Holding

The Supreme Court held that the Raj Deo Sharma and Common Cause decisions are not good law, the A.R. Antulay guidelines remain authoritative, and the trial must be revived and conducted on a day‑to‑day basis under Section 309 of the CrPC.

Summary

The State of Rajasthan appealed the acquittal of IKBAL HUSSEN, whose trial for offences under the IPC had been pending for six years. The trial court had closed evidence and acquitted him based on the decisions in Raj Deo Sharma and Common Cause, which prescribed limitation periods for criminal trials. The Rajasthan High Court upheld the acquittal, holding that a trial cannot continue indefinitely. The Supreme Court held that the rulings in Raj Deo Sharma and Common Cause are not good law and that the Constitution Bench decision in A.R. Antulay’s case continues to hold the field, emphasizing the right to a speedy trial under Article 21. Consequently, the Court set aside both the trial‑court and High‑Court judgments, directed that the trial be revived and conducted on a day‑to‑day basis under Section 309 of the CrPC, and allowed the appeal.

Issues considered

The validity of the limitation periods prescribed in Raj Deo Sharma and Common Cause decisions for criminal trials.
Whether the trial court’s acquittal based on those limitation periods violates the right to a speedy trial under Article 21 as interpreted in A.R. Antulay’s case.
Whether Section 309 of the Code of Criminal Procedure, 1973 can be invoked to direct a day‑to‑day trial in a pending criminal case.
Whether the Rajasthan High Court erred in upholding the acquittal of the accused.

Legislation cited

Code of Criminal Procedure, 1973s. 258, s. 309, s. 311
Indian Penal Code, 1860s. 279, s. 304A, s. 337, s. 338

Subjects

right to speedy triallimitation periodSection 309 CrPCArticle 21criminal proceduretrial revivalRaj Deo SharmaCommon CauseA.R. Antulay

Judgment

STATE OF RAJASTHAN A
v.
IKBAL HUSSEN

SEPTEMBER 8, 2004

[ARIJIT PASA YAT AND PRAKASH PRABHAKAR NAOLEKAR, JJ.] B

Criminal trial-Pending for six years-Trial Court closing evidence
and acquitting accused in view of decision in Raj Deo Sharma v. State of
Bihar, [1998) 7 SCC 507-High Court upholding same-On appeal, Held:
Decision in Constitution Bench in A.R. AntulaY.'s case [1992) 1 SCC 225 c
continues to hold the field and bars of limitation introduced in Common
Cause (1) and Common Cause (JJ) and Raj Deo Sharma (1) and Raj Deo
Sharma (Il) cannot be sustained as they were rendered by bench of two or
three Judges and run counter to the view expressed in A. R. Antulay's case.

Code of Criminal Procedure, 1973-Section 309-Trial pending for D
long period-Trial Court directed to take up the matter on day to day basis
keeping in view mandate or Section 309.

Respondents were tried for alleged commission of various offences
under Indian Penal Code, 1860. As their trial had continued for six E
years, trial court closed the evidence and acquitted the accused in the
light of decision of this Court in Raj Deo Sharma v. State of Bihar, [1998)
7 SCC 507. High Court upheld the decision of trial court, observing
that the trial could not be continued indefinitely. Hence the present
appeal by State.
F
Allowing the appeal, the Court

HELD : 1.1. The decision of the High Court affirming the acquittal
of respondent cannot be maintained. Judgment of the trial court and the
High Court are set aside. The trial before the trial court shall be revived. G
[195-H; 196-A)

l.2 The correctness of the decisions in two Raj Deo Sharma 's cases i.e.
Raj Deo Sharma v. State ofBihar, [1998) 7 SCC 507 and (1997] 7 SCC 604
and that of 'Common Cause' a Registered Society v. Union ofIndia, [199616
H
189
I-

190 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R. ·

A sec 775 and [1996) 4 sec 33 was considered by seven judge Bench in P.
Ramachandra Rao v. State ofKarnataka, (2002) 4 SCC 578. It was held that
the dictum of the Constitution Bench in A.R. Antulay 's case [1992] 1 SCC
225 continues to hold the_ field and bars of limitation introduced in
Common Cause (I) and Common Cause (II) and Raj Deo Sharma (I) and
B Raj Deo Sharma (II) cannot be sustained as these decisions were rendered
by two or three Hon'ble Judges and run counter to the view expressed by
the Constitution Bench in A.R. Antulay 's case. [191-C; 193-B]

P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578 and
A.R. Antulay's case [1992) 1 SCC 225, followed.
c
Raj Deo Sharma v. State ofBihar, (1998) 7 SCC 507; Raj Deo Sharma
v. State of Bihar, [1997] 7 SCC 604; '.Common Cause' a Registered Society
v. Union of India, [1996) 6 SCC 775 and 'Common Cause' a Registered
Society v. Union of India, [1996) 4 SCC 33, referred to~

D 2. Since the trial is pending for a considerable period of time, it
would be appropriate for the concerned court to take up the matter on
• day to day basis, keeping in view the mandate of Section 309 of the Code
of Criminal Procedure, 1973. [196-A, B]

E CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
1167 of 2003.

