Holding

The Supreme Court held that the continuation of the prosecution after an inordinate delay violated the right to a speedy trial under Article 21 and amounted to an abuse of process, thereby quashing the proceedings.

Summary

Motilal Saraf, a former manager of the State Bank of India, was repeatedly charged under the Jammu & Kashmir Prevention of Corruption Act for allegedly receiving illegal gratification. After an initial charge sheet was quashed by the High Court for lack of a valid sanction, the State filed fresh charge sheets on the same facts three times over a period of more than 26 years, despite the appellant having been discharged and no witness being examined. The appellant contended that the prolonged prosecution violated his right to a speedy trial under Article 21 and that sanction was a condition precedent for cognizance. The Supreme Court held that the continued prosecution amounted to an abuse of process and infringed the constitutional guarantee of a speedy trial, reading the right into Article 21. Consequently, the Court quashed all criminal proceedings against the appellant.

Issues considered

The validity of continuing prosecution after a delay of over two decades without any witness examination.
Whether the lack of a valid sanction under Section 6 of the J&K Prevention of Corruption Act renders the charge sheets void.
Whether filing successive charge sheets on the same facts after earlier discharge constitutes abuse of process.
Whether the High Court erred in dismissing the petition for quashing the proceedings.

Legislation cited

Code of Criminal Procedure, 1973s. 173
Ranbir Penal Codes. 161

Subjects

speedy trialArticle 21right to speedy trialabuse of processsanction requirementcriminal proceduredelayfundamental rightscorruptionpublic servant

Judgment

MOTi LAL SARAF A
v.
STATE OF JAMMU & KASMIR AND ANR.

SEPTEMBER 29, 2006

(S.B. SINHA AND DAL VEER BHANDARI, JJ.] B

Constitution of India, 1950-Article 21-Right to speedy tria/-
Cognizance of offence taken on charge sheet filed on same facts on which
accused was previously discharged twice over for want of sanction for C
prosecution-Dismissal of petition for quashing of proceedings by High
Court-Correctness of-Held Not a single witness was examined by
prosecution for over a quarter century without there being any lapse on
behalf of accused-Taking of available legal remedies by accused to protect
his interests could not be a ground to harass and humiliate him for such a
long period-Criminal proceedings quashed as their further continuation D
was total abuse of process of /aw-Right to speedy trial was available
through all stages viz. investigation, inquiry, trial, appeal and revision so
that any possible prejudice that may result front impermissible and avoidable
delay from time of commission of offence till it consummates into a finality,
can be averted
E
The appellant was working as a Manager with the respondent. He was
arrested on the allegation that he had received illegal gratification and a
charge sheet was filed against him before the Trial Court. On challenge by
appellant, these proceedings were quashed by High Court on the ground that
sanction for his prosecution was given by incompetent person. The appellant, F
however, was dismissed from service in the departmental proceedings initiated
against him, and thereafter respondents again filed a charge sheet against
him on the same set of facts on the ground that he was no more in service and
sanction for prosecution was not required. However, trial Judge held that
sanction was sine qua non for taking cognizance of the offence and discharged
the appellant. This order of the trial court was not challenged by respondent G
.. and it became final and binding between the parties. Thereafter, without
challenging the validity of this order of discharge, respondent again filed a
charge sheet before trial court Appellant again came under judicial restraint
and was asked to produce sureties for his presence in the Court. Appellant
903 H
904 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A petitioned the High Court for quashing of these proceedings. The High Court,
however, dismissed the petition. Hence the present appeal.

Appellant contended that Iii it was a clear case of abuse of process of
(
law !iii it was the right of every citizen to seek speedy trial and continuation
offurther proceedings against him was contrary to the basic spirit of Article
B 21 of the Constitution.

