# KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA PRADESH

- **Citation:** [2018] 4 S.C.R. 1098
- **Court:** Supreme Court of India
- **Decided:** 2018-03-28
- **Case number:** Criminal Appeal No. 470 of 2018
- **Bench:** Adarsh Kumar Goel, Uday Umesh Lalit
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/krishanakant-tamrakar-v-the-state-of-madhya-pradesh-32895
- **Pages:** 33

## Headnote

Constitution of India:
Arts. 14 and 21 - Access to speedy justice - Appellant-accused
(sentenced to life imprisonment by trial court) was denied bail during
pendency of his appeal before High Court - Appeal to Supreme
Court on the ground that having been in custody for more than 10
years, remedy of appeal would be meaningless if he were to remain
in custody for full term of sentence - Held: Grant of bail denied -
Access to speedy justice is part of fundamental right under Arts. 14
and 21 - Direction issued as to remedy the problem of delay in
hearing of criminal appeals - Administration of Justice - Bail.
Disposing of the appeal, the Court
HELD: 1. Access to speedy justice is part of fundamental
right under Articles 14 and 21 of the Constitution. The National
Commission to Review Working of the Constitution recommended
that access to speedy justice may be incorporated as an express
fundamental right. [Para 16] [1110-F]
Vineet Narayan v. Union of India (1996) 2 SCC 199 :
[1996] 1 SCR 1053; Prakash Singh v. Union of India
(2006) 8 SCC 1 : [2006] 6 Suppl. SCR 473 - relied on.
Imtiaz Ahmad v. State of U.P. (2012) 2 SCC 688 : [2012]
1 SCR 779; Anita Kushwaha v. Pushap Sudan (2016)
8 SCC 509 : [2016] 9 SCR 560 - referred to.
2.1 The available figures show that long pendency of cases
particularly of more than five years remains a serious challenge.
In High Courts, 16.29 lakhs cases were more than five years
old. 7.43 lakh cases were more than 10 years old. Since current
disposal itself was less than the institution of fresh cases, there
was no likelihood of old cases being decided in a reasonable time.
There could not be increase of strength of High Court Judges
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beyond a limit. The system could not be top heavy. Volume of
work in the High Court was likely to further increase on account
of increased disposal of cases in subordinate courts with the
increased strength of judges, infrastructure and other steps being
taken. Disposal of cases in subordinate courts is not enough, if
the same are thereafter held up in the High Courts. New laws
are being enacted providing statutory remedies before the High
Courts. Moreover, oversight mechanism for judges of the
Constitutional Courts is not the same as for other Judges. While,
there can be no doubt about need for such protection,
appointment of large number of such judges can be counter
productive. If number of Constitutional Courts is to be increased
to match the volume of work being entrusted to such Courts, it
may have its implication unless it is possible to find sufficient
number of suitable persons. The fact that there are large number
of vacancies in such Courts shows the difficulty in identifying
adequate number of suitable persons for Constitutional Courts.
Nature of work before the Constitutional Courts particularly
laying down of law is time consuming. Such Courts cannot be
overburdened. [Para 23] [1113-C-E; 1114-A-B]
2.2 In 124th Report of the Law Commission of India (1988)
titled "High Court Arrears - A Fresh Look", the Law Commission
observed that wherever possible, proliferating appellate and wide
original jurisdiction should be controlled and curtailed without
impairing the quality of justice. It was observed that the approach
of the Law Commission is to reduce number of appeals, set up
specialist courts/tribunals to reduce the inflow of work to the
High courts. In 272nd report, the Law Commission observed that
the forum for challenging the order of tribunal should be appellate
tribunals, which decision should be final. No statutory appeal
should be provided before the High Courts or Supreme Court in
routine manner. No action appears to have been taken on the
said recommendations. [Paras 28, 30] [1116-D, F-G]
2.3 Since one trial and one appeal are considered to be
components of fair system of administration of justice in criminal
cases of serious nature, adjudication at the original forum and at
one appellate forum must

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KRISHANAKANT TAMRAKAR
v.
THE STATE OF MADHYA PRADESH
(Criminal Appeal No. 470 of 2018)
MARCH 28, 2018
[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.]
Constitution of India:
Arts. 14 and 21 - Access to speedy justice - Appellant-accused
(sentenced to life imprisonment by trial court) was denied bail during
pendency of his appeal before High Court - Appeal to Supreme
Court on the ground that having been in custody for more than 10
years, remedy of appeal would be meaningless if he were to remain
in custody for full term of sentence - Held: Grant of bail denied -
Access to speedy justice is part of fundamental right under Arts. 14
and 21 - Direction issued as to remedy the problem of delay in
hearing of criminal appeals - Administration of Justice - Bail.
