# RAGHUBIR SINGH & OTIIERS ETC v. STATE OF BIHAR

- **Citation:** [1986] 3 S.C.R. 802
- **Court:** Supreme Court of India
- **Decided:** 1986-09-19
- **Bench:** O. Chinnappa Reddy, M.M. Du'It
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raghubir-singh-otiiers-etc-v-state-of-bihar-9123
- **Pages:** 26

## Headnote

Constitution of lndia, 1950.
Arts.' 32. and 136--Petitions against framing of charges by the
Trial Court-Whether maintainable-Supreme Court cannot convert
itself into a trial court to consider sufficiency of evidence justifying
framing of charges.
Article 2/-Right to speedy trial-When violated-Factors to be
taken in consideration-Question ultimately one of fairness in the administration of criminal justice.
Criminal Law Amendment Act, s. 6--Creation of Special Judge's
Court-Justification of-Trial entrusted to Special Court in the interest
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of security and convenience of the accused-Whether rule of law violated.
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Indian Penal Code, ss. /20A & /24A-Accused need not be a
participant throughout to constitute offence of conspiracy-Distribution
and circulation of seditious material-Whether sufficient for constituting offence.
Criminal Procedure Code, 1973, ss. 167(2), 309(2), 437(5) and
439(2)-0rder for release on bail-No limit within which bail bond
may be executed-Order for release on bail effective until an order
under s. 437(5) or 439(2) is made-Order not extinguished either by
discharge of surety/by lapse of time/the filing of chargesheet/remand to
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custody unders. 309(2).
The petitioners-accused were arrested by the Security Police
Patrol Party in the State of Bihar while attempting to cross Indo-Nepal
border. One of them was identified Simranjit Singh Mann-a dismissed
Police Officer who had gone underground after an order of detention
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under the National Security Act was passed against him. As a result of
802
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RAGHUBIR SINGH'· STATE OF BIHAR
803
the search, currency notes and a number of documents and other articles were seized from the petitioners. It is alleged that one of the accused
also offered a bribe to the police officers. The police registered a first
information report and commenced investigation. A chargesheet was
filed on 11th December, 1985 before judicial Magistrate First Class
against the live accused-petitioners for offences under ss. 121-A, 123,
124-A, 153A, 165-A, 505 and 120-B of the Indian Penal Code. However,
before the chargesheet was filed, the accused-petitioner; Simranjit
Singh Mann was served with an order of detention under the National
Security Act and sent to Bhagalpur jail. The other four accused were
also detained under the National Security Act at Bhagalpur.
All the petitioners moved the Judicial Magistrate for bail in the
aforesaid criminal case claiming to be released under proviso (a) of s.
167(2) of the Code of Criminal Procedure. They were granted bail but,
they could not be released because of their detention under the National
Security Act. While so, the surety for all the live accused filed a petition
requesting the Magistrate to discharge him from suretyship as he did
not want to continue to be the surety of the accused persons. The Magistrate discharged the surety from suretyship and issued formal warrants
of arrest under s. 444(2) of the Code of Criminal Procedure. At this
stage, the High Court of Punjab and Haryana made an order quashing
the detention of Simranjit Singh Mann.
The Magistrate took cognizance of the case under ss. 121A, 123,
124A, 153A, 165A and 120B of the Indian Penal Code on December 18,
1985. Thereafter the investigating Officer filed a petition requesting
expeditious trial as the case was one of special importance. All the
petitioners except Simranjit Singh Mann filed fresh" ball bonds. The
said bail bonds were rejected on December 20, 1985 as the surety could
not name either the accused persons or their fathers. The accused
moved another petition for recalling the order dated December 20, 1985
·and accepting the same person as surety. This petition was rejected on
the ground that the earlier order could not be reviewed. The High
Court also rejected the bail applications of these accused persons.
The case was thereafter, transferred to the Special Judge (Vigilance) North Bihar, Patna. The accused Simranjit Singh Mann moved
an application before the Special J

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RAGHUBIR SINGH & OTIIERS ETC.
v.
STATE OF BIHAR
SEPTEMBER 19, 1986
[O. CHINNAPPA REDDY AND M.M. DU'IT, JJ.)
Constitution of lndia, 1950.
Arts.' 32. and 136--Petitions against framing of charges by the
Trial Court-Whether maintainable-Supreme Court cannot convert
itself into a trial court to consider sufficiency of evidence justifying
framing of charges.
Article 2/-Right to speedy trial-When violated-Factors to be
taken in consideration-Question ultimately one of fairness in the administration of criminal justice.
Criminal Law Amendment Act, s. 6--Creation of Special Judge's
Court-Justification of-Trial entrusted to Special Court in the interest
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of security and convenience of the accused-Whether rule of law violated.
F
Indian Penal Code, ss. /20A & /24A-Accused need not be a
participant throughout to constitute offence of conspiracy-Distribution
and circulation of seditious material-Whether sufficient for constituting offence.
