# RANJAN DWIVEDI v. C.8.1., THROUGH THE DIRECTOR GENERAL

- **Citation:** [2012] 7 S.C.R. 329
- **Court:** Supreme Court of India
- **Decided:** 2012-08-17
- **Bench:** H. L. Dattu, Chandramauli Kr. Prasad
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ranjan-dwivedi-v-c-8-1-through-the-director-general-28312
- **Pages:** 30

## Headnote

CONSTITUTION OF IND/A, 1950:
A
B
Art. 21 - Speedy trial - Samastipur bomb-blast - 37 years c
delay in trial - Held: The Constitution does not expressly
declare the right to speedy trial as a fundamental right -
However, 'reasonably' expeditious trial has been held an
integral and essential part of the fundamental right to life and
liberty enshrined in Art. 21 - Delay, which occasioned by 0
action or inaction of the prosecution is one of the main factors
which will be taken note by the courts while interjecting a
criminal trial - However, unintentional and unavoidable delays
or administrative factors over which prosecution has no control
may be a good cause for failure to complete the trial within a
reasonable time - Such delay cannot be violative of accused's
E
right to a speedy trial and needs to be excluded while deciding
whether there is unreasonable and unexplained delay -
Presumptive prejudice is not an alone dispositive of speedy
trial claim and must be balanced against other factors - In the
instant case, the delay is occasional by exceptional F
circumstances - In view of the long adjournments sought by
the accused persons they cannot take advantage or the
benefit of the right of speedy trial by causing the delay and
then use that delay in order to assert their rights.
CRIMINAL TRIAL:
Delay in completion of trial - Samastipur bomb-blast - 37
years delay in completion of trial - Held: Prescribing a time
G
329
H
330
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A
limit for the trial court to terminate the proceedings or, at the
end thereof, to acquit or discharge the accused in all cases
will amount to legislation, which cannot be done by judicial
directives within the arena of judicial law making power
available to constitutional courts however liberally the courts
B
may interpret Arts. 21, 32, 141 and 142 - It is for the criminal
court to exercise powers u/ss 258, 309 and 311 of the Cr.P.C.
to effectuate the right to a speedy trial - In the instant case,
credit should be given to the judicial officers who have taken
care to see that the trial is completed at the earliest, and have
C painstakingly suffered with all the dilatory tactics adopted by
the accused in dragging on with the proceedings for nearly
thirty seven years - The system has done its best, but, has
not achieved the expected result and the instant case,
certainly, will not fit into the category of cases of systemic
D failure - The trial judge is directed to take up the case on day
to day basis and conclude the proceedings as early as
possible, without granting unnecessary and unwarranted
adjournments - Judiciary - Conducting of trial - Appreciated -
Judicial discipline - Precedent - Administration of justice -
E Code of Criminal Procedure, 1973 - ss. 258, 309 and 311 -
Constitution of India, 1950-Arts. 21,32, 141and142.
The instant writ petitions were filed by two of the
accused involved in the assassination of the then
F
Railway Minister in the Samastipur bomb-blast which
took place on 2.1.1975. They prayed for quashing of
charges and the trial on the ground of more than 37 years
delay in completion of the trial.
G
Dismissing the writ petitions, the Court
HELD: (Per H.L. Dattu, J)
1.1 In Abdul Rehman Antulay, Kartar Singh and P.
Ramchandra Rao*, this Court has laid down guidelines
as regards the right to speedy trial. The Constitution of
H
India does not expressly declare the right to speedy trial
RANJAN DWIVEDI v. C.B.I., THROUGH THE
331
DIRECTOR GENERAL
as a fundamental right. However, in Hussainara A
Khatoon's case a speedy trial has been held to be implicit
in the broad sweep and content of Art. 21 of the
Constitution. Subsequently, in a series of judgments, this
Court has held that 'reasonably' expeditious trial is an
integral and essential part of the Fundamental Right to
B
Life and Liberty enshrined in Art. 21. [para 12-15 and 17]
[342-G-H; 352-A-B]
*Abdul Rehman Antulay v. R.S. Nayak, 1991 (3) Suppl.
SCR 325 = (1992) 1 SCC 225, Kartar Singh v. State of c

## Text

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[2012] 7 S.C.R. 329
RANJAN DWIVEDI
v.
C.8.1., THROUGH THE DIRECTOR GENERAL
(Writ Petition (Crl.) No. 200 of 2011etc.)
AUGUST 17, 2012.
(H. L. DATTU AND CHANDRAMAULI KR. PRASAD, JJ.]
