may stand to lose his
F life, liberty, career and all that he cherishes. The provisions of the Code of
Criminal Procedure are consistent with and indeed illustrate this prin-
ciple. They provide for an early investigation and for a speedy and fair
trial. (374-H; 375-A,B]

G . Madheshwardhari Singh v. State ofBihar, AIR 1986 Patna 324; State
v. Maksudam Singh, AIR 1986 Patna 38, approved.

Barker v. Uningo, (33 Lawyers Edn. 101); Strunk v. UnitedStat,es, (37
Lawyers Edn. 2nd, 56); Bell v. Director of Prosecution, Jamaica, (1985) .2
AER 585; United States v. Hawk, (88 Lawyers Edn. 2nd, 640), r~ferred _to.
H
A.R. ANTULA Y v. R.S. NAYAK 331

4.1. The concerns underlying the right to speedy trial are, the A
accused should not be subjected to unnecessary or unduly long incarcera-
tion prior to his conviction; the worry, anxiety, expense and disturbance
to his vocation and peace, resulting from an unduly prolonged investiga-
tion, inquiry or trial should be minimal; and undue delay has to be avoided
as it may well result in impairment of the ability of the accused to defend
himself, whether on account of death, disappearance or non-availability of B
witnesses or otherwise. [377 F-H].

4.2. It is usually the accused who is interested in. delaying the pro-
ceedings. Proceedings taken by either party in good faith, to vindicate
their rights and interest, as perceived by them, cannot however be treated
as delaying tactics nor can the time taken in pursuing such proceedings be c
counted towards delay. 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 adm~tted and
an order of stay granted by a superior court is by itself no proof that the
proc.eeding is notfrivolous. Very often these stays are obtained on ex-parte
representation. [378 A-D] D

4.3. While determining whether undue delay has occurred, resulting
in violation of Right to Speedy Trial, one must have regard to aJI the
attendant circumstances, including ·nature of the offence, number of the
accused and witnesses, the work-load of the court concerned, prevailing
local conditions and so on-what is called, the systemic delays. It is the E
obligation of the State to ensure a speedy trial and State includes judiciary
as well. A realistic and practical approach should be adopted in such
matters instead of a pedantic one. [378 D-E]

4.4. Each and every delay does not necessarily prejudice the accused. F
However, inordinately long delay may be taken as presumptive proof of
preju(lice. In this context, the fact of incarceration of accused will also be
relevant. The prosecution should not be allowed to become a persecution.
But when does the prosecution become persecution, again depends upon
the facts of a given case. [378-F]
G
U.S.V. Ewell, (15 Lawyers Edn. 2nd, 627, referred to.

5. It is not possible to lay down any time schedule for conclusion of
criminal proceedings. The nature of offence, the number of a_ccused, the
number of witnesses, the work-load in the particular court, means ·or
communication and several other circumstances have to be kept in mind. H
332 SUPREME COURT REPORTS [1991) SUPP. 3 S. c, R.

A Some offences by their very nature e.g., conspiracy cases, cases of misap-
propriation, embezzlement, fraud,.forgery, sedition, acquisition of dispro-
portionate assets by public servants, cases of corruption against high
public servants and high public officials take longer time for investigation
and trial. Then again, the workload in each court, district, region and
State varies. In many places, requisite number o.f courts are not available.
B In some places; frequent strikes by members of the Bar interfere with the
work-schedules. Thus, it is not possible in the very nature of things and
present day circumstances to draw a time limit beyond which a criminal
proceeding will not be allowed to go. Even in the U.S.A., the Supreme
Court has refused to draw such a line; nor such a line drawn in the United
Kingdom. Wherever a complaint of infringement of right to spe~dy trial
C is made, a court has to consider all the circumstances of the case and arrive
at a decision whether in fact the proceedings have been pending for an
unjustifiably long period. In many cases, the accused may himself have
been responsible for the delay. In such cases, he cannot be allowed to take
advantage of his own wrong. Each case must be left to be decided on its
ownJacts. Hence it is neither advisable nor feasible .to draw or prescribe
D an outer time limit for conclusion of criminal proceedings. Also it is not
necessary to do so for effectuating the right to speedy trial.
[375 G-H; 376A-C]
6. In a. given case, if an accused demands speedy triai and yet he is
not given one,,it may be.a relevant factor in his favour. But he is not
E disentHled from complaining of infringement of his right to speedy trial on
the ground that"he did not ask for or insist upon a speedy. trial. [376-FJ
7. Normally, the only consequence flowing from an infringement of
right to speedy trial is quashing of charges and/or conviction, as the case
may be. But it is not the only order open to court. In a given case, the facts
including the nature of offence may be such that quashing of charges may
F
not be in the interest of justice. After all, every offence, more so economic
offences, those relating to public officials and food adulteration-are
offences against society. It is really the society-the State-that prosecutes
the offender. In cases, where quashing of charges/conviction.may not be in
the interest of justice, it shall be open to the court to pass such appropriate
G orders as may be deemed just in the circumstances of the case.
[376 G-H; 377-A,B]
8.Ultimately, the court.has to balance a11d weigh the several relevant
factors-'balancing test' or 'balancing process'-and determine in each
case whethe~ the right to speedy trial has been denied in. a given case.
. [379-C]
H
0

A.R.ANTULAYv. R.S.NAYAK 333

9. An objection based on denial of Right to speedy trial and for relief A
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. (379 G,H]

10.1. In the instant case (Writ Petition filed by the former .Chief B
Minister of Maharashtra), until 1988 it was the petitioner who was raising
several objections from time to time and getting the trial stayed. May be
the very system was partly responsible for the somewhat unusual course
of events. The respondent-complainant was certainly not to be blamed.
(383-D] C
. 10.2. On a consideration of the facts and circumstances this is. not a
fit case for quashing the criminal proceedings. The proper direction to
make is to direct the expeditious trial on a day-to-day basis. Accordingly;
the Special judge designated for this case is directed to take up this case
on a priority basis· and proceed with it day-to-day until it is concluded. ·
. . . (384-BJ D
R.S. Nayak v. A.R. Antulay (1984] 2 SCR 495;
't< •
R.S. l'{ayak v. A.R. Antulay (1984] 2 SCR 914;
• i . ' •

R:S. Nayak v.A.R: Antulay [1986] 2 SCC 716;
·"
A.R. Antulay v. R.S. Nayak [1988] 2 sec 602, rei'~rred to.
11.1. In .the other'Wr1t Petition, it is clear from the material on
record that the prosecution cannot be held guilty of any delaying tactics
or for that matter, for causing any delay in the conduct of trial from the
date the criminal proceedings were transferred to Delhi. The proceedings p
ofihe court for this period, i.e. 1979 onwards, dearly establish that during
this period the prosecution has always been anxious to go on with the trial.
[384-D]

11.2. It is not proper to pronounce upon the correctness or otherwise
of the incarceration of the petitioner subsequent to the grant of bail by
Delhi High Court, or on the question whether the accused had a right to
G
be released under section 167 Cr;P.C. after 90 days of his arrest and other
similar questions in this writ petition. If indeed, any such illegalities have
been committed, they will be taken into consideration. by the court as and
when the case comes up for final disposal. In this context, it is relevant to
notice that the petitioner did not ask for· quashing of the charges on H
334 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A account of said illegalities at the proper tiine. The proceedings cannot be
quashed at this stage, on the said grounds particularly when the prosecu-
tion. has completed its case after examining as many as 151 witnesses
spread over a.period of .five years. [385-C,D] ·
11.3. It is difficult to express any opinion on the question whether the
B C.B.I. was under an obligation to produce before the Court,. certain
evidence recorded by it favo!Jrable to the defence, for the reason that it is
directly in issue in the pending criminal revision. Suffice to say that it does
not furnish a valid ground for quashing the entire proceedings in the
circumstances of the case. l385- F,G]

C 11.4. On a consideration of all the circumstances of the" case, quash-
ing of the charges and/or criminal proceedings at this stage would not be
just and proper. The proper order to make in this case is to request the
Delhi High Court to dispose of Criminal Revision Petition No. 191 of 1986
as early as possible, preferably within a period of two months. After the
Criminal Revision Revision petition is disposed of, the trial judge will take
]) up the matter and proceed with it with as much expedition as possible in
the circumstances and p~eferably on a day-to-day b,asis. [3867C,D]

12. The application for a direction to the effect that the evidence so
far recorded in Special Case No. 24 of 1982 in the Bombay High Court
shall be treated as evidence recorded in the Special Court which will now
E try the said crimina_l case, is rejected. Giving such a direction at this stage
would amount not only to review of this Court's order dated 29.4.1988, but
would also run counter to the spirit of the said order. [340-E; 383-B]

A.R.: Antulay v. R.S. Nayak (1988] 2 SCC 602, refer.red to.
F
ORIGINAL JURISDICTION : Writ. petition (Cr!.) Nos. 8J3/90 &
268/87.

(Under Article 32 of the Constitution of India).

G WITH
Criminal_ Appeal No. 126of 1987 and Crl. M .P. ~os. 8605 & 8623/91.

G. Ram3Swa~y. Rajinder Sachar, K.K. ·Sinha, P.P.' Rao, Dr. N.M.
Ghatate;· G.B. Bhasme, R.K. Garg, U.R. Lalit and A.K. Sen, A.N. Sadsiyar,
H S.K. Bisarai, R.L. Panjwani. R.S. Sharma, Ranjan Dwivcdi, R.D. Ovalakar,

I
I
'
A.R. ANTULAY v. R.S. NAYAK [REDDY, J.] 335

Rajendra Bansi, D.N. Bevdi, Nithin Pradhan, Pravin P. Rao, Ms. Hemantika- A
wahi, M.N. Shroff, Pramod Sarup, A.K. Srivastava, Ms. A. Subhashini, M. ·
Gangdava, S.V. Deshpande, B.B. Singh, A.S. Bhasme, Rajiv Dhawan, Ms.
Rani Jethmalani, T.V.S. Narasimahchari, S.K. Nandy, Pravir Choudhary, Anip
Sachthey, Ms. Kusum Chaudhary, Naiesh K. Sharma, Ashok Mathur, M.
Veerappa, K.R. Nambiar, S.K. Agnihotri, Mrs. Urmila Kapoor, D.N. Mukher-
jee, Kailash Vasdev, Raj Kumar Mehta, G.K. Bansal, Aruneshwar Gupta, R. B·
Mohan, Gopal Singh, Mrs. Shobha Dikshit, Sinha, Das, Krishnamurthi Swami,
Ms. Kamini Jaiswal, P.K. Manohar and R. Venkataramani for the appearing
parties.

The Judgment of the Court was delivered by
c
B.P. JEEVAN REDDY, J. It is more than 12 years since this Court
declared in Hussain Ara Khatoon [1979] (3) S.C.R. 169 that right to speedy
trial is implicit in the broad sweep and content of Article 21. Many a decision
thereafter re-affirmed the principle. There has never been a dissenting note: It
is held that violation of this right entails quashing of charges and/or conviction.
It is, however, contended now before us that no such fundamental right flows D
from Article 21. At any rate, it is argued, it is only a facet of a fair and
reasonable procedure guaranteed by Article 21 and nothing more. It is also
argued that violation of this right does not result in quashing of the charges and/
or conviction. It is submitted that the right, if at all there is one, is an amorphous
-one, a right which is something less than other fundamental rights guaranteed
by our Constitution. On the other hand, proponents of the right want us to go E
a step forward and prescribe a time limit beyond which no.criminal proceeding
should be allowed to go on. Without such a limit, they say, the right remains
a mere illusion and a platitude. Proponents of several view points have put
forward their respective contentions.·we had the benefit of elaborate argu-
ments addressed by counsel on both sides of the spectrum. A large number of
cases have been cited. Different view points have been presented. We shall F
refer to them at the appropriate stage. First, how these matters have come to be
posted before the Constitution Bench.

2. Writ Petition No. 268/87 and a few other criminal appeals came up
before a bivision Bench when it was urged for the accused that a time limit be G
fixed for concluding· all criminal proceedings. Without such a time limit, it was
argued. the guarantee of right to speedy trial will remain a mere platitude. The
Division BC(nch was of the opinion that the said contention "raises a very
important constitutional question" which "is likely to arise more often in many
cases and that, the decision on the question will have far-reaching conse-
quences in tens of thousands of criminal cases pending in courts all over the H
t

336 SUPREME COURT REPORTS [1991) SUPP. 3 S. C. R.

A country". Accordingly, the Bench directed the cases to be placed before a
t I

Constitution Bench. Subsequently, other cases too were added. Though several
cases are posted before. us, we indicated to the counsel that we will not enter
into or in¥estigate the factual aspects in all the cases but shall take the facts of
only the first two cases. We indicated .that we will dispose of.these two cases,
namely, W ..P. No. 268of1987 (Ranjan Dwivedi v. State) and W.P. No. 833 of
·B 1990 (A.R. Antulay v. State) and relegate the other cases to a Division Bench,
after laying down the appropriate principles. We shall first notice the facts of
these two cases before 'ile advert to respective contentions of the parties.

3. FACTS IN W.P. NO. 833!90

c The petitioner in W.P. No. 833 of 199C, A. R. Antulay was the Chief
Minister of Maharashtra from 1980 to January, 1982. The complainanl/respoi:i- •
~
dent.R.S. Nayak moved the Governor of Maharashtra by his application dated
September 1, 1981 requesting him to grant sanction to prosecute the accused-
petitioncr as required by Section 6.of Prevention of Corruption Act, 1947
(hereinafter referred to as '194 7 Act') for various. offences alleged-to have been
D committed by him. Without waiting for the Governor's response on his appli- J
cation he ijled a complaint in the Court of Chief Metropolitan Magistrate,
Bombay on September 11, 1981 (Criminal Case No. 76 (Misc.)/81) against the
accused and some othen;. I:Iis case was that the petitioner-accused was a public
servant within the meaning of Section 21 I.P.C. and that he has committed
several offences punishable under Sections 161, 165 l.P.C. and Section 5 of
E Prevention of Corruption Act, 1947 as also under Sections 383 and 420 I.P.C.
read with Sections 109 and 120-B I.P.C. The learned Magistrate called upon
the complainant to satisfy him as to how the complaint is maintainable without
a valid sanction required by Section 6 of 1947 Act. After hearing the parties,
he held that in atisence of such a sanction, the complaint was not maintainable
except with reference to offences under Sections 384 and 420 read with 109
F
and 120-B: I.P.C. This order was questioned by the complainant in the High

G
Court of Bombay by way of Special Criminal Application No. 1742·of 1981.

4. Meanwhile one Sri P.B. Samant filed a Writ Petition against the
petitioner-accused alleging several act<> of abuse of power including many of
those alleged in the complaint filed by R.S. Nayak. The Writ Petition was
l l
allowed.on 12th January; 1982 as a result of which the petitioner resigned from
the office of the Chief Minister.