Disposing of the appeal, the Court
HELD: 1. Access to speedy justice is part of fundamental
right under Articles 14 and 21 of the Constitution. The National
Commission to Review Working of the Constitution recommended
that access to speedy justice may be incorporated as an express
fundamental right. [Para 16] [1110-F]
Vineet Narayan v. Union of India (1996) 2 SCC 199 :
[1996] 1 SCR 1053; Prakash Singh v. Union of India
(2006) 8 SCC 1 : [2006] 6 Suppl. SCR 473 - relied on.
Imtiaz Ahmad v. State of U.P. (2012) 2 SCC 688 : [2012]
1 SCR 779; Anita Kushwaha v. Pushap Sudan (2016)
8 SCC 509 : [2016] 9 SCR 560 - referred to.
2.1 The available figures show that long pendency of cases
particularly of more than five years remains a serious challenge.
In High Courts, 16.29 lakhs cases were more than five years
old. 7.43 lakh cases were more than 10 years old. Since current
disposal itself was less than the institution of fresh cases, there
was no likelihood of old cases being decided in a reasonable time.
There could not be increase of strength of High Court Judges
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beyond a limit. The system could not be top heavy. Volume of
work in the High Court was likely to further increase on account
of increased disposal of cases in subordinate courts with the
increased strength of judges, infrastructure and other steps being
taken. Disposal of cases in subordinate courts is not enough, if
the same are thereafter held up in the High Courts. New laws
are being enacted providing statutory remedies before the High
Courts. Moreover, oversight mechanism for judges of the
Constitutional Courts is not the same as for other Judges. While,
there can be no doubt about need for such protection,
appointment of large number of such judges can be counter
productive. If number of Constitutional Courts is to be increased
to match the volume of work being entrusted to such Courts, it
may have its implication unless it is possible to find sufficient
number of suitable persons. The fact that there are large number
of vacancies in such Courts shows the difficulty in identifying
adequate number of suitable persons for Constitutional Courts.
Nature of work before the Constitutional Courts particularly
laying down of law is time consuming. Such Courts cannot be
overburdened. [Para 23] [1113-C-E; 1114-A-B]
2.2 In 124th Report of the Law Commission of India (1988)
titled "High Court Arrears - A Fresh Look", the Law Commission
observed that wherever possible, proliferating appellate and wide
original jurisdiction should be controlled and curtailed without
impairing the quality of justice. It was observed that the approach
of the Law Commission is to reduce number of appeals, set up
specialist courts/tribunals to reduce the inflow of work to the
High courts. In 272nd report, the Law Commission observed that
the forum for challenging the order of tribunal should be appellate
tribunals, which decision should be final. No statutory appeal
should be provided before the High Courts or Supreme Court in
routine manner. No action appears to have been taken on the
said recommendations. [Paras 28, 30] [1116-D, F-G]
2.3 Since one trial and one appeal are considered to be
components of fair system of administration of justice in criminal
cases of serious nature, adjudication at the original forum and at
one appellate forum must be within reasonable time which should
not normally exceed one to two years, as noted by the Law
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Commission and the Malimath Commission. At the same time,
multiple layers of remedies need to be eliminated. Article 227
remedy, is meant primarily against perversity or patent error in a
judgment. [Para 31] [1117-A-B]
2.4 From the data available it is clear that all the steps taken
by the Central Government so far have not significantly improved
the situation of speedy disposal of criminal appeals. The steps
taken are set off by increased volume of work or otherwise.
Therefore, Union of India ought to consider whether it is viable
to have criminal appeals and other matters before the High Courts
decided within reasonable time as per existing system. If not,
whether it is possible to provide any other suitable forum for
such appeals so as to ensure enforcement of fundamental right of
speedy justice or how else the situation can be remedied. The
issue of non-viability of providing routine statutory appeals to
Constitutional Courts may also need to be considered. [Paras
32, 33] [1117-C-D]
2.5 In the light of 24th and 272nd Reports of the Law
Commission of India, judgment of this Court in *Gujarat Urja
case, the Minutes of the Arrears Committee of Supreme Court
dated 8th April, 2017 and all other relevant considerations, the
concerned authorities may examine whether there is need for
any changes in the judicial structure by creating appropriate fora to
decongest the Constitutional Courts so as to realistically achieve
the constitutional goal of speedy justice. [Para 52] [1129-B-C]
*Gujarat Urja Vikas Nigam Limited v. Esssar Power
Limited (2016) 9 SCC 103 : [2016] 5 SCR 101 - relied on.
P. Ramchandra Rao v. State of Karnataka (2002) 4 SCC
578; Imitiyaz Ahmad v. State of Uttar Pradesh and Ors.
(2017) 3 SCC 658; Akhari Bi v. State of M.P. (2001) 4
SCC 355 : [2001] 2 SCR 626; Radhey Shyam v. Chhabi
Nath (2015) 5 SCC 423 : [2015] 3 SCR 197; Sita Ram
v. State of U.P. (1979) 2 SCC 656 - referred to.
