= Pratidhwani the Ec= ho

A Peer-= Reviewed International Jour= nal of Humanities & Social Science

IS= SN: 2278-5= 264 (Online) 2321= -= 93= 19 (Print)

Im= pact Factor: 6.= 28 (= I= ndex Copernicus International)

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

P= u= blished by Dept. of Bengali, Karimganj College, Karimganj, Assam, India<= span style=3D'font-family:"Cambria","serif";mso-fareast-font-family:"Times New R= oman"; mso-bidi-font-family:Cambria;mso-bidi-language:BN-BD'>

Website: http://www.thecho.in

Criminal J= ustice System and Right to Speedy Trial: A Legal Analysis

Dr. S. A. K. Azad

Principal, University Law College, Utkal University, Bhubaneswar, O= disha, India

Criminal justice system is a concept to make and maintain the society safer for its people by enforcing disapprobation of criminal’s activi= ties through apprehending, convicting, punishing etc.; ensuring safety and secur= ity 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 crimi= nal judicial system.

Key Words: Criminal Justice System, Speedy Trial, Constitution, Judiciary.<= /span>

Introduction: The ultimate goal of criminal justice system is undoubtedly to make = the society safer for its people. The faith and philosophy behind administratio= n of Criminal Justice is attainment of Social Justice. Whatever means may be ado= pted 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.<= /span>

The Purpose of Criminal Justice:

1.&n= bsp;     The enforcem= ent of criminal law should reflect the society’s disapprobation for criminal’s activity through apprehending, convicting and punishing offenders;

2.&n= bsp;     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.&n= bsp;     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.&n= bsp;     Ensuring saf= ety and security of people through maintenance of law and order;

5.&n= bsp;     Helping the victims to get adequate compensation from the offender wherever possible or ensuring their rehabilitation in any other way as the circumstance may warr= ant;

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

7.&n= bsp;     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 sys= tem presumes that the best way to get the truth is to have a ‘contestR= 17; 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 pr= oved 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 a= n 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 concer= ned has forgotten all about the crime. Procrastination of trials may sometimes result in injustice because of an unduly prolonged process much of the mate= rial 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 distributi= ve 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 mi= nd and that the innocent should be absolved as early as is consistent with a f= air and impartial trial. A criminal trial which drags on for an unreasonably lo= ng 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.

     Lon= g incarceration without trial is not only violative of our Cons= titution, but is also against our commitment to the Universal Declaration of Human Ri= ghts, 1948. Article 3 of the declaration reads:

<= i>

Article 5 provides:

“no one shall be subjected to tortu= re 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 law̶= 1;.

Article 9 says:

<= i>

Article 10 declares:

“Everyone is entit= led in full equality to a fair and public hearing by an independent and imparti= al 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 pr= oved 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 21^st Session, the General Assembly of the U.N.O. approved resolution to this effect. India is also a party covenant.<= o:p>

Article 9(3) of the part III of the resolutions runs as:<= /span>

     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 sha= ll 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 executi= on of the judgment.

Article 9(4) reads:

     Any= one 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.

     Art= icle 14(3) (b) and (c) express the direction of speedy trial in the following wo= rds:

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

(a)&= nbsp;   To have adeq= uate time and facilities for the preparation of his defence and to communicate w= ith the counsel of his own choosing.

<= /o:p>

(b)&= nbsp; To be tried without undue delays.

     In = the United State the right to speedy trial is one of the constitutionally guara= nteed 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”.

     Sim= ilarly, 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.

     Ind= ian 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 i= t. 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 Arti= cle 51 of the Constitution.

     Art= icle 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 just= ice. The Code of Criminal Procedure, 1973 derives its potency from these cherish= ed constitutional objectives. While framing the code, the following objectives were, therefore, kept in view: -

(i)&= nbsp;    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 n= ot only to the individuals involved, but also to society; and

(iii)

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

     The= Code of Criminal Procedure was amended by the Parliament in 1978, empowering the St= ate 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 c= lass of cases. It was expected that these modus operandi will be conducive to cope with the problem of under trials, bu= t so far no appreciable traces of success have appeared.

     Bai= l 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 civili= zed society as a fundamental aspect of human right. This is based on the princi= ple 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 investigat= ion 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 Crimin= al Procedure, 1973 accordingly, (in Sections 436 to 450) has laid down in deta= il the norms as to grant of bail and bonds in criminal cases.

     Acc= ording to the provision laid down in the Code a person released on bail is require= d to execute a personal bond and also to furnish the bond of a surety for a cert= ain sum of money fixed by the Court.

     Eve= n in case of bailable offences, where the accused in entitled to secure bail as a matter of right, bail is not granted by the Co= urt 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 arrang= e a surety, have to suffer incarceration silently even in summons cases, till t= he 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 me= ans 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, bec= ause he has been convicted, or because he may cross the prison walls before tria= l. 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 string= ent conditions without consideration of the relevant factors and principle purp= ose 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 orde= r 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.

     All= owing the petition, the Court observed that, the pre-requisite of a surety of Rs. 10,000 fixed by the Magistrate for the grant of b= ail 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 “ba= il covers both release on one’s own bond without surety and release on b= ond with surety”.

     Whi= le explaining the unequal operation of the law in respect of bail, the Court s= aid ‘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 wea= ker 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 affai= rs 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 princip= les 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 prece= dents to be followed by the subordinate judiciary in the time to come in the matt= ers 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 whic= h 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 Pros= ecutor [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 an= d 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 t= o be vetoed”.

     Aga= in in Nimeon Sangma v. Home Sec= retary, Govt. of Meghalaya [3], Krishna Iyer, J., expressed his strong displeas= ure 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, th= at there should have been such considerable delay in investigations by the pol= ice in utter disregard of the fact that a citizen has been deprived of his free= dom 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 spe= edy trial is an essential part of fundamental right to life and liberty enshrin= ed 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 prescribe= d 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 spe= edy 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.<= o:p>

     Whi= le 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 Su= preme 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 occas= ions accused were produced before the Magistrates who passed routinely orders of detention without least caring for the application of judicial mind in thes= e 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 person= al liberty for an arbitrary period without monitoring by the law, to keep a ma= n 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 o= f 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 le= gal 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.