From the Judgment and Order dated 16.4.2002 of the Rajasthan High.
Court in S.B. Crl. A. No. 36 of 2002.

F Ms. Madhurima Tatia and Aruneshwar Gupta for the Appellant.

Ms. K. Saradar Devi for the Respondent.

The Judgment of the Court was delivered by

G ARIJIT PASA YAT, J. : State of Rajasthan questions legality of the
judgment rendered by a learned Single Judge of the Rajasthan High Court
at Jodhpur holding that the trial against the respondent for alleged commission
ofoffences punishable under Sections 279, 337, 338 and 304(A) of the Indian
Penal Code, 1860 (in short the 'IPC'), could not be continued indefinitely.
H The learned Additional Chief Judicial Magistrate, Gulabpura, Bhilwara,
STATE v. IKBAL HlJSSEN [PASAYAT,J.] 191

Rajasthan directed acquittal of the respondent who was facing trial for alleged A
commission of aforesaid offences. The alleged incident took place on 28th
March, 1995. The trial court closed the evidence in the light of the decision
of this Court in Raj Deo Sharma v. State of Bihar, [1998] 7 SCC 507.

The High Court as noted above, observed that the trial cannot proceed B
indefinitely and the trial had not come to an end for a period of six years,
and, therefore, learned Additional Chief Judicial Magistrate was justified in
closing the evidence and directing acquittal.

" The correctness of the decisions in two Raj Deo Sharma's cases i.e. Raj
'
Deo Sharma v. State of Bihar, [ 1998] 7 SCC 507 and [ 1999] 7 SCC 604 and C
that of "Common Cause" a Registered Society v. Union of India and Ors.,
(1996] 6 sec 775 and (1996] 4 sec 33 was considered by seven-judge
Bench in P. Ramachandra Rao v. State of Karnataka, (2002] 4 SCC 578.
In the said case after considering the various decisions it was held as
follows :
D
"For all the foregoing reasons, we are of the opinion that in
Common Cause case (I) - [1996] 4 SCC 33 : (1996) SC Cri. 589
[as modified in Common Cause (II) [ 1996] 6 SCC 77 5 : [ 1997]
SCC Cri. 42 and Raj Deo Sharma (I)- (1998] 7 SCC 507 : [1998]
sec Cri. 1692 and (II)- [1999] 7 sec 604: [1999] sec Cri. 1324 E
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:

(1) The dictum in A.R. Antulay case [1992] 1 sec 225 . F
: [1992] SCC Cri. 93 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 case (supra) adequately take care G
of right to speedy trial. We uphold and reaffirm the said
propositions.

(3) The guidelines laid down in A.R. Antulay case are
not exhaustive but only illustrative. They are not intended to
operate as hard and fast rules or to be applied like a straitjacket H
192 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A 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.

(4) It is neither advisable, nor feasible, nor judicially
permissible to draw or prescribe an outer limit for conclusion
B of all criminal proceedings. The time-limits or bars of
limitation prescribed in the several directions made in Common
Cause (I), Raj Deo Sharma case (I) and (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
c merely on account of lapse of time, as prescribed by the
directions made in Common Cause case (I), 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
D
the case before them and determine by taking into consideration
the several relevant factors as pointed out in A.R. Antulay 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
E 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.

(5) The criminal courts should exercise their available
powers, such as those under Sections 309, 311 and 258 of the
F
Code of Criminal Procedure to effectuate the right to speedy
trial. A watchful and diligent trial Judge can prove to be a
. better protector of such right than any guidelines. In appropriate
case, jurisdiction of the High Court under Section 482 Cr.P.C.
and Articles 226 and 227 of the Constitution can be invoked
G seeking appropriate relief or suitable directions.

This is an appropriate occasion to remind the Union of
India and the State Governments of their constitutional
obligation to strengthen the judiciary - quantitatively and
qualitatively - by providing requisite funds, manpower and
H
STATE v. IKBAL HUSSEN [PASA YAT, J.] 193

infrastructure. We hope and trust that the Government shall A
act."

