# ABDUL REHMAN ANTULAY ETC. ETC v. ~.S. NAYAK AND ANR. ETC. ETC. DE~MBER 10, 1991

- **Citation:** [1991] Supp. 3 S.C.R. 325
- **Court:** Supreme Court of India
- **Decided:** 1991
- **Case number:** Criminal_ Appeal No. 126of 1987
- **Bench:** Kn. Singh, P.B. Sa Want, N.M. Kasliwal, B.P. Jeevan Reddy, Gn. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/abdul-rehman-antulay-etc-etc-v-s-nayak-and-anr-etc-etc-de-mber-10-1991-11360
- **Pages:** 62

## Headnote

Constitution of India, 1950 :
Article 21-Right to speedy trial-Whether part of fair.just and reasonable procedure implicit in_ Article 21-Whether comprehensive of investigation, inquiry, trial, appeal, revision and retrial-Whether any outer limit could
be prescribed for conclusion of the proceedingr-Delay-Prosecution to
justlfY and explain-Failure of accused to demand or insist upon speedy trialWhether could result in denial-:-Relief-To be sought first in the lligh Court---
Cqurt to dispose on priority basis instead of staying the proceedings.
Code of Criminal Procedure, 1973:
A
B.
c
D
Sections 309 and 482-Right of the a~cused to speedy trial-111ordinate
delay in conclusion of proceedingr-Discretion of Court to quash proceedings
having regard to .attendant circumstances and relevant facts-Guidelines issued.
·
.,.
E
The petitioner in the first of the two Writ Petitions, was the Chief
Minister of Maharashtra. The First Respondent has been iaking steps to
file criminal complaint against the petitioner_ since 1981 for misuse of
office and various offences including corruption charges. Initially he was
F
not successful for want of sanction from the Governor. After obtaining the
·
required sanction,from the Governor, the Respondent filed a complaint
in the Court of Special Judge created under the Criminal Law Amendment Act, 1952, against the petitioner and some others. The main allegation was that the petitioner misused his office for collecting funds for
certain tr~sts. The Special Judge took cognizance of the complaint a11d
G
issued process. The petitioner appeared before the Special Judge and
rai~ed objections, as regards the jurisdiction of the Speeial Judge. Sine<:
the Special Judge overruled the objections, the petitioner.approached th ..
High Court by way of Criminal Revision. In the meantime the State
Goyernment issued a notification designating a Special Judge to try the
,
said case. The Criminal Revision was dismissed.
: l
325
326
SUPREME COURT REPORTS ·
[1991) SUPP. 3 S. C.R.
A
Before the Speciai Judge, the petitioner raised fresh objections that
the charges against him were groundless and also because he was an
M.L.A. the taking of cognizance without the sanction of the Governor was
not valid. He also prayed_ for postponing the hearing. The Special Judge
took the view that without the sanction of the Governor, the case C(>uld not
go on and accordingly he discharged the accused. The First Respondent
B
then approached this Court.
This Court took the view that M.L.A. was not a 'public servant'
within the meaning of Section 21 IPC and so the question of sanction did
not arise. in this view of the matter, it set aside the order of the Special
Judge and directed that the trial should proceed from the stage at which
C
the petitioner was discharged. The case was transferred- to High Court.
D
E
F
In the· connected appeal preferred by the petitioner, this Court
confirmed the view that cognizance could be·taken even on private complaint.
In pursuance of the directions of this Court, the Special case was
assigned to a Judge of the High Court. The petitioner raised an objection
that the. case can be tried only by a Special Judge appointed by· the
Government under the Criminal Law Amendment Act, 1952 and that a
High Court Judge had no jurisdiction to try such a case. This and other
related objections were rejected by the High Court Judge. The petitioner
~ppealed against the said order and this Court dismissed the same.
, ~
\
· Later, the proceedings were'.transferred to another Judge of the
High Court; who framed 21 charges but declined to frame charges under
22· ether heads proposed by the Respondent. The First Respondent approached this Cmir"t against the said order in so far as -it declined to frame
terfain charges. This was allowed by thiS Court. Thereafter, thi: proceedings were transferred to another Judge of the High Court who framed as
mariy as 79 charges and proceeded with the trial. A number of witnesses
were ·examined.· At

## Text

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ABDUL REHMAN ANTULAY ETC. ETC.
V.
~.S. NAYAK AND ANR. ETC. ETC.
DE~MBER 10, 1991
[KN. SINGH, C.J., P.B. SA WANT, N.M. KASLIWAL,
B.P. JEEVAN REDDY AND GN. RAY, JJ.]
Constitution of India, 1950 :
Article 21-Right to speedy trial-Whether part of fair.just and reasonable procedure implicit in_ Article 21-Whether comprehensive of investigation, inquiry, trial, appeal, revision and retrial-Whether any outer limit could
be prescribed for conclusion of the proceedingr-Delay-Prosecution to
justlfY and explain-Failure of accused to demand or insist upon speedy trialWhether could result in denial-:-Relief-To be sought first in the lligh Court---
Cqurt to dispose on priority basis instead of staying the proceedings.
Code of Criminal Procedure, 1973:
A
B.
c
D
Sections 309 and 482-Right of the a~cused to speedy trial-111ordinate
delay in conclusion of proceedingr-Discretion of Court to quash proceedings
having regard to .attendant circumstances and relevant facts-Guidelines issued.
