Pratidhwani the Echo

A Peer-Reviewed
International Journal of Humanities &
Social Science

ISSN: 2278-5264 (Online) 2321-9319 (Print)

Impact Factor: 6.28 (Index Copernicus
International)

Volume-V, Issue-II,
October 2016, Page No. 20-27

Published by Dept.
of Bengali, Karimganj College, Karimganj,
Assam, India

Website: http://www.thecho.in

Criminal Justice
System and Right to Speedy Trial: A Legal Analysis

Dr. S. A. K. Azad

Principal, University Law College, Utkal University, Bhubaneswar, Odisha,
India

Abstract

Criminal justice system is a concept to make and maintain the society
safer for its people by enforcing disapprobation of criminal’s activities
through apprehending, convicting, punishing etc.; ensuring safety and security
of people through maintenance of law and order; deterring criminals from
pampering in criminal activities. Simultaneously, speedy trial is a remedial
judicial system both for the accused and convicted ones. So, an analysis is
attempted here to establish the status of speedy trial in the present criminal
judicial system.

Key Words:
Criminal Justice System, Speedy Trial, Constitution, Judiciary.

Introduction: The ultimate goal of criminal justice system is undoubtedly to make the
society safer for its people. The faith and philosophy behind administration of
Criminal Justice is attainment of Social Justice. Whatever means may be adopted
for handling criminals, the object is to eradicate crimes from society and
rehabilitation of offenders as law-abiding members of the community. Speedy
trial is such a concept which is related to the broad spectrum of criminal
justice and ultimately stands as a component of social justice.

The Purpose of Criminal Justice: The functioning of the criminal justice system is wide
enough to achieve its goals and objectives. Its ultimate goal is undoubtedly to
make the society safer for its people. More specific and generally accepted
aims of criminal law include:-

1.
The enforcement
of criminal law should reflect the society’s disapprobation for
criminal’s activity through apprehending, convicting and punishing
offenders;

2.
Deterring
criminals from indulging in criminal activities and at the same advising
citizens as to how to avoid falling to be a victim to a crime;

3.
Criminal law
should be beneficially used to rehabilitate the corrigible offenders and
incapacitating those who might otherwise prove to be a potential danger to the
society;

4.
Ensuring safety
and security of people through maintenance of law and order;

5.
Helping the
victims to get adequate compensation from the offender wherever possible or
ensuring their rehabilitation in any other way as the circumstance may warrant;

6.
Efficient and
fair application of law ensuring proper treatment of suspects, defendants,
those who are held in custody and witnesses. Also ensuring that the innocents
are acquitted without harassment and the guilty are duly punished; and

7.
Ensuring that
criminal justice system is accountable to the society.

The
administration of criminal justice is composed of various components such as
the police, prosecution, defence, courts and corrections. In India, unlike many
countries, a person is innocent until proven guilty. This is called an
adversarial system as opposed to an inquisitorial system. The adversary system
presumes that the best way to get the truth is to have a ‘contest’
between the two sides, namely, the State or the prosecution and the defence. In
contrast, in an inquisitorial system, the accused is presumed guilty and is
supposed to prove his/her innocence.

Right to Speedy Trial: One of the most neglected aspects of criminal justice system is the
delay caused in the disposal of the cases and detention of the poor accused
pending trial. A few judgments of the Supreme Court delivered in the recent
past are eye opener and may stir the conscience and disturb the equanimity of
any socially motivated lawyer, judge or a jurist. As it has been seen, the
basic premise of criminal justice system is that the punishment must follow
judgement of guilt and should not precede it and the accused is presumed
innocent during all the stages of criminal prosecution till his guilt is proved
beyond reasonable doubt by the prosecution. In a legal system whose pillars are
nourished with the creed of distributive justice and human dignity, it is an affront
to our sense of justice and democratic way of life that we are depriving a
considerable section of our citizens of their basic freedoms by long-term
incarceration. It is a great paradox that injustice is being administered to
them in the process of justice.