It was held that the dictum of the Constitution Bench in A.R. Antulay's
case (supra) continues to hold the field and bars of limitation introduced in
Common Cause (I) and Common Cause (II) and Raj Deo Sharma (I) and Raj
Deo Sharma (II) cannot be sustained as these decisions were rendered by two B
or three Hon'ble judges and run counter to the view expressed by the
Constitution Bench in A.R. Antulay 's case (supra). It was held as follows.

"The Constitution makers were aware of the Sixth Amendment
provisions in the Constitution of the USA providing in express terms C
the right of an 'accused' to be tried speedily. Yet this was not
incorporated in the Indian Constitution. So long as A.K. Gopalan
v. State of Madras, [1950] SCR 88 held the field in India, only such
speedy trial was available as the provisions of the Code of Criminal
Procedure made possible. No proceeding could ever be quashed on
the ground of delay. On a proper grievance being made, or suo D
moto, court could always ensure speedy trial by suitable directions
to the trial court including orders of transfer to a court where
expeditious disposal could be ensured.

With the decision of this Court in Maneka Gandhi v. Union
E
of India, [1978] 1 SCC 248 Article 21 received a new content.
Procedure relating to punishment of crime must be fair, just and
reasonable. Hussainara Khatoo.n (I) v. Home Secretary, State of
Bihar, [ 1980] I SCC 81 and later decisions have spelt out a so-called
'Right to Speedy Trial' from Article 21. It is both a convenient and
self-explanatory description. But it does not follow that every F
incident attaching to the Sixth Amendment right ipso facto is to be
read into Indian Law. In the USA, the right is express and
unqualified. In India it is only a component of justice and fairness.
Indian courts have to reconcile justice and fairness to the accused
with many other interests which are compelling and paramount.
G
Article 21 cannot be so construed as to make mockery of
directive principles and another even more fundamental right i.e.,
the right of equality in Article 14.

The concept of delay must be totally different depending on H
194 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A the class and character of the accused and the nature of his offence,
the difficulties of a private prosecutor and the leanings of the
government.

The court must respect legislative policy unless the policy is
unconstitutional.
B
Statutes of limitation, limited though they are on the criminal
side, do not apply to :

(a) serious offences punishable with more than 3 years
c imprisonment;

(b) all economic offences.

Corruption by high public servants is not protected for both
these reasons.
D
Right to speedy trial is not a right not to be tried. Secondly
it only creates an obligation on the prosecutor to be ready to proceed
to trial within a reasonable time;

That is to say without any delay attributable to his
E deviousness or culpable negligence.

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

G The following kinds of delay are to be totally ignored in giving
effect to the plea of denial of speedy trial:

(A) Delay wholly due to congestion of the Court calendar,
unavailability of judges, or other circumstances beyond the
H control of the. prosecutor.
STATE v. IKBAL HUSSEN [PASAYAT, J.] 195

(B) Delay caused by the accused himself not merely by A
seeking adjournments but also by legal devices which the
prosecutor has to counter.

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

(D) Delay caused by legitimate actions of the prosecutor e.g.,
getting a key witness who is kept out of the way or otherwise
avoids process or appearance or tracing a key document or
securing evidence from abroad. C
Delay is usually welcomed by the accused. He postpones the
delay of reckoning thereby. It may impair the prosecution's ability
to prove the case against him. In the meantime, he remains free to
indulge in crimes. An accused cannot raise this plea ifhe has never
taken steps to demand a speedy trial. A plea that proceedings against D
him be quashed because delay has taken place is not sustainable if
the record shows that he acquiesced in the delay and never asked
for an expeditious disposa!. In India the demand rule must be
rigorously enforced. No one can be permitted to complain that
speedy trial was denied when he never demanded it. E

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

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

The plea is inexorably and inextricably mixed up with the
G
merits of the case. No finding of prejudice is possible without full
knowledge of facts. The plea must first be evaluated by the trial
court."

In the aforesaid background the decision of the High Court affirming H ,
196 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A the acquittal of respondent cannot be maintained. We set aside thejudgments
of the trial court and the High Court. The trial before the trial court shall
be revived. Since the trial is pending for a considerable period of time, it
would be appropriate for the concerned court to take up the matter on day
to day basis, keeping in view the mandate of Section 309 of the Code of
B Criminal Procedure, 1973 (in short the "Cr.P.C.").

Appeal is accordingly allowed.

V.S.S. Appeal allowed.