Holding

Prescribing outer time limits for the conclusion of criminal proceedings is impermissible; the Common Cause and Raj Deo Sharma directions are not good law, and the A.R. Antulay doctrine remains binding.

Summary

The petitioners, accused of corruption under the Prevention of Corruption Act, were acquitted by special courts after two years of delay, relying on time‑limit directions from the Common Cause and Raj Deo Sharma cases. The Karnataka High Court set aside the acquittals and entertained appeals without giving notice to the accused. The Supreme Court, sitting as a seven‑judge Constitution Bench, examined whether the earlier judgments prescribing outer time limits for criminal trials were consistent with the doctrine of precedent and the earlier A.R. Antulay decision, which held that fixing such limits is neither advisable nor permissible. The Court held that prescribing outer time limits amounts to impermissible judicial legislation, that the Common Cause and Raj Deo Sharma directions are not good law, and reaffirmed the Antulay doctrine. It ordered the High Court judgments set aside, remitted the matters for fresh hearing with notice, and emphasized the use of CrPC powers (ss. 309, 311, 258, 482) and constitutional provisions (Arts 21, 226, 227) to protect the right to a speedy trial.

Issues considered

The validity of the time‑limit directions issued in Common Cause and Raj Deo Sharma cases.
Whether such directions conflict with the doctrine of precedent as established in A.R. Antulay v. R.S. Nayak.
Whether courts may prescribe outer limits for the conclusion of criminal proceedings.
Whether the Karnataka High Court erred in allowing appeals without notice to the accused.
The appropriate statutory and constitutional powers to enforce the right to a speedy trial.

Legislation cited

Code of Criminal Procedure, 1973s. Section 258, s. Section 309, s. Section 311, s. Section 482
Constitution of Indias. Article 141, s. Article 142, s. Article 21, s. Article 226, s. Article 227, s. Article 32, s. Article 363
Prevention of Corruption Act, 1988

Subjects

right to speedy trialArticle 21doctrine of precedentjudicial legislationlimitation barsCriminal Procedure Codeprevention of corruptionconstitutional benchjudicial activismsection 309 CrPCsection 311 CrPCsection 258 CrPCsection 482 CrPC

Judgment

)__

A P. RAMA CHANDRA RAO
v.
STATE OF KARNATAKA

APRIL I 6, 2002
r.

(S.P. BHARUCHA, CJ. SYED SHAH MOHAMMED QUADRI, R.C.
LAHOTI, N. SANTOSH HEGDE, DORAISWAMY RAJU, RUMA PAL
AND ARIJIT PASAYAT, JJ.]

C Constitution ofIndia, 1950-Article 21-Right to speedy trial-Criminal
Proceedings-Limitation bar provided by judgment of smaller Benches of
Supreme Court-Held, such bar contrary to law laid down by larger Bench
in Antulay's case-Limitation bars not good law, since the same would amount
to impermissible legislation and contrary to law of precedent-To effectuate
the right to speedy trial, powers under Sections 309, 311, 258 and 482 of
D Code of Criminal Procedure and Articles 226 and 227 of Constitution could·
be exercised-Code of Criminal Procedure, 1973-Sections 309, 311, 258
and 482.

Doctrines:

E Doctrine of precedent-Pronouncements by smaller Benches contrary
to law laid down by larger Bench-Smaller Bench is bound by view expressed
by larger Bench.

Judicial Review:

F Held, is restricted to declaring and interpreting law and removing obvious
1.:icunae and filling the gaps-Not to entrench upon the field of legislation
which is meant for legislature-Constitution of India, ...J950-Articles 32, 21,
141, 142-Code of Criminal Procedure, 1973-Chapter XXXVl

G In Common Cause v. Union ofIndia, [1996) 4 SCC 33, (Common Cause
~ I); Common Cause v. Union of India, [1996) 6 SCC 775 (Common Cause 11);
Rajdev Sharma v. State of Bihar, [1998) 7 SCC (Raj Dev Sharma I); Raj Dev
Sharma II v. State ofBihar, [1999) 7 SCC 604 (Raj Dev Sharma II), the Court
had issued direction fixing outer time limits for conclusion of certain nature
of criminal proceedings.
H 60
P. RAMA CHANDRA RAO v. STATE OF KARNAT AKA 61

In the instant appeals, accused facing corruption charges were acquitted A
- by special courts in terms of directions in Raj Dev Sharma I case as there was
failure of commencement of trial despite lapse of two years from the date of

-- framing of the charges. The appeals of the State against the acquittal were
allowed by High Court without issuing notice to the respective accused.

In appeal to this Court, the question for consideration arose as to B
whether earlier decisions of this Court, in Common Cause I. Common Cause
l/, Ra.i Dev Sharma I Raj Dev Sharma II cases would apply to prosecution
" under Prevention of Corruption Act, 1988 and other economic offences. The
case was, therefore, referred to a Constitution Bench.

During the hearing, the Constitution Bench was of the opinion that the C
directions in the Common Cause cases and Raj Dev Sharma cases ran counter
to Constitution Bench directions in A.R. Antulay 's case, which had laid down
the law that an outer time limit for conclusion of all criminal proceedings
should not be drawn or prescribed. Since A.R Antu/ay's case was decided by
Bench of 5 Judges the instant case was referred to seven Judges Bench. D
The question for consideration therein was whether a Court in its zeal
to protect the right to speedy trial of an accused, can devise and almost enact
such bars oflimitation though the legislature and the statutes have not choosen
to do so.
E
Answering the question and allowing the appeals, the Court.

HELD : (Per Lahot( J for himself S.P. Bharucha, CJ!, Quadri, Hegde,
Ruma Pal and Pasayat, JJ)

1.1. It is neither advisable or feasible, nor judicially permissible to draw F
or prescribe an outer limit for conclusion of all criminal proceedings. The
time-limits or bars of limitation prescribed in the several directions made in
Common Cause (/), Raj Deo Sharma(/) and Raj Deo Sharma (II) could not have
been so prescribed or drawn and are not good law. The criminal Courts are
not obliged to terminate trial or criminal proceedings merely on account of
lapse of time, as prescribed by the directions made in Common Cause Case G
(I), Raj Deo Sharma Cases (I) and (II). At the most the periods of time
J. prescribed in those decisions can be taken by the courts seized of the trial or
proceedings to act as reminders when they may be persuaded to apply their
judicial mind to the facts and circumstances of the case before them and
determine by taking into consideration the several relevant factors as pointed H
. ').._ -

62 SUPREME COURT REPORTS [2002] 3 S.C.R.

A out in A.R. Antulay 's case and decide whether the trial or proceedings have
become so inordinately delayed as to be called oppressive and unwarranted.
Such time-limits cannot and will not by themselves be treated by any Court
as a bar to further continuance of the trial or proceedings and as mandatorily
obliging the Court to terminate the same and acquit or discharge the accused.
[84-F, G, H; 85-AJ
B
1.2. Prescribing periods of limitation at the end of which the trial court
would be obliged to terminate the· proceedings and necessarily acquit or
discharge the accused and further, making such directions applicable to all
the cases in the present and for the future amounts to legislation, which cannot
C be done by judicial directives and within the arena of judicial law-making
power available to constitutional courts, however liberally Articles 32, 21, 141
and 142 of the Constitution may be interpreted. Courts can declare the law,
they can interpret the law, they can remove obvious lacunae and fill the gaps
but they cannot entrench upon in the field of ~egislation properly meant for
the legislature. Judiciary may not, like legislature, enact a provision akin to
D or on the lines of Chapter XXVI of the Code of Criminal Procedure, 1973.
[82-F, G, H; 83-A-B]

1.3. Bars of limitation enacted in Common Cause {/), Common Cause {JI),
Raj Deo Sharma {/) and Raj Deo Sharma (//) cannot be sustained also because
the decisions though two or three-Judge Bench decisions, run counter to that
E extent to the dictum of Constitution Bench in A.R. Antu/ay 's case and therefore
cannot be said to be good law to the extent they are in breach of the doctrine
of precedents. The well settled principle of precedents which has crystalised
into a rule of law is that a Bench of lesser strength is bound by the view
expressed by a Bench of larger strength and cannot take a view in departure
p or in conflict therefrom. [83-B, CJ

1.4. The dictum in A.R. Antulay's case is correct and holds the field. The
propositions emerging from Article 21 of the Constitution and expounding
the right to speedy trial laid down as guidelines in the case, adequately take
care of right to speedy trial. The guidelines are not exhaustive but only
G illustrative. They are not intended to operate as hard and fast rules or to be
applied like a strait-jacket formula. Their applicability would depend on the
fact-situation of each case. It is difficult to foresee all situations and no
generalization can be made. [84-C, D, E,]

Abdul Rehman Antulay v. R.S. Nayak and Anr., [1992) 1 SCC 225,
H affirmed.
P. RAMACHANDRARAOv. STATEOFKARNATAKA 63
... ,,., Common Cause v. Union of India, [1996] 4 SCC 33; Common Cause v.
Union of India, [1996] 6 SCC 775; Raj Deo Sharma v. State of Bihar, (1998) 7
A
SCC 507 and Raj Deo Sharma v. State of Bihar, (1999) 7 sec 604, overruled.