·
.,.
E
The petitioner in the first of the two Writ Petitions, was the Chief
Minister of Maharashtra. The First Respondent has been iaking steps to
file criminal complaint against the petitioner_ since 1981 for misuse of
office and various offences including corruption charges. Initially he was
F
not successful for want of sanction from the Governor. After obtaining the
·
required sanction,from the Governor, the Respondent filed a complaint
in the Court of Special Judge created under the Criminal Law Amendment Act, 1952, against the petitioner and some others. The main allegation was that the petitioner misused his office for collecting funds for
certain tr~sts. The Special Judge took cognizance of the complaint a11d
G
issued process. The petitioner appeared before the Special Judge and
rai~ed objections, as regards the jurisdiction of the Speeial Judge. Sine<:
the Special Judge overruled the objections, the petitioner.approached th ..
High Court by way of Criminal Revision. In the meantime the State
Goyernment issued a notification designating a Special Judge to try the
,
said case. The Criminal Revision was dismissed.
: l
325
326
SUPREME COURT REPORTS ·
[1991) SUPP. 3 S. C.R.
A
Before the Speciai Judge, the petitioner raised fresh objections that
the charges against him were groundless and also because he was an
M.L.A. the taking of cognizance without the sanction of the Governor was
not valid. He also prayed_ for postponing the hearing. The Special Judge
took the view that without the sanction of the Governor, the case C(>uld not
go on and accordingly he discharged the accused. The First Respondent
B
then approached this Court.
This Court took the view that M.L.A. was not a 'public servant'
within the meaning of Section 21 IPC and so the question of sanction did
not arise. in this view of the matter, it set aside the order of the Special
Judge and directed that the trial should proceed from the stage at which
C
the petitioner was discharged. The case was transferred- to High Court.
D
E
F
In the· connected appeal preferred by the petitioner, this Court
confirmed the view that cognizance could be·taken even on private complaint.
In pursuance of the directions of this Court, the Special case was
assigned to a Judge of the High Court. The petitioner raised an objection
that the. case can be tried only by a Special Judge appointed by· the
Government under the Criminal Law Amendment Act, 1952 and that a
High Court Judge had no jurisdiction to try such a case. This and other
related objections were rejected by the High Court Judge. The petitioner
~ppealed against the said order and this Court dismissed the same.
, ~
\
· Later, the proceedings were'.transferred to another Judge of the
High Court; who framed 21 charges but declined to frame charges under
22· ether heads proposed by the Respondent. The First Respondent approached this Cmir"t against the said order in so far as -it declined to frame
terfain charges. This was allowed by thiS Court. Thereafter, thi: proceedings were transferred to another Judge of the High Court who framed as
mariy as 79 charges and proceeded with the trial. A number of witnesses
were ·examined.· At that stage the petitioner approached this Court questioniDg the eonstitutfonal validity of Settion 197 Cr. P.C. Two SLPs were
G also filed by the petitioner, against the order framing charges and another
order. ·on 29.4.88, this· Court quashed aH the proceedings in the said
specia'I case taken s·ubsequenfto the direetions of this €ourt issu_ed in 1984.
This resulted in the proceedings becoming non-est after the First Respondent had practically completed his evidence recorded over a period of one
year. The case had now to proceed in the Special Court in accordance with
H
Criminal Law Amendment Act, 1952. Since no progress was made in this
A.R. ANTULAY v~ R.S. NAY M
327
case, the First Respondent filed an application before this Court to treat
A
the evidence recorded in the High Court as evidence in the Court of
Special Judge. The said application also forms part of the present matters.
Meanwhile, an Advocate filed a Writ Petition before the High Court
for a direction to the State Government to designate a Special Judge to try
the said special case. The High Court pointed out that in view of this
B
Court's direction it was necessary for the State Government to notify the
appointment of a Special Judge. Accordingly the State. Government
appointed a Special Judge, and on 16.9.91 the Special Judge issu.ed notices
to the parties to appear before him for further steps. Subsequently
bailable warrants were issued and the petitioner was granted bail.
In the other Writ Petition, the petitioner, an Ad".ocate, was arrested
on 6.7.1975 in connection with the murder of th'! then Railway Ministei:
and an attempt to murder the then Chief Justice of India. In the first case,
charge sheet was filed on 10.11.1975. In the second case the petitioner was
convicted and sentenced to four years rigorous imprisonment. Though the
petitioner obtained bail in his appeal before the High Court, he could not
be released as he was also involved in the other case. On 30.3.1978, this
Court granted bail to the petitioner and also ordered. the transfer of the
case from Patna to Delhi. Petitioner was produced in the Delh.i Court and
charges were framed in January, 1981. The trial took about S years in view
of the large volume of evidence and several intervening interlocutory proceedings. The prosecution discharged certain witnesses. The petitioner
filed an application for summoning some of the witnesses discharged. The
trial Court having dismissed the application, the petitioner approached
the High Court by way of a Revision Petition. The High Court admitted
the Writ Petition and stayed all further proceedings in the trial; the stay
continues.
