# HUSSAINARA KHANTOON & ORS v. HOME SECRETARY, STATE OF BIHAR, PATNA

- **Citation:** [1979] 3 S.C.R. 760
- **Court:** Supreme Court of India
- **Decided:** 1979-04-19
- **Case number:** Writ Petition No. 57 of 1979
- **Bench:** P. N. BuAGWArs, 0. CmNNAPPA REDDY, A P. Sm
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hussainara-khantoon-ors-v-home-secretary-state-of-bihar-patna-7669
- **Pages:** 8

## Headnote

Le~al Aid to Poor-Ad111i11istration of Criminal l11.stice-Co11.\tilurional obligation of Srate Gorel'nflu'nt-Frce lrgal sen-ices-A b.\l'llce of-I -i1it1rio1t of trial
-Att. 21 Constitution of lndfa.
Crilninal Procedure (,'ode, 1973-S. 167(2)(a)-Riu/11 uf u11d1·r-triul p1iso1Ier-Release on bail-E11title111cnt to co101sel at Stale expense.
.....
On further hearing the petition for r'elease of under-tri::ils in the State of~
Bihar.
i
HEID : 1. The State Governments do not seem to be alive t.i their constitutional responsibility in the matter of provision of free legal services in the
field of administration of criminal justice. If law is net only to speak justice
"
but abo deliver justice, legal aid is an absolute imperative. Legal aid is really
nothing also but equal justice in action.
It is in fact the deliYi!ry system of
•ecial justice.
[765D]
2. Every State Government will have to carry out its constitutional obligation to provide free legal services to every accused person who is in peril
of losing his liberty and who is unable to defend himself through a lawyer
by reason of his poverty or indigence in cases where the needs of justice
so
require. If free legal services are not provided to such an accused, the trial
itself may run the risk of being vitiated as contravening Art. 21 and every State
Government should try to avoid su'>'.':h a possible eventuality.
!765F-G]
3. When an under-trial prisoner is produced before a. 1v1agistrate and he
has been in detention for 90 days or 60 days as the case may be, the f\.fagistrate
must, before making an order of further remand to judicial custody, poin.t out
to the under-trial prisoner that he is entitled to b'e released on bail.
[762H, 763A]
4. The Magistrate must take care to see that the right of the under-trial
prisoner to the assistance of a lawyer provided at State cost is secure.d to him
with a view to enable him to apply for bail in exercise of his right under proviso (a) to sub-section (2) of s. 167 Criminal Procedure Code
[763B]
5. The Magistrate must deal with the application for bail in accordance
with tho guidelines laid down in the Court's order dated February 12, 1979.
[763C]
ORIGINAL JURISDICTION : Writ Petition No. 57 of 1979.
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Mrs. K. Hingorani for the Petitioner
U. P. Singh and S. N. Jlw fo.r the Respondent.
The Order of the Court was delivered by
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BHAGWATI, J.
This writ petition has again come up before us for
further directions. Mr. U.P. Singh, learned Advocate on behalf of the
H
State of Bihar, has intimated to us that pursuant to
the directions
given by us in our order dated 9th March, 1979('), the State of Bihar
(I) [1979] 3 SCR 532-544.
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H. KHATOON v. HOME SECRETARY (Bhagwati, /.)
761
has already released 70 undertrial prisoners whose names were set out
in th~ chart filed by Mrs. Hingi:>rani on 9th March, 1979. It is highly
regretable that these undertrial prisoners should have remained in jail
without trial for periods longer than the maximum term for which they
could have been sentenced if convicted. We fail to see what moral or
ethical justification could the State have to detain these unfortunate
persons for such unreasonably long periods of time without trial. We
feel a sense of relief that they should once again be able to breathe the
air of freedom. But we find that there are still many more undertrial
prisoners who fall within thls category of persons who have been in
detention for periods li:>nger than the maximum term without their trial
having been commenced. Mrs. Hingorani has filed before us at the
hearing of the writ petition on 16th April,
1979 a
second
chart
giving the
names
and particulars of some of these
undertrial prisoners who have not yet got the benefit of the earlier
order made by us.