Allowing the appeal, the Court

HELD: 1.1. Not a single witness has been examined by the prosecution
in the last twenty six years without there being any lapse on behalf of the
C appellant 1909-EJ

1.2. The appellant, of course, had taken the legal remedy available to
him to protect his interests against illegal proceedings initiated against him
by the respondents, but that by itself could not be a ground to harass and
D humiliate the appellant for more than a quarter century. (909-E, Fl

1.3. Permitting the State to continue with the prosecution and trial any
further would be total abuse of the process of law. Consequently, the criminal
proceedings are quashed.1917-A-Bl

2. The concept of speedy trial is read into Article 21 as an essential
E part of the fundamental right to life and liberty guaranteed and preserved
under our Constitution. The right to speedy trial begins with the actual
restraint imposed by arrest and consequent incarceration and continues at
all stages, namely, the stage of investigation, inquiry, trial, appeal and revision
·so that any possible prejudice that may result from impermissible and
F avoidable delay from the time of the commission of the offence till it
consummates into a finality can be averted. f915-G-H; 916-AI

P. Ramachandra Rao v. State of Karnataka, 120021 4 SCC 578 and
Kartar Singh v. State of Punjab, 1199413 SCC 569, followed

G Abdul Rehman Antulay v. R.S. Nayak, 1199211 SCC 225, Hussainara
Khatoon (/) v. Home Secretary, State of Bihar, 119801 1 SCC 81, Rakesh
Saxena v. State through C.B.I.. 119861 Supp; SCC 505, Srinivas Gopal v. Union (
Territory of Arunachal Pradesh, (19881 4 SCC 36, T. J. Stephen v. Parle
Bottling Co. (P) Ltd., [19881 Supp. SCC 458 and Machander v. State of
Hyderabad, 119551 2 SCR 524, relied on.
H
MOTi LAL SARAF'" STATE OF JAMMU & KASMIR [DALVEER BHANDARl,J.) 905
Beavers v. Haubert, (1905) 198 US 77, 49 L Ed 950, 25 S Ct 573, Pollard A
v. United States, (1957) 352 US 354, 1 L Ed 2d 393, 77 S Ct 481, Smith v.
Hooey, (1969) 393 US 374, 21 L Ed2d 607, 89 S Ct 575, Commonwealth v.
Hanley, (337 Mass 384,149 NE 2d 608, 66 ALR 2d 222, cert den 358 US850,
3L ed 2d 85, 79 SCt 79) and State v. Carrilto'"4-Ariz 170, 16 P 2d 965, referred
to
B
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 774 of
2002.

From the final Order dated 5. 9.200 I of the High Court of Jammu and
Kashmir at Jammu in the Petition under Section 561-A 50/2000.
c
A.K. Raina, A.K. Kaul and R.D. Upadhyay for the Appellant

S. Mehndi Imam, Tabrez Ahmad and Anis Suhrawardy for the
Respondents.

The Judgment of the Court was delivered by D

DALVEER BHANDARI, J. Speedy trial as read into Article 21 as an
essential part of the fundamental right to life and liberty guaranteed and
preserved under our Constitution is the main issue which has arisen for
adjudication· in this appeal.
E
Brief facts necessary to dispose of this appeal are as follows.

The appellant was working as a Manager in the State Bank of India,
Sumbal, Kashmir in the year 1980. An FIR No. 34of1980 under Section 5(2)
of the Jammu & Kashmir Prevention of Corruption Act (for short, 'the J &
K PC Act') was registered against the appellant, pursuant to which the F
appellant was arrested on the allegation that he had received a sum of Rs. 700/
- as illegal gratification, though the amount as alleged was not recovered from
him, but from one Gulam Quadir.

On 30.4.1981 a challan under Section 173 Cr.P.C. came to be filed against G
the appellant before the court of Special Judge, Anti Corruption, Srinagar,
Kashmir under Section 5(2) of the J & K PC Act. The appellant challenged
the legality of the proceedings of the Court before the High Court of Jammu
& Kashmir in Criminal Petition No. 41 of 1982 on the ground that he was not
a public servant within the meaning of Section 21 of the Ranbir Penal Code
(for short, 'RPC'), as such, he could not be tried under the provisions of the H
906 SUPREME COURT REPORTS [20061 SUPP. 6 S.C.R.