CONSTITUTION OF IND/A, 1950:
A
B
Art. 21 - Speedy trial - Samastipur bomb-blast - 37 years c
delay in trial - Held: The Constitution does not expressly
declare the right to speedy trial as a fundamental right -
However, 'reasonably' expeditious trial has been held an
integral and essential part of the fundamental right to life and
liberty enshrined in Art. 21 - Delay, which occasioned by 0
action or inaction of the prosecution is one of the main factors
which will be taken note by the courts while interjecting a
criminal trial - However, unintentional and unavoidable delays
or administrative factors over which prosecution has no control
may be a good cause for failure to complete the trial within a
reasonable time - Such delay cannot be violative of accused's
E
right to a speedy trial and needs to be excluded while deciding
whether there is unreasonable and unexplained delay -
Presumptive prejudice is not an alone dispositive of speedy
trial claim and must be balanced against other factors - In the
instant case, the delay is occasional by exceptional F
circumstances - In view of the long adjournments sought by
the accused persons they cannot take advantage or the
benefit of the right of speedy trial by causing the delay and
then use that delay in order to assert their rights.
CRIMINAL TRIAL:
Delay in completion of trial - Samastipur bomb-blast - 37
years delay in completion of trial - Held: Prescribing a time
G
329
H
330
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A
limit for the trial court to terminate the proceedings or, at the
end thereof, to acquit or discharge the accused in all cases
will amount to legislation, which cannot be done by judicial
directives within the arena of judicial law making power
available to constitutional courts however liberally the courts
B
may interpret Arts. 21, 32, 141 and 142 - It is for the criminal
court to exercise powers u/ss 258, 309 and 311 of the Cr.P.C.
to effectuate the right to a speedy trial - In the instant case,
credit should be given to the judicial officers who have taken
care to see that the trial is completed at the earliest, and have
C painstakingly suffered with all the dilatory tactics adopted by
the accused in dragging on with the proceedings for nearly
thirty seven years - The system has done its best, but, has
not achieved the expected result and the instant case,
certainly, will not fit into the category of cases of systemic
D failure - The trial judge is directed to take up the case on day
to day basis and conclude the proceedings as early as
possible, without granting unnecessary and unwarranted
adjournments - Judiciary - Conducting of trial - Appreciated -
Judicial discipline - Precedent - Administration of justice -
E Code of Criminal Procedure, 1973 - ss. 258, 309 and 311 -
Constitution of India, 1950-Arts. 21,32, 141and142.
The instant writ petitions were filed by two of the
accused involved in the assassination of the then
F
Railway Minister in the Samastipur bomb-blast which
took place on 2.1.1975. They prayed for quashing of
charges and the trial on the ground of more than 37 years
delay in completion of the trial.
G
Dismissing the writ petitions, the Court
HELD: (Per H.L. Dattu, J)
1.1 In Abdul Rehman Antulay, Kartar Singh and P.
Ramchandra Rao*, this Court has laid down guidelines
as regards the right to speedy trial. The Constitution of
H
India does not expressly declare the right to speedy trial
RANJAN DWIVEDI v. C.B.I., THROUGH THE
331
DIRECTOR GENERAL
as a fundamental right. However, in Hussainara A
Khatoon's case a speedy trial has been held to be implicit
in the broad sweep and content of Art. 21 of the
Constitution. Subsequently, in a series of judgments, this
Court has held that 'reasonably' expeditious trial is an
integral and essential part of the Fundamental Right to
B
Life and Liberty enshrined in Art. 21. [para 12-15 and 17]
[342-G-H; 352-A-B]
*Abdul Rehman Antulay v. R.S. Nayak, 1991 (3) Suppl.
SCR 325 = (1992) 1 SCC 225, Kartar Singh v. State of c
Punjab, 1994 (2) SCR 375 = (1994) 3 sec 569; P.
Ramachandra Rao v. State of Kamataka, (2002) 4 SCC 578;
Hussainara Khatoon vs. Home Secretary State of Bihar,
Patna 1979 (3) SCR 169 =AIR 1979 SC 1360; Vakil Prasad
Singh v. State of Bihar 2009 (1) SCR 517 = (2009) 3 SCC
D
355; Japani Sahoo v. Chandra Sekhar Mohanty 2007 (8)
SCR 582 = (2007) 7 SCC 394; and P. Vijayan v. State of
Kera/a 2010 (2) SCR 78 = (2010) 2 SCC 398;- relied on.
