# ' • ' HUSSAINARA KHATOON & ORS v. HOME SECRETARY, STATE OF BIHAR, GOVT. OF BIHAR. PATNA F e.bruary 12, 1979

- **Citation:** [1979] 3 S.C.R. 169
- **Court:** Supreme Court of India
- **Decided:** 1979
- **Case number:** Writ Petition No. 57 of 1979
- **Bench:** P. N. Bhagwati, R. S. Pathak, A. D. Koshal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hussainara-khatoon-ors-v-home-secretary-state-of-bihar-govt-of-bihar-patna-f-e-7770
- **Pages:** 15

## Headnote

16 9
Administration of Justice-Pre-trial detention-Right of under-trial prisoner
to have a speedy trial-Art. 21 of Constitution of India .
A
B
~
__ Pre-trial release--C'oncept of-Determinative factor~ in grant of bail and
--~
release of under-trial prisoner on personal bond without monetary obligation
C Y
explainl·d.
In their petition for the issue of a writ of habeas corpus the petitioners stated
that a large nun1ber of men and women i•.1cluding childr'en were in jails for years
awaiting-trial in courts of law and that the offences, even if proved, would not
warrant punishn1ent for more than a few months. Although sufficient opportunity
was give.,,_, the State did not appea.r before the Court.
D
Directing the release of the undertrials on their executing a personal bond.
HELD:
(Per Bhagwati & Koshal, JJ.)
1. A procedure "".hich keeps large number of people behind bars without trial
for long, cannot possibly be regarded as "rentsonable, just or fair" so as. to be in
E
conformity wi1h the requirement of Art. 21. It is necessary, therefore, that the
law as enacted by the Legislature and as administered by the courts must radicaliy
chang~ its approach to pre-trial detention and ensure 'reasonable, 1ust an.J. fair'
procedure which has a creative connotation after the decision of the Supreme
Court in Maneka Gandhi's case. [174 C·D]
2. Speedy trial is of the essence of criminal justice and, therefore, d_elay in
trial by itself constitutes denial of justice. Though speedy trial is not sptcifically
):~enun1erated as a fundamental right, it is implicit in the broad sweep and C(Jntent
"
of Art. 21.
Speedy trial which means reasonably expeditious trial, is an itite·gral
•
part of the fundamental right to life and liberty 'enshrined il"l Art. 21, [179 H,
180 c, F]
Art. 21 confers a. fundamental right on every person not to be deprived of his
tife or liberty except in accordance with the procedure prescribed by law and it
is not e~ough to constitute compliance with the requirement of that Article that
some semblance of a procedure should be prescribed by Iaw, but that the pro ..
cedure should be "reasonable, fair and just".
If a person is deprived of his
liberty under a procedure which is not "reasonable, fair or just", such deprivation
would be violative of his fundamental right under Art. 21 and he would be entitled
to enforce such fund.am'ental right and secure his release.
Any procedure pres~
cribed by law for depriving a person of his liberty cannot be "reasonable1 fair or
just" unless. that procedure 'ensure.5 a ~pecdy trial for determination of the guilt
of such·person. [180 D-EJ
12-196SC!/79
F
G
H
A
•
17 0
SUPREME COURT REPORTS
[1979] 3 s.c.Jt.
Maneka Gandhi v. Union of ln;dia, [1978] 2 SCR 621; referred to.
3. Expeditious trial and freedom from detention are part of human rights an&
basic freedoms.
The judicial system which permits incarceration of men an4
women for long peripds of time withcut trial is denying human rights to suck
undertrials and withholding basic freedoms from th'em.
Law has become for
them an iruttrument of injustice and they are helpless and despairing victims of
B
the callousness of the legal and judicial system. [173 C-E, F]
D
E
4. One reason why our legal and judicial system continually denies justice
te the poor -by keeping them for long years in pretrial detention is the highly
unsatisfactory bail system, which suffers from a property oriented approach. It
proceeds on th'e erroneous assumption that risk of monetary loss is the only
deterrent against fleeing from justice. Even after its re-enactment1 the Code _'!.-....1. •
Criminal Procedure cootinues to adopt the same antiquated approach.
Where ~
an accused iao to be released on his personal bond, it insists that the bond ehould
,
contain a monetary obligation requiring the accused to pay a sum of money in
-4
case he fails to appear at the trial. Moreover, as if this were not sufficient deterrent to the poor, the courts mechanically and as a matter of co

## Text

_Characters 0–39,582 of 42,551. This is a partial read: ask again with offset=39582 for what follows._

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HUSSAINARA KHATOON & ORS.
v.