A J & K PC Act.
The appellant also urged that the Court had no jurisdiction to try the
case because no valid sanction had been obtained for prosecution of the
f
appellant from the competent authority.

B The Court, after hearing the parties, held that the appellant was a public
servant within the meaning of Section 21 RPC being an employee of the State
Bank of India, which was engaged in trading business besides being owned
by the Central Government.

The High Court came to a definite finding that under the service rules
C of the State Bank of India, the supervisory staff was not the General Manager
(Operations). The appellant at the time of the commission of the alleged
offence was a Branch Manager and he could be removed from the service by •
the appointing authority or by an authority which was superior to the
appointing authority. That being so, the sanction given by the General Manager
D (Operations) for prosecution of the appellant on 26.5.1981 was given by an
incompetent person who had no jurisdiction or competence to remove the
appellant from the service. The sanctioning authority was not even the
appellant's appointing authority. However, under Section 6 of the J & K PC
Act which provides for initiation of prosecution, there must be a sanction
issued by a person who was empowered to remove such an official from
E service.
The High Court clearly held that it was well settled that no prosecution
could be brought before a Court without there being a proper sanction.
Existence of a valid sanction was a condition precedent for prosecution under
Section 5(2) of the J & K PC Act. In the absence of sanction, the trial Judge
F had no jurisdiction to take cognizance of the case. The Court, while allowing
the petition filed by the appellant, quashed the proceedings pending against
the appellant in the trial court under Section 5(2) of the J & K PC Act and
under Section 161 RPC.

G The appellant, however, was dismissed from service in the departmental
proceedings initiated against him, and later, in appeal, the dismissal was
converted into removal from the service. 4'
It may be pertinent to mention that the respondents again filed a challan
against the appellant before the Court of a Special Judge, Anti Corruption,
H Srinagar on 25. 7.1986, on the same set of facts that the appellant was no more
MOTi LAL SARAFv. STATEOF JAMMU & KASMIR [DALVEER BHANDARI,}] 907
in service and the sanction for prosecution was not required now. A
The chronic militancy in Srinagar led to mass migration of the minority
community. The appellant being a member of the minority community migrated
to Jammu on 23.9. I998. The appellant filed a petition before the High Court
of Jammu & Kashmir at Jammu seeking transfer of the case from the Court
of the Special Judge, Anti Corruption, Srinagar to the Court of the Special B
Judge, Anti Corruption, Jammu. The High Court vide its order dated 23.9. 1998
transferred the case.

The appellant filed an application before the trial court for quashing of
the trial on the plea that the appellant could not be prosecuted without
sanction. C
-, The learned Special Judge, Anti Corruption, Jammu after hearing the
parties vide order dated I2.3. I999 accepted the application filed by the appellant
and discharged him from the offences under Section 5(2) of the J & K PC Act
read with Section I6 I RPC. The trial court observed in its order that the
Vigilance Organization, Kashmir, despite having knowledge that earlier accorded D
sanction had been quashed, again produced the instant charge-sheet for his
trial in the year I986 on the plea that the accused had been removed from the
service, as such, no sanction as contemplated under Section 6 of the J & K
PC Act was required.
E
The Special Judge after hearing the parties observed that it was not
disputed that earlier sanction accorded to prosecute the accused was quashed
by the High Court having not been accorded by a competent authority. Even
now, no fresh sanctio·n had been obtained to prosecute the appellant from the
competent authority. When the instant charge-sheet was presented, no sanction
was in existence. The learned trial Judge interpreted Section 6 of the J & K F
PC Act and stated that, according to the said Section, sanction was sine qua
non for taking cognizance of the offence. We deem it appropriate to reproduce
Section 6 of the Act. It reads as follows:

"6. Previous sanction necessary for prosecution-{)) No Court shall
take cognizance of an offence punishable under section I6 I or section G
I65 of the Ranbir Penal Code, or under sub-section (2) of section 5
of this Act, alleged to have been committed by a public servant,
except with the previous sanction -
(a) in the case of a person who is not removable from his office save
H
908 SUPREME COURT REPORTS [2006J SUPP. 6 S.C.R.