1.2 The guarantee of a speedy trial is intended to
avoid oppression and prevent delay by imposing on the
E
court and the prosecution an obligation to proceed with
the trial with a reasonable dispatch. The guarantee serves
a three fold purpose: Firstly, it protects the accused
against oppressive pre-trial imprisonment; secondly, it
F
relieves the accused of the anxiety and public suspicion
due to unresolved criminal charges; and lastly, it protects
against the risk that the evidence may be lost or
memories dimmed by the passage of time, thus, impairing
the ability of the accused to defend himself or herself. The
G
purpose of both the criminal procedure rules governing
speedy trials and the constitutional provisions, in
particular, Art. 21, is to relieve an accused of the anxiety
associated with a suspended prosecution and provide
reasonably prompt administration of justice. [para 18]
H
[352-C-E]
332
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A
1.3 The reasons for the delay is one of the factors
which courts would normally assess in determining as
to whether a particular accused has been deprived of his
or her right to speedy trial, including the party to whom
the delay is attributable. Delay, which occasioned by
B action or inaction of the prosecution is one of the main
factors which will be taken note by the courts while
interjecting a criminal trial. A deliberate attempt to delay
the trial, in order to hamper the accused, is weighed
heavily against the prosecution. However, unintentional
C and unavoidable delays or administrative factors over
which prosecution has no control, such as, overcrowded court dockets, absence of the presiding
officers, strike by the lawyers, delay by the superior forum
in notifying the designated Judge, (in the present case
D only), the matter pending before the other forums,
including High Courts and the Supreme Court and
adjournment of the criminal trial at the instance of the
accused, may be a good cause for the failure to complete
the trail within a reasonable time. Such delay or delays
E cannot be violative of accused's right to a speedy trial
and needs to be excluded while deciding whether there
is unreasonable and unexplained delay. The good cause
exception to the speedy trial requirement focuses on only
one factor i.e. the reason for the delay and the attendant
F circumstances bear on the inquiry only to the extent to
the sufficiency of the reason itself. [para 19) [352-F-H;
353-A-D]
1.4 In the instant case, it has not been disputed that
G prosecution, apart from seeking 4-5 adjournments, right
from 1991 till 2012, is not responsible for delay in any
manner whatsoever. Therefore, the delay in trial of the
petitioners from 1991 to 2012 is solely attributable to
petitioners and other accused persons. [para 19) [353-DH E]
RANJAN DWIVEDI v. C.B.I., THROUGH THE
333
DIRECTOR GENERAL
1.5 Presumptive prejudice is not an alone dispositive A
of speedy trial claim and must be balanced against other
factors. The accused has the burden to make some
showing of prejudice, although a showing of actual
prejudice is not required. When the accused makes a
prima-facie showing of prejudice, the burden shifts on the B
prosecution to show that the accused suffered no serious
prejudice. [para 20] [353-F-G]
1.6 Further, the length of the delay is not sufficient
in itself to warrant a finding that the accused was c
deprived of the right to a speedy trial. Rather, it is only
one of the factors to be considered, and must be weighed
against other factors. It is a balancing process while
determining as to whether the accused's right to speedy
trial has been violated or not. [para 21] (354-C, E]
0
1.7 In the instant case, the delay is occasional by
exceptional circumstances. It may not be due to failure
of the prosecution or by the systemic failure but it can
only be said that there is a good cause for the failure to
complete the trial and such delay is not violative of the E
right of the accused for speedy trial. [para 22] (354-F]
2.1 Prescribing a time limit for the trial court to
terminate the proceedings or, at the end thereof, to acquit
or discharge the accused in all cases will amount to F
legislation, which cannot be done by judicial directives
within the arena of judicial law making power available
to constitutional courts however liberally the courts may
interpret Arts. 21, 32, 141 and 142. It is for the criminal
court to exercise powers u/ss 258, 309 and 311 of the G
Cr.P.C. to effectuate the right to a speedy trial. In an
appropriate case, directions from the High Court u/s 482
Cr.P.C. and Art. 226/227 can be invoked to seek
appropriate relief. (para 23] (354-G-H; 355-D]
H
334
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A
Ramchandra Rao P. v. State of Kamataka (2002) 4 SCC
578 - followed.
State through CBI v. Narayan Waman Nerukar (Dr), 2002
(1) Suppl. SCR 676 = (2002) 7 SCC 6; and State of
8
Rajasthan v. lkbal Hussen, 2004 (4) Suppl. SCR 189 =
(2004) 12 sec 499 - referred to.
Raj Deo (//) v. State of Bihar 1999 (3) Suppl. SCR 124
= (1999) 7 SCC 604; Raj Deo Sharma v. State of Bihar,
(1998) 7 SCC 507; Common Cause, A Registered Society
C
v. Union of India, 1996 (2) Suppl. SCR 196 = (1996) 4 SCC
33 - stood overruled
2.2 In view of the settled position of law and,
particularly, in the facts of the case, and the long
D adjournments sought by the accused person~, who are
seven in number, they cannot take advantage or the
benefit of the right of speedy trial by causing the delay
and then use that delay in order to assert their rights.
(para 24] (355-E-F]
E
2.3 In the instant case, this Court should certainly
give credit to the judicial officers, who have painstakingly
suffered with all the dilatory tactics adopted by the
accused in dragging on with the proceedings for nearly
F thirty seven years. They do deserve appreciation while
conducting such a trial. It can certainly be said that the
system has not failed, but, accused have been
successful in dragging on the proceedings to a stage
where, if it is drawn further, it may snap the Justice
G Delivery System. The Court is also conscious of the fact
that more than thirty Judges had tried this case at one
stage or the other, but, all of them have taken care to see
that the trial is completed at the earliest. The system has
done its best, but, has not achieved the expected result;
H
RANJAN DWIVEDI v. C.8.1., THROUGH THE
335
DIRECTOR GENERAL
and the instant case certainly will not fit into the category A
of cases of systemic failure. [para 25] [355-H; 356-A-E]
2.4. As on date, the statements of accused u/s 313
CrPC have been recorded, the Court witnesses have
been examined as well as the recording of statements of 8
defence witness is also complete and it has been
informed that the matter is posted for arguments.