&oth the petitioners preferred the present Writ Petitions for quashing the criminal proceedings on the ground that their fundamental right
to speedy trial has been violated.
c
D
E
F
The other matter, viz., the criminal appeal has been preferred by the G
State of Bihar against the judgment of the High Court of Bihar at Patna.
On behalf of the petitioners, it was contended that they were entitled
to speedy trial, the right to which is derived from Article 21 of the
Constitution; that to make the right to speedy trial meaningful, enforceable· and effective, .there ought to be an o_uter limit beyond which. the H
328
SUPREME COURT.REPORTS
[1991] SUPP. 3 S. C.R.
A
contiimance of the proceedings would be violative of Article 21; that since
this Court has· already prescribed such an outer limit in the case of
children below the age of.16 years, a similar rule has to be evolved ·for
general application.
The ap.pellant~State contended that no proceeding could be quashed
B
on the ground of delay," and the Courts could always ensure speedy trial
by' issuing suitable directions to the trial court including orders of transfer
to a Court where expedftious disposal could be ensured; that while the
'Right to speedy trial' in U.S.A. is express and unqualified, in India it is
only a component of justice and fairness; that Article 21 could not be
construed as to make a mockery of the· directive principles and· the
C equality clause; that.it is neither permissible nor possible to lay down any
outer limit and that there was no precedent warranting such judicial
legislation.
On behalf of Respondent-Union of IJ.Jdia, it was contended that this
Court should not lay down any parameters or guidelines concerning the
D
right to speedy tr'ial, since the ·code of Criminal Procedure contained
enough provisions in this regard and Section 482 Cr.P.C. could serve as
adequate remedy; and that the petitioners were themselves responsible for
the delay in the trial of the cases and that they could not complain of
infringement of their right to speedy trial.
E
F
· · Dismissing the matters, this Court,
HELD : 1.1 Right to speedy trial is not enumerated as one of the
"fundamental rights in the Constitution of India, unlike the Sixth Amendment to the U.S. Constitution which expressly recognises this right. This
omission and the holding in A.K. Gopalan' s case explains why this right
was not claimed or recognised as a fundamental right flowing from Article
21 so long·as Gopaian held the field. Once Gopalan was over-ruled in R.C.
Cooper and its.principle extended to Article 21 in Maneka Gandhi, Article
21 got unshackled from the restrictive meaning placed upon it in Gopalan.
It came to acquire a force and vitality hitherto unimagnied, and with the
G subsequent judicial pronouncements, right to speedy trial came to be
recognised as implicit in Article 21 and now it constitutes a fundamental
right of every person accused of a crime. [354-H; 355A-CJ
· 1.2, Fair, just and reasonable procedure implicit in Article 21 of the
Constitution creaies a right in the accused to be tried speedily. Right to
H speedy'trialis the iight of the accused. The fact that a speedy trial is also
A.R. ANTULA Y v .. R.S. NAY AK
329
in public interest or that it serves the societal interest also, does not make
A
it any-the-less the right of the accused. It is in the interest of all concerned
that the guilt or innocence of the accused is determined as quickly as
possible in the circumstances. (377-D]
1.3. Right to Speedy Trial flowing from Article 21 encompasses all
the stages, namely the stage of investigation, inquiry, trial, appeal revision
B
and retrial. [377-E]
•.
R.C. Copper v. Union of India, (1970] SCR 564; Maneka Gandhi v.
Union of India, AIR 1978 SC 592; Hussainara Khatoon (I) v. State of Bihar,
(1979] 3 SCR 169; Hussainara Khatoon (II) v. State of Bihar, (1979] 3 SCR
393; Hussainara Khatoon (III) v. State"of Bihar, [1979] 3 SCR 532; Staie of C
Bihar v. Uma Shankar Ketriwal & Ors., [1981] 2 SCR 402; Khadra Paharia
v. State of Bihar, [1983] 2 SCC 104; State of Maharashtra v. Champa/al .
Punjaji Shah, (198211 SCR 299; T. V. Vatheeswaran v. State of Tamil Nadu,
[1983] 2 SCR 348; S. Guin & Ors. v. Grindlaya Bank Ltd., (1985) Suppl. 3 ·
SCR 818; Sheela Barse & Ors. v. Union of India & Ors., [1986] 3 SCR 562;
Raghubir Singh & Ors. v. State of Bihar; [1986] 3 SCR 802; Rakesh Saxena· D
v. State, [1987] lSCR 173; Srinivas Gopal v. Union Territory of Arunachal
Pradesh, [1988] Suppl. (1) SCR 477; T.J. Stephen & Ors. ·v. Parle Bottling
Co. (P)Ltd. & Ors., [1988] 3 SCR 296; State of A.P. v.P.V. Pavithran,.[1990]
2 sec 340, relied on.
A.K. Gopalan v. State of Madras, [1950] SCR 88, referred to.
2. As a matter of fact, right to speedy tr.ial is embedded in the
statutory law of this country; Sub-sections 1 and 2 of Section 309 Cr.P.C.
E
and sub-sections 1 and lA of Section 344 Cr.P.C. are to be read witfr
Section 482 Cr. P.C. which saves the inherent powers of the High Court. F
The latter provision recognises the power of the High Court to pass
appropriate orders "to prevent abuse of process of any court or otherwise
to secure the ends of justice":In several cases, the High Courts and this
Court have. directed dropping or discontinuance of proceedings where
such proceedings constituted an abuse of process of Court or where the
ends of justice demanded such course of action. Thus even apart from
G
Article 21, courts in this country have been cognizant of undue delays in
criminal matters and wherever there 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. [365 B-H; 366-A,E]
'H
A
B
330
SUPREME COURT REPORTS
[1991] SUPP. 3 S. C.R.