A by or with the sanction of the Government,
(b) in the case of any other person, of the authority competent to
remove him from his office.
(2) Where for any reason whatsoever any doubt arises whether
the previous sanction as required under sub-section (I) should be
given by the Government or any other authority. such sanction shall
be given by the Government or authority which would have been
competent to remove the public servant from his office at the time
when the offence was alleged to have been committed."

c The Court clearly observed that it was immaterial whether at the time of the
presentation of the charge-sheet the accused was in service or not, but the
fact was that he had committed criminal mis-conduct while discharging his
official functions and the cognizance taken against the appellant without
sanction was bad in the eyes of law. The accord of sanction was a sine qua
non for takjng cognizance of the offence against the accused.
D
It was submitted by the appellant that the order dated 12.3.1999 passed
by the Special Judge, Anti Corruption, Jammu was not challenged and,
therefore, it became final and binding between the parties.

It was further submitted that it was astonishing that without challenging
E the validity of the order passed by the Special Judge, Jammu a challan was
filed against the appellant on the same set of facts before the Special Judge,
Anti Corruption, Jammu on 12.8.2000, by the respondent. By virtue oforder
dated 12.8.2000 the appellant again came under judicial restraint and was "
asked to produce sureties for his presence in the Court.

F The appellant filed a petition before the High Court for quashing the
proceedings pending before the Special Judge, Anti Corruption, Jammu, being
Case No. 34of1980. The High Court vide impugned judgment dismissed the
petition without appreciating the contentions raised by the appellant in proper
perspective. The appellant has now challenged the impugned order of the
G High Court dated 5.9.2001. The appellant submitted that the orders of discharge
by the High Court in the first instance and subsequently by the Special
Judge, Anti Corruption, Jammu had become final and binding because the
respondents did not challenge the said orders. It is also alleged that the
respondents could not be permitted to prosecute the appellant on the same
cause of action and on the same facts and circumstances for the third time.
H According to the appellant, this was a clear case of gross abuse of the
MOTi LAL SARAF v. STATEOF JAMMU & KASMIR [DALVEER BHANDARI, J.] 909

process of law. He further submitted that how the respondents could be A
pennitted to file a fresh challan for the third time on the same cause of action
and on the same facts and circumstances? According to the appellant, the
impugned order suffers from serious infinnities. He submitted that the High
Court ought to have appreciated that by dismissing the appellant's petition
the High Court had in fact reviewed Its own order. There was no provision B
in the Criminal Law which enabled the Court to review its own order.

The appellant further submitted that repeated filing of challans by the
respondents without any sanction had caused immense mental, physical and
emotional stress and harassment for more than 26 years. The appellant also
sought relief on the ground that it was the right of every citizen to seek C
speedy trial. Continuation of further proceedings against the appellant is
contrary to the basic spirit of Article 21 of the Constitution, and consequently,
the impugned judgment is liable to be set aside.

In the special leave petition preferred by the appellant, this Court issued
a show-cause-notice. Pursuant to that show-cause-notice, a counter affidavit D
was filed on behalf of the respondents by the Director General/Commi!;sioner
of Vigilance Organization of Jammu & Kashmir. It may be pertinent to mention
that the basic facts incorporated in the special leave petition regarding the
three challans produced by the respondents have not been denied. Admittedly,
in the last more than 26 years, not even a single witness has been examined
by the prosecution. The appellant, of course, had taken the legal remedy E
available to him to protect his interests against illegal proceedings initiated
against him by the respondents, but that by itself could not be a ground to
harass and humiliate the appellant for more than a quarter century.