HOME SECRETARY, STATE OF BIHAR, GOVT. OF
BIHAR. PATNA
F e.bruary 12, 1979
[P. N. BHAGWATI, R. S. PATHAK AND A. D. KOSHAL, JJ.]
16 9
Administration of Justice-Pre-trial detention-Right of under-trial prisoner
to have a speedy trial-Art. 21 of Constitution of India .
A
B
~
__ Pre-trial release--C'oncept of-Determinative factor~ in grant of bail and
--~
release of under-trial prisoner on personal bond without monetary obligation
C Y
explainl·d.
In their petition for the issue of a writ of habeas corpus the petitioners stated
that a large nun1ber of men and women i•.1cluding childr'en were in jails for years
awaiting-trial in courts of law and that the offences, even if proved, would not
warrant punishn1ent for more than a few months. Although sufficient opportunity
was give.,,_, the State did not appea.r before the Court.
D
Directing the release of the undertrials on their executing a personal bond.
HELD:
(Per Bhagwati & Koshal, JJ.)
1. A procedure "".hich keeps large number of people behind bars without trial
for long, cannot possibly be regarded as "rentsonable, just or fair" so as. to be in
E
conformity wi1h the requirement of Art. 21. It is necessary, therefore, that the
law as enacted by the Legislature and as administered by the courts must radicaliy
chang~ its approach to pre-trial detention and ensure 'reasonable, 1ust an.J. fair'
procedure which has a creative connotation after the decision of the Supreme
Court in Maneka Gandhi's case. [174 C·D]
2. Speedy trial is of the essence of criminal justice and, therefore, d_elay in
trial by itself constitutes denial of justice. Though speedy trial is not sptcifically
):~enun1erated as a fundamental right, it is implicit in the broad sweep and C(Jntent
"
of Art. 21.
Speedy trial which means reasonably expeditious trial, is an itite·gral
•
part of the fundamental right to life and liberty 'enshrined il"l Art. 21, [179 H,
180 c, F]
Art. 21 confers a. fundamental right on every person not to be deprived of his
tife or liberty except in accordance with the procedure prescribed by law and it
is not e~ough to constitute compliance with the requirement of that Article that
some semblance of a procedure should be prescribed by Iaw, but that the pro ..
cedure should be "reasonable, fair and just".
If a person is deprived of his
liberty under a procedure which is not "reasonable, fair or just", such deprivation
would be violative of his fundamental right under Art. 21 and he would be entitled
to enforce such fund.am'ental right and secure his release.
Any procedure pres~
cribed by law for depriving a person of his liberty cannot be "reasonable1 fair or
just" unless. that procedure 'ensure.5 a ~pecdy trial for determination of the guilt
of such·person. [180 D-EJ
12-196SC!/79
F
G
H
A
•
17 0
SUPREME COURT REPORTS
[1979] 3 s.c.Jt.
Maneka Gandhi v. Union of ln;dia, [1978] 2 SCR 621; referred to.
3. Expeditious trial and freedom from detention are part of human rights an&
basic freedoms.
The judicial system which permits incarceration of men an4
women for long peripds of time withcut trial is denying human rights to suck
undertrials and withholding basic freedoms from th'em.
Law has become for
them an iruttrument of injustice and they are helpless and despairing victims of
B
the callousness of the legal and judicial system. [173 C-E, F]
D
E
4. One reason why our legal and judicial system continually denies justice
te the poor -by keeping them for long years in pretrial detention is the highly
unsatisfactory bail system, which suffers from a property oriented approach. It
proceeds on th'e erroneous assumption that risk of monetary loss is the only
deterrent against fleeing from justice. Even after its re-enactment1 the Code _'!.-....1. •
Criminal Procedure cootinues to adopt the same antiquated approach.