3.1 Timely filling up of vacancies at all levels with the best
available talent also need to be considered immediately. The 14th
Law Commission in its Report in the year 1958 examined the
issue of having best talent for subordinate judiciary. It suggested
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selection by all India level competition and constitution of All
India Judicial Service. [Para 34] [1117-E-F]
3.2 Setting up of Central Selection Mechanism will go a
long way in having timely appointments of best available talent.
Steps in this regard may be taken by the concerned authorities
without delay so that timely and quality appointments can be
ensured. [Para 35] [1118-C-D]
3.3 Primacy in appointment of Constitutional Courts is of
the Chief Justice of India. Even without affecting such primacy,
improvement in working of Collegium is a felt necessity. Five
Judge Bench of this Court directed setting up of the Secretariat
and also to incorporate other factors for improved and effective
working of the collegiums system. This apart, corrective measures
against post appointment conduct or inadequate performance or
failure to uphold righteous conduct need to be evolved. These
aspects require urgent attention of concerned authorities. [Para
39] [1121-E-F; 1122-A]
3.4 If a High Court remains without a permanent Chief
Justice, process of speedy justice certainly suffers. In spite of
timeline in the MOP for appointments in pursuance of Judgement
of this Court in **Supreme Court Advocates-on-Record Association
case that there will be no Acting Chief Justice for more than one
month, timely appointments of Chief Justices is not taking place.
Appointment of a Chief Justice for few days for a High Court
other than the place where the candidate is already working,
serves no purpose of the system. The Central Government must
take all steps to ensure such appointments as per prescribed
timeline. Even if it may not be possible to make initial
appointments to High Courts till suitable candidates are
identified, appointment of Chief Justices may stand on different
footing as selection is to be made, out of available candidates. To
speedily identify such candidates, availability of data and
involvement of persons who can spend time may be needed. The
process may require thinking, planning and acting on a continuous
basis. Primacy with the judiciary is necessary but for the job of
such onerous nature, effective assistance is a must. Felt needs
of time must be addressed. The system cannot remain static or
unconcerned even when problems are patent. There appears to
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be dire need to strengthen the system of timely appointment of
Judges, particularly Chief Justices. Identification of candidates,
scrutiny, evaluation and post-appointment performance
measurements and conduct are time consuming processes and
at least some independent full time experts are required, if timely
and best appointments are to be ensured and requisite in-house
oversight is to be a reality. A full time body consistent with
independence of judiciary appears to be immediate need for the
system. Absence thereof contributes to denial of justice. The
Central Government must also ensure that MOP in pursuance of
order of this Court in NJAC case dated 16th December, 2015
brings about the improvements in working of the collegiums as
stipulated. [Para 40] [1122-B-F; 1123-A]
3.5 In view of 14th Report of the Law Commission of India,
judgment of this Court in ***All India Judges' Association case,
the Minutes of the Arrears Committee of this Court dated 8th
April, 2017, and the experience on the subject, pending
consideration of issue of All India Judicial Service, there is need
to consider the proposal for central selection mechanism for filling
up vacancies in courts other than the Constitutional Courts and
also to consider as to how to supplement inadequacies in the
present system of appointment of judges to the Constitutional
Courts at all levels. [Para 52] [1129-D-E]
***All India Judges' Association v. Union of India
(1992) 1 SCC 119 : [1991] 2 Suppl. SCR 206; Malik
Mazhar Sulta (3) and Anr. v. U.P. Public Service Common
& Ors. (2008) 17 SCC 703; All India Judges'
Association v. UOI (2002) 4 SCC 247 : [2002] 2 SCR
712; **Supreme Court Advocates-on-Record Association
vs. Union of India (1993) 4 SCC 441 : [1993] 2 Suppl.
SCR 659; Special President Reference under Aticle 143
(1) Relating to Judges Transfer and Appointment (1998)
7 SCC 739 : [1998] 2 Suppl. SCR 400; Supreme Court
Advocates-on-Record Association v. Union of India
(2016) 5 SCC 1 - relied on.
Re: Sri Justice C.S. Karnan (2017) 7 SCC 1 - referred to.
4. There is also a need for mechanism to evaluate and
compile performance of the judicial system as per observations
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in 245th Report of the Law Commission so that there is nonmandatory timeline for decision of cases and accountability
consistent with the right of speedy justice. Such mechanism may
provide norms for performance measurement for all judges in
the hierarchy. The same has to be done without affecting
independence of judiciary. There is also need for an in-house
mechanism manned by experts but with safeguards consistent
with independence of judiciary for measures against erring Judges
other than impeachment. [Para 41] [1123-C-D]
Re: Sri Justice C.S. Karnan (2017) 7 SCC 1 - referred to.
