Supreme Court of India
SHEELA BARSE & ORS.versusUNION OF INDIA & ORS.
- Citation
- 1986 INSC 171
- Decided
- 13 August 1986
- Disposal
- Directions issued
- Bench
- P N BHAGWATI
Holding
The Court held that the right to a speedy trial is a fundamental right under Article 21, and for child accused of offences punishable up to seven years, investigation must be completed within three months and trial within six months, otherwise the prosecution must be quashed, and States must provide appropriate remand facilities and juvenile courts.
Summary
The Supreme Court, hearing a writ petition filed by Sheela Barse and others under Article 32, examined the right to a speedy trial for child accused of offences punishable with imprisonment of up to seven years. Relying on the earlier Hussainara Khatoon decision, the Court affirmed that the right to speedy trial is implicit in Article 21 of the Constitution. It prescribed that investigation of such child offences must be completed within three months of the FIR or complaint and that the trial must conclude within six months of filing the charge‑sheet; failure to do so would render the prosecution liable to be quashed. The Court also directed State Governments to set up adequate remand and observation homes, to release children on bail where facilities are lacking, and to establish juvenile courts with specially trained magistrates. Finally, it urged the Central Government to enact a uniform Children Act covering investigation, trial, and rehabilitation of children.
Issues considered
- The right to a speedy trial as a fundamental right under Article 21 for child accused.
- Reasonable time limits for investigation and trial of child accused of offences punishable up to seven years.
- Whether prosecution must be quashed if prescribed timelines are not met.
- The obligation of State Governments to provide remand homes and avoid incarcerating children in jails.
- The need for uniform legislation (Children Act) on juvenile justice across the country.
Legislation cited
- Children Act, 1960
- Constitution of Indias. Article 21
Subjects
speedy trialArticle 21right to speedy trialchild accusedjuvenile justiceremand homesinvestigation timelinetrial timelineChildren Actuniform legislationquashing of prosecution
Judgment
A
SHEELA BARSE & ORS.
v.
UNION OF INDIA & ORS.
B
AUGUST 13, 1986
[P.N. BHAGWATI, C.J. AND RANGANATH MISRA, J.]
Constitution of India, 1950, Article 21-Speedy trial-Whether
fundamental right of accused.
c
Children Act, 1960-Children-Offences by-Not to be kept in
Jail-To be kept in remand homes or released on bail.
Criminal Trial-Investigation of offences by children-Comple-
D tion within three months of lodging complaint/FIR-Trial-Comp-
letion within six monthsLNecessity of.
On Uth Joly, 1986 this Court issned various directions in regard
to the physically and mentally retarded children as also abandoned or
destitute children who are lodged in various jails in the country for 'safe
E custody'.
Giving further directions,
HELD: I. The right to speedy trial is a fundamental right imp-
licit in Art. 21 of the Constitution. If an accnsed is not tried speedily and
F "his case remains pending before the Magistrate or the Sessions Court for
an unreasonable length of time, it is clear that his fundamental right to _J
speedy trial would be violated unless, of course, the trial is held up on
account of some interim order passed by a superior court or the accused
is responsible for the delay in the trial of the case. The consequence of
violation of the fundamental right to speedy trial would be that the
G prosecution itself would be liable to be quashed on the ground that it is
in breach of the fundamental right. [566E-G]
Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar,
[1979] SCR 169, relied upon
H 2. Every State Government must take necessary measures for the
562
SHEELA BARSE v. U.0.1. 563
purpose of setting up adequate number of courts, appointing requisite A
number of Judges and providing them the necessary facilities. It is also
necessary to set up an Institute or Academy for training of judicial
Officers so tl!at their eft"tciency may be improved and they may be able to
regulate and control the flow of cases _in their respective courts. [567B·C]
3. So far as a child-accused of an offence punishable with imprison· B
ment of not more than 7 years is concerned, a period of 3 months from
•• the date of filing of the complaint or lodging of the First Information
Report is the maximum time permissible for investigation and a period
of 6 months from the filing of the charge sheet· as a reasonable period
within which the trial of the child must be completed. If that is not
done, the prosecution against the child would be liable to b_e quashed. c
Every State Government shall give effect to this principle or norm in so
far as.any future cases are concerned. [567E-F]
4. So far as concerns pending cases relating to offence8 punish·
able with imprisonment of not more than 7 years, it is directed that
every State Government shall complete the investigation within a period D
of 3 months from today if the inv.Stigation has not already resulted in .