Criminal Procedure Code, 1973, ss. 167(2), 309(2), 437(5) and
439(2)-0rder for release on bail-No limit within which bail bond
may be executed-Order for release on bail effective until an order
under s. 437(5) or 439(2) is made-Order not extinguished either by
discharge of surety/by lapse of time/the filing of chargesheet/remand to
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custody unders. 309(2).
The petitioners-accused were arrested by the Security Police
Patrol Party in the State of Bihar while attempting to cross Indo-Nepal
border. One of them was identified Simranjit Singh Mann-a dismissed
Police Officer who had gone underground after an order of detention
H
under the National Security Act was passed against him. As a result of
802
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RAGHUBIR SINGH'· STATE OF BIHAR
803
the search, currency notes and a number of documents and other articles were seized from the petitioners. It is alleged that one of the accused
also offered a bribe to the police officers. The police registered a first
information report and commenced investigation. A chargesheet was
filed on 11th December, 1985 before judicial Magistrate First Class
against the live accused-petitioners for offences under ss. 121-A, 123,
124-A, 153A, 165-A, 505 and 120-B of the Indian Penal Code. However,
before the chargesheet was filed, the accused-petitioner; Simranjit
Singh Mann was served with an order of detention under the National
Security Act and sent to Bhagalpur jail. The other four accused were
also detained under the National Security Act at Bhagalpur.
All the petitioners moved the Judicial Magistrate for bail in the
aforesaid criminal case claiming to be released under proviso (a) of s.
167(2) of the Code of Criminal Procedure. They were granted bail but,
they could not be released because of their detention under the National
Security Act. While so, the surety for all the live accused filed a petition
requesting the Magistrate to discharge him from suretyship as he did
not want to continue to be the surety of the accused persons. The Magistrate discharged the surety from suretyship and issued formal warrants
of arrest under s. 444(2) of the Code of Criminal Procedure. At this
stage, the High Court of Punjab and Haryana made an order quashing
the detention of Simranjit Singh Mann.
The Magistrate took cognizance of the case under ss. 121A, 123,
124A, 153A, 165A and 120B of the Indian Penal Code on December 18,
1985. Thereafter the investigating Officer filed a petition requesting
expeditious trial as the case was one of special importance. All the
petitioners except Simranjit Singh Mann filed fresh" ball bonds. The
said bail bonds were rejected on December 20, 1985 as the surety could
not name either the accused persons or their fathers. The accused
moved another petition for recalling the order dated December 20, 1985
·and accepting the same person as surety. This petition was rejected on
the ground that the earlier order could not be reviewed. The High
Court also rejected the bail applications of these accused persons.
The case was thereafter, transferred to the Special Judge (Vigilance) North Bihar, Patna. The accused Simranjit Singh Mann moved
an application before the Special Judge offering cash security and ask-
. ing for bail but it was rejected on the ground that the High Court had
already rejected the application of the other four accused. The case was
later transferred to the Court of Special Judge, Bhagalpur and was
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SUPREME COURT REPORTS
11986] 3 S.C.R.
finally adjourned to August 8, 1986 for arguments on the question· of
charges to be framed and on the question of jurisdiction. At this stage,
the Special Public Prosecutor filed a petition stating that the offences
under s. 165 and ss. 165A read with s. 34 were not committed in the
course of the same transaction as the offences under s. 124-A etc., and
therefore it was necessary that the offences under ss. 165 and 165A read
withs. 34 should be tried separately from the offences under secs. 124A
etc. The accused also filed a petititon to the same effect. The Special
Judge allowed the aforesaid petition holding that the offences were not
committed in the course of the same transaction and therefore the trial
for the offences under ss. 165 and 165A read with s. 34 should be
separated from the other offences. It was further held that he was not
competent to try the accused for the offences under secs. 12 IA, 124A
etc. as the case had not been committed to the court of Sessions hy the
Trial Magistrate and directed that in regard to those offences the record
be sent back lo the District and Sessions Judge, Purnea for proceeding
further in accordance with law.
·
Alleging that the Special Public Prosecutor had never been instructed to file such a petition before the Special Judge, the respondentState of Bihar filed a writ petition in the High Court and obtained a stay
of further proceedings before the Special Judge.
The accused-petitioners filed special leave petitions and writ petitions before the Supreme Court against the rejection of their bail applications and for quashing the proceedings before the Special Judge.