Where ~
an accused iao to be released on his personal bond, it insists that the bond ehould
,
contain a monetary obligation requiring the accused to pay a sum of money in
-4
case he fails to appear at the trial. Moreover, as if this were not sufficient deterrent to the poor, the courts mechanically and as a matter of course insist that
the accused should produce sureties who will stand bail for him and these sureties must again esta.blish th'eir solvency to be able to pay the amount of bail
in case the accused fails to app'ear to answer the charge. [17 4 E-G]
This system of bails operates. very harshly agaiinst the poor and it is only
the non-poor who are able to take adva.ntage of it by getting themselves released
on bail. The poor find it difficult to furnish bail even without sureties because
very often the amount of the bail fixed by the Court is so unrealistically cxces1ive that in a majority of cases the Poor are unable to satis.fy the police or the
Magistrate about their solvency for the amount of tb'e bail. and where the bail is
with sureties, as is usually the case, it becomes an almost impossible task for the
poor to find pen-ons sufficiently solvent to stand as sureties. The result is that
tither they are fleeced by the police and revenue· officials or by touts and profes~
1ional sureties and sometimes they ha,"e even to incur debts for securing their
release or, be.ng unable to obtain release, they have to remain in jail until such
time as the court is able to take up their cases for trial, leading to grave consequences, namely, ( 1) though presumed innocent, they are subjected to psychological and physical deprivations of jail life, (2) they are prevented irom contributing to the preparation of their defence and (3) they lose their job, if the~
have on'e, and are deprived of an opportunity to work to support themselves .....__..,
and their family members with the result that the burden of their detention
almost invariably falls heavily on the innocent members of the family. [174 G175 DJ
•
The bail system, as it op'erates today, is thus ai source of great hardship to
G
the poor and if the civil effects of poverty are to be eliminated and a fair and
~
just treatment assured to the poor in the administration of justice, it is imperaB
tive that the bail system should be thoroughly reformed so that it should lie
possible for the poor, as easily as the rich, to obtain pre-tTial release without
4
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jeopardizing the interest of justice. [177 C-D]
Ri•k of monetary loss is not the only deterrent against fleeing from ·justice;
There ar'e also other factors which act as equal dCterrents against :fleeing. There--
fore. the courts, even under the law as it stands today, must abandon the anti~
quated concept under whicl!. pre-trial release is ordered ortly against .bail with
sureties. If the coun is satisfied, after taking into account, on the basis of
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H. KHATOON V. HOME SECRETARY
1 71
information placed berore it, that the accused has his roots in the community and
is act likely to abscond, it can safely release the accused on hil5 personaJ. bond.
[177 E, G, HJ
5. To determine wheth'er the accused baas his- roots in the com1nunity which
would deter him from fleeing, the court should take into account the following
factors toncerning the accused : ( 1) The length of his residence in th'c community, (2) his employment status, history and his financial condition, (3) his
family ties and relationships, ( 4) his reputation, character and monetary conditions, (5) his prior criminal record including any record of prior release· on
recognizance or on bail, (6) the identity of responsible members of the community who would vouch for his reliability, (7) the nature of the offence charged
and the apparent probability of conviction and the likely sente!lce in so far as
.hese factors are relevant to the risk of non appearance, and (8) any other
factors indicating the ties of the accused to the oommunity or bearing on the
risk of wilful failure to appear. [178 A-El
If the court is satisfied on a consideration of the relevMit factors that the
accused has his ties in the community and there is no substantial risk of non-
:!tppearance, the accus'ed may, as far as possible, be released on his personal bond.
If facts a.re brought to the notice of the court showing that, havi'O.g regard to the
condition and back·ground of the accused, his previous record and the nature
and circumstances of the offence, th'ere may be a substantial risk of his nonappeamnce at the trial, as for example, where the accused is a notorious bad
character or a confirmed criminal or the offence is serious, th'e court ma.y not
release the accused on his personal bond and may insist on bail with sureties.
But in the J:J3jority of cases, considerations like family ties and
relatil111ship,
roots in the community, employment status etc. may prevail with the court in
releasing the accused on his personal bond and particularly in cases where th'!!
offence is not grave and the accused is poor or belongs to a weaker section of
the commooity, release on p'erson21l bond could, as far as possible, be preferred.
But even while releasing the accused on personal bond it is necessary to caution
the oourt that the amotmt of the bond which it fixes should not be based mer'cly
on lhe nature of the charge. The decision as regards the amount of th~ bond
should be an individualised decision depending on the individual :fina.ncial circum·
stances of the accused and the probability of his abS'COndiing.
The amount of
the bond 5hould be determined having regard to these relevant factors and should
not be fix'ed mechanically according to a schedule keyed to the nature of the
charge.
Otherwise, it would be difficult for the accused to secure his release
even by executing a personal bond, it would be very harsh and 0 ppt'essive if lie
is required to satisfy the court-and what is said in regard to the court must
apply equally in relation to the police while &ranting bail-that he
is
solvent
~nough to pay the amount of the bond if be fails to appeM. at the trial and in
oonsequence the bond is forfeited. The inquiry into the solvency of the accused
can become a source of great harassment to him and often result in denial of bail
and lfeprivation of liberty and should not, therefore, be ine;isted upon as a condition of acceptance of the personal bond. [178 F-179 DJ
6. Necessary to provide by an amendment of the penal law that if an accused
wilfully fails to appear in compliance with the promise contained in his personal
bond, he shall be liable to ponal action. [177 Fl
7. High time that the State Government realised its reopomibility to the
people in the matter of administration of justice and set up more courts for the
trial ef <...... [180 HJ
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17 2
SUPREME COURT REPORTS
[1979] 3 s.c.R.