Manchander v. State of Hyderabad, (1955) 2 SCR 524; Veerbhadra v.
Ramaswa°my Naicker, [1959] SCR 1211; Chajju Ram v. Radhey Shyam,
[1971) Suppl. SCR 172; StateofU.P. v.KapilDeoShukla, {1972) 3S(::C 504,
relied on.
3.1. Article 21 of the Constitution declares that no person shall be
deprived of his life or liberty except in accordance with the procedure
prescribed by law. The main procedural law in this country is the Code of
Criminal Procedure, 1973. Several other enactments too contain many a
procedural provision. After Manek,a Gandhi, it can hardly be disputed
that the 'law' in Article 21 has to answer the test of reasonableness and
fairness inherent in Articles 14 and 19, that is to say, such law should
C provide a procedure which is fair, reasonable and just. Then alone, it
would be in consonance with the command of Article 21. Indeed, wherever
necessary, such fairness must be read into such law. It cannot be said that
a Jaw which does not provide for a reasonably prompt investigation, trial
and conclusion of a criminal case is fair, j~st and reasonable. It is both in
the interest of the accused as. well as the society that a criminal case is
D
concluded soon. If the accused is guilty, he ought to be declared so. Societal
interest lies in punishing the guilty and exoneration of the innocent.but this
determination must be arrived at with reasonable despatch..,-reasonable
in all the circumstances of the case. Since it is the accused who is charged
with the offence and is also the person whose life and/or liberty is at peril,
E
F
G
H
it is but fair to say that he has a right to be tried speedily. Correspondingly,
it is the obligation of the State to respect and ensure th~s right. [374D-H]
3.2. The very fact of being accused of a crime is cause for concern.
It affects the reputation and the standing of the person among. his
coJJeagues and in the society. It is a cause for worry and expense. It is more
so, if he is arrested. If it is a serious offence, the man may stand to lose his
life, liberty, career and all that he cherishes. The provisions of the Code of
Criminal Procedure are consistent with and indeed illustrate this principle. They provide for an early investigation and for a speedy and fair
trial. (374-H; 375-A,B]
. Madheshwardhari Singh v. State ofBihar, AIR 1986 Patna 324; State
v. Maksudam Singh, AIR 1986 Patna 38, approved.
Barker v. Uningo, (33 Lawyers Edn. 101); Strunk v. UnitedStat,es, (37
Lawyers Edn. 2nd, 56); Bell v. Director of Prosecution, Jamaica, (1985) .2
AER 585; United States v. Hawk, (88 Lawyers Edn. 2nd, 640), r~ferred _to.
A.R. ANTULA Y v. R.S. NA YAK
331
4.1. The concerns underlying the right to speedy trial are, the
accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction; the worry, anxiety, expense and disturbance
to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and undue delay has to be avoided
as it may well result in impairment of the ability of the accused to defend
himself, whether on account of death, disappearance or non-availability of
witnesses or otherwise. [377 F-H].
4.2. It is usually the accused who is interested in. delaying the proceedings. Proceedings taken by either party in good faith, to vindicate
their rights and interest, as perceived by them, cannot however be treated
as delaying tactics nor can the time taken in pursuing such proceedings be
counted towards delay. Frivolous proceedings or proceedings taken merely·
for delaying the day of reckoning cannot be treated as proceedings.taken
in good faith. The mere fact that an application/petition is adm~tted and
an order of stay granted by a superior court is by itself no proof that the
proc.eeding is notfrivolous. Very often these stays are obtained on ex-parte
representation. [378 A-D]
4.3. While determining whether undue delay has occurred, resulting
in violation of Right to Speedy Trial, one must have regard to aJI the
attendant circumstances, including ·nature of the offence, number of the
accused and witnesses, the work-load of the court concerned, prevailing
local conditions and so on-what is called, the systemic delays. It is the
obligation of the State to ensure a speedy trial and State includes judiciary
as well. A realistic and practical approach should be adopted in such
matters instead of a pedantic one. [378 D-E]
A
B
c
D
E
4.4. Each and every delay does not necessarily prejudice the accused. F
However, inordinately long delay may be taken as presumptive proof of
preju(lice. In this context, the fact of incarceration of accused will also be
relevant. The prosecution should not be allowed to become a persecution.
But when does the prosecution become persecution, again depends upon
the facts of a given case. [378-F]
U.S.V. Ewell, (15 Lawyers Edn. 2nd, 627, referred to.
G
5. It is not possible to lay down any time schedule for conclusion of
criminal proceedings. The nature of offence, the number of a_ccused, the
number of witnesses, the work-load in the particular court, means ·or
communication and several other circumstances have to be kept in mind. H
332
SUPREME COURT REPORTS
[1991) SUPP. 3 S. c, R.