It is
undesirable that the criminal prosecution should wait till everybody concerned
has forgotten all about the crime. Procrastination of trials may sometimes
result in injustice because of an unduly prolonged process much of the material
evidence may perish as when witness die or situations are altered. Vanishing
witness and fading memories render the onus on the prosecution even more
burdensome and make a welter weight task a heavy weight one. The distributive
justice demands that the criminal justice should be swift and sure, that the
guilty should be punished while the events are still fresh in the public mind
and that the innocent should be absolved as early as is consistent with a fair
and impartial trial. A criminal trial which drags on for an unreasonably long
time is not a fair trial. Sometimes, the offences with which the accused
charged are so trivial that even if proved would not warrant punishment for
more than few months, but the accused has to suffer detention because of the
protracted nature of the trial. Continuation of such
detentions are clearly illegal and are in violation of human rights
enshrined in the constitution.

Long incarceration
without trial is not only violative of our Constitution,
but is also against our commitment to the Universal Declaration of Human Rights,
1948. Article 3 of the declaration reads:

“everyone has the right
to life, liberty and the security of person”.

Article 5 provides:

“no one shall be subjected to torture or
to cruel, inhuman or degrading treatment or punishment”.

Article 8 envisages:

“everyone
has the right to an effective by the competent national tribunals for acts
violating the fundamental rights granted by the constitution or by law”.

Article 9 says:

“no one shall be
subjected to arbitrary arrest, detention or exile”.

Article 10 declares:

“Everyone is entitled
in full equality to a fair and public hearing by an independent and impartial
tribunal, in the determination of his rights and obligations and of any
criminal charge against him”.

Article 11(1) stipulates:

“everyone
charged with a penal offence has the right to be presumed innocent until proved
guilty according to law in a public trial at which he had all the guarantees
necessary for his defence”.

It is due
to the social importance of the speedy trial, that due recognition is given to
it by the international covenant on civil and political rights, 1996. On 16
December, 1966 at its 21st Session, the General Assembly of the
U.N.O. approved resolution to this effect. India is also a party covenant.

Article 9(3) of the part III of the resolutions runs as:

Any one
arrested or detained on a criminal charge shall be brought promptly before a
judge or other officer authorized by law to exercise judicial power and shall
be entitled to trial within a reasonable time or to release. It shall not be
the general rule that persons awaiting trial shall be detained in custody, but
release may be subjected to guarantees to should occasion arise for execution
of the judgment.

Article 9(4) reads:

Anyone
who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings before a court, in order that court may decide without delay on the
lawfulness of his detention and order his release if the detention is not
lawful.

Article
14(3) (b) and (c) express the direction of speedy trial in the following words:

In the
determination of any criminal charge against him, every one shall be entitled
to the following minimum guarantees, in fully equality………….

(a)
To have adequate
time and facilities for the preparation of his defence and to communicate with
the counsel of his own choosing.

(b)
To be tried
without undue delays.

In the
United State the right to speedy trial is one of the constitutionally guaranteed
rights. The Sixth Amendment to the U.S. Constitution provides:

“In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public
trial”.

Similarly,
article 5(3) of the European Convention on Human Rights, 1960 guarantees:

Everyone arrested or detained …. Shall be
entitled to trial within a reasonable time or to release pending trial.

The
English law also recognizes the right of personal freedom, the right of an
individual to have any case affecting him tried in accordance with the
principles of natural justice. Thus, the right to speedy trial is a part of
personal freedom in England.

Indian
Constitution does not specifically guarantee to an accused person the right to
speedy trial, yet the speedy disposal of cases is desired as an objective of
rule of law in India. The ethics of distributive justice also necessitate it.
The very sprit and soul of Article 21 in conjunction with Articles 14, 38, 39
and 39-A make it a necessary concomitant of distribute justice promised in the
preamble. Right to speedy trial being an internationally recognized
‘human rights’ is thus a part of our national grundnorm by virtue of Article 51
of the Constitution.

Article
21 guarantees that the State shall not deprive any persons of his life or
personal liberty except according to procedure established by law. The
procedure contemplated by this Article must be ‘fair, just and
reasonable’ one. The procedure established by law must not only have a
semblance of these attributes, but in reality and practice it must have
creative connotation according to changing values of society and human justice.
The Code of Criminal Procedure, 1973 derives its potency from these cherished
constitutional objectives. While framing the code, the following objectives
were, therefore, kept in view: -

(i)
An accused
person should get a fair trial in accordance with the accepted principles of
nature justice.

(ii)
Every effort
should be made to avoid delay in investigation and trial which is harmful not only
to the individuals involved, but also to society; and

(iii) The procedure to the utmost extent possible, ensure
fair deal to the poorer sections of the community.