A
Pathak J. (con.-urring)
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( 1) The primary principle of crimina-1 law ill that imprhonment may follow
a judgment of guilt, but should not precede it.
There is also another principle
which makes it desirable to ensure that the ac.::used is present to receive bis
sentence in the event of being found guilty. [181 E]
(2) It is indisputable that an unnecessarily prolooged det'ention in prison
of unUertrials befou; b;;ing brought to trial is an affront to all civilized norms
of human liberty and any meaningful concept of individual liberty which forms
the bedrock of a civilized ]egflil system must view with distress patently lm1~
periods of imprisonment before persons awaiting trial can receive the attention
of the aJministration of justice. [181 D]
(3) The Code of Criminal Proc'edure both the old Code and the
new,
include provisions for the release of a person on bail or 0\1 the execution of a
bond without sureties for his appearance. There is an amplitude of judi-ciad. power
to release a prisoner awaiting trial on bail or on the execution of a personal
bond without sureties for his appearance within the existi\1g provisions of the
Code of Criminal Procedure and it is for the Courts to fully acqua.int themselves
with the nature and extent of their discr'etion in exercising it. It is no longer
possible to countenance a mechanical exercise of the power. What should be
the amount of security required or th'e monetary obligation demanded in a bond
is a matter calling for the careful cons-idera.tion of several factors.
The entire
object being cnly to ensure that tlie undertrial does not flee or hide himself
from trial, all the relevant considerations which enter into the determination of
that question must be t<1ken into account. [181 E, 182 B-C]
( 4) The abus'es attendant ~1 the prevailing system of pre~trial release in
India could be avoided or, in any event greatly reduced, if considerations like
"nature and circumstances of the offence charged, the weight of the ~vidence
against the accused, the accus-ed's family ties, employment, finain..:ial resources,
character ao,1d mental condition, the length of his residence in the community, his
record of convictions, and his record of appearance at eourt proceedings or of
flight to avoid prosecution or failur~ to appear at -court proceedings", are taken
into consideration when determining pre-trial r'elease and the amount of security
or monetary obligation to be imposed. [182 G, E-F]
United States Bail Reforms Act. 1966: 18 USS 3146 (b}, Moti Ram
& Ors. v. State of M.P. [1978] 4 SCC 47; referred to.
(5) Urgent need for a clear and explicit provision in the Code of Criminal
G
Procedure enabling the release, in appropriate cases, of an under trial prisoner
on his bond without sureties and without any monetary obliga-tion. [l 83 B]
H
ORIGINAL JURISDICTION : Writ Petition No. 57 of 1979.
Mrs. K. Hingorani for the Petitioners
S. M. Jha and U. P. Singh for the Respondent.
The Judgment of Bhagwati and Kasha!, JJ. was delivered by
Bhagwati, J. Pathak, J. gave a separll.te Opinion.
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H. KHATOON v. HOME SECRETARY (Bhagwmi, J. I
I 7 :i
BHAGWA TI, J .-This petition for a writ of habeas corpus discloses
a shocking state of affairs in regard to administration of justice in the
State of Bihar.
An alarmingly large number of men and women,
children including, are behind prison bars for years awaiting trial in
courts of law.
The offences with which some of them are charged
are trivial, which, even if proved, would not warrant punishment for
more than a few months, perhaps for a year or two, and yet these
unfortunate forgotten specimens of humanity are in jail, deprived of
their freedom, for periods ranging from three to ten years without even
as much as their trial having commenced.
It is a crying shame on
the judicial system which permits incarceration of men and women
for such long periods of time without trial.
We are shouting from
house tops about the protection and enforcement of human rights. ,
We are talking passionately and eloquently about the maintenance an:l
preservation of basic freedoms.
But, are we not denying human rights
to these nameless persons who .are languishing in jails for years for
offences which perhaps they might ultimately be found not to have
committed ? Are we not withholding basic freedoms from these neglected and helpless human beings who have been condemned to
a
life of imprisonment and degradation for years on end ? Are expeditious trial and freedom from detention not part of buman rights and
basic freedoms ? Many of these unfortunate men and women must
not even be remembering when they entered the jail and for what
offence. They have over the years ceased to be human beings they
are mere ticket-numbers. It is high time that the pnblic conscience
is awakened and the Government as well as the judiciary begin to
realise that in the dark cells of our prisons there are large nnmbers of
men and women who are waiting patiently, impartiently perhaps, but
ln vain, for jnstice-a commodity which is tragically beyond their
reach and grasp.
Law has become for them an instrument of injustice
and they are helpless and despairing victims of the callousness of the
legal and judicial system.