There are 59 undertrial prisoners whose
names and particulars are set out in this chart and we direct that they
should be released forthwith as their continued detention is clearly illegal
and in violation of thei

## Text

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760
HUSSAINARA KHANTOON & ORS.
v.
HOME SECRETARY, STATE OF BIHAR, PATNA
April 19, 1979
[P. N. BuAGWArs, 0. CmNNAPPA REDDY AND A P. Sm, JJ.]
Le~al Aid to Poor-Ad111i11istration of Criminal l11.stice-Co11.\tilurional obligation of Srate Gorel'nflu'nt-Frce lrgal sen-ices-A b.\l'llce of-I -i1it1rio1t of trial
-Att. 21 Constitution of lndfa.
Crilninal Procedure (,'ode, 1973-S. 167(2)(a)-Riu/11 uf u11d1·r-triul p1iso1Ier-Release on bail-E11title111cnt to co101sel at Stale expense.
.....
On further hearing the petition for r'elease of under-tri::ils in the State of~
Bihar.
i
HEID : 1. The State Governments do not seem to be alive t.i their constitutional responsibility in the matter of provision of free legal services in the
field of administration of criminal justice. If law is net only to speak justice
"
but abo deliver justice, legal aid is an absolute imperative. Legal aid is really
nothing also but equal justice in action.
It is in fact the deliYi!ry system of
•ecial justice.
[765D]
2. Every State Government will have to carry out its constitutional obligation to provide free legal services to every accused person who is in peril
of losing his liberty and who is unable to defend himself through a lawyer
by reason of his poverty or indigence in cases where the needs of justice
so
require. If free legal services are not provided to such an accused, the trial
itself may run the risk of being vitiated as contravening Art. 21 and every State
Government should try to avoid su'>'.':h a possible eventuality.
!765F-G]
3. When an under-trial prisoner is produced before a. 1v1agistrate and he
has been in detention for 90 days or 60 days as the case may be, the f\.fagistrate
must, before making an order of further remand to judicial custody, poin.t out
to the under-trial prisoner that he is entitled to b'e released on bail.
[762H, 763A]
4. The Magistrate must take care to see that the right of the under-trial
prisoner to the assistance of a lawyer provided at State cost is secure.d to him
with a view to enable him to apply for bail in exercise of his right under proviso (a) to sub-section (2) of s. 167 Criminal Procedure Code
[763B]
5. The Magistrate must deal with the application for bail in accordance
with tho guidelines laid down in the Court's order dated February 12, 1979.
[763C]
ORIGINAL JURISDICTION : Writ Petition No. 57 of 1979.
•
)-
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G
Mrs. K. Hingorani for the Petitioner
U. P. Singh and S. N. Jlw fo.r the Respondent.
The Order of the Court was delivered by
'
..
...
,<
i
~
,
BHAGWATI, J.
This writ petition has again come up before us for
further directions. Mr. U.P. Singh, learned Advocate on behalf of the
H
State of Bihar, has intimated to us that pursuant to
the directions
given by us in our order dated 9th March, 1979('), the State of Bihar
(I) [1979] 3 SCR 532-544.
> ..
I
'
I
I
•
H. KHATOON v. HOME SECRETARY (Bhagwati, /.)
761
has already released 70 undertrial prisoners whose names were set out
in th~ chart filed by Mrs. Hingi:>rani on 9th March, 1979. It is highly
regretable that these undertrial prisoners should have remained in jail
without trial for periods longer than the maximum term for which they
could have been sentenced if convicted. We fail to see what moral or
ethical justification could the State have to detain these unfortunate
persons for such unreasonably long periods of time without trial. We
feel a sense of relief that they should once again be able to breathe the
air of freedom. But we find that there are still many more undertrial
prisoners who fall within thls category of persons who have been in
detention for periods li:>nger than the maximum term without their trial
having been commenced. Mrs. Hingorani has filed before us at the
hearing of the writ petition on 16th April,
1979 a
second
chart
giving the
names
and particulars of some of these
undertrial prisoners who have not yet got the benefit of the earlier
order made by us.