5.1 The Bar has the tradition of placing their professional
duty of assisting the access to justice above every other
consideration. At some places there are frequent strikes,
seriously obstructing access to justice. Even cases of persons
languishing in custody are delayed on that account. By every
strike, irreversible damage is suffered by the judicial system,
particularly consumers of justice. They are denied access to
justice. Tax payers' money is lost on account of judicial and public
time being lost. Nobody is accountable for such loss and
harassment. [Paras 42, 44] [1123-E-F; 1124-B]
5.2 Since the strikes are in violation of law laid down by
this Court, the same amount to contempt and at least the office
bearers of the associations who give call for the strikes cannot
disown their liability for contempt. Every resolution to go on
strike and abstain from work is per se contempt. Even if
proceedings are not initiated individually against such contemnors
by the court concerned or by the Bar Council concerned for the
misconduct, it is necessary to provide for some mechanism to
enforce the law laid down by this Court, pending a legislation to
remedy the situation. [Para 50] [1128-D]
5.3 The Law Commission in its 266th Report found that such
conduct of the advocates affects functioning of courts and
particularly it contributes to pendency of cases. It analyzed the
data on loss of working days on account of call of strikes. [Para
47] [1124-G; 1125-A]
5.4 With a view to enforce fundamental right of speedy
access to justice under Articles 14 and 21 of the Constitution
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and law laid by this Court, it is necessary to direct the Ministry of
Law and Justice to present at least a quarterly report on strikes/
abstaining from work, loss caused and action proposed. The
matter can thereafter be considered in its contempt or inherent
jurisdiction of this Court. The Court may, having regard to the
fact situation, hold that the office bearers of the Bar Association/
Bar Council who passed the resolution for strike or abstaining
from work, are liable to be restrained from appearing before any
court for a specified period or until such time as they purge
themselves of contempt to the satisfaction of the Chief Justice of
the concerned High Court based on an appropriate undertaking/
conditions. They may also be liable to be removed from the
position of office bearers of the Bar Association forthwith until
the Chief Justice of the concerned High Court so permits on an
appropriate undertaking being filed by them. This may be in
addition to any other action that may be taken for the said illegal
acts of obstructing access to justice. The matter may also be
considered by this Court on receipt of a report from the High
Courts in this regard. This does not debar report/petition from
any other source even before the end of a quarter, if situation so
warrants. [Para 51] [1128-E-H; 1129-A]
Ex-Capt. Harish Uppal v. Union of India and Anr. (2003)
2 SCC 45 : [2002] 5 Suppl. SCR 186; Mahipal Singh
Rana v. State of Uttar Pradesh (2016) 8 SCC 335 -
relied on.
Kashmira Singh v. State of Punjab (1977) 4 SCC 291 :
[1978] 1 SCR 385; State of Punjab v. Brijeshwar Singh
(2016) 6 SCC 1 : [2016] 4 SCR 685 - referred to.
Case Law Reference
[1978] 1 SCR 385
referred to
Para 3
[1996] 1 SCR 1053
relied on
Para 6
[2006] 6 Suppl. SCR 473
relied on
Para 6
[2016] 4 SCR 685
referred to
Para 8
[2016] 9 SCR 560
referred to
Para 16
[2012] 1 SCR 779
referred to
Para 17
(2002) 4 SCC 578
referred to
Para 19
(2017) 3 SCC 658
referred to
Para 20
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[2001] 2 SCR 626
referred to
Para 21
[2015] 3 SCR 197
referred to
Para 26
(1979) 2 SCC 656
referred to
Para 26
[2016] 5 SCR 101
relied on
Para 29
[1991] 2 Suppl. SCR 206
relied on
Para 34
[2002] 2 SCR 712
relied on
Para 34
(2008) 17 SCC 703
relied on
Para 36
[1993] 2 Suppl. SCR 659
relied on
Para 36
[1998] 2 Suppl. SCR 400
relied on
Para 36
(2017) 7 SCC 1
referred to
Para 38
[1993] 2 Suppl. SCR 659
relied on
Para 40
[2002] 5 Suppl. SCR 186
relied on
Para 45
(2016) 8 SCC 335
relied on
Para 52
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 470 of 2018.
From the Judgment and Order dated 03.05.2017 of the High Court
of M.P., Principal seat at Jabalpur in Criminal Appeal No. 1823 of 2009.
Gopal Subramanium, Sr. Adv. (AC), Talha Rahman, Pavan
Bhushan, Hitesh Saini, Dr. Ajay Kumar, Tuhin Lavania, Mahendra Singh,
Nandlal Kumar Mishra, Ram Kishor Singh Yadav, Ms. Sunita Yadav,
Ms. Miranda, Kaushal Yadav, S. S. Shamshery, Ms. Hari Priya, M. K.