The Code of Criminal
Procedure, 1973 decoratively synthesizes the very objectives and particularly
Sections 167, 309 and 468 satisfy the aspirations of a speedy trial and speak
of eliminating inordinate delays in investigations and trial proceedings.

The Code of
Criminal Procedure was amended by the Parliament in 1978, empowering the State Governments
to establish Special Courts of Judicial Magistrates for trying special
categories of cases. By the Amendment Act, 1978, the High Courts were also empowered
to confer on Special Courts, exclusive jurisdiction to try any particular class
of cases. It was expected that these modus
operandi will be conducive to cope with the problem of under trials, but so
far no appreciable traces of success have appeared.

Bail is a
generic term used to mean judicial release from custodial egis. The right to
bail – the right to be released from jail in criminal case after
furnishing sufficient security and bond has been recognized in every civilized
society as a fundamental aspect of human right. This is based on the principle
that the object of a criminal proceeding is to secure the presence of the
accused charged of a crime at the time of the inquiry, trial and investigation
before, the Court and to ensure the availability of the accused to serve the
sentence, if convicted. It would be unjust and unfair to deprive a person of
his freedom and liberty and keep him in confinement, if his presence in the Court
is assured whenever required for the trial by the Court. The Code of Criminal
Procedure, 1973 accordingly, (in Sections 436 to 450) has laid down in detail
the norms as to grant of bail and bonds in criminal cases.

According
to the provision laid down in the Code a person released on bail is required to
execute a personal bond and also to furnish the bond of a surety for a certain
sum of money fixed by the Court.

Even in
case of bailable offences, where the accused in
entitled to secure bail as a matter of right, bail is not granted by the Court unless
the defendant is able to secure a surety. As a result, the poor persons who do
not possess sufficient means to furnish bail and who are not able to arrange a
surety, have to suffer incarceration silently even in summons cases, till the
case is over. In certain cases, they have to be in detention for even longer
periods than the maximum term of imprisonment provided under the concerned
penal provision without their trial having commenced.

The
entire system of monetary bail is anti-poor since it is not possible for a poor
man to furnish bail because of poverty. In other words, the accused with means
can afford to buy his freedom, but the poor accused who
cannot pay the price languishes in jail for weeks, months and perhaps even for years
as under-trial prisoner. He does not stay in jail because he is guilty, because
he has been convicted, or because he may cross the prison walls before trial.
He stays in jail because he is poor and not able to purchase the heavy cost of
freedom from jail. Poverty prices them out of the freedom and is crime in
itself.

It is
found that more often than not, Courts impose heavy sureties and put stringent
conditions without consideration of the relevant factors and principle purpose
of bail. The indigent under-trial prisoners who cannot afford bail have
necessarily to be in confinement till the disposal of the cases (whether
summons or warrant cases) and they are very often treated like convicted
criminals despite our treasured principle of criminal jurisprudence that an
accused is presumed to be innocent until proved guilty.

The sorry
state of affairs came to the notice of the Supreme Court in Moti
Ram. The accused, Moti Ram had obtained an order for
being granted a bail, but the Magistrate concerned insisted him to produce a
surety for a sum of Rs. 10,000 before granting the
bail order, which the accused could not get as a result of his poverty.

Allowing
the petition, the Court observed that, the pre-requisite of a surety of Rs. 10,000 fixed by the Magistrate for the grant of bail
amounted to a denial of bail right of the accused and remarked that, “if
masons and millionaire, were treated alike, egregious in equality is an inevitability”. The Court held that “bail
covers both release on one’s own bond without surety and release on bond
with surety”.

While
explaining the unequal operation of the law in respect of bail, the Court said
‘the victims, when suretyship is insisted and
heavy sums are demanded by way of bail or local bailers alone are persona grata, may well be the weaker
segments of the society like the proletariat, the linguistic and other
minorities and distant denizens from the far off corners of our country. It is evident
from the cases coming up before the Supreme Court that sorry state of affairs
shrouded in the mysticism of dilatory tactics in criminal trials is rampant in
the legal system. The Supreme Court has decried the indolence prevalent in the
administrative and judicial set up in several of its decisions. The principles
of law laid down in these judgements, it is hoped would be cherished by all the
lovers of personal liberty and distributive justice and serve as good precedents
to be followed by the subordinate judiciary in the time to come in the matters
of speedy trial and proceedings.