There are 59 undertrial prisoners whose
names and particulars are set out in this chart and we direct that they
should be released forthwith as their continued detention is clearly illegal
and in violation of their fundamental right under Art. 21 of the Constitution. There are also several other undertrial prisoners who are accused
of multiple offences and even if we were to proceed on the assumption
that the State would be able to secure their conviction and maximum
sentences would be imposed on them and such sentences would not be
concurrent in accordance with the usual practice followed by the courts
but would be consecutive, they have already sullered the aggregate imprisonment which could be inflicted on them, and there is no reason why
they should be subjected to any further detention. It may be poiuted out'
that ordinarily the sentences imposed on conviction for multiple offences
are concurrent and if we proceed on that assumption which is more
realistic, it would be found that there are many undertrial prisoners who
have already been in jail for periods exceeding the maximum term which
could be imposed on them even if they were convicted of the multiple
offences with which they are charged. We have requested Mrs. Hingorani to prepare a chart showing separately the above two categories of
undertrial prisoners so that we can pass appropriate orders in regard to
them at the next hearing of the writ petition.
Mr. U.P. Singh, appearing on behalf of the State Government, will help Mrs. Hingorani in preparing this chart since Mrs. Hingorani has undertaken this public interest litigation as a matter of public duty and her resources are therefore,
~und to be limited.
We are informed that amongst the undertrial prisoners there are some
who are lunatics or persons of unsound mind. It is difficult to under10--330SCl/79
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SUPREME COURT REPORTS
[1979] 3 S.C.R.
stand how such persons could possibly be kept in the same jail along with
other undertrial prisoners. We should like to know from the State Govermnent, in an affidavit to be filed before the next hearing of the writ
petition, as to what are the circumstances in which these persons have
been kept as undertrial prisoners in the ordinary jails and what the State
Government proposes to do in regard to them. Mrs. Hingorani will prepare a list showing the names and particulars of these persons and
Mr. U. P. Singh on behalf of the State Government will render the neces ..
sary help in this connection. The list may be filed by Mrs. Hingorani at
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the next hearing of the writ petition so that we' may be able to pass final
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orders in regard to this category of undertrial prisoners.
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We find that pursuant to the directions given by us in our order dated . --,
9th March, 1979, Bageshwari Prasad Pandey, Superintendent of the
Patna Central Jail has filed an affidavit dated 4th April, 1979 along with
a chart showing the dates on which petitioners Nos. 1, 2, 3, 4, 5, 6, 7, 8,
9 and 17 confined in the Patna Central Jail prior to their release on
personal bond, were produced before the Magistrates in compliance with
the proviso to section 167(2) of the Code of Criminal Procedure. A
similar affidavit dated 4th April, 1979 has also been filed by Pradeep
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Kumar Gangoli, Superintendent of Muzaffarpur Jail along
with a
chart showing the dates on which petitioners Nos. 10, 11, 12, 13, 15,
16 and 18 who were previously confined in the Muzaffarpur Central
Jail prior to their release on personal bond, were produced before the
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Magistrates in compliance with the
requirement
of
the
proviso
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to
section
167 (2).