Maneka Gandhi v. Union ofIndia and Anr., (1978) l sec 248; Hussainara
~'
Khatoon and Ors., (/) v. Home Secretary, State of Bihar, [1980] l SCC 81 and
Kartar Singh v. State of Punjab, (1994) 3 SCC 569, referred to. B
'Principles of Jurisprudence' I 2th Edition by Salmond; Judicial Activism
y
and 'Comtitutional Democracy in India' by Professor Sir William Wade QC; 'The
Judge (1979) by Patrick Devlin; "Judicial Activism in Jndia-Tramgressing Borders
and Enforcing limits", by Professor S.P. Sathe, referred to.
c
2. The Criminal Courts should exercise their available powers, such as
those under Sections 309, 3ll and 258 of Code of Criminal Procedure to
effectuate the right to speedy trial. A watchful and diligent trial judge can
prove to be better protector of such right than any guidelines. In appropriate
cases jurisdiction of High Court under Section 482 Cr.P.C. and Articles 226
D
and 227 of Constitution can be invoked seeking appropriate reliefor suitable
directions. (85-B, C]
,.
3. A perception of the cause for delay at the trial and in conclusion of
criminal proceedings is necessary so as to appreciate whether setting up bars
oflimitation entailing termination of trial or proceedings can be justified. Goal E
of speedy justice can be achieved by a combined and result-oriented collective
thinking and aetion on the part of the Legislature, the Judiciary, the Executive
/ and representative bodies of members of Bar. (77-E; 79-C]

Abdul Rehman Antulay and Ors., v. R.S. Nayak and Anr., jl992) l sec
225; Kartar Singh v. State ofPunjab, (I994[ 4 SCC 569 and Raj Deo Sharma II F
v. State of Bihar, ( 1999) 7 SCC 604, referred to.

I 20th Report of law Commission of India on Manpower Planning in
Judiciary, referred to.

4. Union of India and the State Government should fulfil their G
constitutional obligation to strengthen the judiciary-quantitatively and
qualitatively by providing requisite funds, manpower and infrastructure.
1-. (85-D)

5. High Court could not have condoned the delay in filing of the appeals
and then allowed the appeals without noticing the respective accused- H
)--

64 SUPREME COURT REPORTS [2002) 3 S.C.R.

A respondents before the High Court, now the High Court shall hear and decide
the appeals afresh after noticing the accused respondent before it in each of
the appeals and consistently with the principles of law laid down in the instant
case. [85-F]

Per Raju, J. (Partly dissenting with the observations as regards the
B powers and jurisdiction of Supreme Court)

1. The declaration of law in A.R. Antu/ay's case still holds the field and
its binding force and authority has not been undermined or whittled down
or altered in any manner by another decision of a larger Bench. Consequently,
the Benches of lesser number of Constitution of Judges which dealt with the
C cases could not have laid down any principles in derogation of the ratio laid
down in A.R. Antu/ay's case either by way of elaboration, expansion,
clarification or in the process of trying to distinguish the same with reference
to either the nature of causes considered therein or the consequences which
are likely to follow and which, in their view, deserve to be averted. Even where
D necessities or justification, if any, were found therefor, there could not have
been scope for such liberties being taken to transgress the doctrine of binding
precedents. The solitary reason would suffice by itself to overrule the decisions
by Bench of lesser strength. All the more so when, there is no reason to doµbt
the correctness of the decision in A.R. Antulay 's case and this Bench concurs
with the principles laid down therein. (87-B-F]
E
Abdul Rehman Antu/ay y. RS. Nayak and Anr., [1992) 1 SCC 225, affirmed.

Common Cause v. Union of India, [1996) 4 SCC 33; Common Cause v.
Union of India, (1996) 6 SCC 775; Raj Deo Sharma v. State of Bihar, [1998) 7
SCC 507 and Raj Deo Sharma v. State of Bihar, (1999) 7 SCC 604, overruled.
F 2. Though this Court does not consider itself to be an imperium in impero
or would function as a despotic branch of the 'State', the fact that the founding
fathers of Constitution designedly and deliberately, perhaps, did not envisage
the imposition of any jurisdictional embargo on this Court, except in Article
363 of the Constitution of India is significant and sufficient enough to identify
G the depth and width or extea1t of its powers. This Court is the ultimate
repository of all judicial powers at National level by virtue of it being the
Summit Court at the pyremidal height of Administration of Justice in the
country and as the upholder and final interpreter of the Constitution of India
and defender of the fundamentals of 'Rule of Law'. (87-G-H; 88-C]

H 3. The prospects and scope to achieve the desired object of a speedy
t

-~

P. RAMACHANDRA RAO v. STATE OF KARNATAKA 65
.>(
trial even within the available procedural relief, have also been indicated in A
..F the decision in A.R. Antulay 's case as well as in the main judgment in the
__,
present case. This Court should never venture to disown its own jurisdiction
' on any area or in respect of any matter or over any one authority or person,
when the Constitution is found to be at stake and the Fundamental Rights of
citlzenslpersons are under fire, to restore them to their position and uphold
' the Constitution and the Rule of Law-for which this Court bas been
B
established and constituted with due primacy and necessary powers, authority
and jurisdiction, both express and implied. [88-G, H; 89-A]
,,.
Abdul Rehman Antulay v. R.S Nayak and Anr., [lm] 1 SCC 225, referred
to. c
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
535 of 2000.

From the Judgment and Order dated 13.10.99 of the Karnataka High
Court in Cr!. A. No. 693 of 1999. D
WITH
.. Crl.A. Nos. 536, 537, 538, 539, 540, 541 and 542 of 2000.

R.N. Trivedi, Additional Solicitor General, Subodh Markandeya, Parag E
P. Tripathi, Ranjit Kumar, P. Parmeswaran, Manish Singhvi for Attorney
General for India, Ms. Binu Tamta, Varun Goswami, S. Muralidhar, S.
Vallinayagam, Shreyas Jaisimha, V.B. Joshi, Pavi Kini, A.V.L. Ram Prasad
Verma, A.P. Singh, Ms. Umang Dara, Nikhil Nayyar, Urmila Sirur, Sanjay
R. Hegde, Satya Mitra, Ms. Priya Hegde, Vikrant Yadava, A. Mariarputham,
~ Arona Mathur, G. Prabhakar, (NP.), H. Wahi, Ranjan Mukherjee, Ms. Rachana F
Srivastava, Ravindra Shrivastava, for Chattisgarh, Prakash Shrivastava, Anil
Kumar Jha, Mrs. Alka Jha, Tarachandra Sharma, Rajdev Sharma, Ms. Neelam
Sharma, Ajay Sharma, Rupesh Kumar, Ramesh Babu M.R., Ashok
Potshangbam, K.H. Nobin Singh, Inderbir Singh Alag, Rajeev Sharma, R.P.
Goel for U.P., Ms. Chitra Markandeya, Ms. Feroza Bano, Ms. Vibha Dutta
Makhija, Ms. Bharti Tyagi, Rohit Kumar Singh, S.K. Agnihotri, S.S. Shinde,
G
S.V. Deshpande, Ms. Krishna Sharma, Ms. Asha G. Nair, V.K. Sidatharan,
A Ms. A. Subhashini, J.M. Khalma and Guntur Prabhakar for the appearing
parties.