5. Special Criminal Application No. 1742of1981 filed by the.complain-
ant was dismissed by the High Court on April 12, 1982. Against the order, State
H of Maharashtra applied to this Court for Special Leave, which was decline4 on

r
,~t

r
'
A.R. ANTULAY v. R.S. NAYAK [REDDY, J.) 337

July 28, 1982. On the same day, however, the Governor of Maharashtra granted A
sanction under Section 6 of 1947 Act in respect of offences_ set out therein. On
this basis the complainant/respondent filed a fresh complaint in the Court of
Special Judge, Bombay (created under the Criminal Law Amendment Act,
1952, hereafter referred to as '1952 Act') which was registered as Criminal
Case No. 24 of 1982, against f:he accused and some other persons. The main
allegation in this complaint was that the accused had embarked upon a scheme B ·
_of aggrandisement involving obtaining of funds from public in the name of
certain trustS and that he was misusing his office for collecting funds for such~ -_
trusts. All his activity was characterised as flagrant abuse of'his official'
position as Chief Minister. Several instances were also cited in support of the
allegations. The Special Judge (Sri P.S. Bhutta) took cognizance of the same
and issued process by directing bailable warrant to the accused. In response to C
the process issued, the accused appeared and raised two objections to the
jurisdiction of the Special Judge viz. : ·
. . .J .
.' f ·- .(i) the specijll Judge has no jurisdiction to take cognizance of
'o~fences mentioned in Section.6(1) (a) and (b) of 1952 Act (which
include offences punishable under Sections 161and165 I.P.C. and D
a
Section 5 of 1947 Act) on the basis of private complaint; and

(ii) where there is more than one Special Judge for an area, in the
absence of a notification; by the State Government. specifying the
local area under Section 7(2) of 1952 Act, Sri Bhutta had no
jurisdiction to entertain Criminal Case No. 24 of 1982. (Section E
7(2) provides that "every offence specified in Sub-section (1) of
Section 6 shall be tried by the Special Judge for the area within
·which it was committed, or where there are more Special Judges
than one for such area, by such one of them as may be specified in
this behalf by the State Government.")
F
6. The Special Judge, Sri P.S. Bhutta over-ruled both the said objections
whereup0n the accused approached the Bombay High C-ourt by way of
Criminal Revision Application No. 510 of1982. Pending the said Revision, the
Government of Maharashtra issued a notification under Section 7(2) of the
1952 Act empowering Sri S.B. Sule, Additional Special Judge, to try the said G
Special Criminal Case No. 24/82. Criminal Revision Application No. 510 of
1982 came up for disposal before the Division Bench of Bombay High Court
which dismissed the same on 7th March, 1983. The two learned Judges
comprising the Division Bench delivered two !l~parate but concurring opin-
ions. With respect to first objection of accuse.~ ~mentioned hereinbefore) they
held that an investigation by a Police Officer under Section 5-A of 1947 Act H
338 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A was notapre-condition to the Special Judge.taking cognizance of an offence
under Section ~ of 1952 ,Act and ·that, .therefore. the SJ>eCial Judge .wa8
competent to take cognizance of an offence mentioned in Section ;6(1) upon a
priv~te complaint as well. With respect- to the second objecti0n, they did not
think 4 necessary to discuss it inasmuch as the required .notification was
already issued by the Government of Maharashtr:a. . ·
B
:7.: Sri R.B. Sule took up the matter and sought to proceed with it~ At that
stage: 1he peti~oner accused moved two applications before him ori 8th July,
1983 : one to discharge him on the ground that the charge against hirri is
groµndless and ~i:i the further ground that since .he wac; a M.L.A., cogni~ance
· ' of offences without the sanction of the Governor was not valid and the other
C forpostponment of the hearing of the case. The learned Special Judge (Sri R.R
Sule) upheld the first contention of the accused and held that without the·
sanction ofthe Governor, the case cannot go on. Accordingly, he discharg~
the accus~.. Thereupon, the complainant approached this Court by way of a
Special leave Petition as well as a Writ Petition. He· also filed a Criminal
,. R.evision before.the Bombay High Court against the very sarrie order of Sri
0 R.B,,Sule, which Revision Application was subsequently transferred to this
Court. These matters were heard by a Constitution· Bench presided over by
D.A. Desai, J. and disposed of.on Febrµary 16, 1984 (reported in 1984 (2)
S.C.}l. 49~). Meanwhile, on a Special i.eayeApplication filed by 'the accused
against the decision .of the Division Bench: of the Boin bay High Court
aforesaid, this Court had granted Specfal Leave, which was registered as
E Criminal Appeal No. 247; of 1983; .This appeal was also })card by the same
Constitution 'Bench and· was disposed of on the same day i.e. 16th February,
1984 (the decision. is reported at page 914 of 1984(2) S.C.R.). In the first-
mentioned decision, this Court held that M.L.A. is nQt a 'pul,)lic servant' within
the meaning of Section 21 I.P.C. and hence question of sanction does not arise.
F Accordingly, it set aside the order of Sri R.B. Sule discharging tlie accused and
.directed that the. trial should proceed from the.stage at which .the accused was
discharged. Having so held the Constitution Bench gave the following further
direction : · ·

"The.accused was the Chief Minister of a preinier State-the Strite
G of Maharashtra. By a prpsecution launched as early as on Septem-
ber 11, 1981, his character and integrity came under a cloud..
Nearly 21/ 2 years have rolled by and the case has not moved an inch
further. An expeditious trial is primarily in the interest of the
accusod .and a mandate ·of Article 21. Expeditious dispo5al of a
criminal case is in the interest of both, the prosccution-~d the
H accused. Therefore, Special Case No. 24 of 1982 and Special Case
A.R. ANTULAYv. R.S. NAYAK [REDDY, J1] ~39
,........

No. 3/83 pending in the Court of Special Judge, Greater Bombay, A
Sri R-:-B. Sule are withdrawn and transferred to the High Court of
Bombay with a request to the leamed.Qiief Justice to assign these
two cases to a sitting Judge of the High Court. On being so
assigned, the learned Judge may proceed lO expeditiously dispose
of the cases preferably by holding the trial from.day to day." '
B.
. 8. In its decision in Criminal Appeal No. 247 of 1983 (1984 (2) S.C.R,.
914), this Court agreed with the Division Bench of the Bombay Hlgh Court that
an investigation by·a Police Officer under Section 5-A of 1947 Act is not 1;1
condition precedent for taldng cognizance under Section 8of1952 Act and that
cognizance can be taken by a Special Judge even on a prlvate comp,aint. Thu's~ .
this court rejected the first of the two objections raised by the .accused before C
the Special Judge-and rejected by him as well as· the Division Bench of
Bombay High Court. So far as the second objection raised by. the accused is ·
concerned, it was not dealt with by this Court. It merely took note of the
observations made by· the Division Bench of Bombay High Court in that
behalf. We must reiterate that the entire judgment of.the Constitution Bench
deals only with tlte first objection and not with the second. On page 921 of the D
report, the court merely noticed the observations of the Division Bench of the •i
<- Bombay High Court with respect to second objection and left it there.

.9. In pursuance of the direction given-~y th~s court (in 1984 (2) S.C.R.
49.5 at 557) Special Criminal Case No. 24 of 1982 was assigned to Sri Justice
S;N. Khatri of the Bombay High Court. Before the learned Judge, the accused E
raised an objection that the said Special case can be tried only by a Special
Judge appointed by the Government under the 1952 Act and that a Judge of the
High Court has ito jurisdiction to try it. This and some other objections raised
by the accused were rejected by the learned Judge, bound as he was by the
aforesaid dii'eetion of this court._ The order of Khatri,' J. was questioned by the F
accused in this court but dismissed on 17th April, 1984 (reported in 1984 (3)
S:C.R. '482). Later the proceedings were transferred to D.N. Mehta, J., who
framed 21 charges .but declined to frame charges under 22 other heads
proposed by the ·complainanL The complainant came to this court against. the
said order m·so far as it declined to frame certain charges which matter :was
. ultimat~1y disposed of (allowed) in 1986 (reported in 1986 (2) S.C.C, 716). The G
proceedings were then transferred to and taken up by P.S. Shah, J. of Bombay
High Court, who framed as many as 79 charges and proceeded with the trial.
A number of witnesses were examined spread over several months, While so,
the accused approached this court again, under Attic le 32 -of the·Constitution
(W.'P. (Cd.) N<>: 542/86) questioning the constitutional validity of S~tiqn 197
Cr. P.C. S.L.P. No. 2519of1986 :was also filed by him against the orders of H
340 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A Shah, J. framing 79 charges. Another S.L.P. (Crl.) No. 2518/86 was filed by
hii11 against yet another order of Shah, J. holding that the charges framed by
h!m do not require the sanction under Section 197 Cr. P.C. Special Leave was
granted in the above matters and further proceedings in the High Court stayed.
The petition under Article 32 and the appeals arising from the said Special
Leave Petitions were referred to and taken up by a Seven-Judge Bench of this
B court~ The Seven-Judge Bench, however, delinked W.P. No. 542/86 and S.L.P.
No. 2518/86 from the other S.L.P. It directed those two matters to be heard
separately. It heard only the appeal arising from S.L.P. No. 2519/86. By its
judgment delivered on April 29, 1988, the Bench allowed the Appeal (arising
.from Special Leave .Petition (Crl.) No. 2519 of 1986) and quashed all the
proceedings in the said Special Case taken subsequent to the directions of this
C court contained in its judgment dated 16th February, 1984 (1984 (2) S.C.R.
495). It directed the trial to proceed according to law, that is to say under the
1952 Act. The result of this judgment was that all the proceedings which were
taken in the Bombay High Court in pursuance of this Court's direction dated
16th February, 1984-the complainant had practically completed his evidence
recorded over a period of one year-became non est and the case had to be
D proceeded with before the Special Court in accordance with the 1952 Act (fhe
facts stated above are drawn from the decisions of this com9.

10. The record does not disclose what happened after 29th April, 1988.
It is not clear whether, and if so when, did the Bombay High Court send the
record of the case to Special Judge and if it did so, to which Special Judge. Be
E that as it may, the fact remains that no further progress was made in the case.
It does not even appear that the case was taken up by any of the Special Judge .
appointed under the 1952 Act. On 31.5.1989, the respondent complainant filed
an application (C.M.P. No. 1946of1990) before this court LO treat the evidence
received and recorded in Bombay High Court as evidence in the Court of
Special Judge. No orders were passed on this application until 1991, when it
F was tagged on to this matter before us. Meanwhile, an advocate of Bombay, Sri
More, filed a writ petition in the Bombay High Court in March, 1990, beirig
Writ Petition (Crl.) No. 281 of 1990 for a direction to the Government of
Maharashtra to designate a Special Judge to try the said Special Case No. 24
of 1982. To this Writ Petition, petitioner-accused was impleaded as the first
G respondent while R.S. Nayak (complainant) and the State of Maharashtra were
impleaded as respondents 2 and 4 respectively. The Writ Petition came up
before a Division Bench on 23.4.1990 and was disposed of with a direction. It
would be appropriate to extract the relevant portion of the order to bring out
the circumstances in which that direction was made :

H "In pursuance of the subsequent decision of the Supreme Court, it
A.R. ANTULAYv. R.S. NAYAK [REDDY, J.] 341

is necessary for the State Government to notify the appointment of A
the special. judge for conducting trial against the accused in
accordance with the Criminal Amendment Act, 1952. Though the
decision of the Supreme Court delivered on April 29, 1988 and
almost two years had passed, the State· Government has not
appointed the Special Judge.
B
The petitioner is a practicing Advocate and has filed this petition
on March 7, 1990 seeking direction to Government of Maharashtra
to issue notification appointing a Special Judge to try the offences
levelled against the accused by respondent No. 2-complainant. The
petition was placed before us on March 12; 1990 and we directed .
notice to be issued to respondent No. 2 to explain whether the C
complainant desires to proceed with the triru before the Special ,
Judge. Notice was also issued to State Government. On April 16,
1990 the complainant appeared before u_s and informed that he is
desirous of continuing prosecution before Special Judge to be
appointed by the State Government in accordance with the direc-
tions of the Supreme Court. In view of the statement, we admitted p
the petition. The complainant-respondent No. 2 and respondent
No. 3-State of Maharashtra waived.services of the rule. The rule
could not be served on respondent No. 1, the original accused.

5. Today when the matter is called out Mr. Advocate General
appearing on behalf of the State Government made statement ihat ·E
it is not necessary to postpone the hearing 9f this petition as the
State Government is appointing Special Judge for conduct of trial
~d requisite notification would be published within a period of
two months from today. The learned Advocate General made it
clear that this appointment is made in consequence of the direc-
tions given by the Supreme Court in judgment reported in A.LR.
F
1988 Supreme Court 1531. As the appointment is ~o be made in
pursuance of the directions of the Supreme Court and as the
Advocate General promises to make such appointment within a
to
period of two months, it is not necessary postpone the hearing .
of this petition for want of service on the accused. The statement G
of the Advocate General is suffieient to dispose of the petition and
this statement in no way would cause any prejudiCe to the accused.

6. Accordingly, in view of the statement of the learned Advocate
General, the relief sought in the petition no longer survives and the
· rule earlier issued stands discharged." H
342 SUPREME COURT REPORTS [1991] SUPP. 3 s. C. R.

A ·.PurS11ant to the above direction, the Govem.ment of Maharashtra issued
a notification dated 19.6.1990 designating a Special Judge to try the case.

11. Meanwhile, on 14.6.1990, petitioner filed this writ petition und~~
Article 32 of the Constitution to q1,1ash <::riminal Case No._ 24 of 1982 on the
ground of violation of his funruimental right to speedy trial.
B
On 16.9.1991, the Special Judge issued notices boi.h to the.complainant
and the accused to appear before him for. further steps. On 7.10.1991, bailable
warrants were issued to the petitioner accused and on 11.10.1991, he wa5
. granted bail.
!,

c FACTS.INW.P. NO. 268187:

Sri L.N. Misra, the then .Union Minister for Railways died in. a bomb
blast atthe railway station, Samastipur on 2nd January, 1975~ Investigation was
taken up immediately by the Bihar State Police. On 10th January, 1975, C.B.I.
took over the investigation, but Bihar C.I.D. continued to be associated with the
D investigation. In the first.week of February, 1975, two persons, Arun Kumar
. ' Misra and, ~n Kumar Thakur were arrested. Aruri Kumar Thakur's'confes-
sional statement was recorded under Section 164 Cr. P.C. on 21.2.1975. In or
about May-June, 1975, however, the investigation by c:B.I. took a new turn.
The in\'.eStigation against. the two Arun Kumars mentioned above was aban-
doned. Now, Anand .Marg and its members became the object of investigation.
E On 2,.7.1977, Anand Marg~~ banned by th.e Goveinm·ent. The petitioner,
Ranjan Dwivedi, was arrested on 6.7:1975. On 24.7.1975, one Vikram was
arrested who turned approver. His. confessional statement under Section 164
• Cr. P.C. was recorded on 14.8.1975. On 16.9.1975, 'the C.B.I. requested the
court that the accused originally arrested namely Arlin Kumar Misra and Arun
Kumar Thakur be ~ischarged as further investigation ·has proved that they have
.F . nothing to do with the ~rime. According to i~. the cri~e was really committed
by mem~rs of Anand Marg. On 10.11.1975, charge-sheet was filed in the
court of Judicial Magistrate, Patna.

.· 13. The petitioner w~ arrested on 6.7.1975 as stated.above. He was said
·. to be involved in the offence of attempt to murder the then Chief Justice of
G, .Jndia Sri A.N. Ray. That trial was tiken up first at Delhi and concluded on
1.li.1976. Petitioner was found guilty and sentenced to four years rigorous
imprisonment alongwith some others. Petitioner filed an appeal before the
· Delhi High Court and obtained.bail but he could not be released, for he was also
involved in L.N. Misra murder case. H.e was shifted to Patna Jail and produced
r~fore the Patna court on 19.12.1976. 1n the first week of January, 1977, the
H
A.R. ANTULAY v. R.S. NAYAK [REDDY, J.] 343

petitioner and other accused requested·for supply of certain documents not A
-supplied to them till then. The prosecution declined the request on the ground
that they are not relying on those documents, which stand was upheld by the
learned· Magistrale. Petitioner filed a revision in. the High Court of Patna
against the order of the learned Magistrate, which was dismissed. Several
interlocutory applications were filed before the learned Committing Magistrate
and ordets passed at this stage. Some of them pertained to engaging of counsel B
fot the accused, their treatment in the jail, the difficulties created in the jail for
them and so on.

14. Ori 30th March, 1978, petitioner was granted bail by this court and
released a few days later.
c
At this stage, it appears, Vikram who had turned approver and had made .·
·a confe8sional statement, retracted his confession while in Patna jail. There is
a good amount of controversy with respect to the circumstances in which he
retracted his confession viz., whether it was done voluntarily or under pressure.
of the officers of the Government ofBihar. Be that as it may, a situation arose
where the C.B.I. arid the Bihar C.l;D.. were freely trading charges of false D
implication against each other. The C.B.I. seems to·t,~ye Jelt ~tit cannot.
prosecute i~ case properly at P.a~ ·andrtherefore,;the Attomey·Gen·etal of
India moved this court fot transferring the case to Delhi; .This court, without ,;
going into the truth or otherwise of the allegations on the basis of which
transfer was sought, ordered transfer. After such transfer, the learned Chief
Metropolitan Magistrate, Delhi committed the case to Sessions on 25.5.1980. E
The case was· made· over to Sri D.C. Aggarwal, Additional Sessions Judge;
Delhi. The accused was produced before him in Marth, 1980. Ch~ges were •
· framed in. January, 1981 and trial commenced..