A Some offences by their very nature e.g., conspiracy cases, cases of misappropriation, embezzlement, fraud,.forgery, sedition, acquisition of disproportionate assets by public servants, cases of corruption against high
public servants and high public officials take longer time for investigation
and trial. Then again, the workload in each court, district, region and
State varies. In many places, requisite number o.f courts are not available.
B
In some places; frequent strikes by members of the Bar interfere with the
work-schedules. Thus, it is not possible in the very nature of things and
present day circumstances to draw a time limit beyond which a criminal
proceeding will not be allowed to go. Even in the U.S.A., the Supreme
Court has refused to draw such a line; nor such a line drawn in the United
Kingdom. Wherever a complaint of infringement of right to spe~dy trial
C
is made, a court has to consider all the circumstances of the case and arrive
at a decision whether in fact the proceedings have been pending for an
unjustifiably long period. In many cases, the accused may himself have
been responsible for the delay. In such cases, he cannot be allowed to take
advantage of his own wrong. Each case must be left to be decided on its
ownJacts. Hence it is neither advisable nor feasible .to draw or prescribe
D
an outer time limit for conclusion of criminal proceedings. Also it is not
necessary to do so for effectuating the right to speedy trial.
[375 G-H; 376A-C]
6. In a. given case, if an accused demands speedy triai and yet he is
not given one,,it may be.a relevant factor in his favour. But he is not
E
disentHled from complaining of infringement of his right to speedy trial on
the ground that"he did not ask for or insist upon a speedy. trial. [376-FJ
F
7. Normally, the only consequence flowing from an infringement of
right to speedy trial is quashing of charges and/or conviction, as the case
may be. But it is not the only order open to court. In a given case, the facts
including the nature of offence may be such that quashing of charges may
not be in the interest of justice. After all, every offence, more so economic
offences, those relating to public officials and food adulteration-are
offences against society. It is really the society-the State-that prosecutes
the offender. In cases, where quashing of charges/conviction.may not be in
the interest of justice, it shall be open to the court to pass such appropriate
G orders as may be deemed just in the circumstances of the case.
H
[376 G-H; 377-A,B]
8.Ultimately, the court.has to balance a11d weigh the several relevant
factors-'balancing test' or 'balancing process'-and determine in each
case whethe~ the right to speedy trial has been denied in. a given case.
.
[379-C]
A.R.ANTULAYv. R.S.NAYAK
333
9. An objection based on denial of Right to speedy trial and for relief A
on that account, should first be addressed to the High 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. (379 G,H]
10.1. In the instant case (Writ Petition filed by the former .Chief B
Minister of Maharashtra), until 1988 it was the petitioner who was raising
several objections from time to time and getting the trial stayed. May be
the very system was partly responsible for the somewhat unusual course
of events. The respondent-complainant was certainly not to be blamed.
(383-D]
C
. 10.2. On a consideration of the facts and circumstances this is. not a
fit case for quashing the criminal proceedings. The proper direction to
make is to direct the expeditious trial on a day-to-day basis. Accordingly;
the Special judge designated for this case is directed to take up this case
on a priority basis· and proceed with it day-to-day until it is concluded. ·
.
.
. (384-BJ
R.S. Nayak v. A.R. Antulay (1984] 2 SCR 495;
't<
•
R.S. l'{ayak v. A.R. Antulay (1984] 2 SCR 914;
•
i
.
'
•
R:S. Nayak v.A.R: Antulay [1986] 2 SCC 716;
·"
A.R. Antulay v. R.S. Nayak [1988] 2 sec 602, rei'~rred to.
11.1. In .the other'Wr1t Petition, it is clear from the material on
record that the prosecution cannot be held guilty of any delaying tactics
D
or for that matter, for causing any delay in the conduct of trial from the
date the criminal proceedings were transferred to Delhi. The proceedings p
ofihe court for this period, i.e. 1979 onwards, dearly establish that during
this period the prosecution has always been anxious to go on with the trial.
[384-D]
11.2. It is not proper to pronounce upon the correctness or otherwise
of the incarceration of the petitioner subsequent to the grant of bail by
Delhi High Court, or on the question whether the accused had a right to
be released under section 167 Cr;P.C. after 90 days of his arrest and other
similar questions in this writ petition. If indeed, any such illegalities have
been committed, they will be taken into consideration. by the court as and
when the case comes up for final disposal. In this context, it is relevant to
notice that the petitioner did not ask for· quashing of the charges on
G
H
0
334
SUPREME COURT REPORTS
[1991] SUPP. 3 S. C.R.
A account of said illegalities at the proper tiine. The proceedings cannot be
quashed at this stage, on the said grounds particularly when the prosecution. has completed its case after examining as many as 151 witnesses
spread over a.period of .five years. [385-C,D]
·
11.3. It is difficult to express any opinion on the question whether the
B
C.B.I. was under an obligation to produce before the Court,. certain
evidence recorded by it favo!Jrable to the defence, for the reason that it is
directly in issue in the pending criminal revision. Suffice to say that it does
not furnish a valid ground for quashing the entire proceedings in the
circumstances of the case. l385- F,G]
C
11.4. On a consideration of all the circumstances of the" case, quashing of the charges and/or criminal proceedings at this stage would not be
just and proper. The proper order to make in this case is to request the
Delhi High Court to dispose of Criminal Revision Petition No. 191 of 1986
as early as possible, preferably within a period of two months. After the
Criminal Revision Revision petition is disposed of, the trial judge will take
]) up the matter and proceed with it with as much expedition as possible in
the circumstances and p~eferably on a day-to-day b,asis. [3867C,D]
12. The application for a direction to the effect that the evidence so
far recorded in Special Case No. 24 of 1982 in the Bombay High Court
shall be treated as evidence recorded in the Special Court which will now
E
try the said crimina_l case, is rejected. Giving such a direction at this stage
would amount not only to review of this Court's order dated 29.4.1988, but
would also run counter to the spirit of the said order. [340-E; 383-B]
F
G
A.R.: Antulay v. R.S. Nayak (1988] 2 SCC 602, refer.red to.