• The Judgments of the Court were delivered by H
l
,•
~

66 SUPREME COURT REPORTS [2002) 3 S.C.R.

A R.C. LAHOTI, J. No person shall be deprived of his life or his personal
~
liberty except according to procedure established by law-declares Article 21
of the Constitution. Life and liberty, the words employed in shaping Article '-
~

21, by the Founding Fathers of the Constitution, are not to be read narrowly
in the sense drearily dictated by dictionaries; they are organic terms to be '
construed meaningfully. Embarking upon the interpretation thereof, feeling
B the heart-throb of the Preamble, deriving strength from the Directive Principles ,
of State Policy and alive to their constitutional obligation, the Courts have
allowed Article 21 to stretch its arms as wide as it legitimately -can. The
mental agony, expense and strain which a person proceeded against in criminal
~
law has to undergo and which, coupled with delay, may result iii impairing
c the capability or ability of the accused to defend himself have persuaded the
constitutional courts of the country in holding the right to speedy trial a
manifestation of fair, just and reasonable procedure enshrined in Article 21.
Speedy trial, again, would encompass within its sweep all its stages including
investigation, inquiry, trial, appeal, revision and re-trial in short everything
commencing with an accusation and expiring with the final verdict the two
D being respectively the terminus a quo and terminus ad quem--0f the journey
which an accused must necessarily undertake once faced with an implication.
The constitutional philosophy propounded as right to speedy trial has though
grown in age by almost two and a half decades, the goal sought to be achieved 7L-

is yet a far-off peak. Myriad fact-situations bearing testimony to denial of
E such fundamental right to the accused persons, on account of failure on the
part of prosecuting agencies and executive to act, and their turning an almost
blind eye at securing expeditious and speedy trial so as to satisfy the mandate
of Article 21 of the Constitution have persuaded this Court in devising solutions ,
which go to the extent of almost enacting by judicial verdict bars oflimitation '--
I'
beyond which the trial shall not proceed and the arm of law shall lose its
F hold. In its zeal to protect the right to speedy trial of an accused, can the
~
Court devise and almost enact such bars of limitation though the Legislature
and the Statutes have not chosen to do so-is a question of far-reaching
implications which has led to the constitution of this Bench of seven-Judge
strength.
G .
In Criminal Appeal No. 535/2000 the appellant was working as an
Electrical Superintendent in the Mangalore City Corporation. For the check
period 1.5.1961 to 25.8.1987 he was found to have amassed assets
disproportionate to his known sources of income. Charge-sheet accusing him -~ ';
of offences under Section 13 ( l) (e) read with Section 13 (2) of the Prevention
H of Corruption Act, 1988 was filed on 15.3,1994, The accused appeared before
;.
P. RAMACHANDRARAOv. STATEOFKARNATAKA[R.C.LAHOTI,J.] 67

~
the Special Court and was enlarged on bail on 6.6.1994. Charges were framed A
on 10. 8. 1994 and the case proceeded for trial on 8. 11. 1994. However, the
trial did not commence. On 23 .2.1999 the learned Special Judge who was
seized of the trial directed the accused to be acquitted as the trial had not
commenced till then and the period of two years had elapsed which obliged

... him to acquit the accused in terms of the directions of this court in Raj Deo
Sharma v. State of Bihar, (1998] 7 SCC 507 (hereinafter, Raj Deo Sharma- B
I). The State ofKarnataka through the D.S.P. Lokayukta, Mangalore preferred
an appeal before the High Court putting in issue the acquittal of the accused.
y The learned Single Judge of the High Court, vide the impugned order, allowed
the appeal, set aside the order of acquittal and remanded the case to the Trial
Court, forming an opinion that a case charging an accused with corruption c
was an exception to the directions made in Raj Deo Sharma-I as clarified by
this Court in Raj Deo Sharma (II} v. State of Bihar, (1999] 7 SCC 604.
Strangely enough the High Court not only condoned a delay of 55 days in
filing the appeal against acquittal by the State but also allowed the appeal
itself both without even issuing notice to the accused. The aggrieved accused
has filed this appeal by special leave. Similar are the facts in all the other D
appeals. Shorn of details, suffice it to say that in all the appeals the accused
... persons who were facing corruption charges, were acquitted by the Special
Courts for failure of commencement of trial in spite of lapse of two years
from the date of framing of the charges and all the State appeals were allowed
by the High Court without noticing the respective accused persons. E
The appeals came up for hearing before a Bench of three learned Judges
who noticed the common ground that the appeals in the High Court were
allowed by the learned Judge thereat without issuing notice to the accused
and upon this ground alone, of want of notice, the appeals hereat could be
~ allowed and the appeals before the High Court restored to file for fresh F
disposal after notice to the accused but it was felt that a question arose in
these appeals which was likely to arise in many more and therefore the
appeals should be heard on their merits. In the order dated September 19,
2000, the Bench of three learned Judges stated:

"The question is whether the earlier judgments of this court, G
principally, in Common Cause v. Union of India, (1996] 4 SCC 33,
Common Cause v. Union of India, [ 1996] 6 SCC 775), Raj Deo
..l. Sharma v. State of Bihar, (1998] 7 SCC 507 and Raj Deo Sharma (II)
v. State of Bihar, [ 1999) 7 SCC 604, would apply to prosecutions

- under the Prevention of Corruption Act and other economic offences.
H
68 SUPREME COURT REPORTS (2002] 3 ·S.C.R.

A Having perused the judgments afore-mentioned, we are of the
view that these appeals should be heard by a Constitution Bench. We
take this view because we think that it may be necessary to synthesise
the various guidelines and directions issued in these judgment. We
are also of the view that a Constitution Bench should consider whether
time limits of the nature mentioned in some of these judgments can,
B under the law, be laid down".

On 25th April, 200 I the appeals were heard by the Constitution Bench
and during the course of hearing attention of the Constitution Bench was
invited to the decision of an earlier Constitution Bench in Abdul Rehman
C Antulay and Ors. v. R.S. Nayak and Anr., [1992] 1 SCC 225 and the four
judgments referred to in the order of reference dated 19th September, 2000
by the Bench of three learned Judges. It appears that the learned Judges of
the Constitution Bench were of the opinion that the directions made in the
two Common Cause cases and the two Raj Deo Sharma's cases ran counter
to the Constitution Bench directions in Abdul Rehman Antulay 's case, the
D latter being five-Judge Bench decision, the appeals deserved to be heard by
a Bench of seven learned Judges. The relevant part of the order dated 26th
April, 2001 reads as under:-

"The Constitution Bench judgement in A.R. Antulay's case holds
that "it is neither advisable nor feasible to draw or prescribe an outer
E time limit for conclusion of all criminal proceedings". Even so, the
four judgements afore-mentioned lay down such time limits. Two of
them also lay down to which class of criminal proceedings such time
limits should apply and to which class they should not.

We think, in these circumstances, that a Bench of seven learned
F Judges should consider whether the dictum afore-mentioned in A.R.
Antulay 's case still holds the field; if not, whether the general directi9ns
of the kind given in these judgements are permissible in law and
should be upheld.

Having regard to what is to be considered by the Bench of seven
G learned Judges, notice shall issue to the Attorney General and to the
Advocates General of the States.

The papers shall be placed before the Hon'ble the Chief Justice
for appropriate directions. Having regard to the importance of the
H matter, the Bench may be constituted at an early date".
P. RAMACHANDRARAOv. STATEOFKARNATAKA[R.CLAHOTl,J.] 69

On 20.2.2002 the Court directed, "Common Cause", the petitioner in A
the two Common Cause cases which arose out of writ-petitions under Article
32 of the Constitution, heard and decided by this Court as public interest
litigations, to be noticed. "Common Cause" has responded and made
appearance through counsel.

We have heard Shri R.N. Trivedi, the learned Addi. Solicitor General B
appearing for Attorney General for India, Mr. Ranjit Kumar, Senior Advocate
assisted by Ms. Binu Tamta, Advocate for the appellants, Mr. Sanjay R.
Hegde and Mr. Satya Mitra, Advocates for the respondents, Mr. S. Murlidhar,
Advocate for "Common Cause" and such other Advocates General and
Standing Counsel who have chosen to appear for the States. C

We shall briefly refer to the five decisions cited in the order ofreference
as also to a few earlier decisions so as to highlight the issue posed before us.

The width of vision cast on Article 21, so as to perceive its broad
sweep and content, by seven-Judge Bench of this Court in Mrs. Maneka D
Gandhi v. Union of India and Anr., [ 1978) 1 SCC 248, inspired a declaration
of law, made on February 12, 1979 in Hussainara Khatoon and Ors. (I) v.
~.
Home Secretary, State of Bihar, [1980) I SCC 81, that Article 21 confers a
fundamental right on every person not to be deprived of his life or liberty,
except according to procedure established by law: that such procedure is not E
some semblance of a procedure but the procedure should be "reasonable, fair
and just''; and therefrom flows, without doubt, the right to speedy trial. The
Court said - "No procedure which does not ensure a reasonably quick trial
can be regarded as 'reasonable, fair or just' and it would fall foul of Article
21. There can, therefore, be no doubt that speedy tria~ and by speedy trial
we mean reasonably expeditious trial, is an integral and essential part of the F
fundamental right to life and liberty enshrined in Article 21." Many accused
persons tormented by unduly lengthy trial or criminal proceedings, in any
forum whatsoever were enabled, by Hussainara Khatoon (I) statement of
law, in successfully maintaining petitions for quashing of charges, criminal
proceedings and/or conviction, on making out a case of violation of Article G
21 of the Constitution. Right to speedy trial and fair procedure has passed
through several milestones on the path of constitutional jurisprudence. In
Maneka Gandhi (supra), this Court held that the several fundamental rights
guaranteed by Part III required to be read as components of one integral
. whole and not as separate channels. The reasonableness of law and procedure,
to withstand the test of Articles 21, 19 and 14, must be right and just and fair H
70 SUPREME COURT REPORTS [2002] 3 S.C.R.