· 15, First few dates of hearing were taken up by miscellaneous applica-
tions including applications for bail. and validity .of the charges framed. Case· F
had to be adjourned on some dates on account of non-availability of one or the
other accused. Examination of PW-1 began in February, 1981. Recording of
evidence of PW-l (M.M; Srivastava)-approver-took a number of days. The
· evidence of Vikram, second approver, began in the last week of April, 1981.
His evidence too took several days. We have been taken through the progress G
of the case from 'February, 1981 upto 16.4.1986 by which date, prosecution
examined as many as 151 witnesses including the investigating office! .Bna ..
approvers. It is evident from the material placed before us that prosecution did
not ever, during this period of five years, indulge in any delaying tactic& nor
was it ever guilty of somnolence or negligence. Because of the very volume of
evidence and several intervening interlocutory proceedings, the trial took this H
344 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A long. Be that as it may, on 16.4.1986, prosecution closed its case and
discharged the remaining witnesses cited by it. On 1.5.1986, the defence
counsel objected to discharge of witnesses by prosecution who were cited by
it The accused filed an application for summoning 13 witnesses out of them
as court witnesses, before examining the accused under Section 313 Cr. P.C.
The prosecution opposed the request saying that 13 witnesses named by the
B accused have either been won over by the accused or are not necessary for
unfolding the prosecution case. On 21.S.1986, the trial court dismissed.. the
application whereupon the accused approached the Delhi High Court by way
of a Revision Petition: It was admitted on 17 .9.1986 and all further proceedings
in the trial stayed: The Revision Petition is still pending and the stay continu-
ing.
c
16. A few more facts brought to our notice with respect to this·case l!'la:Y'
· be mentioned. · ·

During the year 1978, the Government of Bihar requested Sri' V.M.
Tarkunde, a Senior Advocate to examine the facts of the case and submit his
D report. In February 1979, Sri Tarkunde submitted his report stating that the
petitioner and other members of Anand Marg have been falsely implicated in·
the said case and that a fresh probe is necessa:y for uncovering the reaHy guilty
persons.

Against the order of the Patna High Court dismissing th(;f petitlone~'s
E revision (with respect to supply of documents) the petitioner 11pproached this
court, which too dismissed the petition observing at the same tinie, that the said
documents, though not relevant at the stage of committai; may be relevant at
the stage of trial and their supply to the accused may be considered at the stage
of trial. The prosecution says that all the documents asked for by accused have
been supplied to them at the stage of trial. ·
F
In November, 1981, Sn D.C. Aggarwal, Additional Sessions Judge was
transferred to Sales Tax Tribunal: One, Sri S.M. Aggarwal was posted in his
place. The accused-petitioner says that inspite of Sri D.C. Aggarwal going- to
Sales Tax Tribunal, the prosecution sought to proceed with this case before him
G alone and refused to proceed before the succeedirig Judge, Sri S.M. Aggarwal,
notwithstanding the notification dated 9 .12.1988 issued by th~ High Court
designating Sri S.M. Aggarwal as the Judge.competent to"try the said case.
Petitioner says that on 17th December, 1981, the said case was transferred to
Sri D.C. Aggarwal (Sales Tax Tribunal) by the learned Sessions Judge at the '
instance of the prosecution, which action 'was challenged by the Petitioner by
H way of writ pe~tion'. The matter ultimately reached this court which directed
A.R. ANTULAYv. R.S. NAYAK [REDDY, J.] 345

that the case be withdrawn from Sri D.C. Aggarwal and assigned to another A
Sessions Judge at Delhi. There are conflicting versions as to why the prosecu-
tion wanted to proceed with the case before Sri D.C. Aggarwal. The prosecu-
tion says that according to orders of this court only a Judge specified by the
Delhi High Court could try this case and the Delhi High Court had designated
Sri D.C. Aggarwal to try it; until some other person was designated by Delhi
High Court, says the prosecution, the case could go on only before Sri D.C. B
Aggarwal, wherever he was posted. On the other hand, the case of the accused-
petitioner is that the prosecution was bent upon proceeding with the case before
Sri D.C. Aggarwal alone pecause they found him favourably inclined towards
their case and that the said insistence of the prosecution to proceed with the
case before the -Sales Tax Tribunal demonstrates its undue interest in ·the
matter. C
17. Sri Ranjan Dwivedi, petitioner in W.P. No. 268/87, an advocate
practicing in this court, sought to argue the case himself. After hearing him for
some time, we thought it to be ~n his interest, and advised him accordingly, to
engage an advocate to appear on his behalf. Accordingly, Sri A.K. Sen, Senior
Advocate appeared for him and argued the matter. We shall refer to his D
arguments at the appropriate. stage. On a subsequent date, however, the
petitioner represented that he dbes not want his case to be argued by Sri A.K.
Sen further. The petitioner was still to reply to .the arguments of learned
Attorney GeneraL Sri A.K. Sep too. sought ~iision to withdraw from the
case. He was accorded the.permission. •·· "
E
During the hearing of the case, the petitione~ applied for impleading the
State of Bihar as a party ID, the writ petition. We allowed the application. The
State of B1har engaged Sri Ram Jethmalani, Senior Advocate, to appear in its
behalf. Accordingly, t,h~ learned counsel appyared and argued the case on 19th
November 1991. He took the s~d that the case aglinst the petitioner deserves F
to be quashed on the facts and crrcumstances of tie, case. He brought several
facts to our notice. He was to continue on the next date of hearing.

However, on the n~xt date of hearing i.e., November 22, 1991-Mr. Ram
Jethmalani requested that he ll!ay be permitted to withdraw from the case
inasmuch as the Government of Bihar has since instructed him not to argue the G
case on facts. He ~ubmitted that he cannot operate under any such restrictions.
We permitted him to withdraw from the case. At this stage, the petitioner was
yet to give his reply to learned Attorney General. The petitioner requested that
• since he is not in a position to represent his case pr.operly he may be given the
assistance of Sri Ram Jethmalani as --Amicus Curiae. At our request, Sri
Jethmalani graciously agreed to·assist the court as amicus curiae and continued H
346 SUPREME COURT REPORTS [1991] SUPP. 3. S. C.R.

· A his arguments on facts. He brought several facts to our notice which ace-Ording
to hill! vitiate the ent.ire proceedings and call for quashing of the proceedings
by this court. We 1hi111"rcfer to them at the appropriate stage. ·

.· .18; SUBMISSION IN W.P. NO. 833190.

B Mr. P.P. Rao, learned 'counsel appearing for the petitioner-accllsed in
W.P. No. 833/90 urged the following contenti?ns : ·

(i) Right to speedy trial flows from Article 2_1, as held by several
decisions of this co.urt;

c (ii) To make the right to speedy trial meaningful, enforceable and
effective, there ought to be an outer limit beyond which continu-
ance of the proceeClingswiU be violative of Article 2L This court
has prescribed such an outer limit in the case of children below the
age of 16 years; a similar rule must also be evolved. for general ap-
plication as has been done by the Full Bench of Patna High Court.
D Section 468 of Cq~e of. Criminal Procedure· fumishes a guidance
an
in the matter of drawing outer li_ne beyond which criminal trials
s~ould not be allowed to go. Though Section 468 applies only to
:~~~r offences itstrinciple must be extended to major offences as

E (iii) Having regard to prevailing circumstances, a delay of more
than seven years ought to be considered as unreasonable and
unfair. The .time taken by the investigation should be counted
· towards this seven years. In any event, a criminal proceeding, with
.all its stages, should not be. allowed to go beyond ten years from
the. date of registration of crime. In the absence of an outer limit,
F right to speedy trial becomes an Htusion. · · ·

(iv) Even de hors Article 21, Courts in India have been holding that
a trial ought not to be allowed .to go beyond a certain period. In
many cases, this court has refused to direct re-trial or continuance
G of trial, where the pr~eedings have been pending for a long time,
ev~n where it was satisfied that order of acquittal was not sustain-
able ~n Jaw. A re-trial ought to proceed with greater urgency. The
delay. which may not vitiate in the case of a trial_ would yet vitiate
a retrial.

H (v) In this case, though a period of about ten years has elapsed, the
A.R. ANTULAYv. R.S. NAYAK[REDDY, J.] 347

trial according to law is yet to begin. Particularly, after the decision · · A
of the Seven~Judge Bench of.this Colirt in 1988, the complainant
has been sleeping over the matter. He took no steps whatsoever to
.go on with the trial. After a period of t,hree years and only when this
writ petition was posted for hearing, did the complainant wake up
and re-start the proceedings. The accussed-petitioner is being
harassed in this matter. . ·B

(vi) The respondent-complainant is pursuing the petitioner out of
political animosity. He belongs to B.J.P., whereas the petitioner
belongs to Congress (I). Since the respondent's partY. is not in a
position to face the pe_tjti<?ner politically, it is.pursuing and perse-
cuting him through court proceedings. In ttte recent general elec- C
tions the petitioner has been elected to Parliament. His political
career and future prospects 'are being marred by this litigation
w~ich is nothing but political vendetta. ·

(vii) In all the citcuinstances of the ca8e, the Criminal Case against
the petitioner ou_ght to be quashed and the petitioner be set free to D
·purs,ue ·his vocation. ·

· 19. Sri Ghatate, learned counsel for the complrunant (R.S. Nayak) while
not disputing the proposition that Right to speedy trial is' implicit in Art. 21 of •
the Constitution, submitted that the conduct of the accused in this case
disentitles him to any relief. According to him, it was the duty of the High E
. Court of Bombay to have sent the record to the appropriate Special Judge •
. ·:. p,urs.u~t to the judgment of the Seven-Judge Bench in April, 1988. The High
Court took no such. step. ·No notice was· also received by the complainant from .
.the Special Court. ·ordinarily, he pointed out, when a case is remanded from .
. a higher court to the tri.al co~ the latter issues notices.to the j>arties tO appear F
. before it on a date specified. In this case, however, no such notices were issued. :
He also submitted that in view of Sri Sule ceasing to be the Special Judge, the .
Government was bound to notify one of the Special Judges at Bombay as the
.... Judge competent to try this case; this was not done and, therefore, no Special
Judge was seized o(the matter. In such a' situation the complainant could not
be found fault with for not proceeding with the trial. He submitted that until Sri G
More filed a writ petition and the Bombay High Court gave a direction, the
. Government did not issue a notification specifying the Special Judge for trying
the said case. He also brought to our notice that the Bombay High Court had,
-"
" in the said writ petition, asked the complainant whether he was willing· to
proceed with the prosecution and that he had made it expressly clear that he
was willing to proceed with the case. He submitted that after the Special Judge H
348 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A was designaled, the complainant moved him and the proceedings have now
commenced. He also brings to our notice the fact that the complainant has filed
an application as far back as 31.5.1989 for treating the evidence recorded in the
High Court as the evidence before the Special Judge. In Lhe circumstances, he
submiued, it cannot be said that the complainant was remiss in proceeding with
the prosecution or that he was sleeping over the matter. He emphasised the
B conduct of the accused-petitioner in trying to delay and protract the proccl'd-
ings throughout, for which purpose he invited our attention to certain passages
in the decisions of t~is court referred to hereinbefore. He submitted that at no
time had the complainant tried to prolong the matter and that he has always
been ready and anxious to go on with the matter. He opposed the idea of
prescribing a general time limit for conducting criminal proceedings. No
C counter~affidavit has been filed by the complainant in the writ petition.

20. Sri Bhasme, learned counsel for the State of Maharashtra also did not
dispute the proposition that the right to speedy-trial flows from Art. 21, though
he submitted that there ought not to be any outer limit prescribed by this court.
He submitLed that the State was in rio way responsibie for the delay, if any, in
D proceeding with the case. The counsel, however, submitted that after the
decision of Seven-Judge Bench of this court, ihe complainant ought to have
moved either the High Court of Bombay or the Government for appropriate
directions or for designating the Special Judge as the case may be, and that his
inaction has remain unexplained.

E ·SUBMISSION IN CR.A.NO. 126187: ·

21. Sri Jethmalani, appearing for the State of Bihar in Criminal Appeal
NO. 126 of 1987 presented the opposing point of view. While on the facts of
the said case, he submitted that the quashing of the charges by the High Court
of Patna was the right thing LO do-and thfs is the reason why we agreed LO
F )
dispose of this appeal as well alongwith the aforesaid two writ petitions-he
confined himself mainly to questions of law. His submissions are LO the
following effect : ·

"1.-Thc Constitution makers were aware of the Sixth Amendment
G provisions in the Constitution of the U.S.A. providing in express
terms the right of an 'accused' to be tried speedily. Yet this was not
incorporated in the ·indian Constitution. So long as Gopalan v.
State ofMadras held the field in India, only such speedy trial was
. available as :i.he provisions of the Code of Criminal Procedure
• made possible. No proceeding could ever be quashed on the
H ground of delay. On a proper grievance being made, or su:o moto,
. A.R. ANTULAY v. R.S. NAYAK [REDDY, J.] 349

court could always ensure speedy trial by suitable directions to the A
trial court including orders of transfer to a court where expeditious
disposal could be ensured. ·

2. With the decision of this court in Maneka Gandhi, Art '21
received a new content Procedure ~lating to punishment of crime
must be fair, just and reasonable. Hoosein Ara Khatoon and later B
decisions have spelt out a so-called 'Right to Speedy Trial' from
Article 21. It is both a convenient and self-explanatory description.
But it does not follow fhat every incident attaching to the Sixth
Amendment right ipso facto is to be read.into Indian Law. In the
U.S.A., the right is express and unqualified. In India it is only a
component of justice and fairness. Indian .courts have to reconcile C
justice and fairness to the accused with many other interests which
are compelling and paramount.

(3) Article 21 cannot be so construed as to m~e mockery of
attective principles and another even more fundamental right i.e.,
the Right of equality in Article 14. D

The concept of delay must be totally different depending on the
class and character o( the accused and the nature of his offence, the
difficulties of a private prosecutor and the. leanings of the Govern-
ment
E
4. The court must respect legislative policy unless the policy is un-
constitutional.

Statutes of limitation, limited though they are on the criminal side,
do not apply to:
F
(a) serious offences punishable with more than 3 years' imprison-
ment;

(b) all economic offences.
G
Corruption by high public servants is not protected for both these
reasons.

5. Right to Speedy Trial is not a right not to be tried. Secondly, it
only creates an obligation on the prosecutor to be ready to proceed
to -trial within a reasonable time; H
350 SUPREME COURT REPORTS (1991] SUPP. 3 S. C.R.

A That is to say without any delay attributable to his deviousness or
culpa91e negligence.

6. The actual length of time taken hy a trial is wholly irrelevant In
each individual case the court.has to perform a balancing act. It has
to weigh a variety of factors, some telling in favour of the accused,
B some in favour of the prosecutor and others wholly neutral. Every
decision has to be ad-hoc. It is neither permissible nor possible nor
desirable to lay down an outer limit of time. The U.S. Supreme
Court has refused to do so. Similar view is taken by our court.
There is no precedent warranting such judicial legislation.

c The following kinds of deJay are to be totally ignored in giving
effect to the plea of denial of Speedy Trial·: ·

(A) Delay wholly due to congestion of the Court. calender,
. unavailability of Judges, or other circumstances beyond the !

control of the prosecutor. .
D
(B) Delay caused by the accused himself not merely by seeking
-"'·
adjournments but also by legal devices which the prosecutor
h~ to counter.

(C) Delay caused by orders, whether .induced by the accused or
E not, of the court, necessitating appeals or revisions or other
. appropriate actions or proceedings.