The time has come when the legal
and
judicial system has to be revamped and restructured so that
such
injnstices do not occur and disfigures the fair and otherwise luminous
face of our nascent democracy.
Though we issued notice to the State of Bihar two weeks ago, it is
nnfortnnate that on the 5th February, 1979 no one has appeared on.
behalf of the State and we must, therefore, at this stage proceed on
the basis that the allegations contained in the issues of the Indian Express dated 8th and 9th January, 1979 which are incorporated in the
writ petition are correct.
The information contained in these newspaper cuttings is most distressing and it is sufficient to stir the consciA
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SUPREME COURT REPORTS
[1979] 3 s.c.R.
e11ce and disturb the equanimity of any socially motivated lawyer or
judge.
Some of the undertrial prisoners whose names are giveil in
the newspaper cuttings have been in jail for as many as 5, 7 or 9
years and a few of them, even more than 10 years, without their trial
having begun.
What faith can these lost souls have in the judicial
system which denies them a bare trial for so many years and keeps
them behind bars, not because they are guilty, but because they are
too poor to afford bail and the courts have no time to try them. It
is a travesty of justice that many poor accused,
"little Indians, are
forced into long cellular servitude for little offences" because the bail
procedure is beyond their meagre means and trials don't commence and
even if they do, they never conclude.
There can be little doubt, after
the dynamic interpretation placed by this Court on Art. 21 in Mar.eka
Gandhi v. Union of lndia( 1) that a procedure which keeps such large
numbers of people behind bars without trial so long cannot possibly
be regarded as 'reasonable, just or fair' so as to be in conformity with
the requirement of that Article. It is necessary, therefore, that the
law
as enacted
by the Legislature and as administered by
the
courts must radically change its approach to pretrial detention and
ensure 'reasonable, just and fair' procedure which has creative conne>-
tation after Maneka Gamlhi's caS!! supra.
Now, one reason why our legal and judicial system continually
denies justice to the poor by keeping them for long years in pretrial
detention is our highly unsatisfactory bail system. It suffers from a
property oriented approach which seems to proceed on the erroneous
assumption that risk of monetary loss is the only deterrent against
fleeing from justice.
TlJe Code of Criminal Procedure, even after its
re-enactment, continues to adopt the same antiquated approach as the
earlier Code enacted towards the end of the last century .and where an
accused is to be released on his personal bond, it insists that the bond
should contain a monetary obligation requiring the accused to pay a
sum of money in case he fails to appear at the trial.
Moreover, as
if this were not sufficient deterrent to the poor, the courts mechanically
and as a matter of course insist that the accused should produc~ sureties who will stand bail for him and these sureties must again establish their solvency to be able to pay np the amonnt of the bail in case
the accused fails to appear to answer the charge.
This system of bails
operates very harshly against the poor and it is only the non-poor
who are able to take advantage of it by getting themselves released on
bail.
The poor find it difficult to furnish bail even without sureties
because very often the amount of the bail fixed by the courts is
so
(1) [19781 2 S.C.R. 621.
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H. KHATOON v. HOME SECRETARY (Bhagwali, J.)
175
unrealistically excessive that in a majority of cases the poor are unable to satisf) the police or the Magistrate about their solvency fox
the amount of the bail and where the bail is· with sureties, as is usually
the ca_se, it becomes an almost impossible task for the poor to find
persons sufficiently solvent to stand as sureties.
The result is that
either they are fleeced by the police and revenue officials or by touts
and professional sureties and sometimes they have
even to incur
debts for securing their release or, being unable to obtain release, they
have to remain in jail until such time as the court is able to take up
!heir cases for trial, Jea~ing to grave consequences, namely, (1) though
presumed innocent, they are subjected to psychological and physical
deprivations of jail life, (2) they are prevented from contributing to
the preparation of their defence and ( 3) they lose their job, if they
have one, and are deprived of an opportunity to work to support themselves and their family members with the result that the burden of
'11eir detention almost invariably fal!s heavily on the innocent members of the family.
It is her~ that the poor find our legal and judicial
system oppressive and heavily weighted against them and a feeling of
frustration and despair occurs upon them as they find that they are
helplessly in a position of inequality with the non-poor.
The Legal
Aid Committee appointed by the Government of Gujarat under the
chairmanship of one of us, Mr. Justice Bhagwati, emphasised
this
,Paring inequality in the following words :
"The bail system, as we see it administered in the
criminal courts today, is extremely unsatisfactory and needs
drastic change.
In the first place it is virtually impossible
to translate risk of non-appearance by the accused into precise monetary terms and even its basic premise that risk of
:financial loss is necessary to prevent the accused from fleeing
is of doubtful validity.