A and not arbitrary, fanciful or oppressive, meaning thereby that speedy trial
must be reasonably expeditious trial as an integral and essential part of the
fundamental right of life and liberty under Article 21. Several cases marking
the trend and development of law applying Maneka Gandhi and Hussainara
Khatoon (/) principles to myriad situations came up for the consideration of
B this Court by a Constitution Bench in Abdul Rehman Antulay and Ors. v. R.S.
Nayan and Ors., [1992) I SCC 225, (A.R. Antulay, for short). The proponents
of right to speedy trial strongly urged before this Court for taking one step
forward in the direction and prescribing time limits beyond which no criminal
proceeding should be allowed to go on, advocating that unless this was done,
Maneka Gandhi and Hussainara Khatoon (/) exposition of Article 21 would
C remain a mere illusion and a platitude. Invoking of the constitutional
jurisdiction of this Court so as to judicially forge two tennini and lay down
periods of limitation applicable like a mathematical fonnula, beyond which
a trial or criminal proceeding shall not proceed, was resisted by the opponents
submitting that the right to speedy trial was an amorphous one something less
than other fundamental rights guaranteed by the Constitution. The submissions
made by proponents included that the right to speedy trial flowing from ·
Article 21 to be meaningful, enforceable and effective ought to be accompanied
by an outer limit beyond which continuance of the proceedings will be violative
of Article 21. It was submitted that Section 468 of the Code of Criminal
Procedure applied only to minor offences but the Court should extend the
E same principle to major offences as well. It was also urged that a period of
IO years calculated from the date of registration of crinie should be placed
as an outer limit wherein shall .be counted the time taken by the investigation.

The Constitution Bench, in A.R. Antulay 's case, heard elaborate
arguments. The Court, in its pronouncement, fonnulated certain propositions,
F 11 in number, meant to serve as guidelines. It is not necessary for our purpose
to reproduce all those propositions. Suffice it to state that in the opinion of
the Constitution Bench (i} fair, just and reasonable procedure implicit in
Article 21 of the Constitution creates a right in the accused to be tried speedily;
(ii) right to speedy trial flowing from Article 21 encompasses all the stages,
G namely, the stage of investigation, inquiry, trial, appeal, revision and re-trial;
{iii) who is responsible for the delay and what factors have contributed towards
delay are relevant factors. Attendant circumstances, including nature of the
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 must be kept in view; (iv) each and every delay does not necessarily
H pre)udice the accused as some delays indeed work to his advantage. Guidelines
P. RAMACHANDRARAOv. STATEOFKARNATAKA[R.C. LAHOTI,l.] 71

8, 9, I 0 and II are relevant for our pwpose and hence are extracted and A
reproduced hereunder:-

"(8) Ultimately, the court has to balance and weigh the several relevant
factors 'balancing test' or 'balancing process' and determine in
each case whether the right to speedy trial has been denied in a
given case. B
(9) Ordinarily speaking, where the court comes to the conclusion
that right to speedy trial of an accused has been infringed the
charges or the conviction, as the case may be, shall. be quashed.
But this is not the only course open. The nature of the offence
and other circumstances in a given case may be such that quashing C
of proceedings may not be in the interest of justice. In such a
case, it is open to the court to make such other appropriate order
including an order to conclude the trial within a fJXed time where
the trial is not concluded or reducing the sentence where the trial
has concluded as may be deemed just and equitable in the
1
D
circumstances of the case.

(I 0) it is neither advisable nor practicable to fix any time-limit for
trial of offences. Any such rule is bound to be qualified one.
Such rule cannot also be evolved merely to shift the burden of
proving justification on to the shoulders of the prosecution. In E
every case of complaint of denial of right to speedy trial, it is
primarily for the prosecution to justify and explain the delay. At
the same time, it is the duty of the court to weigh all the
circumstances of a given case before pronouncing upon the
complaint. The Supreme Court of USA too has repeatedly refused
to fix any such outer time-limit in spite of the Sixth Amendment. F
Nor do we think that not fixing any such outer limit ineffectuates
the guarantee of right to speedy trial.

(I I) An objection based on denial of right to speedy trial and for
relief on that account, should first be addressed to the High G
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. "

,• During the course of its judgment also the Constitution Bench made H
72 SUPREME COURT REPORTS [2002] 3 S.C.R.

A certain observations which need to be extracted and reproduced:-
i :
'jB;t then speedy trial or other expressions conveying the said concept
are necessarily relative in nature. One may ask speedy means, how
speedy? How long a delay is too long? We do not think it is possible
to lay down any time schedules for conclusion ofcriminal proceedings.
B The nature of offence, the number of accused, the number of witnesses,
the workload in the particular court, means of communication and
several other circumstances have to be kept in mind". (para 83).

" .................... .it is neither advisable nor feasible to draw or prescribe
an outer time-limit for conclusion of all criminal proceedings. It is
c not necessary to do so for effectuating the right to speedy trial. We
are also not satisfied that without such an outer 1'imit, the right becomes
illusory". (para 83)

" ............... even apart from Article 21 courts in this country have been
cognizant of undue delays in criminal matters and wherever there
D 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".
(para 65) .A

[emphasis supplied]
E
In 1986, "Common Cause"-a Registered Society, espousing public
causes, preferred a petition under Article 32 of the Constitution of India
seeking certain directions. By a brief order ("Common Cause "A Registered
Society through its Director v. Union of India and Ors., [1996] 4 SCC 32,
F hereinafter Common Cause (I) ), a two-Judge Bench of this Court issued two
sets of directions: one, regarding bail, and the other, regarding quashing of
trial. Depending on the quantum of imprisonment provided for several offences
under the Indian Penal Code and the period of time which the accused have
already spent in jail, the undertrial accused confined in jails were directed to
be released on bail or on personal bond subject to such conditions as the
G Court may deem fit to impose in the light of Section 437 of Cr. P.C. The
other set of directions directed the trial in pending cases to be terminated and
the accused to be discharged or acquitted depending on the nature of offence
by reference to (i) the maximum sentence inflictable whether fine only or
imprisonment, and if imprisonment, then the maximum set out in the law,
H and (ii) the period for which the case has remained pending in the criminal
P.RAMACHANDRARAOv. STATEOFKARNATAKA[R.C. LAHOTl,J.) 73

court. A
A perusal of the directions made by the ·Division Bench shows the
cases having been divided into tWo categories: (i) traffic offences, and (ii)

- cases under IPC or any other law for the time being in force. The Court
directed the trial Courts to close such cases on the occurrence of following
event and the period of delay:- B
Category (i) : Traffic Offences:

The Court directed the cases to be closed and the accused to be
discharged on lapse of more than two years on account of non-serving of
summons to the accused or for any other reason whatsoever. C
Category (ii) : Cases under /PC or any other law for the time being in
force:

The Court directed that in the following sub-categories if the trial has
not commenced and the period noted against each sub-category has elapsed D
then the case shall be closed and the accused shall be discharged or acquitted-

Nature of the cases Period of delay i.e. trial not
commenced for
Cases compoundable with the More than two years E
permission of the Court

Cases pertaining to offences which are More than two years
non-cognizable and bailable

Cases in connection with offences More than two years F
punishable with fine only and are not
of recurring nature

Cases punishable with imprisonment More than two years
upto one year, with or without fine
G
Cases pertaining to offences
punishable with imprisonment upto
three years with or without fine

The period of pendency was directed to be calculated from the date the H
74 SUPREME COURT REPORTS [2002] 3 S.C.R.

A accused are summoned to appear in Court. The Divis.ion Bench, vide direction ,,....
4, specified. certain categories of cases to which its directions would not be
applicable. Vide direction 5, this court directed the offences covered by
direction 4 to be tried on priority basis and observance ofthi~ direction being
monitored by the High Courts. All the directions were made applicable not
only to the cases pending on the day but also to cases which may be instituted
B thereafter..

Abovesaid directions in Common Cause-I were made on May 1, 1996.
Not even a period of6 months had elapsed, on 15. IO. 1996, Shri Sheo Raj '<Ir
Purohit-a public-spirited advocate addressed a Letter Petition to this Court,
c inviting its attention to certain consequences flowing from the directions
made by this Court in Common Cause (I) and which were likely to cause
injustice to the serious detriment of the society and could result in encouraging
dilatory tactics adopted by the accused. A two-Judge Bench of this court, ..,.
which was the same as had issued directions in Common Cause (/), made
three directions which had the effect of clarifying/modifying the directions in
D Common Cause (!). The first direction clarified that the time spent in criminal
proceedings, wholly or partly, attributable to the dilatory tactics or prolonging
of trial by action of the accused, or on account of stay of criminal proceedings
-"·
secured by such accused from higher courts shall be excluded in counting the
.time-limit regarding pendency of criminal proceedings. Second direction
E defined the terminus a quo, i.e. what would be the point of commencement
of trial while working out 'pendency of trials' in Sessions Court, warrant
cases and summons cases. In the third direction, the list of cases, by reference
to nature of offence to which directions in Common Cause (I) would not
apply, was expanded.