It was contended on behalf of the petitioners (a) that the fundamental right of the petitioners under Art. 21 of the Constitution had
been frustrated hy the tactics of the State whose only object was to
somehow keep the petitioners in prison; (b) that there was no material
whatever to substantiate the offences of waging war etc. and that the
proceedings deserved to be quashed on that ground also; (c) that the
proceedings before the Special Judge, Purnea were "'.ithout jurisdiction
both for the reason that he was not competent to try the offences under
s. 12 lA and s. 124A etc. and also for the reason that he came to be
seised of the case at the instance of the Executive Government, who had
no authority to transfer the case from the court of the Special Judge,
Patna to the Court of the Special Judge, Purnea, since the rule of law
would be defeated if the Executive Government were to be permitted to
have cases decided hy Judges of their choice; (d) that the High Court
and the special Judge were wrong in not permitting the accused to offer
fresh sureties or cash security; (e) that the High Court and the Special
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RAGHUBIR SINGH v. STATE OF BIHAR
805
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Judge were wrong in holding that the order of the Magistrate directing
them to be released on bail under s. 167(2) had come to an end by the
passage of time, particularly after cognizance had been taken of the
case; (I) that there was no material whatsoever to warrant the framing of
charges for any of the offences mentioned in the-.:harge-sheet other than
sec. 16SA; (g) that in the case of the accused persons other than Simranjit Singh Mann, there was nothing whatever to connect them with the
offences under ss. l21A and 124A. On behalf of the respondent-State it
was argued that the order for release on bail stood extinguished on the
remand of the accused to custody under s. 309(2) of the Code of Criminal Procedure.
Dismissing the petitions,
HELD: 1.1 The delay in the investigation and in the trial of the
case is not so unfair as to warrant quashing the proceedings on the
ground of infringement of the right of the accused·to a speedy trial, a
part of their fundamental right under Art. 21 of the Constitution. Having regard to the entirety of the circumstances, the long lapse of time
since the original order"' for bail was made, the consequent change ~n
circumstances and situation, and the directions that were now given for
the expeditious disposal of the case, there would be 110 justification
lor exercising the court's discretion to interfere under Art. 136 of the
Constitution at this stage. [8 J8G-H; 827A-B]
1.2 The High Court is directed to dispose of the criminal revision
petition before it as expeditiously as possible preferably within three or
four weeks. Whatever be its outcome the High Court should also direct
the Special Judge or other Judge who may have to try the case, or the
cases as the case may be, to try the cases expeditiously setting a near
date for the trial and to proceed with the trial from day to day. [820D-E]
2. The right to a speedy trial is one of the dimensions of the
fundamental right to life and liberty guaranteed by Art. 21 of the Constitution. The question whether this right has been infringed is ultimately a question of fairness in the administration of criminal justice
even as "acting fairly" is of the essence of the principles of natural
justice. A "fair and reasonable procedure" is what is contemplated by
the expression "procedure established by law" in Art. 21. [81SF-G]
Hussainara Khatoon (1) v. State of Bihar, [1979] 3 SCR 169,
Kadra Pehadiya (1) v. State of Bihar, AIR 1981 SC 939, Kadra
Pehdiya(l/) v. State of Bihar, AIR 1982 SC 1167, State of Maharashtra
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SUPREME COURT REPORTS
[19861 3 S.C.R.
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v. Champa Lal Punjaji Shah, I 198 I I 3 SCC 61 O and M enaka Gandhi's
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case followed.
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Strunk v. United States, 37 Law Ed. 2nd 56, Barkar v. Wingo,
407 US 514 and Boll v. Director of Public Prosecutions, Jamaica,
I 1985] (II) All ER 585, referred to.
3.1 The question whether there was any material whatsoever to
warrant the framing of charges for any of the offences mentioned in the
charge-sheet other than sec. 165A is not a matter to be investigated by
the Supreme Court in a petition under Art. 32 of the Constitution. This
Court cannot convert itself into the court of a Magistrate or a Special
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Judge to consider whether there is evidence or not justifying the framing of charges. I 819A-B]
3.2 The questions relating to the jurisdiction of1he Special Judge
to try the accused for the offences under secs. 121, 121A, etc. and the
link between the offences under secs. 165A and 16SA read with sec. 34
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on the one hand and the offences under secs. 121 and 12 IA etc. on the
other are questions which are awaiting the decision of the High Court.