ORIGINAL JURISDICTION : Writ. petition (Cr!.) Nos. 8J3/90 &
268/87.
(Under Article 32 of the Constitution of India).
WITH
Criminal_ Appeal No. 126of 1987 and Crl. M .P. ~os. 8605 & 8623/91.
G. Ram3Swa~y. Rajinder Sachar, K.K. ·Sinha, P.P.' Rao, Dr. N.M.
Ghatate;· G.B. Bhasme, R.K. Garg, U.R. Lalit and A.K. Sen, A.N. Sadsiyar,
H S.K. Bisarai, R.L. Panjwani. R.S. Sharma, Ranjan Dwivcdi, R.D. Ovalakar,
I
I
'
A.R. ANTULAY v. R.S. NAY AK [REDDY, J.]
335
Rajendra Bansi, D.N. Bevdi, Nithin Pradhan, Pravin P. Rao, Ms. Hemantikawahi, M.N. Shroff, Pramod Sarup, A.K. Srivastava, Ms. A. Subhashini, M. ·
Gangdava, S.V. Deshpande, B.B. Singh, A.S. Bhasme, Rajiv Dhawan, Ms.
Rani Jethmalani, T.V.S. Narasimahchari, S.K. Nandy, Pravir Choudhary, Anip
Sachthey, Ms. Kusum Chaudhary, Naiesh K. Sharma, Ashok Mathur, M.
Veerappa, K.R. Nambiar, S.K. Agnihotri, Mrs. Urmila Kapoor, D.N. Mukherjee, Kailash Vasdev, Raj Kumar Mehta, G.K. Bansal, Aruneshwar Gupta, R.
Mohan, Gopal Singh, Mrs. Shobha Dikshit, Sinha, Das, Krishnamurthi Swami,
Ms. Kamini Jaiswal, P.K. Manohar and R. Venkataramani for the appearing
parties.
The Judgment of the Court was delivered by
A
B·
c
B.P. JEEVAN REDDY, J. It is more than 12 years since this Court
declared in Hussain Ara Khatoon [1979] (3) S.C.R. 169 that right to speedy
trial is implicit in the broad sweep and content of Article 21. Many a decision
thereafter re-affirmed the principle. There has never been a dissenting note: It
is held that violation of this right entails quashing of charges and/or conviction.
It is, however, contended now before us that no such fundamental right flows D
from Article 21. At any rate, it is argued, it is only a facet of a fair and
reasonable procedure guaranteed by Article 21 and nothing more. It is also
argued that violation of this right does not result in quashing of the charges and/
or conviction. It is submitted that the right, if at all there is one, is an amorphous
-one, a right which is something less than other fundamental rights guaranteed
by our Constitution. On the other hand, proponents of the right want us to go
E
a step forward and prescribe a time limit beyond which no.criminal proceeding
should be allowed to go on. Without such a limit, they say, the right remains
a mere illusion and a platitude. Proponents of several view points have put
forward their respective contentions.·we had the benefit of elaborate arguments addressed by counsel on both sides of the spectrum. A large number of
cases have been cited. Different view points have been presented. We shall F
refer to them at the appropriate stage. First, how these matters have come to be
posted before the Constitution Bench.
2. Writ Petition No. 268/87 and a few other criminal appeals came up
before a bivision Bench when it was urged for the accused that a time limit be G
fixed for concluding· all criminal proceedings. Without such a time limit, it was
argued. the guarantee of right to speedy trial will remain a mere platitude. The
Division BC(nch was of the opinion that the said contention "raises a very
important constitutional question" which "is likely to arise more often in many
cases and that, the decision on the question will have far-reaching consequences in tens of thousands of criminal cases pending in courts all over the H
336
SUPREME COURT REPORTS
[1991) SUPP. 3 S. C. R.
A
country". Accordingly, the Bench directed the cases to be placed before a
Constitution Bench. Subsequently, other cases too were added. Though several
cases are posted before. us, we indicated to the counsel that we will not enter
into or in¥estigate the factual aspects in all the cases but shall take the facts of
only the first two cases. We indicated .that we will dispose of.these two cases,
namely, W .. P. No. 268of1987 (Ranjan Dwivedi v. State) and W.P. No. 833 of
·B
1990 (A.R. Antulay v. State) and relegate the other cases to a Division Bench,
after laying down the appropriate principles. We shall first notice the facts of
these two cases before 'ile advert to respective contentions of the parties.