Maroriya, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ADARSH KUMAR GOEL, J. 1. Leave granted. This appeal
has been preferred against the order dated 3rd May, 2017 of the High
Court of Madhya Pradesh in CRA No.1823 of 2009 whereby prayer for
bail, pending disposal of criminal appeal against life sentence has been
declined though the appellant has been in custody for more than ten
years.
2. The appellant stands convicted under Sections 148, 302/149
IPC and sentenced to life imprisonment, apart from other sentences.
According to the prosecution, on 23rd June, 2005 at 11.30 A.M., the
appellant along with the co-accused caused the murder of one Shahid.
In view of evidence in support of the charge, the trial Court convicted
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and sentenced the appellant. The appellant applied for bail pending
consideration of appeal before the High Court. After the said prayer
was rejected, another application was filed. The High Court rejected the
second bail application with the observation that the evidence on record
did not warrant grant of bail.
3. In this appeal, the order of the High Court is challenged mainly
on the ground that the appellant had been in custody for more than ten
years and the remedy of appeal will be meaningless if he has to remain
in custody for the full term of sentence. Reliance has been placed on
the judgment of this Court in Kashmira Singh versus State of Punjab1.
THE ISSUE
4. When the matter came up for consideration before this Court,
following order was passed :
"The grievance of the petitioner is that he has been in
custody for more than ten years. He has neither been granted
bail nor his appeal is heard. It is stated that there is no
likelihood of the appeal being heard before the High Court
in the near future.
While we are not inclined to grant bail, we issue notice
confined to the question as to how the situation can be
remedied ensuring that the appeal is heard within a
reasonable time at the appellate forum.
Issue notice. Notice be also issued to the Convenor, National
Mission for Justice Delivery and Legal Reforms i.e. the
Secretary Justice - Union of India and also the Attorney
General of India.
Shri Gopal Subramanium, learned senior counsel who is
present in the Court is requested to assist the Court as
amicus."
5. Accordingly, we have heard learned Attorney General and the
learned amicus on the question as to how the problem of delay in hearing
of the appeals can be remedied.
SUBMISSIONS OF THE LEARNED AMICUS
6. Learned Amicus submitted that timely justice is essential for
the Rule of Law. Access to justice is a fundamental right under the
Constitution of India. It is also recognized under Article 10 of the Universal
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Declaration of Human Rights as well as Articles 9 and 14 of the
International Convention on Civil and Political Rights. There is, thus,
dire need to find practical, effective and achievable system for speedy
disposal of appeals. In its 245th Report in the year 2014, the Law
Commission of India made analysis for method of computing adequate
judge-strength and recommended increase of number of judges on that
basis. In Vineet Narayan versus Union of India2, this Court held that
the Government agencies must perform their legal obligations as per
mandate of Article 14 of the Constitution. In Prakash Singh versus
Union of India3, this Court directed police reforms to be brought about
for scientific, speedy and quality investigation. The United States Speedy
Trial Act, 1974 provides timelines for steps in justice delivery. Timeline
provided in different statutes in India, such as filing of charge sheets
under Section 167 Cr.P.C. is required to be implemented. Project of
National Arrears Grid was required to be implemented. The Woolf Report
of 1996 emphasized generation of accurate judicial statistics on a daily
basis. The Grid should help identify the steps for dispensation of justice
concerning the poor and the underprivileged. Case Management practices
should be implemented. In its report titled 'Delaying Justice is Denying
Justice' the Candian Standing Senate Committee on Legal and
Constitutional Affairs stated "the lack of robust case and case flow
management is perhaps the most significant factor contributing to delays".
In England and Wales, pre-trial case management is rigorously followed
in all criminal cases at both the trial and the appellate levels. Active case
management includes:
"(i) The early identification of the real issues;
(ii)
Achieving certainty as to what must be done, by whom,
and when, in particular by the early setting of a timetable
for the progress of the case;
(iii) Monitoring the progress of the case and compliance
with directions;
(iv) Discouraging delay, dealing with as many aspects of
the case as possible on the same occasion, and avoiding
unnecessary hearings;
(v)
Encouraging the participants to co-operate in the
progression of the case, and
(vi) Making use of technology."
2 (1996) 2 SCC 199
3 (2006) 8 SCC 1
KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA
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7. Reference was also made to Case Management Criminal
Procedure in England and Wales.
8. Learned Amicus further submitted that in appeals against
acquittal efforts should be made to weed out unmeritorious appeals.
Competent Government advocates should be appointed by a fair and
transparent mechanism as laid down in State of Punjab versus
Brijeshwar Singh4.
9. Vacancies of the High Court Judges should be filled up well
before the date a judge demits the office. Ad hoc judges should be
appointed to deal with the pending appeals.