F In Raj Deo Sharma (!), an accused charged with offences under Sections
5 (2) & 5 (I) (e) of the Prevention of Corruption Act, 1947 came up to this
Cdurt, having failed in High Court, seeking quashing of prosecution against
him on the ground of violation of right to speedy trial. Against him the
offence was registered in 1982 and chargesheet was submitted in 1985. The
accused appeared on 24.4.1987 before the Special Judge. Charges were framed
G on 4.3.1993. Until l.6.1995 only 3 out of 40 witnesses were examined. The
three-Judge Bench of this Court, which heard the case, set aside the order .....
passed by the High Court and sent the matter back to the Special Judge for ~
passing appropriate orders in the light of its jud~ent. Vide para 17, the
three-Judge Bench issued five further directions purporting to be supplemental
H to the propositions laid down in A.R. Antulay. The directions need not be
P. RAMACHANDRARAOv. STATEOFKARNATAKA[R.C. LAHOTl,J.] 75

reproduced and suffice it to observe that by dividing the offence into two A
categories those punishable with imprisonment for a period not exceeding 7
years and those punishable with imprisonment for a period exceeding 7 years,
the Court laid down periods of limitation by reference to which either the
prosecution evidence shall be clo'fed or the accused shall be released on bail .
•
- So far as the trial for offences is concerned, for the purpose of making
directions, the Court categorized the offences and the nature and period of
delay into two, which may be set out in a tabular form as under:- ·
B

Nature of offence Nature and period of delay
Completion of two years from the
Offence punishable with
date of recording the plea of the C
imprisonment for a period not
accused on the charges framed,
exceeding seven years,
whether the prosecution has examined
whether the accused is in jail
all the witnesses or not within the said
or not.
period of two years

Completion of three years from the
D
Offence punishable with
imprisonment for a period date of recording the plea of the
exceeding seven years, accused on the charge framed,
whether the accused is in jail whether the prosecution has examined
or not all the witnesses or not within the said
period E

The consequence which would follow on completion of two or three
years, as abovesaid, is, the Court directed, that the trial Court shall close the
prosecution evidence and can proceed to the next step of trial. In respect of F
the second category, the Court added a rider by way of exception stating -
"Unless for very exceptional reasons to be recorded and in the interest of
justice, the Court considers it necessary to grant further time to the prosecution
to adduce evidence beyond the aforesaid time limit" (of three years). The
period of inability for completing prosecution evidence attributable to conduct G
of accused in protracting the trial and the period during which trial remained
stayed by orders of the court or by operation of law was directed to be
excluded from calculating the period at the end of which the prosecution
evidence shall be closed. Further, the Court said that the directions made by
it shall be in addition to and without prejudice to the directions issued in
Common Cause (I) as modified in Common Cause (II). H
76 SUPREME COURT REPORTS [2002] 3 S.C.R.

A Raj Deo Sharma (/) came up once again for consideration of this
Court in Raj Deo Sharma v. State of Bihar, [1999] 7 SCC 604, hereinafter
Raj Deo Sharma (II}. This was on an application filed by Central Bureau of
Investigation (CBI) for clarification (and also for some modification) in the
directions issued. The three-Judge Bench which heard the matter consisted of
B K.T. Thomas, J. and M. Srinivasan, J. who were also on the Bench issuing •
directions in Raj Deo Sharma (/) and M.B. Shah, J. who was not on the
Bench in Raj Deo Sharma (/). In the submission of CBI the directions of the
Court made in Raj Deo Sharma (/) ran counter to A.R. Antulay and did not
take into account the time taken by the Court on account of its inability to
carry on day to day trial due to pressure of work. The CBI also pleaded for
C the directions in Raj Deo SharmQ (/) being made prospective only, i.e., period
prior to the date of directions in Raj Deo Sharma (/) being excluded from
consideration. All the three learned Judges wrote separate judgments. K.T.
Thomas, J. by his judgment, to avert 'possibility of miscarriage ~f justice',
added a rider to the directions made in Raj Deo Sharma (/) that an additional
• period of one year can be claimed by the prosecution in respect of prosecutions
.D which were pending on the date of judgment in Raj Deo Sharma (/) and the
Court concerned would be free to grant such extension if it considered it
necessary in the interest of administration of criminal justice. M. Srinivasan,
J. in his separate judgment, assigning his own reasons, expressed concurrence
with the opinion expressed and the only clarification ordered to be made by
E K.T. Thomas, J. and placed on record his express disagreement with the
opinion recorded by M.B. Shah, J.

M.B. Shah, J. in his dissenting judgment noted the most usual causes
for delay in delivery of criminal justice as discernible from several reported
cases travelling upto this Court and held that the remedy for the causes of
F delay in disposal of criminal cases lies in effective steps being taken by the
Judiciary, the Legislature and the State Governments, all the three. The dangers
behind constructing time-limit barriers by judicial dictum beyond which a
criminal trial or proceedings could not proceed, in the opinion of M.B. Shah,
J., are (i) it would affect the smooth functioning of the society in accordance
G w!th law and finally the Constitution. The victims left without any remedy
would resort to taking revenge by unlawful means resulting in further increase
in the crimes and criminals. People at large in the society would also feel
unsafe and insecure and their confidence in the judicial system would be
shaken. Law would lose its deterrent effect on criminals; (ii) with the present ~
strength of Judges and infrastructure available with criminal courts it would
H be almost impossible for the available criminal courts to dispose'ofthe cases
P.RAMACHANDRARAOv. STATEOFKARNATAKA[R.C. LAHOTI,J.) 77

within the prescribed time-limit; (iii) prescribing such time-limits may run A
counter to the law specifically laid down by Constitution Bench in Antulay's
case. In the fore-quoted thinking ofM.B. Shah, J. we hear the echo of what

- Constitution Bench spoke in Kartar Singh v. State of Punjab, [ 1994] 3 SCC
569, vide para 351, "No doubt, liberty of a citizen must be zealously
safeguarded by the courts; nonetheless the courts while dispensing justice in
cases like the one under the TADA Act, should keep in mind not only the
B
liberty of the accused but also the interest of the victim and their near and
dear and above all the collective interest of the community and the safety of
the nation so that the public may not lose faith in the system of judicial
administration and indulge in private retribution. "

At the end M.B. Shah, J. opined that order dated 8.10.1998 made in Raj
c
Deo Sharma (I) requires to be held in abeyance and the State Government
and Registrars of the High Courts ought to be directed to come up with
specific plans for the setting up of additional courts/special courts (permanent/
ad hoc) to cope up with the pending workload on the basis of available
figures of pending cases also by taking into consideration the criteria for D
disposal of criminal cases prescribed by various High Courts. In conclusion,
the Court directed the application filed by the CBI to be disposed of in terms
of the majority opinion.

A perception of the causes for delay at the trial and in tonclusion of
criminal proceedings is necessary so as to appreciate whether setting up bars E
of limitation entailing termination of trial or proceedings can be justified.
The root cause for delay in dispensation of justice in our country is poor
judge-population-ratio. Law Commission of India in its !20th Report on
Manpower Planning in Judiciary (July 1987), based on its survey, regretted
that in spite of Article 39A added as a major Directive Principle in the F
Constitution by 42nd Amendment (1976), obliging the State to secure such
operation of legal system as promotes justice and to ensure that opportunities
for securing justice are not denied to any citizen several reorganisation
proposals in the field of administration of justice in India have been basically
patch work, ad hoc and unsystematic solutions to the problem. The judge-
population-ratio in India (based on 1971 census) was only 10.5 judges per G
r.«illion population while such ratio was 41. 6 in Australia, 50.9 in England,
75.2 in Canada and 107 in United States. The Law Commission suggested
that India required 107 judges per million of Indian population; however to
begin with the judge strength needed to be raised to five-fold, i.e., 50 judges
-. per million population in a period of five years but in any case not going H
'\

~
•
'
78 SUPREME COURT REPORTS [2002] 3 S.C.R.