These questions are tell to be decided by the High Court. [819C]
4. There was no evil design in the creation of a Special Judge's
court for Purnea Division at Bhagalpur under the Criminal Law
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Amendment Act and the designation of a Judge to preside over that
court. All that has, in fact happened is that a Special Judge's court was
created for Purnea Division under s. 6 of the Criminal Law Amendment
Act and Shri Bindeshwari Prasad Verma, Additional District Judge
West Champaran, who was under orders of transfer as Additional District Judge Bhagalpur was designated as the Special Judge. The case
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Jogbani P.S. No. 110/84, was mentioned within brackets as that was
apparently the only case awaiting trial in Purnea Division under the
Criminal Law Amendment Act. The Special Judge's court was created
for Purnea Division as it was thought that it would be more convenient
for the accused and also in the interests of security if the case was tried
at Bhagalpur where the accused were imprisoned rather than to have
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the trial of the case at Patna to which place the accused would have to he
taken from Bhagalpur for every hearing. I 819 E-G I
5. The authorship of seditious material alone is not the gist of any
of the offences. Distribution or circulation of seditious material may
also be sufficient on the facts and circumstances of a case. To act as a
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courier is sometimes enough in a case of conspiracy. It is also not
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RAG HUB IR SINGH v. STA TE OF BIHAR
807
J. '>-
necessary that a person should be a participant in a conspiracy from
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, start to fmish. Conspirators may appear and disappear from stage to
stage in the c0urse of a conspiracy. [820B-C] ·
In the instant case, whether such evidence as may now be available in the record to justify the framing of charges is a matter for the
trial court and not for the Supreme Court. [820C]
6.1 The effect of the proviso to s. 167(2) of the Code of Criminal
Procedure, 1973, is to entitle an accused person to be released on bail if ·
the investigating agency fails to complete the investigation within 60
days. A person released on bail under the proviso to s. 167(2) for the
default of the .investigating agency is statutorily deemed to be released
under the provisions of Chapter 33 of the Code for the purposes of that
Chapter. That is provided by the proviso to s. 167(2) itself. This means,
first, the provisions relating·to bonds and sureties are attracted. Section
441 provides for the execution of bonds, with or without sureties, by
persons ordered to be released on bail. One o(the provisions relating to
bonds is s. 445 which enables the court to accept the deposit of a sum of
money in lieu of execution of a bond by the person required to execute it
with or without sureties. If the bond is executed (or the deposit of cash is
accepted), the court admitting an accused person to bail is required by
s. 442(1) to issue an order of release to the officer in charge of the jail in
which such accused person is incarcerated. Sections 441 and 442 are in
the nature of provisions for the execution of orders for the release on
bail of ac~used persons. [82 ID-G]
6.2 There is no limit of time within which the bond may be executed after the order for release on bail is made. Very often accused
persons find it difficult to furnish bail soon after the making of an order
for release on bail. This frequently happens because of the poverty of
the accused persons. It also happens frequently that for various re..Sons
the sureties produced on behalf of accused persons may not be acceptable to the court and fresh sureties will have to be produced in such an
event. The accused persons are not to be deprived of the benefit of the
order for release on bail in their favour because of their inability to
furnish bail straight away. [82 JG-H; 822A]
6. 3 Orders for release on bail are effective until an order is made
under s. 437(5) or s. 439(2). These two provisions enable the Magistrate
who has released au accused on bail or the court of Session or the High ·
Court to direct the arrest of the person released on bail and to commit
him to custody. The two provisions deal with what is known as cancella13
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SUPREME COURT REPORTS
[1986] 3 S.C.R.
lion of bail. Since release on bail under the proviso to s. 167(2) is
deemed to be release on bail under the provisions of Chapter XXXlII,
an order for release under the proviso to s. 167(2) is also subject to the
provisions of s. 437(3) and 439(2) and may be extinguished by an order
under either of these provisions. I 82 2A-C I
6. 4 The order for release on bail is not extinguished and is not to
be defeated by the discharge of the surety and the inability of the
accused to straight away produce a fresh surety. The accused person
may yet take advantage of the order for release on bail by producing a
fresh, acceptable surety. [822E-F I
6.5 Section 309(2) merely enables the court to "remand the accused if in custody". It does not empower the court to remand the
accused if he is on bail. It does not enable the court to "cancel bail" as it
were. That can only be done under s. 437(5) and s. 439(2). When an
accused person is granted bail, whether under the proviso to s. 167(2)
or under the provisions of Chapter XXXIII the only way the bail may be
cancelled is to proceed under s. 437(5) ors. 439(2). [822F-H]
7 .1 An order for release on bail made under the proviso to s.
167(2) is not defeated by lapse of time, the filing of the chargesheet or by
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remand tQ custody under s. 309(2). The order for release on bail may
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however be cancelled under s. 437(5) or s. 439(2). Generally the
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grounds for cancellation of bail, broadly, are interference or attempt to
interfere with the due course of administration of justice, or evasion or
attempt to evade the course of justice, or abuse of the liberty granted to
him. [826B-C]
7 .2 Where bail has beep granted under the proviso to s. 167(2)
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for the default of the prosecution is not completing the investigation in
sixty days, after the defect is cured by the filing of a chargesheet, the
prosecution may seek to have the bail cancelled on the ground that there
are reasonable grounds to believe that the accused has committed a
non-bailable offence and that it is necessary to arrest him and commit
him to custody. In the last mentioned case, one would expect very
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strong grounds indeed. [8260-E]
In the instant case, the High Court and following the High Court,
the Special Judge have held that the order for release on ·bail came to an
end with the passage of time on the filing of the chargesheet. That is not
a correct view. The order for release on bail was not an order on merits
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but was, what one may call an order-on-default, an order that could be
RAGHUBIRSINGHv. STATEOFBIHAR
809
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rectified for special reasons after the defect was cured. The order was
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made long ago but for one reason or the other, the accused failed to take
advantage of the order for several months. Probably for that reason,
the prosecuting agency did not move in the matter and seems to have
proceeded on the assumption that the order had lapsed with the tiling of the
chargesheet. Having regard to the entirety of circumstances the Court did
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not exercise its discretion under Art. 136oflhe Constitution. [826F-H)
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Natabar Parilia v. State of Orissa, AIR 1975 SC 1465, Bashir v.