10. Wherever there is higher pendency of appeals, the same can
be transferred to the courts of concurrent jurisdiction of other States.
Technology ought to be used to facilitate speedy conduct of trials and
disposal of appeals. Electronic copy of all papers should be served as
soon as a charge sheet is filed. The technology can be used for speedy
and summary disposal of certain cases such as the traffic offences.
Evidence can be recorded by video conferencing, especially for Doctors
and investigating officers who may be on outstation job and engaged in
official duties which suffer if they have to physically come to the court.
There must be change in the work culture amongst the members of the
bar as well as the police. Efforts should be made to avoid adjournments.
Time table should be laid down for hearing of appeals which should be
strictly adhered to.
SUBMISSIONS OF LEARNED ATTORNEY GENERAL
11. Learned Attorney General submitted that the Government has
adopted a coordinated approach to assist the judiciary for liquidation of
arrears and pendency by providing better infrastructure for courts
including computerization, increase in strength of judges, policy and
legislative measures in the areas prone to excessive litigation and
emphasis on human resource development. ECourts Mission Mode
Project has been introduced. Computerized courts have been increased
to 16,089. Cost of Rs.1,670 crores has been approved for the purpose.
Video Conferencing facility has been operationalised in 500 courts and
prisons. Natinal Judicial Data Grid has information regarding 6.36 crores
decided and 2.5 crores pending cases. 5.24 crores orders/judgments are
available. Steps have been taken to fill up vacancies in Supreme Court
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and High Courts. Appointment of Judges and judicial officers in district
and subordinate courts is within the domain of the High Courts and the
State Governments. A total of Rs.5956 crores have been released under
Centrally Sponsored Scheme (CSS) for Development of Infrastructure
facilities for the Judiciary. 17,576 Court Halls and 14,363 Residential
Accommodations are available for the Judges/Judicial Officers of District
and Subordinate Courts. In addition, 2,852 Court Halls and 1,622 houses
are under construction. 14th Finance Commission has endorsed the
proposal to strengthen the judicial system by establishing 1800 Fast Track
Courts (FTCs) for five years for specified offences at a cost of 4,144
crores. As per resolution of the Joint Conference of Chief Justices and
Chief Ministers, the Government has requested the State Governments
to strengthen institutional mechanism between the State and the Judiciary.
Steps have been taken for timely completion of infrastructure and eCourts
Mission Mode project. There is need to implement Section 436A Cr.P.C.
and ensure periodic monitoring of under-trial Review Committee
Mechanism. The Commercial Courts, Commercial Division and
Commercial Appellate Division of High Court Act, 2015 has been notified
to streamline the conduct of cases in Commercial Division and
Commercial Courts. Amendments have been made in the Arbitration
and Conciliation Act, 1996 and the Negotiable Instruments Act, 1881.
In pursuance of resolution of Chief Justices' Conference held in April,
2015, Arrears Committees have been set up to clear backlog of cases
pending from more than five years. The Supreme Court has also
constituted Arrears Committee to formulate steps and reduce pendency
of cases in High Courts and district courts. National Legal Services
Authority provides mechanisms for access to justice for the poor. Lok
Adalats have been held resulting in disposal of number of cases on the
basis of compromise not requiring adjudication, apart from adjudication
in public utility Lok Adalats. The Government has approved scheme for
engaging Nyaya Mitras to assist the litigants.
12. Learned Attorney General submitted that delay in disposal of
appeals can be tackled by appointing more judges and by better
coordination and planning. It was also submitted that by proper scrutiny,
application for leave to appeal or even appeals can be summarily disposed
of which will reduce the burden of the courts.
13. We place on record our gratitude for the learned Amicus and
learned Attorney General for their valuable assistance rendered.
KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA
PRADESH [ADARSH KUMAR GOEL, J.]
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CONSIDERATION OF THE ISSUE
14. Even though initially notice was issued to consider the issue
of remedying the situation of delay in hearing of the criminal appeals
before the High Courts, learned amicus and learned Attorney General
addressed the Court generally on the issue of speedy justice at all levels.
We consider it appropriate to reflect on some important aspects of speedy
justice as these aspects are integral to the issue of delay in hearing of
criminal appeals by the High Courts. First question which we take up
for consideration is whether, having regard to the nature of jurisdiction
of the High Court and the present volume of the work, the expectation
for speedy disposal of criminal appeals is realistic or there is need for reengineering of the judicial structure. Secondly, when speedy justice is
directly linked to timely appointment of best talent, whether there is need
to revisit the existing system of appointment of judges at all levels. Thirdly,
what can be the mechanism to plan and oversee the best management
practices, including employment of technology, for optimum performance
and righteous conduct. Fourth, how uncalled for frequent strikes obstructs
access to justice and what steps are required to remedy the situation.