.,...._
A beyond ten years. Touch of sad sarcasm is difficult to hide when the Law
Commission observed (in its 120th Report, ibid) that adequate reorganisation
of the Indian judiciary is at the one and at the same time everybody's concern
and, therefore, nobody's concern. There are other factors contributing to the
delay at the trial. In A.R. Antulay 's case, vide para 83, the Constitution Bench
has noted that in spite of having proposed to go on with the trial of a case,
.....
B five days a week and week after week, it may not be possible to conclude the
trial for reasons, viz. ( 1) non-availability of the counsel, (2) non-availability
of the accused, (3) interlocutory proceedings, and (4) other systemiC delays.
In addition, the Court noted that in certain cases there may be a large number ~.

of witnesses and in some offences, by their very nature, the evidence may be #

c lengthy. In Kartar Singh v. State of Punjab, [1994) 3 SCC 569 another
Constitution Bench opined that the delay is dependent on the circumstances
of each case because reasons for delay will vary, such as {i) delay in.
investigation oil account of the widespread ramifications of crimes and its
designed network either nationally or internationally, (ii) the deliberate absence
of witness or witnesses, (iii) crowded dockets on the file of the court etc. In
D Raj Deo Sharma (JI), in the dissenting opinion of M. B. Shah, J., the reasons
for delay have been summarized as, (1) Dilatory proceedings; (2) Absence of
effective steps towards radical simplification and streamfining of criminal
~
proced1;re; (3) Multi-tier appeals/revision applications and diversion to disposal
.....
of interlocutory matters; (4) Heavy dockets; mounting arrears; delayed service
E of process; anti (5) Judiciary, starved by executive by neglect of basic
necessities and amenities, enabling smooth functioning.

Several cases coming to our notice while hearing appeals, petitions
and miscellaneous petitions (such as for bail and quashing of proceedings)
reveal, apart from inadequate judge strength, other factors contributing to the
F delay at the trial. Generally speaking, these are: (i) absence of, or delay in
appointment of, public prosecutors proportionate with the number of courts/
cases; (ii) absence of or belated service of summons and warrants on the
accused/witnesses; (iii) non-production of undertrial prisoners in the Court;
(iv) presiding Judges proceeding on leave, though the cases are fixed for
trial; (v) strikes by members of Bar; and (vi) counsel engaged by the accused
G suddenly declining to appear or seeking an adjournment for personal reasons
or personal inconvenience. It is common knowledge that appointments of J

public prosecutors are politicized. By convention, government advocates and
~
public prosecutors were appointed by the executive on the recommendation
of or in consultation with the head of judicia~ administration at the relevant
H level but gradually the executive has started bypassing the merit based ......
P. RAMA CHANDRA RAO v. STATE OF KARNATAKA [R.C. LAHOTI, J.] 79
--',
....... ~
recommendations of, or process of consultation with, District and Sessions A
• Judges. For non-service of summons/orders and non-production of undertrial
prisoners, the usual reasons assigned are shortage of police personnel and
-'.
' police people being busy in VIP duties or law and order duties. These can
hardly be valid reasons for not making the requisite police personnel available

-
for assisting the Courts in expediting the trial. The members of the Bar shall
also have to realize and remind themselves of their professional obligation- B
legal and ethical, that having accepted a brief for an accused they have no
justification to decline or avoid appearing at the trial when the case is taken
~
up for hearing by the Court. All these factors demonstrate that the goal of
..J speedy justice can be achieved by a combined and result-oriented collective
thinking and action on the part of the Legislature, the Judiciary, the Executive c
and representative bodies of members of Bar.

Is it at all necessary to have limitation bars terminating trials and
~·
proceedings? Is there no effective mechanisms available for achieving the
same end? The Criminal Procedure Code, as it stands, incorporates a few
provisions to which resort can be had for protecting the interest of the accused D
and saving him from unreasonable prolixity or laxity at the trial amounting
to oppression. Section 309, dealing with power to postpone or adjourn
,_ proceedings, provides generally for every inquiry or trial, being proceeded
~ with as expeditiously as possible, and in particular, when the examination of
..J.. witnesses has once begun, the same to be continued from day to day until all
E
the witnesses in attendance have been examined, unless the Court finds the
adjournment of the same beyond the following day to be necessary for reasons
to be recorded. Explanation-2 to Section 309 confers power on the Court to
impose costs to be paid by the prosecution or the accused, in appropriate
cases, and putting the parties on terms while granting an adjournment or
postponing of proceedings. This power to impose costs is rarely exercised by F
the Courts. Section 258, in Chapter XX of Cr. P.C., on Trial of Summons-
cases, empowers the Magistrate trying summons cases instituted otherwise
than upon complaint, for reasons to be recorded by him, to stop the proceedings
at any stage without pronouncing any judgment and where such stoppage of
proceedings is made after the evidence of the principal witnesses has been
recorded, to pronounce a judgment of acquittal, and in any other case, release
G
the accused, having effect of discharge. This provision is almost never used
by the Courts. In appropriate cases, inherent power of the High Court, under
A- Section 482 can be invoked to make such orders, as may be necessary, to
give effect to any order under the Code of Criminal Procedure or to prevent

- abuse of the process of any Court, or otherwise, to secure the ends of justice. H
80 SUPREME COURT REPORTS [2002] 3 S.C.R.
..
)'-

........ ~
~
A The power is wide and, if judiciously and consciously exercised, can take I
t·
care of almost all the situations where interference by the High Court becomes
necessary on account of delay in proceedings or for any other reason amounting t·
~

to oppression or harassment in any trial, inquiry or proceedings. In appropriate
cases, the High Courts have exercised their jurisdiction under Section 482 of
Cr. P.C. for quashing of first information report and investigation, and
B terminating criminal proceedings if the case of abuse of process of law was J'I

clearly made out. Such power can certainly be exercised on a case being
made out of breach of fundamental right conferred by Article 2 I of the
Constitution. The Constitution Bench in A.R. Antulay's case referred to such
....,
power, vesting in the High Court (vide paras 62 and 65 of its judgment) and '-
c held that it was clear that even apart from Article 2 I, the Courts can take care
of undue or inordinate delays in criminal matters or proceedings if they
remain pending for too long and putting to an end, by making appropriate
orders, to further proceedings when they are found to be oppressive and __,,..'
unwarranted.

D Legislation is that source of law which consists in the declaration of
legal rules by a competent authority. When judges by judicial decisions lay
down a new principle of general application of the nature specifically reserved >
for legislature they may be said to have legislated, and not merely declared
~

the law. Salmond on Principles of Jurisprudence (12th Edition) goes on to
\
E say "we must distinguish law-making by legislators from law-making by the
courts. Legislators can lay down rules purely for the future and without
reference to any actual dispute; the courts, insofar as they create law, can do
....
so only in application to the cases before them and only insofar as is necessary
for their solution. Judicial law-making is incidental to the soiving of legal
disputes; legislative law-making is the central function of the legislator" (page
F I 15). It is not difficult to perceive the dividing line between permissible ):

legislation by judicial directives and enacting law the field exclusively reserved
for legislature. We are concerned here to determine whether in prescribing
various periods of limitation, adverted to above, the Court transgressed the
limit of judicial legislation.
>.
G Bars of limitation, judicially engrafted, are, no doubt, meant to provide
a solution to the aforementioned problems. But a solution of this nature gives -.;.
rise to greater problems like scuttling a trial without adjudication, stultifying -:'
access to justice and giving easy exit from the portals of justice. Such general
remedial measures cannot be said to be apt solutions. For two reasons we
H hold such bars of limitation uncalled for and impermissible : first, because it
P. RAMACHANDRARAOv. STATE OF KARNATAKA [R.C. LAHOTl,1.] 81

,. tantamounts to impermissible legislation-an activity beyond the power which A
. the Constitution confers on judiciary, and secondly, because such bars of
limitation fly in the face of law laid down by Constitution Bench in A. R.
., Antulay's case and, therefore, run counter to the doctrine of precedents and
.., their binding efficacy .
.... In a monograph "Judicial Activism and Constitutional Democracy in B
India", commended by Professor Sir William Wade, Q. C. as a "small book
devoted to a big subject", the learned author, while recording appreciation of
judicial activism, sounds a note of caution "it is plain that the judi~iary is the
least competent to function as a legislative or the administrative agency. For
one thing, courts lack the facilities to gather detailed data or to make probing c
enquiries. Reliance on advocates who appear before them for data is likely
to give them partisan or inadequate information. On the other hand if courts
have to rely on their own knowledge or research it is bound to be selective
'• and subjective. Courts also have no means for effectively supervising and
implementing the aftermath of their orders, schemes and mandates. Moreover,
since courts mandate for isolated cases, their decrees make no allowance for D
the differing and varying situations which administrators will encounter in
... applying the mandates to other cases. Courts have also no method to reverse

- their orders if they are found unworkable or requiring modification".
Highlighting the difficulties which the courts are likely to encounter if
embarking in the fields of legislation or administration, the learned author
advises " the Supreme Court could have well left the decision-making to the
E
other branches of government after directing their attention to the problems
rather than itself entering the remedial field".