3. FACTS IN W.P. NO. 833!90
c
The petitioner in W.P. No. 833 of 199C, A. R. Antulay was the Chief
Minister of Maharashtra from 1980 to January, 1982. The complainanl/respoi:ident.R.S. Nayak moved the Governor of Maharashtra by his application dated
September 1, 1981 requesting him to grant sanction to prosecute the accusedpetitioncr as required by Section 6.of Prevention of Corruption Act, 1947
(hereinafter referred to as '194 7 Act') for various. offences alleged-to have been
D committed by him. Without waiting for the Governor's response on his application he ijled a complaint in the Court of Chief Metropolitan Magistrate,
Bombay on September 11, 1981 (Criminal Case No. 76 (Misc.)/81) against the
accused and some othen;. I:Iis case was that the petitioner-accused was a public
servant within the meaning of Section 21 I.P.C. and that he has committed
E
F
several offences punishable under Sections 161, 165 l.P.C. and Section 5 of
Prevention of Corruption Act, 1947 as also under Sections 383 and 420 I.P.C.
read with Sections 109 and 120-B I.P.C. The learned Magistrate called upon
the complainant to satisfy him as to how the complaint is maintainable without
a valid sanction required by Section 6 of 1947 Act. After hearing the parties,
he held that in atisence of such a sanction, the complaint was not maintainable
except with reference to offences under Sections 384 and 420 read with 109
and 120-B: I.P.C. This order was questioned by the complainant in the High
Court of Bombay by way of Special Criminal Application No. 1742·of 1981.
4. Meanwhile one Sri P.B. Samant filed a Writ Petition against the
petitioner-accused alleging several act<> of abuse of power including many of
G those alleged in the complaint filed by R.S. Nayak. The Writ Petition was
allowed.on 12th January; 1982 as a result of which the petitioner resigned from
the office of the Chief Minister.
5. Special Criminal Application No. 1742of1981 filed by the.complainant was dismissed by the High Court on April 12, 1982. Against the order, State
H
of Maharashtra applied to this Court for Special Leave, which was decline4 on
•
~
J
l
l
r
,~t
r
'
A.R. ANTULA Y v. R.S. NAY AK [REDDY, J.)
337
July 28, 1982. On the same day, however, the Governor of Maharashtra granted
A
sanction under Section 6 of 194 7 Act in respect of offences_ set out therein. On
this basis the complainant/respondent filed a fresh complaint in the Court of
Special Judge, Bombay (created under the Criminal Law Amendment Act,
1952, hereafter referred to as '1952 Act') which was registered as Criminal
Case No. 24 of 1982, against f:he accused and some other persons. The main
allegation in this complaint was that the accused had embarked upon a scheme B ·
_of aggrandisement involving obtaining of funds from public in the name of
certain trustS and that he was misusing his office for collecting funds for such~ -_
trusts. All his activity was characterised as flagrant abuse of'his official'
position as Chief Minister. Several instances were also cited in support of the
allegations. The Special Judge (Sri P.S. Bhutta) took cognizance of the same
and issued process by directing bailable warrant to the accused. In response to C
the process issued, the accused appeared and raised two objections to the
jurisdiction of the Special Judge viz. :
·
.' f ·-
.
.
.J
.
. (i) the specijll Judge has no jurisdiction to take cognizance of
'o~fences mentioned in Section.6(1) (a) and (b) of 1952 Act (which
include offences punishable under Sections 161and165 I.P.C. and
D
Section 5 of 1947 Act) on the basis of a private complaint; and
(ii) where there is more than one Special Judge for an area, in the
absence of a notification; by the State Government. specifying the
local area under Section 7(2) of 1952 Act, Sri Bhutta had no
jurisdiction to entertain Criminal Case No. 24 of 1982. (Section
E
7(2) provides that "every offence specified in Sub-section (1) of
Section 6 shall be tried by the Special Judge for the area within
·which it was committed, or where there are more Special Judges
than one for such area, by such one of them as may be specified in
this behalf by the State Government.")
F
6. The Special Judge, Sri P.S. Bhutta over-ruled both the said objections
whereup0n the accused approached the Bombay High C-ourt by way of
Criminal Revision Application No. 510 of1982. Pending the said Revision, the
Government of Maharashtra issued a notification under Section 7(2) of the
1952 Act empowering Sri S.B. Sule, Additional Special Judge, to try the said G
Special Criminal Case No. 24/82. Criminal Revision Application No. 510 of
1982 came up for disposal before the Division Bench of Bombay High Court
which dismissed the same on 7th March, 1983. The two learned Judges
comprising the Division Bench delivered two !l~parate but concurring opinions. With respect to first objection of accuse.~ ~mentioned hereinbefore) they
held that an investigation by a Police Officer under Section 5-A of 1947 Act H
338
SUPREME COURT REPORTS
[1991] SUPP. 3 S. C.R.
A was notapre-condition to the Special Judge.taking cognizance of an offence
under Section ~ of 1952 ,Act and ·that, .therefore. the SJ>eCial Judge .wa8
competent to take cognizance of an offence mentioned in Section ;6(1) upon a
priv~te complaint as well. With respect- to the second objecti0n, they did not
think 4 necessary to discuss it inasmuch as the required . notification was
B
already issued by the Government of Maharashtr:a. .