Justice Krishna Iyer, while dealing with the
bail petition in Babu Singh v. State of U.P.[1]remarked:
-

Our
justice system, even in grave cases, suffers from slow motion syndrome which is
lethal to “fair trial” whatever the ultimate decision. Speedy
justice is a component of social justice since the community, as a whole, is
concerned in the criminal being condignly and finally punished within a
reasonable time and the innocent being absolved from the inordinate ordeal of
criminal proceedings.

Similarly, in Narasimhulu v. Public Prosecutor[2], Krisna Iyer, J. observed:

“Realism is a
component of humanism which is the heart of the legal system. We come across
cases where parties have already suffered 3,4 and in
one case over 10 years in prison. These persons may perhaps be acquitted
– difficult to guess. If they are, the injustice of innocence long in
rigorous incarceration inflicted by the protraction of curial processes is an
irrevocable injury… and, at the best, law is vicariously guilty of
dilatory deprivation of citizen’s liberty a consummation vigilantly to be
vetoed”.

Again in Nimeon Sangma v. Home Secretary,
Govt. of Meghalaya[3],
Krishna Iyer, J., expressed his strong displeasure at
the chaotic state of delays in investigations and trials in the following
words:

“Criminal justice
breaks down at a point when expeditious is not attempted while the affected
parties are languishing in jail. The Criminal Procedure Code in Ss. 167, 209
and 309 has emphasized the importance of expeditious disposal of cases
including investigations and trials. It is unfortunate, indeed pathetic, that
there should have been such considerable delay in investigations by the police
in utter disregard of the fact that a citizen has been deprived of his freedom
on the ground that he is accused of an offence. We do not approve of this
course and breach of the rule of law and express our strong displeasure at the
chaotic state of affairs verging on the wholesale breach of human rights
guaranteed under the Constitution especially under Art.21 as interpreted by
this Court”.

Bhagwati[4],
J. in Hussainara declared that the right to speedy
trial is an essential part of fundamental right to life and liberty enshrined
in Article 21 of the Constitution and stated:

If a
person is deprived of his liberty under a procedure which is not
‘reasonable, fair or just’ such deprivation would be violated of
his fundamental right under Article 21 and he would be entitled to enforce such
fundamental right and secure his release. Now obviously procedure prescribed by
law for depriving a person of his liberty cannot be reasonable, fair or just
unless that procedure ensures a speedy trial for determination of guilt of such
person. No procedure which does not ensure a reasonably quick trial can be
regarded as ‘reasonable, fair or just’, and it would fail foul of
Article 21. There can, therefore, be no doubt that speedy trial, and by speedy
trial we mean reasonably expeditious trial, is an integral and an essential
part of the fundamental right to life and liberty enshrined in Article 21.

While
dealing with the writ of habeas corpusof the
accused persons who were detained in various prisons of Bihar as undertrial prisoners for more than seven years the Supreme
Court in Mantoo Majumdar v.
State of Bihar[5],
the Court expressed its deep concern over the appalling indifference and
negligence on the part of the Magistrate. During all these long years not a
single charge-sheet was laid before the concerned magistrate. On many occasions
accused were produced before the Magistrates who passed routinely orders of
detention without least caring for the application of judicial mind in these cases.
This led the Supreme Court to remark:

“To put a man in
prison and forget his personhood thereafter, to deprive a man of his personal
liberty for an arbitrary period without monitoring by the law, to keep a man in
continued custody unmindful of just, fair and reasonable procedure –
these shake the faith in the rule of law and militate against the mandates of
Part III of the Constitution”.

In Kadra Pehadiya v. State of Bihar[6],
it was noted that once a person accused of an offence is lodged in the jail
everyone forgets about him and no one bothers to care what is happening to him.
He becomes a mere ticket number a forgotten specimen of humanity – cut
off and alienated from the society, an unfortunate victim of a heartless legal
and judicial system which consigns him to long unending years of oblivion in
jail and it was finally concluded that the Constitution has no meaning and
significance and human rights, no relevance for him. It is crying shame upon
our adjudicatory system which keeps men in jail for years on end without a
trial.

[1] (1978) 1 SCC
579; AIR 1978 SC 527

[2] AIR 1978 SC
429; 1978 Cr. L. J. 502

[3] AIR 1979 SC
1518

[4] (1980) 1 SCC
81; AIR 1979 SC 1360

[5] AIR 1980 SC 847

[6] 1981 Cri L. J.
481 (SC)