Bhuvan
Mohan Munda,
Superintendent
. of the Ranchi Central Jail has also filed
an affidavit dated
12th April,
1979
together with
a chart
showing
the
dates
on which some of the nndertrial prisoners referred to in our Order dated
9th March, 1979 were produced before the Magistrates in compliance
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wit~ the requirement of the proviso to section 167(2}. It is apparent . )-
from these charts that some of the petitioners and other undertrial
prisoners referred to in these charts have been produced numerous times
before the Magistrates and the Magistrates have been continually making orders of remand to judicial custody. It is difficult to believe that
on each of the countless occasions on which these undertrial prisoners
were produced before the Magistrates and the Magistrates made orders
of remand, they must have applied their mind to the necessity of
remanding those undertrial prisoners to judicial custody. We are also
very doubtful whether on the expiry of 90 days or 60 days, as the case
may be, from the date of arrest, the attention of the undertial prisoners
was drawn to the fact that they were entitled to be released on ball
nnder proviso (a) of sub-section (2) of section 167. When an undertrial prisoner is produced before a Magistrate and he has been in deten-
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H. KHATOON v. !IOME SECRETARY (Bhagwati, J.)
7U3
tion for 90 days or 60 days, as the case may be, the Magistrate muJt,
bCforo making an order of further remand tQ. judicial custody, point out
to the undertrial prisoner that he is entitled to be released on bail.
The State Government must also provide at its own cost a lawyer to the
undertrial prisoner with a view to enable him to apply for
bail in
exercise of his right under proviso (a) to sub-section (2) of section 167
and the Magistrate must take care to see that the right of the undertrial
prisoner to the assistance of a lawyer provided at State cost is secured
to hiin and he must deal witli the application for bail in accordance with
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the guidelines laid down by us in our Order dated 12th February,
'(1979.(') We hope and trust that every Magistrate in the country
and every State Government will act in accordance with this mandate
of the Court. This is the constitutional obligaiion of the State Government and the Magistrate and we have no doubt that if this is strictly
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carried out, there will be considerable improvement in the situation
in regard to undertrial prisoners and there will be proper observance
of the rule of Jaw.
The State Government has also filed an affidavit of B. Srinivasan,
SujJerintendent of Pol!ee (C.J.D.), Government of Bihar, giving in Annexure (I) particulitnl regarding nnmber of cases pending investigation
by the police in each sob-division of the State as on 31st December,
1978 and in Annexure (II), particulars resarding number of cases
pendieg investigation for more than six months. These aunexures Show
that a total number of 10,339 cases relating to major offences and
17,687 cases relating to minor offencel! were pending investigation in
the State of Bihar on 31st December, 1978 and out of these, 5835
cal!es relating to major offences and 7228 cases relating to minor
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offences were pending investigation for a period of more than six
months. It is a matter of great regret that snch a large number of cases
__ ( •honld be pending investigation for a period of more than six months
-- '--.and the number of such cases in relation to minor offences should be
•
over seven thousand. It is difficult to understand why as many as seven
thousand and odd cases relating to minor offences should reniain pending investigation for more than six months. It is no doubt true that
reasons have been attempted to be given by B. Srinivasan in a statement annexed to his affidavit, but we are not at all satisfied about the
validity of these reasons, particularly in so far as investigation in rela-
•
tion to minor offences is concerned. One of the reasons given by B.
Srinivasan in his statement is that in 10 per cent of the cases investigation is held up because of delay in receipt of opinions from experts.
We find it difficult to appreciate this reason. We fail to see why the
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~ State Government cannot employ more experts or set up a larger num-
(1) [1979] 3 S.C.R. 169-183
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SUPREME COURT REPORTS
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ber of testing laboratories or establish more forensic laboratories. It
is also necessary to have more than one serologists in the State. This
is a situation which the ~late Government can certainly remedy by
taking prompt action.