State of Haryana, [1977] 4 SCC 410 and Talab Hazi Hussain v.,Mond-
,,;:'(.
kar, AIR 1958 SC 376, referred to.
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ORIGINAL/CRIMINAL APPELLATE JURISDICTION:
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Writ Petition (Criminal) No. 136 of 1986.
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Under Article 32 of the Constitution of India
with
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Special Leave Petition (Criminal) No. 630 of 1986
From lhe Judgment and Order dated 17 .1.1986 of the ratna High
>"fCourt in Cr!. Misc. No. 367 of 1986.
and
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Writ Petition (C1iminal) No. 137of1986
).
Under Article 32 of the Constitution of India.
with
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Special Leave Petition (Criminal) No. 577of1986.
From the Judgment and Order dated 7 .2.'1986 of the Special
Judge (Vigilance) Bihar, Patna in S.C. No. 6of 1986.
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Ram Jelhmalani, Miss Rani Jethmalani, K.N. Madhusoodhanan
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and Ashok Sharma for the Petitioners.
A.N. Mulla, D.Goburdhan and Basudeo .Pr'\j'3d for the Respondents.
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(1986] 3 S.C.R.
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The Judgment of the Court was delivered by
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CHINNAPPA REDDY, J. On
the
intervening
night
of
November 29/30, 1984, the Security Police Petrol on duty near Jogbani
Checkpost noticed a jeep speeding towards the Indo-Nepal border.
The jeep was stopped. There were five occupants in the jeep. One of
them was Simranjit Singh Mann who had been dismissed from the
Indian Police Service. An order of preventive detention under the
National Security Act had been made against him on August 28, 1986.
He was wanted in that connection but had gone 'underground'. On ·
being questioned by the police petrol party, they first refused to disclose their names and identity. This aroused the suspicions of the police
party. One of the officers was able to identify Simranjit Singh Mann.
The five occupants in the jeep were searched as also their baggage. A
sum of Rs.62,722 was found with one of the occupants, who it is
alleged offered the police party a large amount as bribe if they were
allowed to cross the Indo-Nepal Border. As a result of the search, a
number of documents and other articles were seized. From the person
of Sirnranjit Singh Mann were seized, a copy of a letter dated June 2,
1984 from Simranjit Singh Mann to the Chief Secretary, Punjab, a
copy of the letter of resignation dated June 18, 1984 of Sirnranjit Singh
Mann, the Passport of Simranjit Singh Mann, two photographs of
Jarnail Singh Bhindrawala, a letter from Sirnranjit Singh Mann to
Birbal Nath, a letter addressed to one Arun Kumar Agarwal asking
him to help the bearer in all possible ways and Raghubir Singh.
Kamikar Singh was the person who had made the offer of bribe. A
First Information Report was then registered at the Jogbani Police
Station for references under secs. 121-A, 124-A, 123, 153-A, 505 and
120-B of the Indian Penal Code and s. 5(iii) of the Prevention of
Corruption Act. Investigation started. On December 11, 1985 a
. charge-sheet was submitted before the Judicial Magistrate First Class
Araria against the five accused persons for offences under secs. 121-A,
123. 124-A, 153-A, 165-A, 505 and 120-B oflndian Penal Cod~.
Before the charge-sheet was filed, on December 4, 1984 Simranjit Singh Mann was served with the order of detention under the National Security Act and sent to Bhagalpur Jail. The other four accused
were also detained under the National Security Act at Bhagalpur. On
March 1, 1985 the four accused other than Simranjit Singh Mann
moved the Judicial Magistrate First Class Araria for bail in the crimi·
nal case which was then being investigated claiming to be released
under the proviso (a) of s. 167(2) of the Code of Criminal Procedure.
The learned Magistrate directed their release on bail, but imposed a
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RAGHUBlRSINGHv. STATEOFBIHAR [REDDY, J.]
811
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-condition that the sureties should be residents of Araria town. The
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four accused persons filed a petition requesting the Magistrate to accept sureties from Pumea or cash. Anonymous letter warning Siinranjit Singh Mann of likely attempts to liquidate him and advertising him
to leave the country. Siinranjit Singh Mann refused to sign the seizure
memo. From Kamikar Singh's person, currency notes of the value of
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Rs.62,722 were seized. An amount of Rs.25,000, it is said, was offered
....
as bribe to the Police Officers. From Jagpal Singh's suitcase was seized
a booklet in English entitled 'Sikhs and Foreign Affairs' and a combined road map of India, Pakistan, Bangladesh, Sri Lanka and Nepal.