Therefore, at this stage the one and the only direction that
requires to be issued is to direct the trial judge to take
up the case on day to day basis and conclude the c
proceedings as early as possible, without granting
unnecessary and unwarranted adjournments. [para 3
and 25] [337-H; 338-A-B; 356-E-F]
Per Chandramauli Kr. Prasad, J (Concurring)
1.1 Judicial discipline expects this Court to follow the
ratio and prohibits laying down any principle in
derogation of the ratio laid down by the earlier decisions
of the Constitution Benches of this Court. [para 7] [357H; 358-A]
Abdul Rehman Antulay v. R.S. Nayak (1992) 1 SCC 225;
P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC
578 - followed.
D
E
1.2 As has been held by this Court in P.
F
Ramachandra Rao, the propositions emerging from Art.
21 of the Constitution and expounding the right to
speedy trial laid down as guidelines in Abdul Rehman
Antulay's case adequately take care of right to speedy
trial. The facts of the instant case do not justify quashing G
of the prosecution. Therefore, the trial cannot be
terminated merely on the ground of delay without
considering the reasons thereof. [para 9-11] [358-D, F-G]
H
336
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A
Case Law Reference:
(As Per H.L. Dattu, J)
2002 (1) Suppl. SCR 676 referred to
para 7
B
2009 (1) SCR 517
relied on
para 8
2007 (8) SCR 582
relied on
para 9
2010 (2) SCR 78
relied on
para 10
c
1991 (3) Suppl. SCR 325 relied on
para 12
1994 (2) SCR 375
relied on
para 12
2002 (4) sec 578
relied on
para 12
1979 (3) SCR 169
relied on
para 17
D
1999 (3) Suppl. SCR 124 stood overruled para 23
(1998) 1 sec 507
stood overruled para 23
1996 (2) Suppl. SCR 196 stood overruled para 23
E
2004 (4) Suppl. SCR 189 referred to
para 23
F
G
(As Per Chandramauli Kr. Prasad, J.)
1992 (1) sec 225
2002(4) sec 578
followed
followed
para 7
para 7
CRIMINAL ORIGINAL JWRISDICTION : Writ Petition (Crl.)
Nos. 200 of 2011 etc.
Under Article 32 of the Constitution of India.
WITH
W.P. (Crl.) No. 205 of 2011.
H.P. Raval, ASG, T.R. Andhyarujina, S.C. Patel, M.L.
Lahoty, R.S. Sharma, Feroz Ahmad, Paban Kumar Sharma,
H
Arvind Tiwary, Shabnam, Saumik Ghosal, Arvind Kumar, Laxmi
RANJAN DWIVEDI v. C.B.I., THROUGH THE
337
DIRECTOR GENERAL
Arvind, Poonam Prasad, Pradeep Kumar Mathur, Rajiv Nanda,
A
P.K. Dey, Sreeniwas Khalap, Arvind Kumar Sharma for the
appearing parties.
The Judgment of the Court was delivered by
H.L. DATTU, J. 1. Reliefs sought in both the Writ Petitions
B
are one and the same; therefore, they are disposed of by this
common judgment.
2. These Criminal Writ Petitions, filed under Article 32 of
the Constitution of India, seek for the enforcement of petitioner's c
fundamental right of "speedy trial" and for "quashing of
Sessions Trial No. SC1/06", pending on the file of learned
Additional Sessions Judge (East), Kakardooma Courts, Delhi.
3. The petitioners herein are the accused and tried for the
assassination of Shri. L.N. Mishra, the then Union Railway D
Minister. It is the case of the prosecution that Shri. L.N. Mishra
was injured in a bomb-blast at the Railway Station, Samastipur
on 2.01.1975 and later succumbed to his injuries on 3.01.1975.
The initial investigation was conducted by the Bihar C.l.D. and
subsequently it was transferred to the Central Bureau of E
Investigation (for short, 'C.B.I.') who filed charge sheet on
10.11.1975. Thereafter, this .case was transferred by this Court
to Delhi vide its order dated 17 .12.1979 due to interference by
the then Bihar Government. Learned Additional Sessions
Judge, Karkardooma, Delhi, after framing the charges, initiated
F
trial against the accused persons but, unfortunately, the trial is
still pending for the past 37 years. In 1987, the Petitioner(s) had
preferred a Writ Petition (Crl.) No. 268/87 before this Court for
quashing of the charges and proceedings in view of pending
trial for over 12 years. This Court had disposed of the writ G
petitions vide its Order dated 10.12.1991 with a direction to
the trial court to expeditiously complete the trial on day to day
basis. However, the trial is still pending before the Learned
Additional Sessions Judge despite the direction of this Court
to expeditiously complete the trial. As of now, the statements
H
338
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A of accused under Section 313 of the Criminal Procedure Core
(for short, 'Cr. P.C.') have been recorded, the Court witnesses
have been examined as well as the recording of statements of
defence witness is also complete and at the time of hearing of
these petitions, we are informed by the learned counsel that the
B matter is now posted for arguments.
c
4. In view of delay in completion of trial for more than 37
years from date of the trial till date, the Petitioners have
preferred the present Writ Petitions praying for quashing of the
charges and trial.