The primary function of judiciary is to interpret the law. It may lay
down principles, guidelines and exhibit creativity in the field left open and F
unoccupied by Legislation. Patrick Devlin in 'The Judge' (1979) refers to the
role of the Judge as lawmaker and states that there is no doubt that historically
judges did make law, at least in the sense of formulating it. Even now whe,(l
they are against innovation, they have never formally abrogated their powers;
their attitude is: 'We could if we would but we think it better not. 'But as a
G
matter of history did the English judges of the golden age make law? They
decided cases which worked up into principles. The judges, as Lord Wright
once put it in an unexpectedly picturesque phrase, proceeded 'from case to
case, like the ancient Mediterranean mariners, hugging the coast from point
to point and avoiding the dangers of the open sea of system and science'. The
~
golden age judges were not rationalisers and, except in the devising of H
-~
82 SUPREME COURT REPORTS (2002) 3 S.C.R.

A procedures, they were not innovators. They did not design a new machine ..,...
capable of speeding ahead; they struggled with the aid of fictfons and bits of
procedural string to keep the machine on the road.

Professor S.P. Sathe, in his recent work (Year 2002) "Judicial Activism
in India Transgressing Borders and Enforcing Limits", touches the topic
,,.
B "Directions : A New Fonn of Judicial Legislation". Evaluating legitimacy of L
judicial activism, the learned author has cautioned against Court "legislating"
exactly in the way in which a Legislature legislates and he observes by
reference to a few cases that the guidelines laid down by court, at times, cross ....
the border ofjudicial law making in the realist sense and trench upon legislating
c like a Legislature. "Directions are either issued to fill in the gaps in the
legislation or to provide for matters that have not been provided by any
legislation. The Court has taken over the legislative function not in the
traditional interstitial sense but in an overt manner and has justified it as
being an essential component of its role as a constitutional court." (p. 242).
"In a strict sense these are instances of judicial excessivism that fly in the
....,
..

D face of the doctrine of separation of powers. The doctrine of separation of
powers envisages that the legislature should make law, the executive should

E
execute it, and the judiciary should settle disputes in accordance with the
existing law. In reality such watertight separation exists nowhere and is
impracticable. Broadly, it means that one organ of the State should not perform
a function that essentially belongs to another organ. While law-making through
interpretation and expansion of the meanings of open-textured expressions
....
.~

such as 'due process of law', 'equal protection of law', or 'freedom of speech
and expression' is a legitimate judicial function, the making of an entirely
new Iaw ...........through directions ........ .is not a legitimate judicial function."
(p. 250).
F
Prescribing periods of limitation at the end of which the trial court
would be obliged to terminate the proceedings and necessarily acquit or
discharge the accused, and further, making such directions applicable to all
the cases in the present and for the ~ture amounts to legislation, which, in
our opinion, cannot be done by judicial directives and within the arena of the
G judicial law-making power available to constitutional courts, howsoever
liberally we may interpret Articles 32, 21, 141 and 142 of the Constitution.
The dividing line is fine but perceptible. Courts can declare the law, they can
interpret the law, they can remove obvious lacunae and fill the gaps but they ~
cannot entrench upon in the field of legislation properly meant for the
H legislature. Binding directions can be issued for enforcing the law and ..
•
P. RAMA CHANDRA RAO v. STATE OF KARNATAKA [R.C. LAHOTI, J.) 83
..,. appropriate directions may issue, including laying down of time limits or A
chalking out a calendar for proceedings to follow, to redeem the injustice
done or for taking care of rights violated, in a given case or set of cases,
depending on facts brought to the notice of Court. This is permissible for
judiciary to do. But it may not, like legislature, enact a provision akin to or
on the lines of Chapter XXXVI of the Code of Criminal Procedure, 1973.
B
The other reason why the bars of limitation enacted in Common Cause
(I), Common Cause (II) and Raj Deo Sharma (/) and Raj Deo Sharma (II)
>- cannot be sustained is that these decisions though two or three-judge Bench
decisions run counter to that extent to the dictum of Constitution Bench in
A.R. Antu/ay's case and therefore cannot be said to be good law to the extent
they are in breach of the doctrine of precedents. The well settled principle of
c
precedents which has crystalised into a rule of law is that a bench of lesser
strength is bound by the view expressed by a bench of larger strength and
cannot take a view in departure or in conflict therefrom. We have in the
earlier part of this judgment extracted and reproduced passages from A.R.
Antulay 's case. The Constitution Bench turned down the fervent plea of D
proponents of right to speedy trial for laying down time-limits as bar beyond
... which a criminal proceeding or trial shall not proceed and expressly ruled
that it was neither advisable nor practicable (and hence not judicially feasible)
T
to fix any time-limit for trial of offences. Having placed on record the
exposition of law as to right to speedy trial flowing from Article 21 of the
E
Constitution this Court held that it was necessary to leave the rule as elastic
and not to fix it in the frame of defined and rigid rules. It must be left to the
judicious discretion of the court seized of an individual case to find out from
the totality of circumstances of a given case if the quantum of time consumed
upto a given point of time amounted to violation of Article 21, and if so, then
.. to terminate the particular proceedings, and if not, then to proceed ahead . F
The test is whether the proceedings or trial has remained pending for such a
length oftime that the inordinate delay can legitimately be called oppressive
and unwarranted, as suggested in A.R. Antulay. In Kartar Singh 's case (supra)
the Constitution Bench while recognising the principle that the denial of an
accused's right of speedy trial may result in a decision to dismiss the indictment
or in reversing of a conviction, went on to state, "Of course, no length of
G
time is per se too long to pass scrutiny under this principle nor the accused
... is called upon to show the actual prejudice by delay of disposal of cases. On
the other hand, the court has to adopt a balancing approach by taking note
of the possible prejudices and disadvantages to be suffered by the accused by
avoidable delay ar.d to determine whether the accused in a criminal proceeding H
84 SUPREME COURT REPORTS [2002] 3 S.C.R.

A has been deprived of his right of having speedy trial with unreasonable delay y-
which could be identified by the factors (1) length of delay, (2) the justification
for the delay, (3) the accused's assertion of his right to speedy trial, and (4)
prejudice caused to the accused by such delay. " (para 92).

For all the foregoing reasons, we are of the opinion that in Common
B Cause case (I) (as modified in Common Cause (II) ) and Raj Deo Sharma (I) .
and (JI), the Court could not have prescribed periods of limitation beyond
which the trial of a criminal case or a criminal proceeding cannot continue
and must mandatorily be closed followed by an order acquitting or discharging .....
the accused. In conclusion we hold:-
c (I) The dictum in A.R. Antulay 's ca.se is correct and still holds the
field.
(2) The propositions emerging from Article 21 of the Constitution
and expounding the right to speedy trial laid down as guidelines
in A.R. Antulay's case, adequately take care of right to speedy
D trial. We uphold and re~affirm the said propositions.
(3) The guidelines laid down in A.R. Antulay 's case are not exhaustive
but only illustrative. They are not intended to operate as hard A
and fast rules or to be applied like a strait-jacket formula. Their
i'
applicability would depend on the fact-situation of each case. It
E is difficult to foresee all situations and no generalization can be
made.
(4) It is neither advisable, nor feasible, nor judicially permissible to
draw or prescribe an outer limit for conclusion of all criminal
proceedings. The time-limits or bars of limitation prescribed in
F the several directions made in Common Cause (!), Raj Deo ~

Sharma (I) and Raj Deo Sharma (JI) could not have been so
prescribed or drawn and are not good law. The criminal courts
are not obliged to terminate trial or criminal proceedings merely
on account of lapse of time, as prescribed by the directions made
G in Common Cause Case(!), Raj Deo Sharma case (I) and (II).
At the most the periods of time prescribed in those decisions can
be taken by the courts seized of the trial or proceedings to act as
reminders when they may be persuaded to apply their judicial
..;.._
mind to the facts and circumstances of the case before them and
determine by taking into consideration the several ,relevant factors
H as pointed out in A.R. Antulay 's case and decide whether the trial
P. RAMA CHANDRA RAO v. STA TE OF KARNATAKA [R.C. LAHOTI, l.] 85 .

or proceedings have become so inordinately delayed as to be A
called oppressive and unwarranted. Such time-limits cannot and
will not by themselves be treated by any Court as a bar to further
continuance of the trial or proceedings and as mandatorily obliging
the court to terminate the same and acquit or discharge the
accused.
B
(5) The Criminal Courts should exercise their available powers, such
as those under Sections 309, 311 and 258 of Code of Criminal
Procedure to ~ffectuate the right to speedy trial. A watchful and
diligent trial judge can prove to be better protector of such right
than any guidelines. In appropriate cases jurisdiction of High C
Court under Section 482 of Cr. P.C. and Articles 226 and 227 of
Constitution can be invoked seeking appropriate relief or suitable
directions
(6) This is an appropriate occasion to remind the Union of India and
the State Governments of their constitutional obligation to D
strengthen the judiciary-quantitatively and qualitatively by
providing requisite funds, manpower and infrastructure. We hope
and trust that the Governments shall act.