·
:7.: Sri R.B. Sule took up the matter and sought to proceed with it~ At that
stage: 1he peti~oner accused moved two applications before him ori 8th July,
1983 : one to discharge him on the ground that the charge against hirri is
groμndless and ~i:i the further ground that since .he wac; a M.L.A., cogni~ance
· ' of offences without the sanction of the Governor was not valid and the other
C forpostponment of the hearing of the case. The learned Special Judge (Sri R.R
Sule) upheld the first contention of the accused and held that without the·
sanction ofthe Governor, the case cannot go on. Accordingly, he discharg~
the accus~ .. Thereupon, the complainant approached this Court by way of a
Special leave Petition as well as a Writ Petition. He· also filed a Criminal
,
0
.
R.evision before.the Bombay High Court against the very sarrie order of Sri
R.B,,Sule, which Revision Application was subsequently transferred to this
Court. These matters were heard by a Constitution· Bench presided over by
D.A. Desai, J. and disposed of.on Febrμary 16, 1984 (reported in 1984 (2)
S.C.}l. 49~). Meanwhile, on a Special i.eayeApplication filed by 'the accused
against the decision . of the Division Bench: of the Boin bay High Court
aforesaid, this Court had granted Specfal Leave, which was registered as
E Criminal Appeal No. 247; of 1983; .This appeal was also })card by the same
Constitution 'Bench and· was disposed of on the same day i.e. 16th February,
1984 (the decision. is reported at page 914 of 1984(2) S.C.R.). In the firstmentioned decision, this Court held that M.L.A. is nQt a 'pul,)lic servant' within
the meaning of Section 21 I.P.C. and hence question of sanction does not arise.
F Accordingly, it set aside the order of Sri R.B. Sule discharging tlie accused and
.directed that the. trial should proceed from the.stage at which .the accused was
discharged. Having so held the Constitution Bench gave the following further
G
H
direction :
·
·
"The.accused was the Chief Minister of a preinier State-the Strite
of Maharashtra. By a prpsecution launched as early as on September 11, 1981, his character and integrity came under a cloud ..
Nearly 21/ 2 years have rolled by and the case has not moved an inch
further. An expeditious trial is primarily in the interest of the
accusod .and a mandate ·of Article 21. Expeditious dispo5al of a
criminal case is in the interest of both, the prosccution-~d the
accused. Therefore, Special Case No. 24 of 1982 and Special Case
A.R. ANTULAYv. R.S. NA YAK [REDDY, J1]
~39
, ........
No. 3/83 pending in the Court of Special Judge, Greater Bombay,
A
Sri R-:-B. Sule are withdrawn and transferred to the High Court of
Bombay with a request to the leamed.Qiief Justice to assign these
two cases to a sitting Judge of the High Court. On being so
assigned, the learned Judge may proceed lO expeditiously dispose
of the cases preferably by holding the trial from.day to day."
'
. 8. In its decision in Criminal Appeal No. 247 of 1983 (1984 (2) S.C.R,.
914), this Court agreed with the Division Bench of the Bombay Hlgh Court that
B.
an investigation by·a Police Officer under Section 5-A of 1947 Act is not 1;1
condition precedent for taldng cognizance under Section 8of1952 Act and that
cognizance can be taken by a Special Judge even on a prlvate comp,aint. Thu's~ .
this court rejected the first of the two objections raised by the .accused before
C
the Special Judge-and rejected by him as well as· the Division Bench of
Bombay High Court. So far as the second objection raised by. the accused is ·
concerned, it was not dealt with by this Court. It merely took note of the
observations made by· the Division Bench of Bombay High Court in that
behalf. We must reiterate that the entire judgment of.the Constitution Bench
deals only with tlte first objection and not with the second. On page 921 of the D
report, the court merely noticed the observations of the Division Bench of the
•i
<-
Bombay High Court with respect to second objection and left it there .
. 9. In pursuance of the direction given-~y th~s court (in 1984 (2) S.C.R.
49.5 at 557) Special Criminal Case No. 24 of 1982 was assigned to Sri Justice
S;N. Khatri of the Bombay High Court. Before the learned Judge, the accused
E
raised an objection that the said Special case can be tried only by a Special
Judge appointed by the Government under the 1952 Act and that a Judge of the
High Court has ito jurisdiction to try it. This and some other objections raised
by the accused were rejected by the learned Judge, bound as he was by the
aforesaid dii'eetion of this court._ The order of Khatri,' J. was questioned by the
F
accused in this court but dismissed on 17th April, 1984 (reported in 1984 (3)
S:C.R. '482). Later the proceedings were transferred to D.N. Mehta, J., who
framed 21 charges . but declined to frame charges under 22 other heads
proposed by the ·complainanL The complainant came to this court against. the
said order m·so far as it declined to frame certain charges which matter :was
. ultimat~1y disposed of (allowed) in 1986 (reported in 1986 (2) S.C.C, 716). The G
proceedings were then transferred to and taken up by P.S. Shah, J. of Bombay
High Court, who framed as many as 79 charges and proceeded with the trial.
A number of witnesses were examined spread over several months, While so,
the accused approached this court again, under Attic le 32 -of the·Constitution
(W.'P. (Cd.) N<>: 542/86) questioning the constitutional validity of S~tiqn 197
Cr. P.C. S.L.P. No. 2519of1986 :was also filed by him against the orders of H
340
SUPREME COURT REPORTS
[1991] SUPP.