filing of chargesheet and if a chargesheet has been filed, the trial shall
be completed within a period of 6 months from today and if it is not, the
prosecution shall be quashed. [567F -GI
5. The State Governments must set up necessary remand homes E
and observation homes where children accused of an offence can be
lodged pending investigation and trial. On no account should the
children be kept in jail and if a State Government has not got sufficient
+ accommodation in its remand homes or observ8ti9n homes, the children
should be released on bail instead of being subjected to incarceration in
jail. [56SD-E] ' F
6. Instead of each State having its own Children's Act different in
procedure and content from the Children's Act in other States, the
Central Government should initiate Parliamentary Legislation on the
subject, so that there is complete uniformity in regard to the various
provisions relating to children in the entire territory of the country. The G
Children's Act which may be enacted by Parliament should contain not·
only provisions for investigation and trial of offences against children
·. below the age of 16 years but should also contain mandatory provisions
for ensuring social, economic and psychological rehabilitation of the
children who are either ac~used of offences or are abandoned or desti·
lute or lost. [568A-G I . · H
564 SUPREME COURT REPORTS [19861 3 S.C.R.
A ORIGINAL JURISDICTION: Writ Petition (Criminal) No.
1451of1985
Under Article 32 of the Constitution of India.
B Petitioner-in-person.
Harbans Lal, Tapas Ray, D.K. Sinha, J.R. Das, Girish Chander,
Ms. Subhashini, Pramod Swamp, D. Bhandari, C.V.S. Rao, B.D.
Sharma, D.N. Mukherjee, R. Mukherjee, A.V. Rangam, T.V.
Ratnam, S.B. Bhasme, A.S. Bhasme and A.M. Khanwilkar for the
Respondents.
c
The Order of the Court was delivered by
MISRA J. We made an Order on 12th July, 1986 issuing various
directions in regard to physically and mentally retarded children as
D also abandoned or destitute children who are lodged in various jails in
the country for 'safe custody'. We also directed the Director General
of Doordarshan as also the Director General of All India Radio to give
publicity seeking cooperation of non-governmental social service
organisations in the task of rehabilitation of these children' We were
extremely pained and anguished that these children should be kept in
E jail instead of being properly looked after, given adequate medical
treatment and imparted training in various skills which would make
them independent and self-reliant. Some years ago we came out with a
National Policy for the Welfare of Children which contained the fol-
lowing preambulatory declaration:
F "The nation's children are a supremely important asset.
Their nurture and solicitude are our responsibility.
Children's programme should find a prominent part in our
national plans for the development of human resources, so
that our children grow up to become robust citizens, physi-
.cally fit, mentally alert and morally healthy, endowed with
the skill and motivations needed by society. Equal oppor-
G tunities for development to all children during the period of
growth should be our aim, for this would serve our large
purpose of reducing inequality and ensuring social justice."
If a child is a national asset, it is the duty of the State to look after the
H child with a view to ensuring full development of its personality. That
SHEELA BARSE v. U.0.1. [MISRA, J.] 565
- is why all the st.atutes dealing with children provide that child shall not
be kept in jail. Even apart from this statutory prescription, it is
elementary that a jail is hardly a place where a child should be kept.