It was submitted that the appellant could not have been prosecuted F
without a valid sanction. The respondents were not justified in filing the fresh
challan without getting the earlier order of the High Court and the order of
the Special Judge, Anti Corruption, Jammu quashed. It was urged that the
proceedings initiated against the appellant were totally without jurisdiction
and consequently were liable to be set aside.
G
The appellant, in the instant case, has been facing the criminal
prosecution for almost more than two and a half decades. The speedy trial
is an integral part of Article 21 of the Constitution. In the instant case, in the
last twenty six years, not even a single prosecution witness had been examined.
It was urged that for more than one reason, the prosecution, in the instant
case, cannot be permitted to continue. The proceedings taken by the H
910 SUPREME COURT REPORTS.(2006] SUPP. 6 S.C.R.

A respondents against the appellant were clearly an abuse of process of law.
This Court had repeatedly emphasized that the speedy trial is implicit
in the spectrum of Article 21 of the Constitution.

Reference was made to a Constitution Bench Judgment of this Court in
B the case of Abdul Rehman Antulay v. R. S. Nayak, [ 1992] I SCC 225. In th,is
case, the Court held that the right to a speedy trial was a part of fair, just and
reasonable proc:edure implicit in Article 21 of the Constitution. This Court, in
this case, observed that each case had to be decided on its own facts. In this
case, this Court further observed that it was not advisable and feasible to fix
C an outer time limit for conclusion of the criminal proceedings.

It was submitted in the said case that the framers of Indian Constitution
were aware of the 6th Amendment in the Constitution of the USA providing
in express terms the right of an 'accused' to be tried speedily. Yet, similar
provision was not incorporated in the Indian Constitution. It was submitted
D in that case that it is neither permissible nor possible nor desirable to lay
down an outer limit of time. The US Supreme Court also had refused to do
so.

We deem it appropriate to reproduce the relevant observations made by
this Court in the case of Hussainara Khatoon (/) v. Home Secretary. State
E of Bihar, (1980] l sec 81 as under:

"We think that even under our Constitution, though speedy trial
is not specifically enumerated as a fundamental right, it is implicit in
the broad sweep and content of Article 21 as interpreted by this that
Article 21 confers a fundamental right on every person not to be
F 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, but that the procedure should be "reasonable, fair and just".
If a person is deprived of his liberty under a procedure which is not
"reasonable, fair or just", such deprivation would be violative of his
fundamental right under Article 21 and he would be entitled to enforce
0 such fundamental right and secure his release. Now obviously
procedure prescribed by law for depriving a person of his libert)'
cannot be 'reasonable, fair or just' unless that procedure ensures a
speedy trial for determination of the guilt of such person. No procedure
which does not ensure a reasonably quick trial can be regarded as
H "reasonable, fa!f or just" and it would fall foul of Article 21. There can,
MOTi LAL SARAFv. STATE OF JAM MU & KASMIR [DALVEER BHANDARI, J.] 911

therefore, be no doubt that speedy trial, and by speedy trial we mean A
reasonably expeditious trial, is an integral and essential part of the
fundamental right to life and liberty enshrined in Article 21."

In a number of cases, this Court on consideration of peculiar facts and
circumstance of individual cases had quashed the proceedings.
B
In Rakesh Saxena v. State through C.B.l., [1986) Supp. SCC 505, this
Court quashed the proceedings on the ground that any further continuance
of 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
t:le complicated nature of the offence charged. C
This Court, in the case of Srinivas Gopal v. Union Territory ofArunachal
Pradesh, [1988) 4 SCC 36 quashed the proceedings on the ground of delay
in investigation and commencement of trial. The investigation commenced in
November 1976 and the case was registered on completion of the investigation D
in September 1977. Cognizance was taken by the Court in March 1986.