(D) Delay caused by legitimate actions of the prosecutor e.g.,
getting a key witness who is kept out of the way or otherwise
avoids process or appearance or traeing a key. documents or
F securing evidence from abroad.

7. Delay is usually welcomed by the accused. He postpones the
delay of reckoning thereby. It may impair the prosecution's ability
to prove the case against him. In the meantime, he remaihs free to
G indulge in crimes. An accused cannot rii;e this plea if he has never
taken steps to dei:nand a speedy trial. A. plea that proceedings
against him be quashed because ·delay has taken place is not
sustainable if the record shows that he acquieseed iri the delay and
T1ever asked for a expeditious disppsal. In India the demand rule
. niu~t be rigorously enforced. No one: can be permitted to complain
.H that speedy trial was denied when he never demanded it.
A.R. ANTULAYv. R.S. NAYAK [REDDY, J.] 351

8. The core of 'Speedy Trial' is protection against incarceration. A
· An accused who has never been incarcerated can hardly complain.
· At any·rate, he must show some other very strong prejudice. The
right does not protect an accused from all prejudicial effects caused
by ~elay. Its core concern is impairment of liberty.

9. Possibility of prejudice is not enough. Actual prejudice has to be . B ·
proved. ·

10. The plea is inexorably and inextricably mixed up with the
merits oft.he case. No finding of prejudice is possible without full
knowledge of fact8. The plea must first be evaluated by the Trial
Coi.irt. C
SUBMISSI()NS IN W.P. NO. 268187 :

Sri Ashok Sen appearing for the petitioner iri Writ Petition NO. 268 of
1987 supported the reasoning of Sri P.P. Rao and submitted that the prosecu-
tion against the petitioner, Ranjan Dwivedi, pending since more than 15 years D
ought to·be·quashed. The learned counsel emphasised the several features of
the ~se.. iri particular : ·

(a). the allegations of false implication levelled by C.B.I. and the
.Bihar Police (C:l.D.) against one another;
E
(b) the circumstances in which the statement of approvet Vikram
was recorded, the way he was rewarded and his retracting of the
same lateri ·

(c) the report of Sri Tarakunde; and ·
F
(d) the manner in which the 'prosecution was conducted in the court
inc~uding the deliberate protr~cting of proceedings.

. He submitted that this is eminently a fit case where the charges and all
the proceedings held so far ought to be quashed. · G

23. Sri Ram Jethmalani supported the contentions of Sr. A.K. Sen. He
....... submitted that this prosecution has been pending since 1975 and has not
· concluded so.far.'For this' delay, he submitted, the prosecution alone is respon- ·
sible and not the accused. He brought the following facts to our notice :
H

.4

I
352 SUPREME COURT REPORTS [1991) SUPP. 3 s; C.R.
[
A I. Though the petitioner was arrested on 6.7.1975, he was not '\,,.._
produced before the Patna court in this case till 19 .12.1976. All this
while, it was obtaining extensions Of his remand without producing
the petitioner befpre th.e Patna court and without even notice to
him. Until he was produced in Patna court in December, 1976, the
petitioner did not even know that he was also implicated in L.N.
B Misra murder case. The charge-sheet was filed only in December,
1975. Long prior thereto, {he accused had become entitled to
release under Section 167 Cr. P.C. but he was not aware of all these
facts and', therefore, did not assert the said right. Even though he
· was granted bail by the Delhi High Court in the appeal preferred
against his conviction in the case relating to Chief Justice Ray, he
c was not released because of his implication in L.R Misra case. The
petitioner continued to be in jail till 30.3.1978, when this court
granted bail. The petitioner's incarceration from 21.1.1977 (the
date of grant of bail by Delhi High Court) upto 30.3.1978, is illegal
and unconstitutional. It vitiates the entire proceedings.

D 2. From the date of filing of ~e charge-sheet in December, 1975
.,
/

till the case was transferred to Delhi in 1979, prosecution has been
totally negligent in proceeding with the case. It has not explained
what was it doing these three years-part of which period, the
petitioner was imprisoned illegally.

E 3. The prosecutor is under an obligation to supply not only the
documents relied upon by him but also all those documents which
may be favourable to the accused as well. This obligation flows
from Rule 16 of the Rules framed under the Advoeates Act and
from the very nature of the office and duties attaching lO the office
of prosecutor. Rule 16 aforesaid prohibits the prosecutor from
l
F suppressing the material favourable to the accused,

4. One Sri Ahuja was the main investigating officer for the C.B.I..
It was he who had interrogated Arun Kumar Misra and Arun
Kumar Thakur and got the confession of Arun Kumar Thakur
recorded on 21st February, 1975. According to this confession, the
l
G
said two accused at the instance of a particular political leader of
Bihar committed the murder. These facts are established from the
applications filed by him before the Patna court which are now part
of the record of this writ petition. But then after the imposing of
emergency in June, 1975, the case suddenly took a different tum.
H The original accused were dropped sayfog that they are innocent

-'
r
A.R. ANTULAY v .. R.S. NAYAK [REDDY, J.] 353

and the entire focus now shifted to Anand Marg. In September,. A
1975 Ahuja applied to the court saying so expressly. In such,a
situation it is the duty of the prosecution to have placed both the
. versions before the court so that the court may be able to decide
. which is the correct version. It.is not open to the prosecution to
suppr~s the evidence with r((Spect to its first .version altogether
and present the second version alone. This is totally unfair. In fact, 'B
t.he request for examining 13 witnesses (given up by the prosecu-
tion) was precisely to establish this very first version and the fact
thatfor more than six months the prosecution has been pursuing
Arnn Kumar Misra and Arun Kumar Thakur as the real accused.
Witnesses No. 12 and 13 of of the said 13 witnesses are those very
accused. The petitioner wanted all of them to be examined as. court c
.witnesses so that both the prosecution and the defence will have an
opportunity of cross-examining them. Court would then be in a
position to discover the truth. This request was maliciously op-
posed by the prosecution which obliged_the petitioner to approach
· .. the Delhi High Court. The order .dated 13.2.1987 shows that the
said Revision raise important questions of law and requires an in- . D
depth consideration. In these.circumstances, the delay of five years
on account of pendency of Revision in High _Court must ~ laid at
the door of the prosecution since it is the direct consequence of the
unfair opposition ~ the petitioner's reasonable request for sum~
moning the said 13 witnesses as court witnesses. Learned counsel
..relied upon certain decisionsto_emphasise the duty of the prosecu- E
'. tion io place the entire truth before.the court. According to these
decisions, counsel submitted, it was the duty of the prosecution in
this case to piace the earlier version and the evidence collected by
them in that behalf atso before .the court. He too.emphasised the
strange spectacle of 'two stale agencies accusing each other of false
F
implication and frame-up.

5. The delay occasioned by the prosecution insisting upon prose-
: cuting the accused only before Sri D.C. Aggarwal, (the delay is of
.three months), though short, indica~s the prosecutorial malovo-
lence. This vitiates the prosecution case and is an additional m-ound G
for quashing the proceeding.

24. The learned Attorney General, who appeared for the C.B.I., submit-
ted in the first instance that this court should not lay Jow~ any parameters or
guidelines concerning the right to speedy trial.,According tQ him, the Code of
CrimiMl Procedure contains enough provisions which serve as guidelines for · H
354 SUPREME COURT REPORTS (1991) SUPP. 3 S. C.R.

A ensuring a speedy trial. He requested that the cases placed before this Bench
be disposed of on merits without laying down any general propositions. He
submitted that Section 482 of the Code of Criminal Procedure is an adequate
remedy. It can be invoked by an accused who has been denied a speedy trial.
He says that the High Court has power to quash criminal proceedings if such
a course is found necessary to secure the ends of justice. Unjustifiable delay in
B concluding a criminal case does amount to abuse of process of court and can
be quashed under the said provision. He took us through the entire proceedings
of this cac;e, both in the Patna court and the Delhi.court and submitted that the
charge of delay against the'prosecution is totally baseless and that the deiay has
in fact beeri caused by the accused themselves throughout. He submitted that
the accused had been repeatedly filing several frivolous interlocutory applica-
c tions and praying for postponing tpe trial by adopting several tactics. For
instance; very often one of the accused used to absent himself and then the
other accused would say that the trial should not proceed in the absence of that
accused. Even though they were in good health, they did not attend the court
pleading ill-health. This fact has been certified by the jailor of Patna jail, more
than once. Their counsel too was not cooperating with the court in going on
D with the trial five days a we.ek: They were prepared to go on only on three days
a week and that too not for the whOle day. The evidence is too voluminous and
there are thousands of documents. In the circumstances, he said, naturally the
trial took quite some time. The material on record establishes clearly that the
prosecution was always anxious to conclude the trial speedily and that in fact
the trial proceeded at a record speed, wherein 151 witnesses were examined.
E It closed itS case in 1986. Then the accused came forw~d with an application
to examine certain witnesses who were wholly unnecessary and were accord-
ingly given up by the prosewtion. When it was rightly refused by the learned
Sessions ~ udge, they went to the High Court and got all further p~eedings and
the trial stayed. Thus, it is the accused and the accused a:Ione who have been
protracting the trial and cannot, therefore, complain of infringement of their
F right to speedy trial, contended the learned Attorney General.

25. Mr. Chatterjee appearing for the petitioner in C.A. No. 3811/90
supported the contentions of Sri P.P. Rao, while Sri Rajeev Dhawan appearing
for R.S. Nayak in C.M.P. No. 1946/90 generally supported the contentions of
G Sri Jeihmalani. Miss Rani Jethmalani appearing for the intervenor, Mahila
Dakshata Samiti, stressed in her written arguments the significance of this right
from the stand-point of women.

26. Right to 'speedy trial is not enumerat¢ as orie of the fundamental
rights in the Constitution of India, unlike the Sixth Amendment to the U.S.
H Constitution which expressly recognises this right The Sixth Amendment
.. . . , ' ' . . . ;

J-
A.R,. ANTULA Y v. R.S. NAYAK [REDDY, I.] 355
/

declares inter alia that 'in all criminal prosecutions the accused shall enjoy the A
right to a speedy and public trial'. This is in addition to the Fifth Amendment
which inter alia declares that "no person shall ............ be deprived of life'',
which corresponds broadly to Article 21 (and clause l of Article 31, since
deleted). This omission and the holding in A.K. Gopalan v: State of Madras
[1950] S.C.R. 88 probably explains why this right was not claimed or
recognised as a fundamental right flowing'from Article 21 so long as Gopalan B
held the field. Once Gopalan was over-ruled in R.C. Cooper (1970 S.C. 564)
and its principle extended to Article 21 in Maneka Gandhi (1978 S.C. 597)
Article 21 got unshackled from the restrictive meaning placed upon it in
Gopalan. It came to acquire a force and vitality hitherto unimagined. A burst
of creative decisions of this court fast on the heels of Maneka Gandhi gave a
new meaning to the Article and expanded its content and connotation. While c
this· is not the place to enumerate all those decisions, it is sufficient to say that
the opinions of this court in Hussainara Khatoon cases decided in the year .
1979, declaring that right to speedy trial is implicit in Article 21 and thus·
constitutes a fundamental right of every person accused of a crime, is one
among them.
D
27. In Gopalan, this court held that the law relating to preventive
detention is to be found in Article 22 of the Constitution and that Article 22 is
a self-contained code in that behalf. It was also observed. that the law
contemplated by Article 21 need not answer the test of reasonableness in
Article 19 since both the articles (21 and 19) constitute two different streams.
In Maneka Gandhi, the observations in Gopalan with respect to Articles 21 and E
19 constituting two different 'streams have been held to be either obiter dicta
or wrong, as the case may be. It is pointed out that over the years this court has
accepted the view that the Constitution-and in particular the several fundamen-
tal rights· guaranteed by part III-should be read as au integral whole, with
possible over-lappings of the subject-matter of what is sought to be protected
F
by its various provisio~s. Beg, Chief Justice expressed the idea in the following
words at page 648 of [1978] 2 S.C.R. :

"Article dealing with different fundamental rights contained in
Part III of the Constitution do not represent entirely separate
streams of rights which do not mingle at many points. They are all G
parts of an integrated scheme in the Constitution. Their waters
· must mix to constitute that grand flow of unimpeded and impartial
Justice (social, economic and political), Freedom (not only of
thought, expression, belief, faith and worship, but also of associa-
tion, ·movement, vocation or occupation as well as of acquisition
and possession of reasonable property), of Equality (of status and H
356 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A of opport~nity, which imply. absence of upreaso~able or unfair
discrimination betW€<en individuals, groups and classes), and of
Fraternity (assuring dignity of the individual arid the unity of the
nation), which· our Constitution visualises. Isolation· of various
aspects of human .freedom, for purposes of thdr protection, \s
neither realistic nor-beneficial but would defeat the very objects of
such protection:" ·
B ' .
Bhagwati, ~··put the same. idea in the following words :

"The law must, therefore, now· be taken· to be well· settled that
Article '.!l does not exclude Article 19 and that even .if there is a: law
prescribing a procedure for deprivi!Jg a person of 'personal liberty'
c and there is consequently no infringementof the fundamental right
conferred by Article 21 such law in so far as -it abridges or takes .
away any fundamental right under Article 19 woul_d have to meet
the challenge. of that article. ·This proposition can no longer be
disputed after the decisions in R.C. Cooper's case, Shambhu Nath
Sarkar' s case and Haradhan Sahai's case. Now, if a law depriving
D a person of 'personal liberty' and prescribing a procedure for that
. purpose within the meaning of Article 21 ha5 to stand the test of
. one or.more of the fundamental rights conferred under Article 19
... }Vhi~h may !>e applicable iri a given situation, ex hypothesi itrnusi
. also be liable to be' tested with.reference
' - .'
to Article 14." ' . .
'.

E The learned Judge pointed out the integral connection between Artl;les
1~ and 21 in ~e _follqwing wo~ds : . ,.. ,

"Article ·14 strikes at arbitrariness in ·State action and: ei1sures
fairness and equality of treatment. The principle of reasonableness,
which legally as well as philosophically, is an essential element of
F .i' equality-or non-arbitrariness pervades Article 14 like a brooding
omnipresence and the procedure contemplated by Article 21 must
answer the test of reasonableness in order to be in conformity with
Article 14. It must be "right and just and fair" and not arbitrary,
·fanciful or oppressive; otherwise, it would be no procedure at all
" ·.and the requir~ment of article 21. yvould not be satisfied."
d
28. This-decision does establish in unmistakable terms that the law and
procedurt'. c<;mte~plated by Article 21 mu~t answer the test of re.asonablenes~
in order to be· in conformity with Articles 19 and 14. It establishes that the
prcx:edure,prescribed.by law within the meaning of J\rticle21 must be right and
just and fair and not arbitrary, fanciful or oppressive. It is this principle of
Ii fairness and reasonableness which was construed as taking within its purview
A.R. ANTULAYv. R.S. NA YAK [REDDY,_l) ~57

the right to speedy trial. In the first Hussainara Khatoon decision (1979 (3) A
S.C:R. 169) Bhagwati, J. -observed as follows: '
,·,.