-y.
Among other articles seized were a booklet in English written.by Narinder Singh Bhuller said to contain anti-Government and Sikh
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separatist propaganda, a notebook containing meterial about the
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world's leading underground organisations said to be in Mann's hand-'
writing, a register in which Mann was said to be writing the history of
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Amritsar in which the Indian Army is said to hav,e been described as
the enemy, consequent on operation Blue-Star, extremist Sikhs are
said to be described as nationalists and defendars of the motherland and
Mrs. Gandhi, the then Prime Minister is described in a derogatory
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fashion. At the check-post, a photograph of Simranjit Singh Mann was
available and it was varified that the person suspected to be Simranjit
Singh Mann was actually Simranjit Singh Mann. The other persons
gave their names as Kamikar Singh, Charan Singh, Jagpal Singhc The
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. petition was rejected. ·Ultimately the four accused were able to get
sureties from Araria, but even so they could not be released as they
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were under detention under the National Security Act. Sirnranjit
Singh Mann was also directed to be released under the proviso to sec.
167(2) on his application on October 28, 1985. The same condition was .
)..
imposed that the sureties should be from ·Araria. He furnished necessary sureties on October 29, 1985, but could not be released as he was
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under detention under the National Security Act. While so Gauri
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Shankar Jha who was a surety for all the five accused filed a petition
.---"...
and personally appeared in court praying that he may be discharged
from suretyship as he did not want to continue to be a snrety of the
accused persons. On December 5, 1985 the learned Magistrate made
an order discharging the surety and issuing formal warrants of arrest
under s. 444(2) of the Code of Criminal Procedure. It was at that stage
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that the order of detention against Simranjit Singh Mann was quashed
by the High Court of Punjab and Haryana on December 9, 1985. The
,;...
charge-sheet in the court of the Judicial Magistrate First Class Araria
was filed on December 14, 1985.
The learned Magistrate took cognizance of the case under secH
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[1986] 3 S.C.R.
tions 121A, 123, 124A, 153A, 165A and 120-B Indian Penal Code on
December 18, 1985. On the same day lie also made an order that
Simranjit Singh Mann should be kept in the Central Jail at Bhagalpur
in the interests of security. On December 19, 1985, the Investigating
Officer filed a petition requesting expeditious trial of the case as it was
one of special importance. On December 20, 1985, fresh bail bonds
were filed on behalf of the accused Raghubir Singh, Jagpal Singh,
Kamikar Singh and Charan Singh. However the bail bonds were rejected as the surety, Kirtyanand Mishra could not name either the
accused persons or their fathers. On January 2, 1986 all the accused
persons were produced from custody before the Magistrate who
further remanded them to custody till January 13, 1986. The learned
Magistrate took up for hearing a petition which had been previously
filed on behalf of the accused persons requesting that Kirtyanand Mishra may be accepted as a surety as he had once previously been accepted as surety. It was prayed that the order dated December 20,
1985 might be recalled. The petition was rejected on the ground that
the earlier order could not be reviewed. Later, on the same day, two
sureties, Mir Majid and Kirtyanand Mishra filed petitions requesting
that they should be diseharged from suretyship as they did not want to
continue as sureties for the accused persons. On January 7, 1986 the
Session Judge, Purnea transferred the case from the file of Shri R.B.
Roy, Joint Magistrate, First Class, Araria to the Court of Shri U.N.
Yadav, Joint Magistrate, First Class, Araria. On January 10, 1986, the
learned Magistrate made an order fixing January 11, 1986 for the
supply of 'police papers and necessary orders'. On January 11, 1986
the five accused persons were produced before the Magistrate. A petition was filed on behalf of the State to commit the case to the Court of
session after delivering the police papers to the accused persons and
thereafter to cancel the bail of the accused persons and r.emand them
to custody. Another petition was filed on behalf of the accused to
transfer the case to the Special Judge, Pumea. The accused persons
also filed a petition to adjourn the case. The Magistrate requested the
accused to receive the documents furnished under s. 207 Criminal
Penal Code but the accused refused to receive the same claiming that
their petition should be disposed of first so that if necessary they may
go to the higher court in revision. The Public Prosecutor objected to
the petition of the accused on the ground that the accused persons
were merely trying to delay the disposal of the commitment proceedrings. The advocate for the accused persons appears to have made a
submission that the case was triable by the Court of Special Judge and
theref9re it should be transferred to him. The learned Magistrate held
that cognizance had already been taken of the case by his court and the
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RAGHUBIRSINGHv.STATEOFBIHAR [REDDY, J.)
813
order taking cognizance could not be recalled. The question whether
the case should be transferred to the court of Special Judge could be
considered at the stage when the question whether there was a prima
facie case was to be considered. The learned Magistrate then fixed
January 18, 1986 as the date for furnishing copies of documents to the
accused persons.