5. Shri. T.R. Andhyarujina, learned Senior Counsel submits
that the trial in the present case has been dragged on for more
than 37 years and is still continuing and this amounts to
violation of fundamental right of the accused to get speedy trial.
D He would submit that this Court has declared that right to
speedy trial is a requirement under Article 21 of the Constitution
guaranteeing right to life and liberty of a citizen. He would
submit that better part of the life of the accused-petitioner has
already been spent in the jail during trial and still, his fate is
E hanging in balance. He would contend that whether the accused
would get convicted or acquitted is immaterial. The question
here is; whether any judicial system would tolerate such as
inordinate delay? Should the Supreme Court allow it to continue
any more? He would further contend that this is a unique case
F for two reasons. Firstly, the prolongation of criminal trial is as
long as 37 years and petitioners have spent better part of their
human life in the jail. Secondly, this Court in the year 1991 while
disposing of the petitioners writ petition, had issued specific
directions to the trial Gourt to expeditiously complete the trial,
G which mandate has been conveniently ignored by the trial court,
which amounts to total ignorance and indifference to the
directions issued by this Court. He would further contend that
the fact that the judicial system works in a particular way cannot
be a justification for its failure to complete the trial. He would
submit that Article 21 not only protects the accused but also
H
RANJAN DWIVEDI v. C.B.I., THROUGH THE
339
DIRECTOR GENERAL [H.L. DATTU, J.]
takes into consideration the sufferings faced by his family
A
members. He would submit systemic failure has sufficiently
punished the petitioners and the very fact of delay shows
prejudice caused to the petitioners. He would further submit that
this is the ideal case where this Court can correct the shortfallings in the criminal justice delivery system by limiting the time
B
for the completion of the trial. He would point out that this Court,
on the earlier occasion, had issued direction to the trial court
to expeditiously complete the trial on day to day basis, but even
after two decades, the trial is still not complete in the year 2012.
He would submit that this Court may quash the excruciatingly c
long trial on the ground that it is a unique case which has not
only seriously prejudiced petitioners but also brutally violated
their right to speedy trial, which is a part of their right to life. He
would contend that in a case of delay of 10 to 15 years, this
Court can order for expeditious completion of the trial, but not
0
in a case where the delay is for more than 37 years, and
therefore, this Court should certainly intervene and give quietus
to the trial.
6. The Petitioner in W.P. (Crl.) No. 205 of 2011 is
represented by Shri. Arvind Kumar, learned Counsel. He
E
adopts the arguments canvassed by Shri. T.R. Andhyarujina,
learned Senior Counsel.
7. Shri Raval, learned ASG submits that this Court has
once rejected the plea of petitioners for quashing the trial on
F
the ground of delay in December, 1991. Therefore, the
petitioners are not entitled for the same relief which was om;e
negatived by this Court. He would then submit, that, the
prosecution is not responsible in any manner for the delay
caused in the trial from December 1991 till date. He would read
G
out a detailed list of dates pertaining to the proceedings and
orders of the trial Court. He would further submit that prosecution
has sought for adjournments only on three or four occasions for
good and valid reasons and there is no deliberate intention on
the part of the prosecution to postpone the trial. The learned
H
340
SUPREME COURT REPORTS
(2012] 7 S.C.R.
A ASG relies on the decision of this Court in State v. Narayan
Waman Nerukar (Dr), (2002) 7 SCC 6. In the said case, the
accused was charged with the offences punishable under
Sections 3 and 5 of the Official Secret Act and Section 120-8
of the IPC. The Magistrate had taken cognizance vide its order
B dated 16.08.1999 and issued process. The accused
approached the High Court for quashing of the criminal
proceedings on the ground of delay. The High Court quashed
the proceedings on the ground of unnecessary delay of 12
years. The prosecution approached this Court against the order
c of the High Court. This Court while setting aside the order of
the High Court remanded the matter to the High Court for fresh
disposal after considering all the relevant factors including that
criminal courts are not obliged to terminate trial of criminal
proceedings merely on account of lapse of time. This Court has
0 observed, that, while considering the issue of delay in trial there
are some relevant factors which ought to be taken into
consideration by the court such as, whether the prolongation
was on account of any delaying tactics adopted by the accused
and other relevant aspects which contributed to the delay,
E number of witnesses examined, volume of documents likely to
be exhibited, nature and complexity of the offence which is
under investigation or adjudication. There can be no empirical
formula of universal application in such matters. Each case has
to be judged in its own background and special features, if any.
No generalization is possible and should be done.