In T. J. Stephen v. Parle Bottling Co. (P) Ltd., [1988) Supp. SCC 458,
th is Court quashed the charges against the accused under Section 5 of the
Import and Exports (Control) Act, 194 7. The Court held that it would not be
in the interests of justice to allow a prosecution to start and trial to be E
proceeded with after a lapse of twenty six years even though one of the .
accused was himself responsible for inost of the delays caused by his ma/a
fide tactics.

In Machander v. State of Hyderabad, [1955) 2 SCR 524, this Court
observed that while it was incumbent on the Court to see that no guilty F
person escapes, it is still more its duty to see that justice is not delayed and
accused persons are not indefinitely harassed. The Court observed that the
scales must be held even between the prosecution and the accused. In the
facts of that case, the Court refused to order trial on account of the time
already spent and other relevant circumstances of that case.
G
In the case of A. R. Antulay (supra), this Court gave propositions meant
to serve as guidelines. This Court held that these propositions are not
exhaustive. It is difficult to foresee all situations. Nor is it possible to lay
down any hard and fast rules. This Court further observed as under:

"(I) Fair, just and reasonable procedure implicit in Article 21 of the H
912 SUPREME COURT REPORTS (2006) SUPP. 6 S.C.R.
. · .. . ·---~
\A Constitution creates a right in the accused to be tried speedily•. Right.·
to speedy triai is the right of the accused .. The fact that a speedy trial
is also in public interest or that it serves the social interest also, does
not make it any the less the right of the accused.· It is in the interest
of all concerned that the guilt or innocence of the accused is determined
as quickly as possible in the circumstances.
B
. (2) Right to speedy trial flowing from Article 21 encompasses all
the stages, namely the stage of investigation, inquiry, trial, appeal,
revision and re-trial. That is how, this Co~rt has understood this right
. and there is no reason to take a restricted view.

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

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

· (b) the worry, anxiety, expense and disturbance tg his vocation and
peac.e, resulting from an unduly prolonged investiga!ion, inquiry
· or trial should be _lllinimal; and

(c) · undue delay may well result iri imp~iiwel!t of the ability of the
E accused. to . defend himself, whe!h;r .!l'! a~~ount of death,.
disappearance or non-availabilizy pf wi1nesses or otjt~rwise ..

xxx xxxx xxxx ''
xxx . xxxx , xxxx"
F
.This Court also observed that while determining whether undue delay
has in fact occurred,. one must have regard to an the attendant circumstances,
including nature of offence, number of accused and witnesses, the workload
of the court concei-ned, prevailing loeal conditions and so on - what is called,
a· .the systematic delays ..The sum and substance is that it is neither advisable
nor practicable to fix any time limit for trial of offence. Each case has to be
decided on its own facts and circumstances:
I
This Court, as per the majority in a seven-Judge Bench; in the case of
P: Ramachandra Rao v. State of Karnataka, [2002) 4 SCC 578 came to the-
H.i conclusion and declared that this Court can interpret the law and in the

.·
MOTi LAL SARAF v. STATE OF JAMMU & KASMIR [DALVEER BHANDARI, J.) 9\3

process remove any lacuna, fill the gaps in the Legislation and even lay down A
a law with reference to the dispute before it. But it, cannot declare a new law
of general application in the manner the Legislature does. In this case, the
Court relied upon Antulay 's case (supra) and refrained from fixing any time
limit not because the Court had no power to do so, but because it was
"neither advisable nor practicable" to do so. The Court observed that since B
the law laid down by the Constitution Bench still holds the field, any
declaration made in derogation thereof fixing time limit by a smaller Bench
is overruled by virtue of the doctrine of binding precedents. The Court also
laid down that the question of delay had to be decided by the Court having
regard to the totality of circumstances of an individual case. The Court
observed that it must be left to the judicious discretion of the court seized of C
an individual case to find out from the totality of circumstances of a given
case if the quantum of time consumed up to a given point of time amounted
to violation of Article 2 I, and if so, then to terminate the particular proceedings,
and if not, then to proceed ahead. The test is whether the proceedings or trial
has remained pending for such a length of time that the inordinate delay can D
legitimately be called ~ppressive and unwarranted.