15. We are conscious that the above issues are primarily policy
matters. The subject matter of restructuring of courts and administration
of justice is a matter to be gone into by the executive and the legislature.
However, since the subject affects fundamental right of speedy justice,
this Court cannot refuse to look into the problem repeatedly presented to
it with a view to draw attention of all concerned, leaving to the concerned
authorities to consider and act in the matter.
16. There can be no dispute that access to speedy justice is part
of fundamental right under Articles 14 and 21 of the Constitution. The
National Commission to Review Working of the Constitution
recommended that access to speedy justice may be incorporated as an
express fundamental right5.
17. The matter has been subject of consideration in several
decisions. In Imtiaz Ahmad versus State of U.P.6 the issue taken up
for consideration was delay in disposal of criminal cases where stay
was granted by the High Court. On consideration of a report, the Court
noted:
5 Anita Kushwaha v. Pushap Sudan (2016) 8 SCC 509, para 31
6 (2012) 2 SCC 688
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"(a) As high as 9% of the cases have completed more than
twenty years since the date of stay order.
(b) Roughly 21% of the cases have completed more than ten
years.
(c) Average pendency per case (counted from the date of
stay order till 26-7-2010) works out to be around 7.4 years.
(d) Charge-sheet was found to be the most prominent stage
where the cases were stayed with almost 32% of the cases
falling under this category. The next two prominent stages
are found to be 'appearance' and 'summons', with each
comprising 19% of the total number of cases. If
'appearance'
and
'summons'
are
considered
interchangeable, then they would collectively account for
the maximum of stay orders."
18. This Court directed the Law Commission to examine the matter
with a view to set up additional courts to eliminate delays.
19. Accordingly, Law Commission examined the matter in its 245th
Report given in July, 2014 and recommended review of cadre strength.
The Commission noted that the system was unable to deliver timely
justice because of huge backlog for which the judge strength was
inadequate. It noted that mandatory time frames were provided in some
countries. In P. Ramchandra Rao versus State of Karnataka7, this
Court was not in favour of mandatory time limit. Non binding directory
guidelines could be adopted. 14th Report of the Law Commission
suggested time frame which was reiterated in subsequent Law
Commission reports. The Malimath Committee recommended use of
two year time frame as the norm by which delay and arrears in the
system should be measured. Case specific time tables are adopted to
meet the object of individualized timely justice. The Commission
observed that all cases pending for more than one year be
categorized as backlogged. All cases backlogged in three years
and current cases be decided within one year. The Commission
considered various methods for fixing the judge strength so as to meet
current institution of cases within the expected time frame as well as
also to clear the arrears within the targeted time. One of the problems
noticed was huge vacancies and failure in timely filling up of vacancies.
7 (2002) 4 SCC 578
KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA
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Delay and arrears was a concern not only in the trial courts but throughout
the judicial system. If the disposal in trial courts increased, the matter
may be held up in the higher courts. Adequate infrastructure and support
staff was also of importance. Good Judicial management practices such
as timeliness and performance bench marks were also discussed. It
was observed that the High Courts are already backlogged and not able
to keep pace with new filings. It was observed that there was need to
establish non-mandatory timeframe for different types of cases. Unless
judges and litigants have clear expectations, there will be little
accountability for delays.
20. Thereafter, the matter was considered in Imtiyaz Ahmad
versus State of Uttar Pradesh and Ors.8. This Court gave directions
for review of cadre strength in terms of principles laid down therein.
However, the said judgment appears to have dealt with the issue of
fixing up of strength of judges for the subordinate judiciary and
infrastructure for the district judiciary9.
Possibility of decision of five year old cases pending in the High
Courts particularly the criminal appeals within the existing
system - Need to consider decongestion of Constitutional Courts.
21. In Akhtari Bi versus State of M.P.10, this Court requested
the Chief Justices of the High Courts to take immediate effective steps
for disposal of criminal appeals pending for more than five years.
22. The matter was considered by the Joint Conference of Chief
Ministers and the Chief Justices held in April, 2016 and it was resolved:
"8. DELAY AND ARREARS COMMITTEE:
xxx xxx xxx
Resolved that
(i) all High Courts shall assign topmost priority for disposal
of cases which are pending for more than five years;
(ii) High Courts where arrears of cases pending for more
than five years are concentrated shall facilitate their disposal
in mission mode;
8 (2017) 3 SCC 658
9 Para 43
10 (2001) 4 SCC 355
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(iii) High Courts shall progressively thereafter set a target
of disposing of cases pending for more than four years;
(iv) while prioritising the disposal of cases pending in the
District Courts for more than five years, additional incentives
for the Judges of the District Judiciary be considered where
feasible; and
(v) efforts be made for strengthening case-flow management
rules."