There are several
considerations
which deter an accused from running away from justice and
risk of financial loss is only one of them and that too not a
major one.
The experience of enlightened Bail Projects in
tho United States such as Manhattan Bail Project and D. C.
Bail Project shows that even without monetary bail it has
been possible to_ secure the presence of the accused at the
trial in quite a large number of cases.
Moreover, the bail
system causes discrimination against the poor since the poor
would not be able to furnish bail on account of their poverty.
while the wealthier persons otherwise similarly situate would
be able to secure their freedom because they can afford to
furnish bail.
This discrimination arises even if the amount
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SUPREME COURT REPORTS
[1979) 3 s.c.R.
of the bail is fixed by the Magistrate is not high, for a large
majority of those who are brought before the Courts in
criminal cases are so poor that they would find it difficult to
furnish bail even in a small amount."
The Gujarat Committee also pointed out how the practice of fixing
B
the amount of bail with reference to the nature of the charge without
taking into account relevant factors, such as the individual financial
circumstances of the accused and the probability of his fleeing before
~ial, is harsh and oppressive and discriminates against the poor :
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"The discriminatory nature of the bail system becomes
all the more acute by reason of the mechanical way in which
it is custonnari!y operated. It is no doubt true that theoretically the Magistrate has broad discretion in fixing the
amount of bail but in practice it seems that the amount of
bail depends almost always on the seriousness of the offence.
It is fixed according to a schedule related to the nature of the
charge. Little weight is given either to the probability that the
accused will attempt to flee before his trial or to his individual financial circumstances, the very factors which seem most
relevant if the purpose of bail is to assure the appearance
of the accused at the trial.
The result of ignoring these
factors and fixing the amount of bail mechanically having
regard only to the seriousness of the offence is to discriminate against the poor who are not in the same position as the
rich as regards capacity to furnish bail.
The
Courts by
ignoring the differential capacity of the rich and the poor to
furnish bail and treating them equally produce inequality
between the rich and the poor : the rich who is charged
with the same offence in the same circumstances is able to
secure his release while the poor is unable to do so on account of his poverty.
These are some of the major defects
in the bail system as it is operated to-day."
The same anguish was expressed by President Lyndon B. Johnson at
the time of signing the Bail Reforms Act, 1966 :
"Today, we join to recognize a major development in
our system of criminal justice : the reform of the bail system.
This system has endured-archaic, unjust and virtually
unexamined-since the Judiciary Act of 1789.
The principal purpose of bail is to insure that an accused
person will return for trial if he is released after arrest.
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H. KHATOON v. HOME SECRETARY (Bhagwati, J.)
How is that purpose met under the present
system ?
The defendant with means can afford to pay bail.
He can
afford to buy his freedom.
But poorer defendant cannot
pay the price.
He languishes in jail weeks, months and perhaps even years before trial.
He does 11ot stay in jail because be is guilty. He does
not stay in jail because any sentence has been passed.
He does not stay in jail because he is any more likely
to flee before trial.
He stays in jail for one reason only-because he
is
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The bail system, as it operates today, is a source of great hardship
to the poor and if we really want to eliminate the evil effects of poverty
and assure a fair and just treatment to the poor in the administration of
justice, it is imperative that the bail system should be thoroughly reformed so that it should be possible for the poor, as easily as the rich
to obtain pretrial release with()ut jeopardizing the inteJest of justice.
It is high time that our Parliament realises that risk of monetary
loss is not the only deterrent against fleeing from justice, but there
are also other factors which act as equal deterrents against fleeing.
Ours is a socialist republic with social justice as the signature tune of
our constitution and Parliament 'would do well to consider whether it
would not be more consonant with the ethos of our constitution that
instead of risk of financial loss. other relevant considerations such as
family ties, roots in the community, job security, membership of stable
organisations etc., should be the cfeterminativc factors in grant
of
bail and the accused should be in appropriate cases be released on his
persona) bond without monetary obligation.
Of course, it may be
necessary in such a case to provide by an amendment of the penal
law that if the accused wilfully fails to appear in compliance with the
promise contained in his personal bond, he shall be liable to penal
action.
But even under the law as it stands today the courts must
abandon the antiquated concept under which pretrial release is ordered
only against bail with sureties.
That concept is outdated ~nd ex·
perience has shown that it has done more harm than good.
The new
insight into the subject of pretrial release wh'ch has been developed
in socially advanced countries and particularly the United States should
ROW inform the decisions of our Courts in regard to pretrial release.