A
There can be no doubt that incarceration in jail would have the effect
of dwarfing the development of the child, exposing him to baneful
influences, coarsening his conscience and alienating him from the soci-
B
ety. It is a matter of regret that despite statutory provisions and fre-
quent exhortations by social scientists., there are still a large number of
children in different jails in the country as is now evident from the
··reports of the survey nlade by the District Judges pursuant to our order
dated 15th April, 1986. Even where children are accused of offences,
they must not be kept in jails. It is no answer on the part of the State to
say that it has not got enough number of remand homes or observation c
homes or other places where children can be kept and that is why they
are lodged in jails. It is also no answer on the part of the State to urge
that 'the ward in the jail where the children are kept in separate from
the ward in which the other. prisoners are detained. It is the atmos-
phere of the jail which has a highly injurious effect on the mind of the
D
child, ·estranging him from the society and breeding in him aversion
bordering on hatred against a system which keeps him in jail. We
would therefore like once again to impress upon the State Govern- .
ments that they must set up necessary remand homes and observation
j homes where children accused of an offence can be lodged pending
investigation and trial. On no account should the children be ·kept in
jail and if a State Government has not got sufficient accommodation in E
the remand homes or observation homes, the children should be re-
leased on bail instead of being subjected to incarceration in jail.
The ·problem of detention of children accused of an offence
would become much more easy of solution if the investigation in the
F
police and the trial by the Magistrate could be expedited. The reports
'-. of survey made by District Judges show that in some places children
have been in jail for quite long periods. We fail to see why investiga-
tion into offences alleged to have been committed by children cannot
be completed quickly and equally why can the. trial not take place
within a reasonable time after the filing of the charge-sheet. Really
speaking, the trial of children must take place in the Juvenile Courts G
and not in the regular criminal courts. There are special provisions
enacted in various statutes relating to children providing for trial by
Juvenile Courts in accordance with a special procedure intended to
safeguard the interest and welfare of children, but, we find that in
many of the St~tes there are no·J.uvenile Courts functioning at all and
H
566 SUPREME COURT REPORTS 11986] 3 S.C.R.
A even where there are Juvenile Courts, they are nothing but a replica of
the ordinary criminal courts, only the label being changed. The same
Magistrate who sits in the ordinary criminal court goes .and sits in the
Juvenile Court and mechanically tries cases against children. It is abso-
lutely essential, and this is something which we wish to impress upon
the State Governments with all the earnestness at our command, that
B
they must set up Juvenile Courts, one in each district, and there must
be special cadre of Magistrates who must be suitably trained for deal-
ing with cases against children. They may also do other criminal work,
if the work of the Juvenile Court is not sufficient to engage then fully,
but they must have proper and adequate training for dealing with cases
against Juveniles, because these cases require a different type of pro-
c cedure and qualitatively a different kind of approach.
We would also direct that where a complaint is filed or first
information report is lodged against a child below the age of 16 years
for an offence punishable with imprisonment of not more than 7 years,
the investigation shall be completed within a period of three months
D
from the date of filing of the complaint or lodging of the First Informa-
tion Report and if the investigation is not completed within this time,
the case against the child must be treated as closed. If within three
months, the chargesheet is filed against the child in case of an offence
punishable with imprisonment of not more than 7 years, the case must
be tried and disposed of within a further period of 6 months at the
E
01c1tside and this period should be inclusive of the time taken up in
committal proceedings, if any. We have already held in Hussainara
Khatoon & Ors. v. Home Secretary, State of Bihar, [1979] 3 SCR 169
that the right to speedy trial is a fundamental right implicit in Art. 21
of the Constitution. If an accused is not tried speedily and his case ...,
remains pending before the Magistrate or the Sessions Court for an
F
unreasonable length of time, it is clear that his fundamental right to·
speedy trial would be violated unless, of course, the trial is held up on
account of some interim order passed by a superior court or the ac-
cused is responsible for the delay in the trial of the case. The consequ-
ence of violation of the fundamental right to speedy trial would be that
the prosecution itself would be liable to be quashed on the ground that
G it is in breach of the fundamental right. One of the primary reasons
why trial of criminal cases is delayed in the courts of Magistrates and
Additional Sessions Judges is the total inadequacy of judge-strength
and lack of satisfactory working conditions for Magistrates and Addi-
tional Sessions Judges ..There are courts of Magistrates and Additional
Sessions Judges where the workload is so heavy that it is just not
H
SHEELA BARSE v. U_.0.1. [N!ISRA. J.l 567
possible to cope with the workload, unless there is increase in the A
strength of Magistrates apd Additional Sessions Judges. There are
instances where appointments of Magistrates and Additional Sessions
Judges are held up for years and the courts have to work with depleted
strength and this affects speedy trial of criminal cases. The Magistrates
and Additional Sessions Judges are often not provided adequate staff B
and other facilities which would help improve their disposal of cases.