F
8. He would further rely on the decision of this Court in
Vakil Prasad Singh v. State of Bihar (2009) 3 SCC 355,
wherein the charge sheet was filed after the completion of
investigation and subsequently, the learned Magistrate took
G cognizance vide its orders dated 20.02.1982, but nothing
substantial did happen till 1987. Thereafter, the accused
approached the High Court for fresh investigation as the
Investigating Officer had no jurisdiction to investigate. The High
Court vide its order dated 07.12.1990 quashed the order of
H cognizance taken by the Magistrate and ordered fresh
RANJAN DWIVEDI v. C.8.1., THROUGH THE
341
DIRECTOR GENERAL [H.L. DATTU, J.]
investigation. Nothing was done till 1988. The accused again
A
approached the High Court for quashing of entire criminal
proceedings on the ground that re-investigation has not been
initiated by the prosecuting agency. Subsequently, the reinvestigation was ordered only in the year 2007 and fresh
charge-sheet was filed. The High Court dismissed such petition
B
filed by the accused. However, this Court found that there is
inordinate delay and has quashed the proceeding. This Court
has observed that the speedy trial in all criminal prosecutions
is an inalienable right under Article 21 of the Constitution. This
right is applicable not only to the actual proceedings in court c
but also includes within its sweep the preceding police
investigations as well. In every case, where the right to speedy
trial is alleged to have been infringed, the court has to perform
the balancing act by taking into consideration all the attendant
circumstances, and determine in each case as to whether the 0
right to speedy trial has been actually denied in a given case.
9. Shri Raval further relied on the decision of this Court in
Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC
394, in support of his argument that the general rule of criminal
justice is that "a crime never dies". This Court noted that this
E
principle is reflected in the well-known maxim nullum tempus
aut locus occurrit regi (lapse of time is no bar to Crown in
proceeding against offenders). This Court further observed that
the Limitation Act, 1963 (for short the 'Act') does not apply to
criminal proceedings unless there are express and specific
F
provisions to that effect, for instance, Articles 114, 115, 131 and
132 of the Act. It is settled law that a criminal offence is
considered as a wrong against the State and the society even
though it has been committed against an individual. Normally,
in serious offences, prosecution is launched by the State and
G
a court of law has no power to throw away prosecution solely
on the ground of delay. Mere delay in approaching a court of
law would not by itself, afford a ground for dismissing the case,
though it may be a relevant circumstance in reaching a final
w~ict.
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10. Shri Raval also relied on the decision of this Court in
P. Vijayan v. State of Kerala, (2010) 2 SCC 398, where one
naxalite extremist was killed in a police encounter in 1970.
However, in 1988, a newspaper article was published that the
encounter in which the said naxalite was killed, was a fake one
B
and some Senior Police Officers were responsible for it. On
the basis of these reports, writ petitions were filed before the
High Court of Kerala, wherein, one Constable filed a counter
affidavit, making a confessional statement that he shot the said
naxalite on the instructions of his Senior Officer. The High Court
C
vide its order dated 27.01.1999, directed the CBI to register
the F.l.R. for killing of the naxalite in a fake encounter. The
accused preferred a petition under Section 227 of the Cr.P.C.
before the trial court. The same was dismissed. Thereafter, the
accused filed a Criminal Revision Petition before the High
0
Court. The same was also dismissed. Being aggrieved, the
accused approached this Court. This Court, while dismissing
his appeal, has observed that at this stage, it cannot be
claimed that there is no sufficient ground for proceeding
against the appellant and discharge is the only course open.
Further, whether the trial will end in conviction or acquittal is also
E
immaterial. It is also observed that the question whether the
materials at the hands of the prosecution are sufficient or not
are matters for trial.
11. Shri Raval would conclude his submission by stating
F
that the real purpose of the criminal proceedings is to find out
the truth which can only be done after the conclusion of the trial.
12. We preface our decision by extracting certain
observations made by this Court in Abdul Rehman Antulay v.
R. S. Na yak, (1992) 1 SCC 225, Kartar Singh v. State of
G Punjab, (1994) 3 SCC 569 and P. Ramachandra Rao v. State
of Karnataka, (2002) 4 SCC 578.
13. The Constitution Bench, in Abdul Rehman Antulay v.
R.S. Nayak, (supra), has formulated certain propositions, 11
H
in number, meant to serve as guidelines. They are :
RANJAN DWIVEDI v. C.B.I., THROUGH THE
343
DIRECTOR GENERAL [H.L. DATTU, J.]
"86. In view of the above discussion, the following
A
propositions emerge, meant to serve as guidelines. We
must forewarn that these propositions are not exhaustive.
It is difficult to foresee all situations. Nor is it possible to
lay down any hard and fast rules. These propositions are:
(1) Fair, just and reasonable procedure implicit in Article B
21 of the Constitution creates a right in the accused to be
tried speedily. Right to speedy trial is the right of the
accused. The fact that a speedy trial is also in public
interest or that it serves the social interest also, does not C
make it any the less the right of the accused. It is in the
interest of all concerned that the guilt or innocence of the
accused is determined as quickly as possible in the
circumstances.