We answer the questions posed in the orders of reference dated
September 19, 2000 and April 26, 2001 in the abovesaid terms. E
The appeals are allowed. The impugned judgments of the High Court
are set aside. As the High Court could not have condoned the delay in filing
of the appeals and then allowed the appeals without noticing the respective
accused-respondents before the High Court, now the High Court shall hear
and decide the appeals afresh after noticing the accused-respondent before it F
~ in each of the appeals and consistently with the principles of law laid down
hereinabove.

Before we may part, we would like to make certain observations ex
abundanti cautela :
G
Firstly, we have dealt with the directions made by this Court in Common
Cause Case-I and // and Raj Deo Sharma Case I and II regarding trial of
cases. The directions made in those cases regarding enlargement of accused
.... persons on bail are not subject matter of this reference or these appeals and
we have consciously abstained from dealing with legality, propriety or H
otherwise of directions in regard to bail. This is because different considerations
,)..,...

86 SUPREME COURT REPORTS [2002) 3 S.C.R.

A arise before the criminal courts while dealing with termination of a trial or
proceedings and while dealing with right of accused to be enlarged on bail.

Secondly, though we are deleting the directions made respectively by
two and three-Judge Benches of this Court in the cases under reference, for
reasons which we have already stated, we should not, even for a moment, be
B considered as having made a departure from the law as to speedy trial and
speedy conclusion of criminal proceedings of whatever nature and at whichever
stage before any authority or the court. It is the constitutional obligation of
the State to dispense speedy justice, more so in the field of criminal law, and
paucity of funds or resources is no defence to denial of right to justice
C emanating from Articles 21, 19 and 14 and the Preamble of the Constitution
as also from the Directive Principles of State Policy. It is high time that the
Union of India and the various States realize their constitutional obligation
and do something concrete in the direction of strengthening the justice delivery
system. We need to remind all concerned of what was said by this Court in
Hussainara Khatoon (JV) [1980] l SCC 98, "The State cannot be permitted
D to deny the constitutional right of speedy trial to the accused on the ground
that the State has no adequate financial resources to incur the necessary
expenditure needed for improving the administrative and judicial apparatus '
with a view to ensuring speedy trial. The State may have its financial
constraints and its priorities ih expenditure, but; 'the law does not permit any
E government to deprive its citizens of constitutional rights on a plea of poverty',
or administrative inability. "

Thirdly, we are deleting the bars of limitation on the twin grounds that
it amounts to judicial legislation, which is not permissible, and because they
run counter to the doctrine of binding precedents. The larger question of
F powers of this court to pass orders and issue directions in public interest or
in social action litigations, specially by reference to Articles 32, 141, 142 and
144 of the Constitution, is not the subject matter of reference before us and
this judgment should not be read as an interpretation of those Articles of the
Constitution and laying down, defining or limiting the scope of the powers
G exercisable thereunder by this Court.

And lastly, it is clarified that this decision shall not be a ground for re-
opening a case or proceeding by setting aside any such acquittal or discharge
as is based on the authority of 'Common Cause' and 'Raj Deo Sharma' cases -t_
and which has already achieved finality and re-open the trial against the
H accused therein.

l
P. RAMACHANDRARAOv. STATEOFKARNATAKA [RAJU,J.] 87

RAJU, J. l have had the privilege of going through the judgment of A
esteemed and learned brother RC. Lahoti, J., ·while I am in respectful
agreement that the appeals are to be allowed and remitted to the High Court
to be heard and decided afresh, I feel compelled to express my reservation
and inability to subscribe to some of the observations contained therein relating
to the powers and jurisdiction of this Court.
B
The declaration of law made by the Constitution Bench of five learned
Judges of this Court in the decision reported in A.R. Antu/ay's case [1992)
I sec 225 still holds the field and its binding force and authority has not
been undermined or whittled down or altered· in any manner by an other
decision of a larger Bench. Consequently, the Benches of lesser number of C
Constitution of Judges which dealt with the cases reported in "Common
Cause" A Regd. Society through its Director v. Union of India and Ors.,
[1996) 4 SCC 33]; "Common Cause" A Regd. Society through its Director
v. Union of India and Ors., [1996] 6 SCC 775]; Raj Deo Sharma v. State of
Bihar, (1998) 7 SCC 507) and Raj Deo Sharma {II) v. State of Bihar, [1999)
7 sec 604 could not have laid down any principles in derogation of the ratio D
laid down in A.R. Antulay 's case (supra) either by way of elaboration,
expansion, clarification or in the process of trying to distinguish the same
with reference to either the nature of causes considered therein or the
consequences which are likely to follow and which, in their view, deserve to
be averted. Even where necessities or justification, if any, were found therefor, E
there could not have been scope for such liberties being taken to transgress
the doctrine of binding precedents, which has come to stay firmly in our
method of Administration of Justice and what is permissible even under such
circumstances being only to have had the matter referred to for reconsideration
by a larger Bench of this Court and not to deviate by no other means. This
solitary reason would suffice by itself to overrule the above decisions, the F
correctness of which stand referred to for consideration by this Bench. All
the more so when, there is no reason to doubt the correctness of the decision
in A.R. Antulay's case (supra) and this Bench concurs with the principles laid
down therein.

Though this Court does not consider itself to be an Imperium in Imperio G
or would function as a despotic branch of 'The State', the fact that the
founding fathers of our Constitution designedly and deliberately, perhaps,
did not envisage the imposition of any jurisdictional embargo on this Court,
except in Article 363 of the Constitution of India is significant and sufficient
enough, in my view, to identify the depth and width or extent of its powers. H
88 SUPREME COURT REPORTS [2002] 3 S.C.R.

· A The other fetters devised or perceive_d on its exercise of powers or jurisdiction
to entertain/~eal with a matter were merely self-imposed for one or the oth,er
reason assigned therefor arid they could not stand in the way of or deter this
Court in any manner from rising up to respond in a given situation as and
when necessitated and effectively play its role . in accommodating the
B Constitution to changing circumstances and enduring values as a 'Sentinel on
the qui vive' to preserve and safeguard the Constitution, protect and enforce
the fundamental rights and other constitutional mandates which constitute the
inviolable rights of the people as well as those features, which formed its
basic structure too and considered to be even beyond the reach of any
subsequent constitutional amendment. In substance, this Court, in my view,
C is the ultimate repository of all judicial powers at National level by virtue of
it being the Summit Court at the pyramidal height of Administration of
Justice in the country and as the upholder and final interpreter of the
Constitution of India and defender of the fundamentals of 'Rule of Law'.

It is not only difficult but impossible to foresee and enumerate all
D possible situations arising, to provide in advance solutions with any hard and
fast rules of universal application for all times to come. It is well known that
where there is right, there should be a remedy. In what exceptional cases, not
normally visualized or anticipated by law, what type of an extra-ordinary
remedy must be devised or designed to solve the issue arising would invariably
E depend upon the gravity of the situation, nature of violation and efficacy as
well as utility of the existing machinery and the imperative need or necessity
to find a solution even outside the ordinary framework or avenue of remedies
to avert any resultant damage beyond repair or redemption, to any person.
Apparently, in my view, alive to such possibilities only even this Court in
A.R. Antu/ay's case (supra) has chosen to decline the request for fixation of
F any period of time limit for trial of offences not on any total want or lack of
jurisdiction in this Court, but for the reason that it is "neither advisable nor
practicable" to fix any such time limit and that the non-fixation does not
ineffectuate the guarantee of right to speedy trial. The prospects and scope
to achieve the desired object of a speedy trial even within the available
G procedural safeguards and avenues provided for obtaining relief, have also
beefi indicated in the said decision as well as in the judgment prepared by
learned brother R.C. Lahoti, J. I am of the firm opinion that this Court should
never venture to disown its own jurisdiction on any area or in respect of any
matter or over any one authority or person, when the Constitution is found
to be at stake and the Fundamental Rights of citizens/persons are under fire,
H to restore them to their position and uphold the Constitution and the Rule of
P. RAMACHANDRARAOv. STATEOFKARNATAKA[RAJU,J.] 89

-·Law for which this Court has been established and constituted with due A
primacy and necessary powers authority and jurisdiction, both express and
implied.

Except dissociating myself from certain observations made expressing
doubts about the jurisdiction of this Court, for the reasons stated above, I am
in entire agreement with the other reasons and conclusions in the judgment. B
K.K.T. Appeals allowed.

-
_,