,
On January 16, 1986 the learned Magistrate rejected an application by the accused other than Simran jit Singh for acceptance of cash
deposit or in the alternative sureties from outside Araria town. The
learned Magistrate held that he had no power to review his earlier
order. They then moved to the High Court for Bail but that application
was also rejected. On January 18, 1986, the learned Magistrate
purported to transfer the record of the case to the Special Judge (Vigilance), North Bihar, Patna and directed the accused to be produced
before the Special Judge on January 31, 1986. On January 31, 1986
Simranjit Singh Mann offered cash security and that the joint trial was
not permissible. The learned Special Judge upheld that submissions
and held that the offences were not committed in the course of the
same transaction and therefore the trial for the offences under secs:
165A ands. 165A read with s. 34 should be separated from the other
offences. The learned judge further held that he was not competent to
try the accused for the offences under secs. 121A, 124A etc. as the case
had not been committed to the court of Session by the Magistrate of
Araria. In regard to those offences the learned special Judge directed
the record to be sent back to the District and Sessions Judge, Purnea
for proceeding further in accordance with law.
·Alleging that the Special Public Prosecutor had never been instructed to file a petition before the special Judge suggesting that the
offences under secs. 165 and 165A read with s. 34 and the remaining
offences unders. 121A, 124A etc. were not committed in the course of
the same transaction and that they should be trjed separately, the State
of Bihar filed a writ petition in the High Court of Patna and obtained a
stay of further proceedings before t~e Special Judge. The question of
the link between the offences under secs. 165A and 165A read with s.
34 and the offences under secs. 121A, 124A etc. and the question of
the jurisdiction of the Special Judge to try the offences under secs.
12 lA, 124A etc. were also raised before us but we refrain from expressing any opinion on these questions as theSe questions are to be considered by the High Court in the Revision Petition before it.
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In the two writ petitions filed by the accused persons, Shri Ram
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SUPREME COURT REPORTS
[1986] 3 S.C.R.
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Jethmalani made a forceful and passionate plea that the fundamental
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right of his clients under Art. 21 of the Constitution has been
frustrated by the tactics of the State of Bihar whose only object was to
somehow keep the petitioners in prison. He submitted that the case of
bribery rested on what took place on the night of 29/30 November,
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· 1984 and that investigation into that part of the case was complete in
the course of a few days. The offences of waging war etc. rested
primarily on the letters said to have been written by Simranjit Singh
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Mann to the President of India and others and investigation into these
offences could not possibly take very long as all that was necessary was
to examine the recipients of the letters. Yet the chargesheet was filed
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only in December, 1985 and even thereafter various tactics were
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ad?pted by the prosecution to prevent the trial of the case. According
to Shri Jethmalani, the prosecution being fully aware that there was no
merit in the allegations was merely trying to prolong the case as long as
possible to harass the accused and to keep them in prison. He submity-
ted that there was no material whatever to substantiate the offences of
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waging war etc. and that the proceedings deserved to be quashed on
that ground also. He argued that if the offences of waging war etc.
rested on the letters written by Simranjit Singh Mann to the President
of India and the Chief Secretary, as indeed they were, then the prosecution could have been launched as soon as the letters were
received. There was no need to launch the prosecution now and link it
with the offence of bribery where the letters had been published in the
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daily press long ago. It was also submitted the proceedings before the
Special Judge, Purnea were without jurisdiction both for the reason
that he was not competent to try the offences under s. 121A, s. 124A
etc. and also for the reason that he came to be seised of the case at the
instance of the Executive Government, who had no authority to transfer the case from the court of the Special Judge, Patna to the court of
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the Special Judge, Pumea. Shri Jethmalani submitted that the very
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principle of rule of law would be defeated if the Executive Govern-
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ment were to be permitted to have cases decided by judges of their
choice.
In the Special leave petitions, Shri J ethmalani submitted that the
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High Court and the Special Judge were wrong in not permitting the
accused to c;iffer fresh sureties or cash security. He submitted that the
High Court and the Special Judge were wrong in holding that the order
of the Magistrate directing them to be released on bail under s. 167(2)
~
had come to an end by the passage of time, particularly after cognizance had been taken of the case.
H
RAG HUB JR SINGH v. STA TE OF BIHAR [REDDY, J.]