:; "We think that even under our Constitution-; though speedy trial is
not specifically enumerated as a fundail1ental right; it is implicit in
the broad sweep and content of Article 21, as interpreted by this
·Court in Maneka-Gand_hi v. Union of India. ;We have held in that B
case that Article 21 confers a fundamental right on ·every person
not to be deprived of his life or liberty except in accordance with
the requirement of that Article-that some semblance of a procedure
should be prescribed by law,: hilt that the procedure should be
"reasonable, fair and just". If a person is deprived of his liberty
under a procedure which is not "reasonable, fair or just", such c
deprivation would be violative of his fundail1ental ·right under
Article 21 ·and he would be entitled to enforce such fundamental
right and secure his relief. 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 determina-
tion of the guilt of such person. No procedure which docs not D
- ensure a rea5onably 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 reasona-
bly expeditious -trial, is an integral and essential' part of the
fundamental right oflife arid liberty ·enshrined in Article 21."
E
The learned Judge, however, posed a question which be left it to be
answered at a later stage. The question-posed was: What is the consequence
of denial of this right? Does it necessarily entail the consequence of quashing
of chargt:s/trial? That question we shall consider separately. but what is of sig-
nificance is, this decision does establish. the following propositions :
F
(1) Right to speedy trial is implicit in the broad sweep and content
of Article 21: .,

(2) That unless the proceaure prescribed by la\V ensure a speedy
trial it cannot be said to be rea5onabie, fair or just. E~peditious trial
and freedom from detention are part_ of human rights and basic G
'• .freedoms and that a judicial system which allow inca'iceration of
' ~en and women for long periods' of time without trial must be held
to be denying human rightS to such under trials. .
., . ,. I ..
' ·

Leamed counsel for
the accused particularly relied upon the foliowing
passage from tlie opi?iOn of Bhag_wati, J. · · ' · · H
358 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A "There is also one other infirmity of the Jegal and judiCial system
which is responsible for this gross denial of justice to the under
trial prisoners and that is the notorious delayin disposal of cases.
It is a bad reflection on the legal and judicial system that the trial
of an accused should not even commence for: a long number of
years. Even a delay of one year in the commencement of the trial
B is bad enough; how must worSe could it be when the delay is as
long as 3 or 5 or 7 or 10 years. Speedy trial is of the sense of
criminal justice and there can be no doubt that delay in trial by
iL<;elf constitutes deni~l,of justice."

29. In the second Hussainara Khatoon case, [1979] 3 S.C.R. 393, this court
C directed that the under-trial prisoners against v1hom charge-sheet has not been
filed by the police within the period of limitation provided for in Section 468
cannot be proceeded against at all and released them f'?rthwith. The reason
being that any further detention of such persons would have been unlawful and
violative of fundamental right enshrined in Article 21.

D In third Hussainara Khatoon case [1979] 3 S.C.~ 532, Bhagwati,
J. observed :

"The State cannot avoid its constitutional obligation to provide
speedy trial to the accused by pleading financial or administrative
inability. The State is under a constitutional mandate to ensure
E speedy trial and whatever is necessary for this purpose has to be
done by the State. It is also the constitutional obligation of this
Court as the guardian of the fundamental rights of the people, as
a sentinel on the qui vive, to enforce the fundamental right of the
· accused to speedy trial by issuing necessary directions to the State
which may include taking of positive action, such as augmenting
F and strengthening the investigative machinery, setting up new
courts, building new court houses, providing more staff and equip-
ment to the courts, appointment of additional judges and other
measures calculated to ensure speedy triaL" ·

G 30. In State of Bihar v. Uma Shankar Ketriwal & Ors., [1981] 2 S.C.R.
402 a report was lodged with the Police in April, 1960 that the respondent firm
mis-appropriated a large quantity of G.C. sheets meant for distribution to quota
holders. Aftc;r investigation a Police Report was submitted in 1962 to the
Magistrate wh,o took cognizance of the case in 'January, 1963. Charges were
framed against the respondents in September, 1967. Thereafter, the progress of
H the case was very slow. In 1979 respondents applied to the High Court for

·-.
A.R. ANTULAY v. R.S. NAYAK [REDDY, J.j 359

quashing the proceedings· initiated against them. The High Court quashed the ·A
proceedings on the grounds that the Police report did not disclose any evidence
against the respondent and that the prosecution commenced in 1963 and still
in progress in 1979 is an abuse of the process of the court and should not be
allqwed to go on further. The State appealed to thi~ Court. This Court was
inclined to agree wiih the State that the first ground given by the High Court
may not bi sustainable, but it affinned the decision of the High Court on the B
second ground. This court observed : ·

"We cannot lose sight of the fact that the trial has not made much
headway even though no less than 20 years have gone by. Such
protraction itself means considerable harassment to the ace used
not only monetarily but also by way of constant attention to the C
case and repeated appearances in court, apart from anxiety. It may
well be that the respondents themselves were responsible in a large
measure for the slow pace of the case Inasmuch as quite a few
orders made by the trial Magistrate were challenged in higher ·
courts, but then there has to be a limit to the period for which
criminal litigation is allowed to go on at the trial stage. In this view D
of the matter, we do not consider the present case a proper one for

--· our interference inspite of the fact that we feel that the allegations
disclose the commission of an offence which we regard as quite
serious". ·

31. In Khcldra Paharia v. State of Bihar [1983] 2 S.C.C. 10( this court E
re-affinned the principle of Hussainara Khatoon case and declared that :

" ............... any accused who is denied this right of speedy trial
is entitled to approach this Court for the purpose of enforcing such
right and this Court in discharge of its constitutional obligation has F
the power to give necessary directions to the State Governments
and other appropriate authorities for securing this right ·to the
accused ............ " ·

The Court also gave necessary directions to the Government of Bihar and
High Court including a direction to create additional courts for speedy disposal G
of cases pending since long.

32. This Court considered the applicability of this right again in State of
Maharashtra v. Champa/al Punjaji Shah, [1982] 1 S.C.R. 299. Chinnappa
Reddy, J. speaking for himself and A.P. Sen and Baharul Islam, JJ. affirmed
' the principle of Hussainara Khatoon and proceeded to observe : H
360 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A "In deciding the question whether there has been a denial of the
. right to a-speedy trl.al the court is entitled to take into consideration
whether the defendant himself was responsible for a part of the
. delay and whether he was prejudicoo in the preparation of his
·(tefence by reason of the· delay. The Court is also entitled tO take
into consideration whether the delay was unintentional, caused by
B over-crowding of the court's docket or under-staffing of the
Prosecutors. Strunk v. United States is an instructive case on this
point. As pointed out in the first Hussain Ara case (supra)', the 'right
to a speedy trial is not an expressly guaranteed constitutional right
in India but is implicit in the right to a fair triiil whieh has been held
to be part of the right of life and liberty guaranteed by Art. 21 of
c a
the Constitution. While speedy trial is an implied ingredient of a
fair trial, the converse is not necessarily true. A delayed trial is not
necessarily an unfrur 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 ·
D 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 would 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
E accused had been prejudiced there will be no justification to quash
·the conviction on the ground of delayed trial only."

The Court then examined the facts of the case before it in the light of the
said principles and found that the accused himself was resronsible for a fair
part ofthe delay and that he has also been unable to establish how he was
F
prejudiced in the conduct of hi.s defence on account of delay. Th eourt also took
into consideration the nature of offence, namely an eeoncmic offence which
jeopardises the economy of the country and held that it is not a case which calls ·
for interference. Accordingly, it set aside the judgment of ilie High Court. In
the course of his judgment, Chinnappa Reddy, J., noted that "delay is a known
G defence tactic" and also that where the prosecution has a weiik case; it may
resort io same tactic with a view to keep the prosecution pend~ng as long as
possible. He observed :

"Denial of speedy trial may with or without proof of something
more lead to an unavoidable inference of prejudice and denial of
H justice. lt is prejudice to a man to be detained without trial. It is
prejudice to a man to be denied a fair trial." ·
A.R. ANTULAY v. R.S. NA YAK [}{EDDY, J.J- - 361

This case is significant for the approach it adopts to the problem. - A
According to this decision it'is not possible to lay down any hard and fast rule
injudgirig the complaint of denial of speedy trial and that all the circumstances
to
of ihe case have be taken into account before making a pronouncement. The
important considerations to be kept in mind by the court are stated to be :

(1) Whether the accused is responsible for delay;

(2) Whether he is prejudiced by such delay in any manner, of
· course, in some case the delay may itself amount to prejudice;

(3) Nature of offence with which the accused is charged;
c
33; In T.V. Vatheeswaran ·v; State of Tamil Nadu, [1983) 2 S.C.R. 348,
this court again reiterated the significance of the right to speedy' trial and
extended it even to post-conviction stage. It was held that undue delay in
carrying out the death sentence entitles the accused to ask for lesser sentence
of-life imprison'ment This opinion is based upon the immense psycologieal,
emotional and mental torture a man condemned to death suffers; Though this D
a
decision was over~ruled later by Constitution Bench, it is relevant to the
limited extent it re-affirms the right to speedy trial enunciated in Hussain Ara
Khatoon.

. 34. In S. Guin & Ors. v. Grindlays BankLtd., [1985]Suppt 3S~C.R. 818,
the appellants were prosecuted under Section 341 of the I.P.C. read with E
Section 36AP of the Banking Regulation Act, 1949. The subStance of the
·charge was that they had; without reasonable cause, obstructed the officers of
the Bank from lawfully entering the premises of a branch of the bank and also
obstructed the transaction-of normal banking business.They were acquitted by
the trial court whereupon the· respondent/Bank filed an appeal before the High F
Court which allowed it after a period of six years and remanded the case for
re-trial. The order of remand was questioned before this Court and was set
aside. The following. observations
~ .
of E.S.
.
Venkataramaiah,:J: are relevant:
.

"After going through the judgment of the Magistrate and of the
- High Court we feel that· whatever· might have been the error :o
committed by the Magistrate, in the circumstances of the case; it
was not just and proper for the High Court to have remanded the
case for fresh trial, when the order of acquittal had been passed -
nearly six years before the judgment of High Court. The i>endency
of the Criminal Appeal for six years 'before the High Court itself
a regrettable 'featilre of this ,case. ln addition to it, the order H
362 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.
' '

A directing re-trial has reiulted in serious prejudice to the appellants.
· We are of the view that having regard to the nature of the acts
' '

alleged to haye been committed by the appellants aQd other
attendant circumstances, this was a case in which the High Court
should have directed the dropping of the proceedings in exercise of
its inherent powers under Section 482, Criminal Procedure Code
B even if for some reason it came to the conclusion that the acquittal
was wrong. A fresh trial nearly seven years after the alleged
in~ident is bound t:O result in harassment and abuse. of judicial
·process."

It is significant to notice that the nature of the offenc~ appears to have
C mainly weighed with the Court in directing that the proceedings ought not to
be continued any further.

35. In Sheela Barse & Ors. v. Union of India & Ors., [1986] 3 S.C.R.
562, a.Division Bench comprising Bhagwati and R.N. Misra, JJ. re-affinned
that the "right to speedy trial is a fundamental right implicit in.Article 21 of the
D Constitution" and observed "the consequence of violation of fundamental right
to speedy .trial would be that the prosecution itself would be liable to be
quashed on the ground that it is in breach of the fundamental right" Thus, the
court1111swered the question which Bhagwati, J. had posed in the first Hussain
· Ara ~se. Accordingly, they directed that so far as a child accused of an offence
punishable with imprisonment of not more than 7 years is concerned, a period
E of three months from the date of filing of complaint or lodging of the F.I.R.
shall be· deemed tO be the maximum time permissible for investigation and a
period of six mont.hs from the filing of the charge-sheet as the reasonable
period witI:iin which the triai should be completed. It was specifically directed
thCit if these time limits are not obeyed, the prosecution against the child should
F be quashed. ·

., 36. We may now notice the decision of this court in Raghubir Singh and
Ors. v. State of Bihar, [1986] 3 S.C.R. 802. In this case; Sirnranjit Singh Mann
and few others applied to this Court for bail and also for quashing the
proceedings pending against them before the Special Judge on the ground of
G violation of right to speedy trial. It was urged that the said right of the
petitioners was being frustrated by the tactics adopted by prosecution whose
only object was to somehow keep the petitioners in prison. It was also argued
that there was no material whatsoever to frame charges under Section 121-A
and 124-A. ChinnappaReddy, J. affirmed thatright to speedy trial is one of the
dimensions of the fundamental right to life and liberty guaranteed by Article
H 21 of the Constitution. After examining the decisions of the United State
/

A.R. ANTULAY v. R.S. NAYAK [REDDY, J.] 363

Supreme Court in Strunk v. United States, (37 Lawyers Edn. 2nd 56) and Willie . A
Mae· Barker v. 'John Wingo, (33 lawyers Edn. 2nd 101 and also of the Privy
Council in Bell v. Director ofPublic Prosecutor Jamaica, [1985] 2 A.E.R. 585,
the learned Judge posed the following relevant questions: ' ·

"Several question arise for consideration. Was there delay? How
long was the delay? Was the delay inevitable having regard to the :B
nature of the case, the sparse availability of legal services and other
relevant circumstances? Was the delay unreasonable? Was any
part of the delay caused by the willfulness or the negligence of the
prosecuting agency? Was any part of the delay caused by the
tactics of the defence? Was the delay due to cause beyond the
control of the prosecuting and defending agencies? Did the ac- C
cused have the ability and the opportunity to assert his right to a
speedy trial? Was there a likelihood of the accused being preju-
diced in his defence? Irrespective ·or any likelihood of prejudice in
the conduct of his defence, was the very length of the delay suffi-
ciently prejudicial to the accused? Some of these'factors have been
identified in Barker v. Wingo (supra). A host of other questions D
may arise which we may not be able tO readily visuAfise just now.
The question whether the right to a speedy trial which forms part
of the fundamental right to life and liberty guaranteed by Art. 21
has been infringed is ultimately a question of fairness in the
administration of criminal justice even as 'acting fairly' is of the
essence of the principles of natural justice (In re. H.K. 1967 (1) All E
ER 226) and a 'fair and reasonable procedure' is what is contem-
plated by the expression 'procedure established by law' in Art. 21
(Maneka Gandhi)."

The approach adopted py the learned Jtidge in this case is practically the · F
same as was adopted by him in Champa/al Punjaji Shah (supra) to wit, right
the speedy trial "is ultimately a question of fairness in the administration of
criminal justice."

37. In Rakesh Saxena v. State through CBI., [1987] 1 S.C.R. 173, this
court quashed the proceedings on the ground that any further continuance of : G
the prosecution after lapse of more than six years in the case of the appellant
who was merely a trader at the lowest rung of the hierarchy in the Foreign
Exchange Division of the Bank is uncalled for, particularly in view of the
complicated nature of the offence charged.

Similarly, in Srinivas Gopal v. Union Territory of Arunachal Pradesh, H
364 SUPREME· COURT REPORTS [1991] SUPP. 3 S. C.R.

A (Now State) [1988) suppl. 1 S.C.~. 477~ the court quashed the proceedings
against the appellant on the ground of delay in investigation .and commence-
me~t of trial. In this case, investigat1on commenced in November, 1976 and the
case was registered on completion of the investigation in September, 1977.
Cognizance was taken by the court in March, 1986. These facts were held
sufficient to quash the proceedings particularly when the offence charged was
B a mirior on:e namely, Section .304Aread;With 338 of the Indian Penal Code.
38. Again inT.i. Stephen & Ors v. Parle Bottling Co. (P) Ltd. & Ors.,
(i988] 3 S.C.R. 296 it was held that though the order of the High Court
quashing charges against the accused (Under Section 5 of the Imports and
Exports (Control) Act,' 1947) was unsustainable in law it would not be in the
c interest of ju5tice to allow prosecution to start and trial to be proceeded with
after a lapse of twenty years even 'though one of the accused was himself
responsible· for most of the delay .caused by his ma/a fide tactics. In this
decision; there is no reference either to Article 21 or to the right to speedy trial.
The order is merely based on the fact that it would not be in the interest of
justice to allow a prosecution and trial to recommence after a lapse of 20 years.
D
In Diwan Naubat Rai & Ors. v. State through Delhi Administration and
Anr:, [ 1989) l S.C.C. 297, the court refused to quash the proceedings inasmuch
as it was found ihat the accused himself was mainly responsible for the delay
of which he was complaining. ' ' '

E 39. IQ State of Andhra.Pradesh v, P.V. Pavithran·, [1990] 2 S.C.C. 340,
this court upheld the 'decision of the' High Court quashing the F.I.R. on the
grourid of inordinate detay in completing the investigation. The reipondent was
an I.P.S. Officer against whom an: offence urider Section 5(2) read with Section
5(1) (e) of the Prevention of Corruption Act was registered in March, 1984. He
was placed under suspension but then it wa5 revoked iQ Sepi.ember, 1984 and
F he was reinstated in seJ'Vice. In July, 1985, the government cancdlea its earlier
order and called upon the respondent to show cause why he should not be
retired from service. The ·respondent challenged the said notice before. the
Central Administrative Tribunal which was upheld. The Special Leave PetitiOn
presented to this ,court was dismi~sed in view of the fact that respondent had
G already retired from service on attiiihlng the age of superannuation. After all
this; the Anti-corruption Bureau re-started the criminal proceedings in 1987-88
whereupon the· respondent approached. the High Court for quashing· the said
proee'edings on the ground of de)ay. The High Couit quashed. th~, same
accepting the ground urged. This court affirmed. Of course, while doing so, it
took care to observe that while examinfog the plea of delay in' completirig the
H investigation, the court should have regard to all the relevant circumstances and

,._
A.R. ANTULAY v. R.S. NA YAK [REDDY, J.] 365

that it is not p~ssibie to formulate any infle~ible guidelines. or rigid prin~iple8' A.
of uniform application for speedy investigation nor is it possible to stipulatt?
any arbitrary period of limitation for completing the mvestigation. In short, the
pri11cipJe of [?aghubir.Singh was reiterated.