It would be pertinent to mention that the Sixth Amendment to the U.~.
Constitution states that "In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed. "These guarantees are E
the most basic rights preserved by the Constitution; fundamental liberties
embodied in the Bill of Rights. The due process clause of the Fourteenth
Amendment made them applicable to all States."

The Constitutional guarantee is for the protection of both the accused
and the society. Even in the United States where there has been a constitutional F
amendment recognizing speedy trial as an extremely valuable right of the
accused even then the Court held that no time limit could be fixed for
concluding the criminal trial. It has been held that it depends on t~e facts and
circumstances of each case.

In a celebrated American case, Beavers v. Haubert, (1905) 198 US 77,
G
49 L Ed 950, 25 S Ct ·573, it was recognized that the right to a speedy trial
is necessarily relative, and that it is consistent with delays and depends upon
circumstances.

In another case of U.S. Supreme Court, Pollard v. United States (1957) H
914 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A 352 US 354, I L Ed 2d 393, 77 S Ct 481. it was recognized that whether
delay in completing a prosecution amounts to an unconstitutional deprivation
of rights depends upon the circumstances, and that the delays must not be
purposeful or oppressive.

It was recognized that "the constitutional guarantee of a speedy trial is
B an important safeguard (I) to prevent undue and oppressive incarceration
prior to trial, (2) to minimize anxiety and concern accompanying public
accusation, and (3) to limit the possibilities that long delays will impair the
ability of an accused to defend himself. Adhering to the views expressed in
earlier decisions, the Court reiterated that the right to a speedy trial is
C necessarily relative; that it is consistent with delays; that whether delay in
completing a prosecution amounts to an unconstitutional deprivation of rights
depends upon the circumstances and that the delay must not be purposeful or
oppressive."

In Smith v. Hooey, (1969) 393 US 374, 21 L Ed 2d 607, 89 S Ct 575,
D it was recognized that the Sixth Amendment guarantee of the right to a
speedy trial is essential to protect at least three basic demands of criminal
justice: (I) to prevent undue and oppressive incarceration prior to trial, (2)
to minimize anxiety and concern accompanying public accusation, and (3) to
limit the possibilities that long delay will impair the ability of an accused to
E defend himself.

In England, from the time of the Magna Carta, an accused, in theory
at least, enjoyed the right to a speedy trial, which was secured by the
commission of goal delivery, under which the jails were cleared at least twice
each year.
F
In Commonwealth v. Hanley, [337 Mass 384, 149 NE2d 608, 66 ALR2d
222, cert den 358 US 850, 3 L ed 2d 85, 79 S Ct 79], the guarantee of speedy
trial has been held to serve a threefold purpose: it protects the accused, if
held in jail to await trial against prolonged imprisonment; it relieves him of

G
the anxiety and public suspicion attendant upon an untried accusation of
crime; and, like statutes of limit:nion, it prevents him from being exposed to
the hazards of a trial after the lapse of so great a time that the means of
-
proving his innocence may have been lost.

In the case of State v. Carrillo, [41Ariz170, 16 P2d 965], it has been
H held that an accused who has been denied speeJy trial, or who has not been '
MOTi LAL SARAF r. STATE OF JAMMU & KASMIR [DALVEER BHANDARI.]] 915
brought to trial within the time required by an implementing statute, can A
generally move to dismiss t~e prosecution on that ground.

Rule 48(b) of the Federal Rules of Criminal Prosecution authorizes
dismissal if there is unnecessary delay in presenting the charge to a grand
"
jury or in filing an information against an accused who has been held to
answer to the district court, or if there is unnecessary delay in bringing an B
accused to trial. This rule has the same effect in implementing the Sixth
Amendment right to speedy trial, as an act of Congress would have had.