If the Court is satisfied, alter taking into account, on the basis of information placed before it, that the accused has his roots in the community and is not likely to abscond, it can safely release the accnsed
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on his personal bond. To determine whether the accused has his rooti;
in the community which would deter him from fleeing, the Coort
should take into account the following factors concerning the accused :
1. The length of his residence in the community.
2. his employment status, history and his financial condition,
3. his family ties and relationships,
4. his reputation, character and monetary condition,
5. his prior criminal record including any record or prior
release on recognizance or on bail,
6. the identity of responsible members of the community
who would vouch for his reliability.
7. the nature of the offence charged and the apparent probability of conviction and the likely sentence in so far
as these factors are relevant to the risk of non appearance, and
8. any other factors indicating the ties of the accused to
the community or bearing on the risk of wilful failure
to appear.
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II the court is satisfied ou a consideration of the relevant factors that
the accused has his ties in the community and there is no substantial
risk of non~appearance, the accused may, as far as possible, be raleased on his personal bond.
Of course, if facts are brought to tlte
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notice of the court which go to show that having regard to the copdition and background of the accused his previous record and
the
nature and circumstances of the offence, there may be a substantial
risk of his non-appearance at the trial, as for example, where
the
accused is a notorious bad character or a confirmed criminal or the
offence is serious (these examples are only by way of illustration), the
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court may not release the accused on his personal bond and may insist
on bail with sureties.
But in the majority of cases, considerations
like family ties and relationship, roots in the community, employment
status etc. may prevail with the court in releasing the accused on his
personal bond and particularly in cases where the offence is not grave
and the accused is poor or belongs to a weaker section of the comH
munity, release on personal bond could, as far as possible, be vreferred.
But e~en while releasing the accused on personal bond it is
necessary to caution the court that the amount of the bond which it
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H. KHATOON v. HOME SECRETARY (Bhagwati, J.)
179
fixes should not be based merely on the nature of the charge.
The
decision as regards the amount of the bond should be an individualiiied decision depending on the individual financial circumstances of the
accused and the probability of his absconding.
The amount of the
bond should be determined having regard to these relevant factors and
should not be fixed mechanically according to a schedule keyed to
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1tie nature of the charge.
Otherwise, it would be difficult for
the
accased to secure his release even by executing a personal bond. Moreover, when the accused is released on his personal bond, it would be
J.._very harsh and oppressive if he is required to satisfy the court-and
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Y.>hat we have said here in regard to the court must apply equally in
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relation to the police while granting bail-that he is ~olvent enough
t~ tiay the amount of the bond if he fails to a,ppear at the trial and
in consequence the bond is forfeited.
The inquiry into the solvency
of the accused can become a source of gre~t harassment to him and
often re1ult in denial of bail and deprivation of liberty artd should
not, therefore, be insisted upon as a condition of acceptance of the
personal bond.
We have no doubt that if the system of bail, even
under the existing law, is administered in the manner we have in di~
cated in this judgment, it would go a long way towards relieving hardship of the poor and help them to secure pretrial release from incarceration. It is for this reason we ha~e directed the undertrial prisoners whose names are given in the two issues of the Indian Express
ihould be released forthwith on their personal bond. We should have
ordinarily said that personal bond to be executed by them should be
with monetary obligation, but we directed as an exceptional measure
that there need be no monetary obligation in the personal bond becanse we found that all these persons have been in jail without trial
. for several years, and in some cases for offences for which the punisl!-
o.;r ment would in all probability be less than the period of their detention and moreover, the order we were making was merely an interim
order.
The peculiar facts and circumstances of the case dictated such
an unusual course .
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There is also one other infirmity of the legal and judicial system
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which is responsible for this gross denial of justice to the undertrial
prisoners and that is the notorious delay in d;sposal of cases. It is
a bad reflection on the legal and judicial system that the trial of an
accused should not even commence for a long number of years.
Even
a delay of one year in the commencement of the trial is bad enough;
how much worse could it be when the delay is as long as 3 or 5 or
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7 or even 10 years.
Speedy trial is of the essence of criminal justice
and there can be no doubt that delay in trial by itself constitutes denial
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of justice.
It is interesting to note that in the United States, speedy
trial is one of the constitutionally guaranteed rights.
The
Sixth
Amendment to the Constitution provides that
"In all criminal
prosecutions,
the accused shall enjoy
the right to a speedy and public trial." So also Article 3 of
the European Convention on Human Rights provides that :
"every one arrested
or detained-shall be entitled to
trial within a reasonable time or to release pending trial."
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We think that even under our Constitution, though speedy trial is not
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specifically enumerated as a fundamental right, it is implicit in th~
broad sweep and content of Article 21 as interpreted by this Court in
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Maneka Gandhi v. Union of India.