(2) Right to speedy trial flowing from Article 21
D
encompasses all the stages, namely the stage of
investigation, inquiry, trial, appeal, revision and re-trial. That
is how, this Court has understood this right and there is
no reason to take a restricted view.
E
(3) The concerns underlying the right to speedy trial
from the point of view of the accused are:
(a)
the period of remand and pre-conviction
detention should be as short as possible. In
other words, the accused should not be
F
subjected to unnecessary or unduly long
incarceration prior to his conviction;
(b)
the worry, anxiety, expense and disturbance
to his vocation and peace, resulting from an G
unduly prolonged investigation, inquiry or trial
should be minimal; and
(c)
undue delay may well result in impairment of
the ability of the accused to defend himself,
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whether on account of death, disappearance
or non-availability of witnesses or otherwise.
(4) At the same time, one cannot ignore the fact that
it is usually the accused who is interested in delaying the
proceedings. As is often pointed out, "delay is a known
defence tactic". Since the burden of proving the guilt of the
accused lies upon the prosecution, delay ordinarily
prejudices the prosecution. Non-availability of witnesses,
disappearance of evidence by lapse of time really work
against the interest of the prosecution. Of course, there
may be cases where the prosecution, for whatever reason,
also delays the proceedings. Therefore, in every case,
where the right to speedy trial is alleged to have been
infringed, the first question to be put and answered is - who
is responsible for the delay? Proceedings taken by either
party in good faith, to vindicate their rights and interest, as
perceived by them, cannot be treated as delaying tactics
nor can the time taken in pursuing such proceedings be
counted towards delay. It goes without saying that frivolous
proceedings or proceedings taken merely for delaying the
day of reckoning cannot be treated as proceedings taken
in good faith. The mere fact that an application/petition is
admitted and an order of stay granted by a superior court
h; by itself no proof that the proceeding is not frivolous.
Very often these stays are obtained on ex parte
representation.
(5) While determining whether undue delay has
occurred (resulting in violation of Right to Speedy Trial) one
must have regard to all the attendant circumstances,
including nature of offence, number of accused and
witnesses, the workload of the court concerned, prevailing
local conditions and so on - what is called, the systemic
delays. It is true that it is the obligation of the State to
ensure a speedy trial and State includes judiciary as well,
but a realistic and practical approach should be adopted
in such matters instead of a pedantic one.
RANJAN DWIVEDI v. C.B.I., THROUGH THE
345
DIRECTOR GENERAL [H.L. DATTU, J.]
(6) Each and every delay does not necessarily A
prejudice the accused. Some delays may indeed work to
his advantage. As has been observed by Powell, J. in
Barker "it cannot be said how long a delay is too long in a
system where justice is supposed to be swift but
deliberate". The same idea has been stated by White, J. s
in U.S. v. Ewell in the following words:
... the Sixth Amendment right to a speedy trial is
necessarily relative, is consistent with delays, and
has orderly expedition, rather than mere speed, as
its essential ingredients; and whether delay in C
completing a prosecution amounts to an
unconstitutional deprivation of rights depends upon
all the circumstances.'
However, inordinately long delay may be taken as D
presumptive proof of prejudice. In this context, the
fact of incarceration of accused will also be a
relevant fact. The prosecution should not be allowed
to become a persecution. But when does the
prosecution become persecution, again depends E
upon the facts of a given case.
(7) We cannot recognize or give effect to, what is
called the 'demand' rule. An accused cannot try himself;
he is tried by the court at the behest of the prosecution.
Hence, an accused's plea of denial of speedy trial cannot
F
be defeated by saying that the accused did at no time
demand a speedy trial. If in a given case, he did make
such a demand and yet he was not tried speedily, it would
be a plus point in his favour, but the mere non-asking for
a speedy trial cannot be put against the accused. Even in G
USA, the relevance of demand rule has been substantially
watered down in Barker and other succeeding cases.
(8) Ultimately, the court has to balance and weigh the
several relevant factors - 'balancing test' or 'balancing
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process' - and determine in each case whether the right
to speedy trial has been denied in a given case.
(9) Ordinarily speaking, where the court comes to the
conclusion that right to speedy trial of an accused has been
infringed the charges or the conviction, as the case may
be, shall be quashed. But this is not the only course open.
The nature of the offence and other circumstances in a
given case may be such that quashing of proceedings
may not be in the interest of justice. In such a case, it is
open to the court to make such other appropriate order -
including an order to conclude the trial within a fixed time
where the trial is not concluded or reducing the sentence
where the trial has concluded - as may be de~med just and
equitable in the circumstances of the case.
( 10) It is neither advisable nor practicable to fix any
time-limit for trial of offences. Any such rule is bound to be
qualified one. Such rule cannot also be evolved merely to
shift the burden of proving justification on to the shoulders
of the prosecution. In every case of complaint of denial of
right to speedy trial, it is primarily for the prosecution to
justify and explain the delay. At the same time, it is the duty
of the court to weigh all the circumstances of a given case
before pronouncing upon the complaint. The Supreme
Court of USA too has repeatedly refused to fix any such
outer time-limit in spite of the Sixth Amendment. Nor do
we think that not fixing any such outer limit ineffectuates
the guarantee of right to speedy trial.