We are, therefore, firmly of the view that every State Government
must take necessary measures.for the purpose of setting up adequate
number of courts, appointing requisite number of Judges and provid-
ing them the necessary facilities. It is also necessary to set up an
Institute or Academy for training of Judicial Officers so that their
efficiency may be improved and they may be able to· regulate and c
control the !low of cases in their respective courts. The problem of
arrears of criminal cases in the courts of Magistrates and Additional
,, Sessions Judges has assumed rather disturbing proportions and it is a
matter of grave urgency to which no State Government can afford to be
oblivious. But, here, we are not concerned with the question of speedy
D
trial for an accused.' who is not a child below the age of 16 years. That is
a question which may have to be considered in some other case where
this Court may be called upon to examine as to what is reasonable
length of time for trial beyond which the court would regard the right
to speedy trial as violated. So far as a child-accused of an offence
punishable with imprisonment of not more than 7 years is concerned,
E
we would regard a period of 3 months from the date of filing of the
complaint or lodging of the First Information Report as the maxinium
time permissible for investigation and a period of 6 months from the
filing of the charge sheet as a reasonable period within which the trial
of the child must be completed. If that is not done, the prosecution
against the child would be liable to be quashed. We would direct every
F
State Government to give effect to this principle or norm laid down by
us in so far as an.y fut_ure cases are concerned, but so far as concerns
pending cases relating to offences punishable with imprisonment of
not more than 7 years, we would direct every State Government to
\complete the investigation within a period of 3 months from today if
the investigation has not already resulted in filing of chargesheet and if
G
a chargesheet has been filed, the trial shall be completed within a
period of 6 months from today and if it is nol, the prosecution shall be
quashed.
We have by our Or<ler dated 5th August 1986 called upon the
State Government to bring into force and to implement vigorously the H
568 SUPREME COURT REPORTS [1986] 3 S.C. R.
A provisions of the Children's Acts enacted in the various States. But we
would suggest that illstead of each State having its own Children's Act
in other States, it would be desirable if the Central Government in-
itiates Parliamentary Legislation on the subject, so that there is comp-
lete uniformity in regard to the various provisions. relating to children
in the entire territory of the country. The Children's Act which may be
B
enacted by Parliament should contain not only provisions for investi-
gation and trial of offences against children below the age of 16 years
but should also contain mandatory provisions for ensuring social,
economic and psychological rehabilitation of the children who are
either accused of offences or are abandoned or destitute or lost.
Moreover, it is not enough merely to have legislation on the subject,
c but it is equally, if not more, important to ensure that such legislation
is implemented in aII earnestness and mere lip sympathy is not paid
such legislation and justification for non-implementation is not
pleaded on ground of lack of finances on the part of the State. The
greatest recompense which the State can get for expenditure on
children is the building up of a powerful human resource ready to take
D its place in the forward march of the nation.
We have already given various directions by our Orders dated 12th
July 1986 and 5th August 1986. We have also in the meantime received
reports of survey made by several District Judges. We shall take up
these matters for consideration at the next hearing of the writ petition
E which shall take place on 1.9.1986.
A.P.J.
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