We have held in that case that
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Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure
prescribed by law and it is not enough to constitute compliance with
the requirement of that Article that some semblance of a procedure
should be
prescribed
by law, but that the
procedure should be
"reasonable, fair and just".
If a person is deprived of his liberty
under a
procedure which is not
"reasonable, fair or just",
such
deprivation would be violative of his fundamental right under Article
21 and he would be entitled to enforce such fundamental right and
1ecure his release.
Now obviously procedure prescribed by law for
depriving a person of his liberty cannot be 'reasonable, fair or just'
unless that procedure ensures a speedy trial for determination of the
~ilt of such person.
No procedure which does not ensure a reasonable quick trial can be regarded as 'reasonable, fair or just' and
it
would fall foul of Article 21.
There can, therefore, be no doubt that
speedy tri>1l and by speedy trial we mean reasonably expeditious trial,
is an integral and essential part of the fundamental right to life
and~
liberty enshrined in Article 21.
The question which would, however,
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arise is as to what would be the consequence if a person accused of
an offence is denied speedy trial and is sought to be deprived of his
liberty by imprisonment as a result of a long delayed trial in violation
of his fundamental right undc Article 21.
Would he be entitled to
be released unconditionally freed from the charge levelled against him
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on the ground that trying him after an unduly long period of time and
convicting him after such trial would constitute violation of his fundamental right under Article 21 ? That is a question we shall have to
consider when we hear the writ petition on merits on the adjourned
7 <
date.
But one thing is certain and we cannot impress it too strongly
on the State Government that it is high time that the State Government realised its responsibility to the people in the matter of admini-
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H. KHATOON v. HOME SECRETARY (Pathak, J.)
lSI
'!ration of justice and set up more courts for the trial of cases.
We
may point out that it would not be enough merely to establish more
courts but the State Government would also have to man them by
competent judges and whatever is necessary for the purpose of recruiting competent judges, such as improving their conditions of service, would have to be done by the State Government, if they want
to improve the system of administration of justice and make it an
effective instrument for reaching justice tb the large masses of people
for whom justice is to-day a meaningless and empty word.
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These are the reasons for which we made our order dated 5th
....-~ebruary, 1979.
We shall now proceed to hear the ;nit petition on
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19th February, 1979.
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PATHAK, J.-lt is indisputable that an unnecessarily prolonged
detention in prison of undertrials before being brought to trial is an
affront to all civilized norms of human liberty.
Any
meaningful
concept of individual liberty which forms the bedrock of a
civilized
legal system must view with distress patently long periods
of
im-' D
prisonment
before
persons
awaiting
trial
can
receive
the
attention of the administration of justice.
The primary principle of
criminal law is that imprisonment may follow a judgment of guilt.
But should not precede it. But there is another principle which
. makes it desirable to ensure that the accused is present to receive his
sentence in the event of being found guilty.
Now,
the Code
of
Criminal Procedure, both the old Code and the new, include provision
for the release of a person on bail or on the execution of a bond
without sureties for his appearance.
Nonetheless, as appears prima
facie from the record before us, a large number of persons
whose
names, find mention in copies of the Indian Express of January
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)-- -·and 9, 1979, have been in prison for long year without even being
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brought to trial.
Although sufficient opportunity was given to the
State of Bihar to meet the allegations made, it is unfortunate that
no one has appeared on behalf of the State.
In view of the importance of the questions arising on the habeas corpus petition, we have
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provided further opportunity to the State to appear and accordingly
have posted the petition for final hearing on February 19, 1979. But
at the same time we see no reason why interim relief
should be
denied to these undertrials. After carefully considering what
has
been said in respect of each individual undertrial, we have considered
it appropriate, in the interests of justice, to make the order of February 5, 1979 clirect!ng the release of the persons mentioned in that
order on their executing a personal bond.
'\he order is somewhat
unusual in that it directs that the personal bond to be taken in each
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SUPREME COURT REPORTS
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case should not be based on any monetary obligation.
The condition has been included as an exceptional measure, under the persuasive pressure of the particular facts and circumstance of the case.
In regard to the exercise of the judicial power to release a prisoner
awaiting trial on bail or on the execution of a personal bond without
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sureties for his appearance, I have to say this briefly.
There is an
amplitude of power in thi.s regard within the existing provisions of
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the Code of Criminal Procedure, and it is for the Courts to fully
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acquaint themselves with the nature and extent of their discretion in
exercising it.
I think it is no longer possible to countenance a mecha-
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exercise of the
power.
What should ·be the amount~,_
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security required or the monetary obligation demanded in a bond is
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a matter calling for the careful consideration of several factors.
The
entire object being only to ensure that the undertrial does not flee or
hide. himself from trial, all the relevant considerations which enter
into the determination of that question must be taken into account.