(11) An objection based on denial of right to speedy
trial and for relief on that account, should first be addressed
to the High Court. Even if the High Court entertains such
a plea, ordinarily it should not stay the proceedings, except
in a case of grave and exceptional nature. Such
proceedings in High Court must, however, be disposed of
on a priority basis."
RANJAN DWIVEDI v. C.B.I., THROUGH THE
347
DIRECTOR GENERAL [H.L. DATTU, J.]
14. In Kartar Singh v. State of Punjab, (supra), another A
Constitution Bench considered the right to speedy trial and
opined that the delay is dependent on the circumstances of each
case, because reasons for delay will vary. This Court held:
"84. The right to a speedy trial is a derivation from a B
provision of Magna Carta. This principle has also been
incorporated into the Virginia Declaration of Rights of
1776 and from there into the Sixth Amendment of the
Constitution of United States of America which reads, "In
all criminal prosecutions, the accused shall enjoy the right C
to a speedy and public trial ... ". It may be pointed out, in this
connection, that there is a Federal Act of 1974 called
'Speedy Trial Act' establishing a set of time-limits for
carrying out the major events, e.g., information, indictment,
arraignment, in the prosecution of criminal cases. [See
Black's Law Dictionary, 6th Edn. page 1400].
D
85. The right to a speedy trial is not only an important
safeguard to prevent undue and oppressive incarceration,
to minimise anxiety and concern accompanying the
accusation and to limit the possibility of impairing the E
ability of an accused to defend himself but also there is a
societal interest in providing a speedy trial. This right has
been actuated in the recent past and the courts have laid
down a series of decisions opening up new vistas of
fundamental rights. In fact, lot of cases are coming before
F
the courts for quashing of proceedings on the ground of
inordinate and undue delay stating that the invocation of this
right even need not await formal indictment or charge.
86. The concept of speedy trial is read into Article
21 as an essential part of the fundamental right to life and G
liberty guaranteed and preserved under our Constitution.
The right to speedy trial begins with the actual restraint
imposed by arrest and consequent incarceration and
continues at all stages, namely, the stage of investigation,
inquiry, trial, appeal and revision so that any possible H
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prejudice that may result from impermissible and avoidable
delay from the time of the commission of the offence till it
consummates into a finality, can be averted. In this context,
it may be noted that the constitutional guarantee of speedy
trial is properly reflected in Section 309 of the Code of
Criminal Procedure.
87. This Court in Hussainara Khatoon (I) v. Home
Secretary, State of Bihar while dealing with Article 21 of
the Constitution of India has observed thus: (SCC p. 89,
para 5)
"No procedure which does not ensure a reasonably
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 trial, 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, 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 under
Article 21. Would he be entitled to be released
unconditionally freed from the charge levelled against him
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."
See also (1) Sunil Batra v. Delhi Administration (I),
(2) Hussainara Khatoon (/) v. Home Secretary, State of
Bihar, (3) Hussainara Khatoon (IV) v. Home Secretary,
State of Bihar, Patna, (4) Hussainara Khatoon (VI) v.
Home Secretary, State of Bihar, Govt. of Bihar, Patna, (5)
Kadra Pahadia v. State of Bihar (//), (6) T. V.
Vatheeswaran v. State of T.N., and (7) Abdul Rehman
Antulay v. R.S. Nayak.
RANJAN DWIVEDI v. C.B.I., THROUGH THE
349
DIRECTOR GENERAL [H.L. DATTU, J.]
88. Thus this Court by a line of judicial A
pronouncements has emphasised and re-emphasised that
speedy trial is one of the facets of the fundamental right to
life and liberty enshrined in Article 21 and the law must
ensure 'reasonable, just and fair' procedure which has a
creative connotation after the decision of this Court in
B
Maneka Gandhi."
The Court further observed :
"92. Of course, no length of time is per se too long
to pass scrutiny under this principle nor the accused is C
called upon the show the actual prejudice by delay of
disposal of cases. On the other hand, the court has to adopt
a balancing approach by taking note of the possible
prejudices and disadvantages to be suffered by the
accused by avoidable delay and to determine whether the D
accused in a criminal proceeding has been deprived of his
right of having speedy trial with unreasonable delay which
could be identified by the factors - (1) length of delay, (2)
the justification for the delay, (3) the accused's assertion
of his right to speedy trial, and (4) prejudice caused to the E
accused by such delay. However, the fact of delay is
dependent on the circumstances of each case because
reasons for delay will vary, such as delay in investigation
on account of the widespread ramification of crimes and
its designed network either nationally or internationally, the
F
deliberate absence of witness or witnesses, crowded
dockets on the file of the court etc."
15. Seven learned Judges of this Court in the case of P.
Ramachandra Rao v. State of Kamataka, (supra), after an
exhaustive consideration of the authorities on the subject, has G
observed:-
"29.