· 40. As a matter of fact, right to speedy trial is embedded in the statutory
· law ~f this ~~untry. Sub~sections I and 2 ~f Section 309 Ci. P.C. (correspond- B
ing to Sub-sections) and IA of Section 344 of Code of Criminal Procedure,.·
1898) exemplify this rule. They say :
, I
' .

"309. Power to ·postpone or adjourn proceedings.--(!) In every
. inquiry or trial, the proceeding~ shall be held as expeditiously as
' possible, and in particular, when the examination of witnesses has ' c
once begun, the same shall be continued from day to day until all
the witnesses ·in attendance have been examined, unless the court
finds the adjournme~t of the same' beyond the followi~g day to be
necessary for reason to be recorded.

(2) If the Court, after taking.~ognizance of an offence, or com-. P ·
mencement of trial, finds it necessary or advisable to postpone the
commencement or, or adjourn, any inquiry or trial, it may, from
. time to time, for reasons to be recorded, postpone or adjourn the
..:w
same on such terms as it thinks fit, for such time as it considers
. reasonable, and may by a warrant remand the accused if iri c·ustody. E
. ' . .- . .- ,
Provided that no magistrate shal\ ·remand an accused person to ·
custody under this section for a term exceeding fifteen days at a
time.

Provided further that when witnesses are in attendance, no ad- F
joumment or postponement shall be granted, without examining
..t~em, except for' special
..·
reason.
.
to be recorded in writing.
·;

Provided also that no adjournment shall be granted for the pui'pose
· only of enabling the accused person to show cause against the '
sentence proposed to be imposed· on him:" · · G

The provisions must be read with Section 482 of the .Code which 'saves
the inherent powers of the High Court. The latter provision recognizes the
power of the High Court to p·ass appropriate orders "to prevent abuse of process, '
of any court or otherwise to secure the ends of justice". In several. cases, the
High Courts and this court have directed dropping or discontinuance of· H
366 SUPREME COURT REPORTS . [1991] SUPP. 3 S. C.R.

A proceedings where such proceedings constituted an abuse of process of court
or where the ends of justice demanded such a course of action. We may refer
to some of these cases now.

41. In Machander v. State of Hyderabad, [1955] 2 S.C.R. 524, this court
observed that while it is incumbent on the court to see that no guilty person
B escapes, it is still more its duty to see that justice is not delayed and accused
persons are not Indefinitely harassed. The scales, the court observed, must be
held even between the prosecution and the accused. In the facts of th~t case,
the court refused to order trial on account of the time already spent and other
relevant circumstances of that case.
.. . ' .,
C In Veerbhadra v. Ramaswamy Naickilr, [1959].~.C.R. 1211, this court
refused to send back proceedings on the ground that already a period of five
years has elapsed and it would not be just and proper iri the circumstances of
the case to continue the proceedings after such a lapse of time. Similarly, in
Chajju Ram v. Radhey Sham, [1971] (suppl.) s:c.R. 172, the court refused to
direct a re-trial after a period of 10 years having regard to the facts and
D circumstances of the case. In State ofU.P. v. Kapil Deo Shukla, [1972] 3 S.C.C.
504, though the court found the acquittal of the accused unsustainable, it
refused to order a remand or direct a trial after a laps~ of 20 years.

It is, thus, clear that even apart from Art. 21 courts in this country have
been ~ognizant of undue delays in criminal matter.s and wherever there was
E · inordinate delay or wh0re the proceedfogs were pending for too long and any
further proceedings were deemed to be oppressive and unwarranted, they were
put an end .to by making,appropriate orders.

42. We shall now consider certain American cases upon which botl1 sides
placed strong reliance,
F
The first case relied upon is Barker v. Wingo, 33 Lawyers Edn. 101
decided in the year 1972. The petitioner, Barker and another person Silas
Manning were arrested in connection with a murder which took place in July,
1958. They were indicated in September and the trial was set fo~ October 21,
G 1958. The State had a stronger case again.st the other accused Manning and it
believed that Barker cannot be convicted unless Manning testified against him.
But this was possi~le only if Manning was convicted first; then alone he could
be examined as a witness. Therefore, the State delayed the petitioner'$ ~rial and
proceeded against Manning,. Ultimately, Manning was convicted in D~ember,
1962 after as many as six trials. Pending the proceeding~ against Manning,
H prosecution ·was obtaining adjournments of the. trial against the petitioner
A.R. ANTULA Y v. R.S. NAYAK [REDDY, J.] 367

(Barker) from time to time. After 10 months, the court released him on A
executing a bond, since the prosecution continued to obtain adjournments. In
March, 1963 i.e., after obtaining the conviction of Manning, the case against
. Barker was sought to be proceeded against The trial was held in October, 1963
and Barker was convicted over-ruling his plea for dismissal of indictment on.
the ground of violation of his right to speedy trial. The Appellate Court
affirmed. The matter was, then, brought to Supreme Court on certiorari. The B
main contention of the accused was that the delay of five years in holding the
trial was unduly long and that it violated his right to speedy trial. The court
rejected this plea. It 'recognised. that more than four years period taken by
prosecution for trying tti~ petitioner-accused was .too long a period but, they
held, this factor· must be· weighed against certain counter-balancing factors
namely: (1) prejudice to the petitioner was minimal; (2) he was in jail only for C
a period of 10 months and was free thereafter; and (3) the petitioner himself did
not rally want a speedy trial. He too was gambling on acquittal of Manning, i11
which case, the prosecution may not have prosecuted him at all.

43. It would be appropriate to notice certain observations of the court
with respect to the right to speedy trial. We are referring to this case in somb D
detail for the reason that this decision has not only been followed in subsequent
decisions of the United States Supreme Court but has also been approved by
the Privy Council, as we shall presently point out The relevant observations
of the court may be set out in their own words :

''The right to a speedy trial is generically different from any of the E
other rig~ts enshrined in the Constitution for the protection of the
accused. In addition to the general concern that all accused persons
be treated according to decent and fair procedures, there is a
societal interest in providing a speedy trial which exists separate
from, and at times in opposition too, the interests of the accused.
F
......... A second difference between the right to speedy trial and
the accussed's other constitutional rights is that deprivation of th~
right may work to the accussed's advantage. Delay is not an
un.common defense tactic. As the time between the commission of
the crime and trial lengthens, witnesses may become unavailable
or their memories may fade ... G
Deprivation of the right to speedy trial does not per se prejudice the
accussed's ability to defend himself......... right to speedy trial is
more vague concept than other procedural rights. It is, for example,
impossible to determine with precision when the right has been
denied. We cannot definitely say how long is too long in a system H
..
368 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.
f
A · where justice is supposed to be swift but deliberate. As a conse-.
quence, there is no fixed point in the criminal pr0cess. when the
State can put the defend.ant to the Cho.ice of eith.er exercising or
r'
.waiving the right to speedy trial . . . . . . . . .. · ·

The amorphous quality of ~he right.also leads to the unsatisfactor-
B ily severe remedy of dismissal of the indictment when the i:ight .has
a
been deprived. This is. indeed serious consequence because it
means that a defendant who may be guilty of a serious crime will
go free, without having been tried. Such a remedy is more serious
·than an exclusionary rule or a reversal for a new trial,.but it is the
only possible remedy ......... '
c
. We reject, therefore, the rule that a defendant who fails to demand
a speedy trial forever waives his right. This does not .....• : ....•... '
mean, however, that the defendant has no responsibility to assert t
his right. We think the better rule is tl)at the defendant's assertion
'of or failure to assert his right to a speedy trial is on~ of the f11ctors
D to be considered in ·an inquiry into the deprivation of the right

The approach we accept is a balancing test, in which the conduct
of both the prosecution and the defendant are weighed.

E A balancing test J)ecessarily compels courts to· approach speedy
trial cases on an ad hoc basis. We can to little more than identify
some of the factors which· courts should assess in determining [
. )Vhether a particular defendant has been. depriv~d of his right.
Though some might express them in different ways, we identify r
· four such factors : length of delay, the reason for the delay, the .
F defendant's assertion of.his right, and prejudjce t~ th.e defendant
r
The length of the delay.is to some extent a trigerring mechanism.
Until there is some delay which is presumptively.prejudicial, there
G is no necessity for inquiry into the other factors that go into the
balance ........ .

The foui factors identified above ......... are related factors and
must be considered together with such other circumstances as may
r
be relevant ......... Courts must still. engage in. a difficult and .
H sensitive balancing process. But, because we are dealing with a
AR. ANTULAYv. R.S. NAYAK [REDDY; J.] 369

fundamental right of the accused, this pi:ocess must be earned out A
with full recognition that the accussed's interest in· a speedy trial ·is
speeifically affirmed in the Constitution." ·

44. In Strunk v. United States, 37 Lawyers Edn. 2nd 56 it was held that
an accussed's right to a prompt inquiry into criminal charges is fundame.ntal
arid the duty of the charging authority is to provide a prompt trial: It was B
observed that the desires or convenience of the accused or o'ther individuals are
of little relevance and make no differenee to the prosecutor's obligation to
ensure a prompt trial. The main question considered in this case was whether
"
'\ the violation of th_e said guarantee entails disiriissal .of th~ charges. It was held
that dismissal of charges is the only possible remedy where a speedy trial has
been denied. Indeed, in this case, the court of appeals was also of opinion that C
the accused's right to speedy trial was denied. but it did not quash the charges . ;
but drrected merely that the sentence awarded to the accu~d should be reduced
by the period of unconstitutional delay. (The matter was taken to appellate
court arter the district collrt had 'convicted at!d senteryced the accused).

45. in Bell v. Director ofProsecution, Jamaica, [1985] 2A.E.R.. 585; the D
Privy Council expressely affirmed the principles enunciated in Barker in the
following words : ' '

"Their Lordships acknowledge ttie relevance and importance of
· the four factors· focidly expanded and comprehensively discussed :E
7I in Barker v. Wingo. Their Lordships also acknowledge the desira-
bility of applying the same or similar criteria to any constitution,
written or unwritten, which protects an accused from oppression
by delay in criminal proceedings. Th weight to be attached to each
factor must however vary fiomjtJrisdiction to jurisdiction and from
case to case." · · · ·
F
In this-case, the Privy Council emphasised the necessity of taking notice
of the delays inherent in a particular system. The Privy Council was dealing
with a case from Jamaica. The ·court of Appeals of Jamaica held that having
regard to the circumstances obtaini~g in that country, a delay of 32 months
cannot be said to infringe the constitutional right of an accused to speedy triat. G
The Privy Council observed th.at this opinion of the Jamaican court, which
must be deemed to be acquainted with the conditions in that country, must be
accepted. But, inasmuch as, it was a case of re-trial, the Privy Council held that
the said delay must be held to have infringed the said right. The Board
empha.Sised that a re-trial must be held with greater speed and that the delay
which may be ignored i~ the case irial may not be ignored jn the case of re-lrial. H
370 SUPREME COURT REPORTS (1991] SUPP. 3 S. C.R.

A 46. In United States v. Hawk 88 Lawyers End. 2nd 640, the accused were
indicated in November, 1975 for illegal possession offire-anns and explosives.
The accused moved for suppression of all evidence as to their alleged
possession of dynamite on the ground that the dynamite had been destroyed by
the State Law Ei:iforcement Officers. When the case was called for trial in May,
the prosecution
1
reported not ready. The di~trict court dismissed the indictment
B with prejudice. During the next seven years, there were numerous proceedings
in the Court of Appeals as well as in the District court following -orders of
remand. During a 46 month period .i.e., from the date of dismissal of the
indictment, until the re-instatement of indictment following the Appeal Court
order, the defendants were unconditionally released. After remand from the
Appeal Court, the District Court dismissed the indictment in May, 1983 on the
C. ground of violation of the accussd's right to speedy trial. The matter was,
ultimately, brought to the Supreme Court where a majority of Judges (5 : 4)
held that the time during which the defendants were neither under indictment
nor subject to any. official restraint and where .the delays were caused .on
account of interlocutory appeals; cannot be counted. towards delay and do not
entitle the accused to any relief on that basis. The minority, however, held that
D, though· the indictment against the defendant was dismissed and they were
unconditionally released, their case remained on the .trial court's docket .and·
that the time taken for appeals in their case was patently unreasonable. For the
said delay, the prosecution ought to suffer and not the accused. We do not think
itnecessary·to refer to the reasoning .of this case in any detail since it, besides
affirming the Barker principles in all respects; mainly deals with the question
E whether the time:taken in prosecuting interlocutory appeals should or should r
not count. towards delay, particularly where the accused are released uncondi-
tionally.during that period. ·

Besides .the above, certain other American cases and articles by several
Professors of Law in America have been brought to out notice but we do not
F·
wish to burden this judgment with all those opinions since most of them either
affirm or criticize the principles enunc~ated in Barker, Hawk and.other cases .
. "I
~7. At this stage, we think it appropriate to deal-with the facts of and the
principles enunciated in MadheswardhariSinghv: State ofBihat, (A.LR. 1986
G Pa!Jla 324) (Full Bench) which decisipn is the subject matter of criminal appeal
In
No.126of1987 preferred by the State of Bihar. fact, the learned counsel for
the petitioners-accused strongly·relied upon it. Five questions were referred to
the full Bench, namely :
' '
.~·1·. Whether-the.fundamental right to a speedy trial enshrincd·in,
Ar~icle 2l of the Constitution by precedential mandate is confined ·
to only capital offences or is attracted to all offences generically?

•• 1
A.R. ANTULAY v. R.S. NA YAK [REDDY, J.] 371

'2. Whether the aforesaid righno a speedy trial is applicable only F
to the proceedings in Court strict<> senso or includes within its
sweep the preceding 'Police investigation as well?

· 3, Is a speedy trial 'equally mandated by both the letter and spirit
of the Code of Criminal Procedure, 1973?
E'
4. Whether the ratio fo. Ramdaras Ahir' s case (1985 Cri U 584)
(Pat) (supra) and in Mil.ksudan Singh' s case (A.LR. 1986 Pat.38
(FB) (supra) are applicable equally to all offences and irrespeetive
of the fact whether the proceedings are a trial or an appeal against. ·
acquittal? ' . .
,,
I . c
5. Whether an outer limit to concretise the right to a speedy publi'c '
trial is envisioned by principle of precedent?