23. The available figures11 show that long pendency, particularly
of more than five years remains a serious challenge. In High Courts,
16.29 lakhs cases were more than five years old. 7.43 lakh cases were
more than 10 years old. Since current disposal itself was less than the
institution of fresh cases, there was no likelihood of old cases being
decided in a reasonable time. There could not be increase of strength of
High Court Judges beyond a limit. The system could not be top heavy.
Volume of work in the High Court was likely to further increase on
account of increased disposal of cases in subordinate courts with the
increased strength of judges, infrastructure and other steps being taken.
Disposal of cases in subordinate courts is not enough if the same are
thereafter held up in the High Courts. New laws are being enacted
providing statutory remedies before the High Courts. Moreover, oversight
mechanism for judges of the Constitutional Courts is not the same as for
other Judges12. While, there can be no doubt about need for such
protection, appointment of large number of such judges can be counter
productive. If number of Constitutional Courts is to be increased to match
11 Please refer to Court News - October-December, 2016 in Supreme Court Website
(www.supremecourtofindia.nic.in) or (http://supremecourtofindia.nic.in/pdf/
CourtNews/COURT_NEWS_Vol_XI_Issue_No4_October_to_December_2016.pdf)
12 (1997) 3 SCC 261 - para 78 " ... ...The Judges of the superior courts have been
entrusted with the task of upholding the Constitution and to this end, have been
conferred the power to interpret it. It is they who have to ensure that the balance of
power envisaged by the Constitution is maintained and that the legislature and the
executive do not, in the discharge of their functions, transgress constitutional limitations.
It is equally their duty to oversee that the judicial decisions rendered by those who man
the subordinate courts and tribunals do not fall foul of strict standards of legal
correctness and judicial independence. The constitutional safeguards which ensure
the independence of the Judges of the superior judiciary, are not available to the
Judges of the subordinate judiciary or to those who man tribunals created by
ordinary legislations. ..."
KRISHANAKANT TAMRAKAR v. THE STATE OF MADHYA
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the volume of work being entrusted to such Courts, it may have its
implication unless it is possible to find sufficient number of suitable
persons. The fact that there are large number of vacancies in such Courts
shows the difficulty in identifying adequate number of suitable persons
for Constitutional Courts. Needless to say that nature of work before
the Constitutional Courts particularly laying down of law is time consuming.
Such Courts cannot be overburdened.
24. The Arrears Committee of this Court considered the issue of
filling up of vacancies in subordinate courts and the issue of arrears. It
was noted that while better monitoring, better management and other
steps such as the Central Selection may help speedy disposal in
subordinate courts, the working of constitutional courts stands on different
footing. There being mismatch in pendency and disposal, the Committee
recommended an interaction with the stakeholders to explore the issues
of judicial reforms including reengineering of structure of administration
of justice and the legislative changes necessary for the constitutional
goal of speedy justice13. Accordingly, a meeting with the stakeholders
was held on 8th April, 2017. The issues considered were:
"i)
Decongestion of Supreme Court and High Courts from civil
and criminal appeals.
ii)
Performance of Tribunals in contribution to decongestion
of cases in Supreme Court and High Courts.
iii)
Central Selection Mechanism to fill up vacancies in
subordinate courts.
iv)
Video recording and conferencing in Courts & video
investigation by investigating authorities.
v)
Reforms in Legal Profession.
vi)
Issue of granting Bail and under Trials."
25. In the said meeting, it was noticed that in most of the High
Courts disposal was less than the institution. This called for reengineering
of structure of administration of justice. One of the suggestions was that
statutory remedies provided before the constitutional courts may be shifted
to alternative fora. It was suggested that Courts of Appeals may be set
up higher to the District Courts but below the High Court. Such Courts
13 Minutes of the meeting of the Arrears Committee held on 23rd March, 2017
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of Appeals could comprise more than one member, partly drawn from
the senior district judges and partly recruited directly from the Bar through
a Central Selection Mechanism14. If above proposal is considered,
pending appeals before the High Court could be transferred to such
Benches whose decisions will be final.
26. An enabling statute could be enacted whereby the State could,
in consultation with the High Courts, transfer all or certain categories of
14 Relevant extract from the minutes of meeting of the Arrears Committee held on 8th
April, 2017:
"Reference to the available statistics shows that pendency of more than five year old
cases in the High Courts was more than 40% of the total pendency in the High Courts
and figures of five year old cases were on the increase. Criminal Appeals in most of the
High Courts were pending for more than five years and there was no possibility of such
appeals being taken up for hearing to satiate the aspirations of the common litigant of
speedy justice. In most of the High Courts disposal of Criminal Appeals was less than
the institution. Delay in decision of criminal cases, particularly in category of serious
cases where granting bail was not safe, was not a satisfactory situation. Unless there
was an alternative to ensure speedy disposal for criminal cases in the High Courts,
search for structural alternative was the imperative need of the hour.