815
The constitutional position is now well-settled that the right to a
speedy trial is one of the dimensions of the fundamental right to life
and liberty guaranteed by Art. 21 of the Constitution: Vide Hussainara KhaUon (I) v. State of Bihar, [1979] 5 SCR 169 (per Bhagwati
and Koshal, JJ), Kadra Pehadiy_a (I) v. State of Bihar, AIR 1981SC939
(per Bhagwati and Sen, JJ.), Kadra Pehdiya (II) v. State of Bihar, AIR
1982 SC 1167 (per Bhagwati and Eradi, JJ) and State of Maharashtra v.
Champa Lal Punjaji Shah, [1981] 3 SCR 610 (per Chinnappa Reddy,
Sen and Baharul Islam, JJ). In foreign jurisdictions also, where the
right to a fair trial within a reasonable time is a constitutionally protected right, the infringement of that right has been held in appropriate cases sufficient to quash a conviction or to stop further proceedings: Strunk v. United States, 37 Law Ed. 2d 56 and Barkar v. Wingo,
407 US 514 two cases decided by the United States Supreme Court and
Bell v. Director of Public Prosecutions. Jamaica, [1985] (JI) All ER
585 a case from Jamaica decided by the Privy Council. Several questions arise for consideration. Was there delay? How long was the
delay? Was the delay inevitable having regard to the nature of the
case, the sparse availability of legal services and other relevant
circumstances? Was the delay unreasonable? Was any part of the delay
caused by the wilfulness or the negligence of the prosecuting agency?
Was any part of the delay caused by the tactics of the defence? Was the
delay due to causes beyond the control of the prosecuting and defending agencies? Did the accused have the ability and the opportunity to
assert his right to a speedy trial? Was there a likelihood of the accused
being prejudiced in his defence? Irrespective of any likelihood of prejudice in the conduct of his defence, was the very length of the delay
sufficiently prejudicial to the accused? Some of these factors have
been identified in Barker v. Wingo (supra). A host of other questions
may arise which we may not be able to readily visualise just now. The
question whether the right to a speedy trial which forms part -of the
fundamental right to life and liberty guaranteed by Art. 21 has been
infringed is ultimately a question of fairness in the administration of
criminal justice even as 'acting fairly' is of the essence of the principles
of natural justice (In re H.K. 1967(1) All ER 226) and a 'fair and
reasonable procedure' is wffat is contemplated by the expression 'procedure established by law' in Art. 21(Maneka Gandhi).
What do we have here? Five persons were seen in a jeep going
towards the Indo-Nepal border, obviously in an attempt to cross the
border. The border patrol thought that their movements were suspicious. Their answers to questions regarding their names and parentage
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were not satisfactory. One of them was identified as a police officer,
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SUPREME COURT REPORTS
[19861 3 S.C.R.
who had been dismissed from service and who was wanted in connection with an offer of detention under the National Security Act. In the
light of contemporary history and in the light of the documents lound in
the possession of the accused, (to the contents of one of which we will
presently refer), the police party suspected that they were crossing the
border and going to Nepal in the course of a conspiracy to commit the
offences of waging war, etc. Their suspicion must have been strengthened by the offer of a bribe to be allowed to cross the border. The
police officer whom they apprehended, though apparently a Punjabi,
had previously served in the State of Maharashtra while the others
were from Calcutta. That several persons from different parts of the
country with no apparent connection with each other except that they
appeared to belong to the same Community were together trying to
cross the country's frontier, apparently.made the police suspect, in the
context of the political situation in the country, that they belonged to
some group of persons of that community who were campaigning
against the Government, call it what you will, agitating or waging war,
a suspicion which must have been further influenced by the letters
found in their possession. It may be that these circumstances may lead
to no more than suspicion but the suspicion was enough to jus.tify an
investigation by the Police.
We may digress here and consider a submission of Mr. Jethmalani that the letter ·addressed to the President showed that Simranjit
Singh Mann wanted to devote himself to the rehabilitatiion of those
who had suffered during the army action and the letter could never
possibly be evidence of a conspiracy to wage war against the Government. It is true that in this long letter, there is a sentence. "In future, I
will devote myself to the rehabilitation of those who have suffered
during the army action." It is sufficient for us to mention that there is
in the letter enough incendiary material to ignite the combustible. We
do not want to refer to the various other st.atements made in the letter.
It is possible that the effect of some of those statements on the minds
and actions of the susceptible could be disastrous. Simranjit Singh
Mann, as a highly educated person and as a highly placed officer, was
bound to emerge, on his dismissal from service, as a hero and martyr in
the eyes of a certain section of the people. His statements would be
accepted by them as gospel truths and pronouncements of the oracle
on the basis of which they should act. If the letter remained addressed
to the President and not publicised, it would cause little or no harm.
But the letter though addressed to the president was clearly meant to
be what is called an 'open letter', to be given wide publicjty. Indeed its
full text had been published in the daily press and the accused them-
RAGHUBIRSJNQHv.STATEOFBIHAR[REDDY, J.]
817
selves had such a copy in their possession when they were stopped and
searched. We do not know whether any of the accused' was responsible for the publicity and whether it was in pursuance of the conspiracy.
It may be that Simranjit Singh Mann meant no harm and that the
contents of the letter were no mon; than the vehement outpourings
of a bitter, and distressed but honest mind in the zealot's jargon.
On the other hand it is possible that the letter was designed to become
or became an instrument 9f faith and used as such.