There are also many other measures which
can be taken by the State Government for the purpose of accelerating
the pace of the
investigating machinery but it would
not be
proper
for
this
Court to · suggest or recommend
any
such
measures because this Court has not the. requisite expertise
of material for doing so and moreover the National Police Commission appointed by the Government of India is seized of thi&
•
question and it is considering what steps and measures should
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be taken for
the purpose of expediting the investigative procei& ~
and making qualitative improvement in it. But we would be failing itt
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our duty if we do not express our sense of amazement and horror at
the leisurely and almost lethargic manner in which investigation into
offences seems to be carried on in the State of Bihar. It is high time that
the State of Bihar took steps to overhaul and streamline its investigative
machinery so that no investigation may take more than the bare minimum time required for it and the judicial process may be set in motion
without any unnecessary delay.
We directed by our Order dated 9th March, 1979 that on the next
date when the undertrial prisoners, charged with bailable offenc.es, are
produced before the Magistrates, the State Government should provide
them with a lawyer at its own cost for the purpose of making applie3tion for bail and if any application for bail is made, the Magistra~
should dispose of the same in accordance with the broad guidelinei
set out by us in our Judgment dated 12th February, 1979. We are told
by Mr. U. P. Singh that the necessary instructions to this effect have
been issued by the State Government to the District Magistrate, but we
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do not know whether and to what extent these instructions have been '\.
carried out and lawyers at State expense have been provided to the _r·
undertrial prisoners accused of bailable offences for the purpose
of
•
making application for bail on their behalf. We should like the State
Government to file an affidavit stating how many undertrial accused or
bailable offences who have been in jail for a period of more than 18
months as on 1st February, 1979 have been provided lawyers at State
expenses and whether or not they have been released on bail in accordance with the directions given by us. The State Government will also
file an affidavit giving similar information in regard to those undertrial
prisoners who have been in jail for periods longer than half the maximum term of imprisonment for which they could, if convicted, be sentenced, because we had given direction of a like nature also in regard
to these undertrial prisoners in our iudgmeot dated 9th March. 1979.
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H. KHATOON v. HOME SECRETARY (Bhagwati, /.)
765
We may point out that according to the law as laid down by Ui in
our judgment dated 9th March, 1979, it is,the constitutional right of
every accused person who is unable to engage a lawyer and secure legal
services on account of reasons such as poverty, indigenctl c>r incommunicado situation, to have free legal services provided to him· by the
State and the State is under a constitutional mandate to provide a
lawyer to- such accused person if the needs of justice so require. We
do not know whether the State Government has set up any machinery
for the purpose of providing free legal services to persons who are
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accused of offences involving possible deprivation of liberty and who
•
rre unable to engage a lawyer on account of poverty or indigence. 111is
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constitutional obligation c~nnot wait any longer for its fulfilment, since
more than 30 years have passed from the date of enactment of the
Constitution and no State Government can possibly have any alibi for
not carrying out this command of the Constitution. We are repeating
this observation once again in the present judgment because we find
that barring a few, many of the State Government dn not seem to be
alive to their constitutional responsibility in the matter of provision o~
free legal services in the field of 'administration of criminal justice'. Let
it not be forgotten that if law is not only to speak justice but also delive.r
jlll!tice, legal aid is an absolute imperative. Legal aid is really nothing
else but equal justice in action. Legal aid is in fact the delivery system
of wcial justice. It is intended to reach justice to the common man
who, as the poet song :
"Bowed by the weight of centuries be leans
Upon his hoe and gazes on the ground,
The emptiness of ages on bis face,
And on his back the burden of the World."
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We hope and trust that every State Government will take prompt
-..steps to carry out its constitutional obligation to provide free legal
"
services to every accused person who is in peril of losing his liberty and
..
who is unable to defend himself through a lawyer by reason of his
poverty or indigence in cases where the needs of justice so require.
If free legal services are not provided to such an accused the trial itself
may run the risk of being vitated as contravening Article 21 and we
have no dcubt that every State Government would try to avoid such a
possible eventuality.
·
We have no report from the State Government as to
whether
women under "protective custody" in jails have been transferred to
rem~nd or welfare homes conducted by the social welfare department
a~ dfrected by us by our Order dated 26th February, 1979. Mr. U,P.