A Constitution Bench of this Court has, in the case of Kartar Singh v.
State of Punjab, [1994] 3 SCC 569, mentioned that the right to a speedy trial
is a derivation from a provision of Magna Carta. This principle has also been c
incorporated into the Virginia Declaration of Rights of 1776 and from there
into the Sixth Amendment of the Constitution of United States of America
which reads, "Jn all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial ... ". It may be pointed out, in this connection, that
there is a Federal Act of 1974 called 'Speedy Trial Act' establishing a set of D
time-limits for carrying out the major events, e.g., information, indictment,
arraignment, in the prosecution of criminal cases.

In this case, this Court further observed as under:

"The right to a speedy trial is not only an important safeguard to E
prevent undue and oppressive incarceration, to minimize anxiety and
concern accompanying the accusation and to limit the possibility of
impairing the ability of an accused to defend himself but also there
/' is a societal interest in providing a speedy trial. This right has been
actuated in the recent past and the courts have laid down a series of
decisions opening up new vistas of fundamental rights. In fact, lot of F
cases are coming before the courts for quashing of proceedings on
.. the ground of inordinate and undue delay stating that the invocation
of this right even need not await formal indictment or charge."

The concept of speedy trial is read into Article 21 as an essential part
of the fundamental :ight to life and liberty guaranteed and preserved under G
our Constitution. The right to speedy trial begins with the actual restraint
,
r imposed by arrest and consequent incarceration and continues at all stages,
namely, the stage of investigation, inquiry, trial, appeal and revision so that
any possible prejudice that may result from impermissible and avoidable
delay from the time of the commission of the offence till it consummates into H
916 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A a finality, can be averted.
This Court in Hussainara Khatoon (/) (supra) further observed as under:

"No procedure which does not ensure a reasonably quick trial can
be regarded as 'reasonable, fair or just' and it would fall foul of
B Article 21. There can, therefore, be no doubt that speedy trial, and by
speedy trial we mean reasonably expeditious trial, is an integral and
essential part of the fundamental right to life and liberty enshrined in
Article 21. The question which would, however, arise is as to what
would be the consequence if a person accused of an offence is denied
speedy trial and is sought to be deprived of his liberty by imprisonment
...
c as a result of a long delayed trial in violation of his fundamental right
under Article 21. Would he be entitled to be released unconditionally
freed from the charge levelled against him on the ground that trying
him after an unduly long period of time and convicting him after (

such trial would constitute violation of his fundamental right under
D Article 21."

This Court in a number of cases has reiterated that speedy trial is one
of the facets of the fundamental right to life and liberty enshrined in Article
21 and the law must ensure 'reasonable, just and fair' procedure which has
a creative connotation after the decision of this Court in Maneka Gandhi's
E case (supra).

When we examine the instant case in the light of the aforementioned
decisions of this Court and of the US Supreme Court, it becomes abundantly
clear that no general guideline can be fixed by the court and that each case
has to be examined on its own facts and circumstances. -
F
It is the bounden duty of the court and the prosecution to prevent
unreasonable delay.

The purpose of right to a speedy trial is intended to avoid oppression
and prevent delay by imposing on the courts and on the prosecution an
G obligation to proceed with reasonable dispatch.
In order to make the administration of criminal justice effective, vibrant
and meaningful, the Union of India, the State Governments and all concerned
authorities must take necessary steps immediately so that the important
constitutional right of the accused of a speedy trial does not remain only on
H papers or is a mere formality.
MOTi LAL SARAF r. STATE OF JAMMU & KASMIR [DALVEER BHANDARI, J.) 9 J7

In the instant case not a single witness ·has been examined by the A
prosecution in the last twenty six years without there being any lapse on
behalf of the appellant. Permitting the State to continue ~ith the prosecution
and trial any further would be total abuse of the process of law. Consequently,
the criminal proceedings are quashed. The appeal is accordingly allowed and
disposed of.
B
V.S. Appeal allowed.