The facts of the case are -rather unusual-may be not so unusual in· the
State of Bihar. The petitioner in '.the said writ petition', Madheshwardhari Singh·'
was a Class I GovemmentOfficer. During the year 1964-65, he was posted as' D·
the Assistance Director, Central Poultry Farm, Pama. On Satyanarayana
Sharn'la, Store Keeper was his subordinate on the said farm. On the basis of a
written :complaint made by his successor, a first information report was
registered agrunst Satyanarayana'Sharma under Sections 467,409 and .120B
I.P.C:on 20th'Nov~mber, 1906. The.pei.itionerwas not named as an accused
in that report.' The allegations made therein, however, raised a cloud of E·
suspiCion against the petitioner as well. The investigati~n by police went on
and ultimately Of! 29th September, 1975 the petitioner was also made an
accused in the said case. According to the petitioner, this was ~one ma/a fide
and with a view to jeopardise his career and prospects of promotion. Be that
as it may, he was airested and produced before the Magistrate who granted him
F·
provisional bail on 20th April, 1975 which was confirm·e·d later on. On 30th
January, 1976, a charge-sheet was filtxl against the petitioner. Proceedings
thereafter went on at a very Ieisure1y pace. Charges were framed in'J uly, 1977.
Inspite of direetions of the cotirt, prosecution did not examine the wiLnes·ses in
quick succession but in driblets. Finding that the prosecution was not heeding
its orders nor was adducing evidence; the· learned Magistrate closed the prose-
cution case in April, 1984. It is necessary to point out that between July, 1977
(when the charges were framed against him) and April, 1984 (when the learned
Magistrate dosed the:prosecution case) only about 9 out of the 40 witnesses
cited were examined. Aggrieved by the trial-court's -order closing its case, the
prosecution preferred a revision which was allowed directing the Magistrate to
give an Opportunity to the prosecution. Even so, the prosecutioirdid not avail H'
372 SUPREME COURT REPORTS (1991] SUPP. 3 S. C.R.

A of the opportunity. The learned Magistrate closed the prosecution case once
again in September, 1984. The State went up in revision to the learned Sessions
fodge against this order and yet again the learned Sessions Judge directed the
Magistrate to give an opportunity to the prosecutor to examine witnesses. In
January 1985, only O!le witness was examined and none thereafter, with the
result that the prosecution case was again closed on May 1, 1985. At this stage,
B the accused-petitioner raised an objection that there was no valid sanction for
prosecuting him. For producing a .copy of the. order of sanction, prosecution
obtained several adjournments but did not produce it. Ultimately, on Oc~ober
1, 1985, petitioner filed an application before the learned Magistrate claiming
that his fundamental right to speedy trial has been violated by the passage of
nearly 20 years in investigation and trial and asking for quashing of the
C proceedings on that ground. The learned Magistrate rejected the said applica-
tion whereupon he approached the High Court.

48. Sandhawalia, CJ., speaking for the Full Rench, held, on a review of
. severai' decisions of. this court and of the United States of America; that right
'· · · to speedy trial is inherent in and flows from Art; 2L The learned Chief Justice
D 'stated the following four principles as flowing from ~rticle 21, viz., · · - · ·_.
.. -.. 1~ That, now by precedential mandate ihe basic human rlght to a
speedy public trial in all criminal prosecutions has been expressly
Written as if with pen and ink in the constitutional right relating to
life and liberty guaranteed under Article 21 <?f our Constitution ..
E Further, that this: right is identical in content with the express
constitutional gtiarantee inserted by the Sixth Amendment in the
American-Constitution.

2. That the American precedents on the Sixth Amendment of that
Constitution would be equally attracted and applicable as persua-
F
sive on this facet of Article 21 of our Constitution as well.

-rTirat once the constitutional guarantee on a speedy trial and the ·
right to a fair, just and reasonable procedure under Article 21 has
been violated, then the -accused is entitled to an-
unconditional
G release and the charges levelled against him would fall to the
ground.

4. That- a callous and inordinate prolonged delay of ten .years or
more, which, in no way arise~ from the accussed's default (or is
.otherwise not occasioned due to any extraordinary and exceptional
H reasons), in the context of reversal of a clean acquittal on a capital
A.R. ANTULA Y v. R.S. NAYAK [REDDY. J.] 373

charge, would be per se prejudicial to. the accused and would A
·plainly violate the constitutional guarantee of a speedy trial under
Article 21."

The other findings of the Full Bench ·are to the.following effect :

"l. the right to speedy trial applies not only to major crimes but to B
minor offences as well;

2. it takes in its fold not only the proceedings in court but also the
preceding police investigation;

3; the provisions of the Code of Criminal Procedure and the Bihar C
Police Manual not only embody the spirit of a speedy public trial
but, in fact, epitomise it by express provisions mandating speedy
and expeditious disposal within specified time limits. There is no
·conflict between Article 21 and the provisions of the Code."

The more important principle enunciated in this decision relates to the D
question whether a time-limit should be prescribed to effectuate the said right.
After an elaborate examination of several decisions of this court including
Sheela Barse, and of the American Supreme Court; the learned Judge came to
the following conclusion :
..
" ......... an outer limit to concretise the right to speedy public trial E
is envisioned both by principle and precedent. It is further held that
a callous and inordinately prolonged delay of seven years or more
. (which does not arise from the default of the accused or is
otherwise not occasioned by any extraordinary· or exceptional
reason) in investigation and original trial for offences .other than ! F
capita) ones plainly violate the constitutional guarantee of a speedy
public trial under Article 21."

He added further :

"A sharp note of caution must be sounded. The aforesaid finding , G
must not be misunderstood or misconstrued to mean that a delay of
less than seven years would not in any case amount to prejudice.
Indeed, what is sought to be laid down is the extreme outer limit
where after grave prejudice to the accused must be presumed and .
·the infraction of the constitutional right would be plainly estab-
lished. Really, I am somewhat hesitant in spelling out even the . H
374 SUPREME COURT REPORTS. [199l] SUPP. 3 S. C.R.

aforesaid outer time limit which! perhaps, errs on the side of
strictitude. But since we are following binding precedent, the same
has to be unreservedly accepted. Nor is it sought to be laid down
that in a lesser period than seven years an accused person would
not be able to establish. circumstances. pointing to tbe patent
prejudice which may entitle him to invoke the guarantee of speedy
public trial under Article 21."

The learned Chief Justice then examined the facts of the case before him
in the light of the principles evolved and held. that it is a clear case where the
petitioner's right to speedy trial has been violated. He found that the petitioner
was not guilty of obstructive tactics and that the delay was entirely of the
·' prosecution's doing. Accordingly, the investigation and the trial against the
petitioner was quashed. Anoth.er Full Bench pt"esided over by the same learned
Chief Justice. held in State v. Maksudan Singh, A.!.R. 1986 P,atna 38 that in
cac;e of serious offences like murder, delay of· 10 years .9r more occasioned
entirely by the default of prosecution must be deemed to be per se prejudicial
to the accused.

49. Article 21 declares that no person shall be deprived of his life or
liberty except in-accordance with the procedure prescribed by law. The main
procedural law in this country is the Code Of Criminal Procedure, 1973. Several
other enactments too contain many a procedural provision. After Marieka
Gandhi. it can hardly be disputed that the 'law' (which has to be understood
in the.sense the expression has been defined in clause (3) (a) of Article 13 of
the constitution) in Article 21.has to answer the test of reaspnableness"' and
fairness inherent in Articles 19 and 14. Jnother words, such law should provide
a procedure which is fair, reasonable and just. Then alone, would it be in
consonance with the command of Article 21. Indeed, wherever necessary, such
fairness must be read into such law. Now, can it be said .that a law which docs
not provide for a reasonably prompt investigation, trial and conclusion of a
criminal case is fair, just and reasonable? It is both in the interest of the accused
as well as the society that a criminal case is concluded soon. If the accused is
guilty, he ought to be declare so. Societal interest lies in punishing the guilty
and exoneration of the innocent but this determination (of guilt or innocence)
must be arrived at with reasonable despatch~reasonable in all the circum-
stances of the case. Since it is the accused who is charged with the offence and
is also the person whose life and/or liberty is at peril, it is but fair to say that
he has a right to be tried speedily. Correspondingly, it is the obligation of the
State to respect and ensure this right. It needs no emp11asis to say, the very fact
of being accused of a crime is cause for concern. It affects the reputation and
the standing of the.person among his colleagues and in the society. It is a cause
A.R. ANTULAYv. R.S. NAYAK[REDDY.,J.] 375

for worry and expense. It is :more so, if he is arrested. ffit is a serious offence, .A
the man may stand to lose his life~ libeny, eareer and all that he cherishes; '

50. The provisions of the Code of Criminal Procedute are consistent with
and indeed illustrate this principle. They provide for an early investigation and
for a speedy and fair trial. The learned Attorney General is right in saying that
if only the provisions of the Code are followed in their letter arid spirit, there B
would be little room for any grievance. The fact however, remains~unpleasant
as it is,...-that in many cases, these provisions are honoured mvre in breach. B~
that as it may, it is sufficient to say that the Constitutional guarantee of speedy
trial emnating from Anicle 21 is properly reflected in the provisions of the
Code.
c
51. But then· speedy trial or other expressions conveying the said con-
cept are necessarily relative in nature. One may ask-speedy means, how,
speedy? How fong a delay is too long? We do not think it is possible to lay!
down any time schedules for conclusion of criminal proceedings. The nature
of offence, the number of accused, the number of Witnesses, the work-load in
the particular court, means of communication and several other circumstances 'D
have to be kept in mind. For example, take "the very case in which Ranjan
Dwivedi (petitioner in writ petition No. 268 of 1987) is the accused. 151
witnesses have been examined by the prosecution over a period of five years.!,
Examination of some of the witnesses runs into more than 100 typed pages'
each. The oral evidence adduced by the prosecution so far runs into, we are
told, 4000 pages. Even though,..it was proposed to go on with the case five days E
of.a week and week after week, it was not possible for various reasons vii.,
non-availability of the counsel, non-availability of accused, interlocmory
proceedings and other-systemic delays. A murder case may be a simple one:
involving say a dozen witnesses which can be concluded in a week while:
another case may involve a large number of witnesses, and may take several F
weeks. Some offences by their very nature e.g., conspiracy cases, cases of
misappropriation, embezzlement, fraud, forgery, sedition, acquisition of dis-
proportionate assets by public servants, cases of corruption against high public
servants and high public officials take longer time for investigation and trial.
Then' again, the work-load in each court, district, region and State varies. This.
fact is too well-known to merit illustration at our hands. In many places, ; GJ
requisite number of courts are not available. Jn some places, frequent strikes
by members of the Bar interferes with the work-schedules.-In short, it is not
possible in the very nature of things and present day circumstances to draw a
time limit beyond which a criminal proceeding will not be allowed to go. Even
in the U.S.A., the Supreme Court has refused to draw such a line. Except for!
the Pama F.B;decision under appeal, no other decision of any High Court in H
376 SUPREME COURT REPORTS [l991] SUPP. 3 S. C.R.

A this country taking such a view has been brought to our notice. Nor, to our
knowledge, in United Kingdom. Wherever a complaint of infringement of right
to speedy trial is made the court has to consider all the.circumstances of the case
including those mentioned above and arrive at a decision whether in fact the
proceedings have been pending for an unjustifiably long period. In many cases,
the accused may himself have t>een responsible for the delay. In such cases, he
B cannot be allowed to t:ike advantage of his own wrong. In some cases, delays
may occur for which neither the prosecution nor the accused can be blamed but
the system itself. Such days too cannot be treated as unjustifiable-broadly
speaking. Of course, if it is a minor offence-not being an economic offence-and
the delay is too long, not caused by the accused, different considerations may
arise. Each case must be left to be decided on its own facts having regard to the
C principles enunciated hereinafter. For all the above reasons, we are of the .
opinion that it is neither advisable nor feasible _to draw or prescribe an outer
time limit for conclusion of all criminal proceedings. It is not necessary to do
so for effectuating the right to speedy trial. We are also not satisfied that
without such an outer limit, the right becomes illusory:

D· 52. We may next deal with, what is called the 'demand' rule. The
contention is that an accused who docs not demand a speedy trial, who stands
by and adquiesces in the delays cannot sud.denly tum round after a lapse of
period and complain of infringeme • of his right to speedy· trial. It is not ..
possible to accede to this contention either. An accused does not.prosecute
himself. The State or complainant prosecutes him. It is, thus, the obligation of
E the State or the complainant: as the case may be, to proceed with the case with
reasonable promptitude. Particularly, in this country, where the large majority
of accused come from and poorer' weaker sections of the society, not versed in
the ways of law, where they do not often get competent legal advice, the
application of the ·said rule is wholly inadvisable. Of course, in a given case,
if an accused demands speedy triai and yet he is not given one, may be a
F relevant factor in his favour. But we cannot disentitle an accused from com-
plaining_ of infringement of his right to speedy trial on the.ground that he did
not ask for or insist upori a speedy trial.

53. Another question seriously canvassed before us related to the conse-
G quence flowing from an infringement of right to speedy trial. Counsel for
accused argued on the basis of the observations in Sheda Barse and Strunk that
the only consequence is·quashipg of charges and/or conviction, as the case may
be. Nonnally, it may be so. But we do not think that that is the only order open
to court. In a given case, the. facts-including the nature of offence-:-may be
such that quashing of charges may not be· in the interest of justice. After all,
H every offence-:-more so economic offences, those relating to public officials
A.R.ANTULAYv. R.S.NAYAK[REDDY,J.] 377
and food adulteratiol}-is an offence against society. It is really the society- A
the state-that prosecutes the offender. We may if1 this connection recall the
observations of this court in ChamfJCl.lal Punjaji Shah. In cases, where quashing
of charges/convictions may not be in the interest of justice; it shall be open to
the court to pass such appropriate orders as may be deemed just in the
circumstances of the case. Such orders may, for example, take the shape of
order for expedition of trial and its conclusion within a particular prescribed B
period, reduction of sentence where the matter comes up after conclusion of
trial and conviction, and so on.

. 54. 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 C
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 societal interest also, does not make it any-the-less D
the right of the accused. It is in the interest of all concerned that the guilt or
innocence of the a_ccusect is determined as quickly as possible in the circum.!
..
stances .

2. Right to Speedy Trial flowing from Article 21 encompasses all thtr
stages, namely the stage of investigation, inquiry, trial, appeal, revision and re~ E
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 : F
(a) the period of remand and pre-conviction d~tention should be as
short '-lS possible. In other words, the accused should not be
subjected to unnecessary or unduly long incarceration prior to his
conviction; .
G
(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 resu.lt in impairment of the ability of the
·accused to defend himself, whether on account of death, disappear- H
ancc or non-availability of witnesses or otherwise.
·378 SUPREME C,OURT REPORTS [1991] SUPP. 3 S. C.R.

.A 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 kn0wn 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
·B 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 thetime taken in pursuing such proceedings be counted towards delay.
C Itgoes,withoutsaying 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 tl;le proceeding is
not a frivolous. Very often these stays obtained on ex-parte representation.

·n .5. While determining whether undue delay has occurred (resulting in
violation .of Right to Speedy Trial) one must have regard lo all the attendant
circumstances, including nature of offence, number of accused and witnesses,
the work-load 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 Stale includes judiciary as well, but a realistic and
E 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 Barker "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 ideal has been
F
stated by White,J. in U.S. v. Ewell, 15 Lawyers Edn. 2nd627, 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
G more speed, as its essential ingredients; and whether delay in
completing a prosecution amounts to an un-constitutional depriva-
tion. 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 accused will al$o be a
H relevant fact. The prosecution should not be allowed to become a persecution.
A.R. ANTULAYv. R.S. NAYAK [REDDY,. I.] 379

But when does the prosecution become prosecution, again depends upon the A
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 o_f the
prosecution. Hence, an accussed'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 B
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 U.S.A., the relevance of demand
rule has been subs~tially watered down in Barker and other succeeding cases.