Smgh on behalf of the State of Bihar stated before us that this direcA
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SUPREME COURT REPORTS
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tio'n has been carried out by th·~ State Government, but we should
like to have an affidavit of some responsible officer of the State Government stating that women who were confined in jail under the
label of "protective custody" have been transferred to welfare
homes and that necessary instructions have been issued by the State
Government to the effect that women or children who are victims of
offence or whose presence is required for giving evidence should not
be kept in jail under so called "protective custody".
This affidavit
may be filed by the State Government within ten days from
today.
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We had given direction by our Order dated 26th February, 1979
.~
that the State Government should enquire into cases where the offence - ').
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charged against undertrial prisoners are triable as summons case•,
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for the purpose of ascertaining whether there has been compliance
with the provision enacted in section 167, sub-section (5) of the Code
of Criminal Procedure. It is clear from this provision that if in aay
case tried by a Magistrate as a summons case the investigation is not
concluded within a period of six months from the date on which the
accused was arrested, the Magistrate must make an order stopping further investigation into the offence, unless the officer making the investigation satisfies the Magistrate that for special reasons
and in the
interest of justice, the continuation of the investigation beyond the
period of six Irlonths is necessary.
With a view to securing coin·
pliance with this provision we directed that if, in a case triable by a
Magistrate as a summons case, it is found that investigation has been
going on for a period of more than six months without satisfying the
Magistrate that, for special reasons and in the interest of justice, the
continuation of the investigation beyond the period of six montha is .
'
necessary, the State Government will release the undertrial prisoner,
•
unless the necessary orders of the Magistrate. are obtained within a
period of one month.
The reason for giving this direction wae that)-
in such a case the Magistrate is bound to make an order stopping
further investigation and in that
e\l'.:mt, only two courses would
be
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open: either the police must immediately proceed to file a chargesheet, if the investigation conducted till then warrants such a cour•e,
or if no ca~e for proceeding against the undertrial prisoner is dil!C!Ofled
by the investigation, the undertrial prisoner must be released forthwith from detention.
The State Government has not filed before us
any report of compliance with this direction and we wo11ld, therefore,
require the State Government to do so within a period of ten days
I!
from today.
We would also request the High Court to draw
the
attention of the Magistrates to the provision in section 167,~sub-section
(5) and ensure complia·ncc with the requirement of this provision by
the Magistrate.
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H. KllATOON v. HOME SECRETARY (Bhagwati, J.)
76 7
We find thaf pursuant to the direction given by us in our Order
dated 9th March, 1979, the High Court of Patna has forwarded to us
a compilation containing particulars giving the location of courts of
Magistrates and courts of Sessions in the State of Bihar together with
the total number of cases pending in each of these courts as on 31st ·
December, 1978 with yearwise break up of such pending cases and
briefly explaining the reasons why it has not been possible to dispose
of these cases within a reasonable period of time.
The figures of
pending cares given in the compilation are staggering and it is distressing to find that quite a few of these cases have been pending for
_ more than five years, sometimes extending even to seven or nine or ten
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years.
We shall examine the position arising from the pendency of
such a large number of cases for such long periods of time at the
next hearing of the writ petition, with a view to considering what
directions are necessary to be given to the State Government by way
of taking positive action for the purpose of securing enforcement of
the fundamental right of the accused to speedy trial.
We would,
however, require tor this purpose information from the High Court
of Patna as to the norms of disposals fixed by the High Court for the
different categories of Magistrates and Sessions Judges in the State of
Bihar, since without this information, it would not be possible for Ui
to decide whether the existing strength of courts and judges in the State
of Bihar is adequate for the purpose of ensuring !!J>t'cdy trial to the
accused or it is necessary to have additional courts and judges.
We
would request the High Court to furnish this additional information
to us at the next hearing of the writ petition.
We will proceed with the further hearing of the writ petition on 24th
,.
April. 1979.
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