8. Ultimately, the court _has to balance and weigh the several relevant C
factors-'balancing test' or 'balancing process'-and 51etcnnine 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 i.s not the onl)' course ·D
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 ope!1 to the court to make such other appropriate order-
including an order to conclude the trial within a fixed time where the trial isi not
concluded or reducing the sentence ~here the trial has concluded-as may be
deemed·jus·1: and equitable in the circumstances of the case . E

. 10. It is neither advisable nor practicable to fix any time-limit fo~ 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 sh.oul~ers
.ofthe p;osecution. Jn every case of complaint of denial of Right to speedy trial,
F
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 U.S.A. too as
,\
repeatedly refused to fix any such· outer tiine limit inspii.e of ihe Sixth
Amendment. Nor do we think that not fixing any such outer limit ineffectuates
the guarantee of Right to speedy trial. G
11. An objection ba<;ed on denial of Right to,speedy trial and for relief
on that account, should first be.addressee! to the High Court. Even if.the High
Court entertains such a plea, ordinarily it should not stay the pr~eedings,
except in a ca5e. of grave and exceptional nature. Such proceedings in High
Court must, however, be disposed of on a priority basis. 11
380 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A 55. Now let us exarnine the facts in writ petition No. 833 ofl990 in the
light of the above principles. It is true that Special Case No. 24 of 1982
instituted in 1982 is still pending in the year 1991 but then the question arises
who is responsible for the delay? As soon as process was issued by the Special
Judge (Sri P.S. Bhutta), the accused appeared and raised two objections viz.:

B (i) that the Special Judge has no jurisdiction to take cognizance of
the case on the basis of a private complaint and that an investiga-
tion by a Police Officer is the condition-precedent to taking
cognizance; and

(ii) that unless the State Government issues a notification under
C Section 7(2) of 1952 Act, neither Special Judge has the jurisdiction
to take cognizance of the case.

These objections were over-ruled by the Special Judge. The matter was
then carried by him to High Court. High Court too o:ver-rulcd his first
objection. So far as the second objection is concerned, it was not necessary for
D the High Court to go into it inasmuch as pending the proceedings in High
Court, the Government of Maharashtra had issued a notification under Section
7(2) of 1952 Act, designating Sri Sule to try the said case. He then carried the
matter to this court which too was_ dismissed in February, 1984. Meanwhile, he
had raised another objection before Sri Sule to the effect that without the
sanction of the Governor, he can't be proceeded against for·tlle offences in
E question, since he was a member of the Maharashtra Legislative Assembly. Sri
Sule agreed with him but this court did not and directed that the trial should go
on a day-to-day basis. With a view to expedite the trial, the case was transferred
to High Court. Before Khatri, J ., the accused raised an objection tllat he. is riot
competent to try the case. The objection was over-ruled. He came to this court
but it was.of no avail. At that stage, Mehta, J. framed some charges.but refused
F to frame charges with respect to some other allegations. The complainant came
to this court and was successful. The matter was then taken up by Shah, J ., who
framed 79 charges and commenced the trial. Several witnesses were examined
and voluminous evidence adduced by 1986, when the accused approached this
court again under Art. 21 and by way of two S.L.Ps. and got the proceedings
G stayed in 1986.

In April 1988, a seven-Judge Bench, by a majority of 5 : 2 agreed with
him that tile direction made by the Constitution Bench on 16.2.1984 was
without jurisdiction and that tile High Court could not have been empowered
to try the said case.. The result was tllat the case had n.ow to be tried by the
H Special Judge. But which Special Judge? asks the counsel for the complainant.
A.R. ANfULAYv. R.S. NAYAK[REDDY, J.] 381

Sri Sule, Who was previously designated under a notification issued under A
Section 7(2) of 1952 Act ceased to be a Judge.There was no other notification
designating any other Judge to try this case. Without a notification under
Section 7(2}, may be neither of the two Special Judges at Bombay was
competent to take up the matter. In fact, that was the petitioner's objection
taken in 1982, upon which there was no pronouncement either by the High
Court or this court in view of the notification issued by the Government of B
Maharashtra pending the proceedings before High Court The Bombay High
Court too did not send the file to either of the Special Judges. That such .a
notification was necessary, was also the view of the Government of Maharasli-
tra, as would be evident from the statement of the learned Advocate-General
(made on instructions) before the High Court in writ petition (crl.) No. 281 of
1990 disposed of on 23.4.1990. The Government of Maharashtra actually C·
issued the notification on 19.6.1990 designating a Special Judge as the Judge
competent to try this case.

__ At this stage, we must refer to a controversy with respect to the meaning
<l;lld effect of the courf s judgment in 1984 (2) S.C.R. 914. Sri P.P.Rao says that
.·:this· decision, though Ml in ·express words, does: iay down by· necessary D
· implication that taking cognizance of the case by Sri Bhutta, Special Judge was
·valid and competent. He lays particular stress on the last para of the judgment
which reads :

· " .. : ............ Having examined the matter from all the different E
angles, we are satisfied that the conclusion reache<l both by the
learned Special Judge and Division Bench of the Bombay High
Court that a private complaint filed by the complainant was clearly
maintainable and that the cognizance was properly taken is correct.
Accordingly, this appeal fails and dismissed."

Mr. Rao further contended that even if no notification was issued under: F
the 1952 Act, yet the principal Special Judge did have the jurisdiction to
entertain and go on with the said case. He could have tried it himself or made ,
over to the Additional Special Judge. This position follows from the decision
of this court that court of Special Judge is also a court of original criminal
.jurisdiction, he argues. G

On the other hand, the contention of Sri Ghatate is that there is absolutely
no discussion on this point in the whole of the judgment and that the last para
must be'understood in the light of the discussion in the judgment and not in
isolation: We need not pronounce upon this controversy. What is relevant in
this context is not-what was the true legal position. It is whether there was room H
382 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A. for genuine doubt and whether the legal position was not ambiguous? From this
stand point; it is sufficient to notice that the matter admitted of two opinions
and that the issue was not free from ambiguity. The very factthat the Adv,ocate-
General of Maharashtra, the Government of Maharashtra and two learned
Judges of the Bombay High Court thought that a notification under the 1952
Act was 'necessary' for proceeding with the case also goes to show that the said
H · view was not without any force. Even if there were only one Special Judge for
Bombay, there would still have been room for doubt in view of the earlier
notification specifying Sri Sule as the Judge competent to try ihis case. The
argument of Sri Gha.tate on this score cannot, therefore, be characterised as
unfounded. In the circumstances the period between April, 1988 and June,
1990 cannot be treated a~ delay caused by the complainant.
c
lt is true that after the judgment of Seven-Judge Bench of this court in
April, 1988, the complainant did not himself move the· Government of
Maharashta to designate a Special Judge for the case but waited till another
person, an advocate, did' so. (Of course, when asked by the High Court, he
expressed his'readiness to go on with the prosecution). It is also true that even
D after the Government issued the notification dated 19.6.90, he does not appear
to have mo'ved in the matter till about September, 1991, but this conductoHis
must be weighed against the following circumstances :

"(a). the nature of the offences, with which the accused-petitioner
is charged are quite serious. 79 charges were framed by the
E Bombay Higti Court earlier including those under the Prevention
of Corruption Act and abuse .of power on the basis of the material
produced by the compfainant. It is true that all that has come to
nought with the holding that the very transfer of the case to High
Court was incompetent. But the above fact is relevant for the
limited purpose of showing the nature of the offences with which
F
the petitioner .is charged and that they cannot be said to be
groundless-prima facie speaking. There is the judgment of Bom-
bay High Court (in W.P. No. H65/8li allowed on 12;1.1982);
which castigated the petitioner for the said activity, leading to his
resigriation from the office of Chief Minister. It must be remem-
G bered that several of the allegations in that writ petition and this
criminal case are common-a fact taken notice of in the earlier
judgments of this court. Public interest lies in knowing the truth.

A
(b) large volume of evidence was led.by him (R.S. Nayak) in
Bombay High Court during the·,years· 1984-86. As many· as 57
H witnesses were examined and 963 documents exhibited. The ·
A.R. ANTULAYv. R.S. NAYAK[REDDY, J.] · 383

Bombay High Court Spent almost an year in recording the evidence A
on behalf of the complainant, running into more than 1200 pages.
He had practically closed his side. It must have necessarily cost
him great effort apart from expense. All this came to nought with
the judgment of this court rendered in April, 1988. Adducing that
. evidence over again is not an easy task. Therefore, on 31.5.1989 he
made an application in this court(C.M.P. No.1946/90) to treat that B
evidence as evidence before the Special Judge. It is true that we are'
dismissing that application now· but it cannot be said that that ap-
plication was made by him othernise than in good faith nor can it
be termed as a delaying tactic: That application remained pending.
The complainant is an individual. May be, he is member of a
political party. But that·is·of little consequence. C

c) Until 1988, it was the accused who was raising several objec-
tions from.time to time and getting the trial stayed. In most of them
he failed. In one he. succeeded. We have already detailed them
above and need not repeat.. May be the very• system was partly
responsible for the somewhat unusual course of events. The' com-' ' D
plainant was cert.ainly not to blame. The inaction of the complain~
ant, referred to above, is only after the decisiorr of Seven-Judge '
Bench and not earlier thereto. As a matter of fact, writ petition
·'"(crl.)j42/86 and S.L.P.(crl.)2518/86 filed by the petitioner are still
pending in this court, wherein he is questioning the constitutional-
ity of Section 197 Cr.P.C. and.also contending that the charges E
against him require the sanction under tliat very section .
. ..
d) The ambiguity prevailing as to the particular Speeial.Judge
competent to try this.case after Apiil, 1988, and the issuance of.
notification under Section 7(2) of Criminal Law Ameridment·act F
··only in June, 1990. (The present writ petition was filed in the same
month).· ·

e) The petitioner has never been incarcerated-not even for a day.
It is also not clearly established how this delay has prejudiced his
case. In ground No. 10 of his writ petition, he merely stated that six G
persons whom he wanted to examine at the trial have expired. He
has named six persons including Mrs. Indira Gandhi 1 Naval Tata,

- Pesi Tata and Vasantdada Patil. He has, however, not elaborated
which of them was proposed to be examined on what aspect? Mrs.
Indira Gandhi and Pesi Tata died even before April, 1988. The
either four have no doubt died· after April, 1988, but it is not clearly ,H
384 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A shown how the same has caused him prejudice. As a matter of fact,
both Mrs. Indira Gandhi and Sri V asantdada Patil were cited as
complainant's witnesses (SI. Nos. 106 and 114 respectively in the
. list of witnesses appended to complaint). ·

On a consideration of all the facts ·and circumstances of the case-
B balancing process-we are of the opinion. that this is not a fit case for quashing
the criminal proceedings. The proper direction to make is to direct the
expeditious trial on a day-to-day basis. Accordingly, we dismiss petition No.
833 of 1990 and direct the Special Judge designated for this case 'to take up this
case on .a .priority
.
basis and- proceed
.
with it day-to-day. until it is concluded.

C 56. Now coming to writ petition No. 268 of 1987 (Ranjan Dwivedi) the
position is this : ·

It is clear· from the material placed before us that the prosecution cannot
be held guilty of any delaying tactics or for that matter, for causing any delay
. iri the conduct of trial from the· date the criminal proceedings were transferred
D to Delhi. The-proceedings of the court 'for this period placed before us by the
respondents do clearly establish that during this period the prosecution has
always ·beeri anxious to go on with the trial. That the trial could not be
concluded so far is for reasons for which prosecution cannot be· held respon-
sible. Mr. Jethmalani submits that the accused was obliged to file the revision
E (Cr. Revision No. 191/86) in 'belhi High Court, in the year 1986, and obtain
stay of proceedings on account of the unreasonable and unfair attitude adopted
by the prosecution an.d that, therefore, the delay of five years (1986 to 1991)
should be laid at the door of the prosecution. We are afraid, we cannot do so.
It is one thing to say that ilie accused had filed the said crimin_al revision to
· protect and vindicate his rights in ·good faith' and, therefore, he cannot be
F accused of delaying tactics. But it is another ·thing to say that since the
prosecution had opposed his request to examine 13 witnesses (given up by
prosecution) as court witnesses, it should be held responsible for all this delay.
It must be remembered that the prosecution's stand was upheld by the learned
trial Judge. Thus, it is clear that from 1979 onwards (when the proceedings ,.r
were transferred to Delhi court) the prosecution cannot be said to be guilty of
G any delay. This much is practically beyond dispute. ·

Mr. Jethmalani, however, raised Certain other contentions on the basis of
1
which; he said, the proceedings against the petitioner ought to be quashed.
According to him, the prosecution is guilty of several illegalities and irregulari-
ties in this matter during the period 1975 to 1979 which establish its malovo- '
H Jenee. We have set-out the said contentions in para 23 (supra). In particular, he t
A.R. ANTULAY v. R.~. NAYAK [REDDY, J.] 385

stressed the fact that though the petitioner was arrested in July, 1975 for two A
offences (the case of attempt to murder Chief Justice Ray and L.N. Misra
murder case) the accused was never informed that he was implicated in the
latter offence. He was ne~er produced in Patna court till December, 1976 and
extension of remand was obtained from time to time without producing him
before the Patna court and without even informing him. He pointed out that on
the expiry of 90 days from the date of his arrest the petitioner had earned a right B
to be released under section 167 Cr.P.C. inasmuch as the charge~sheet was not
filed within that period. Even after the accused-petitioner obtained bail from
Delhi High Court in the criminal appeal, he could not be enlarged on bail
because of his implication in L.N. Misra murder case. The learned counsel says
that the period of incarceration subsequent to grant of bail by Delhi High Court
was illegal. Certain other alleged illegalities are also pointed out. We do not, c
however, think it proper to pronounce upon the correctness or otherwise ofthe
said aspect in this writ petition. If indeed, any such illegalities have been
committed, we are sure that they will be taken into consideration by the court
as and when the case comes up for final disposal. In this context, it is relevant ·
to notice that the petitioner did not ask for quashing of the charges on account
of Said illegalities at the proper time. We cannot quash the proceedings at this D
stage, on the1 said grounds-assuming that the said grounds are valid and
acceptable-particularly when the prosecution has completed its case after
examining as many as 151 witnesses spread over a period of five years.

Learned counsel, Sri Jethmalani also laid great stress on the fact that
C.B.I. was under an obligation to place before the court the evidence against E
two Aron Kumars, against whom they had been proceedings for about six
months and whose confessions too were got reeorded by C.B.I. The learned
•
-1

Attorney General, however disputes any such obligation but submits that the
investigation officer has explained all these circumstances in his evidence and
that he was cross-examined by accused at great length. His evidence runs into
200 pages, he said. The learned Attorney General objected to these grounds
F
being raised now on the ground that there is no foundation for these submis-
sions in the writ petition. We find it difficult to express any opinion on this
submission of Mr. Jethmalani for the reason that it is directly in issue in the
criminal revision now pending in Delhi High Court apart from the fact that no
such contention is raised in the writ petition. Suffice to say, in its present G
disputed state, it does not furnish a valid ground for quashing the entire
proceedings in the circumstances of the case.

Mr. Jethmalani also emphasised an unusual feature of this case namely,
the" charges and counter-charges levelled by C.B.I. and Bihar C.I.D. of false
implication and frame-up'against each other. He says that according to Bihar H
. )

386 SUPREME COURT REPORTS (1991] SUPP. 3 S. C.R.

A C.I.D. ·the C.B.I. is guilty of frame-up against the members of Anand Marg,
while according to C.B.I. the Bihar C.I.D. has been deliberately proceeding
against innocent persons while letting off the real culprits. But we are at a stage
where the prosecution has completed its evidence and the only thing remaining
is the examination of the accused and .the recording of defence evidence, if any.
Of course, if the criminal revision filed by the petitioner in the Delhi High
B Court succeeds such of the witnesses as may be permitted by court, will also
be examined as court witnesses. Be that as it may, the fact remains that a major
part of the trial is over. The petitioner has been released on bail by this court
as far back as 13th March, 1978. A proper disposal of the case alone will bring
out the truth. Thus, on a consideration of circumstances appearing for and
against, we are of the opinion that quashing of the charges and/or criminal
C proceedings at this stage would not be justand proper. The proper order to
make in this case is to request the Delhi High Court to dispose of Criminal
Revision No. 191of1986 as early as possible, preferably within a period of two
months from the date of copy of this order is communicated to iL After the
Criminal Revision Petition is disposed of, the trial Judge will take up the matter
and proceed with it with as much expedition as possible in the circumstances
D and preferably on a day-to-day basis.

57. Writ Petition No. 833 of 1990 and Writ Petition No. 268 of 1987 are
accordingly dismissed with the directions aforementioned. Criminal Appeal
No. 126 of 1987 preferred by State of Bihar against the judgment of the Full
Bench of the Patna High Court is also dismissed for the reasons hereinbefore.

G.N. W.P and Crl. Appeal dismissed.
..·'