Unexplained, Avoidable & Prolonged Delay In Concluding Trial, Appeal Or Revision Would Be A Factor For Consideration Of Bail: Supreme Court

While passing a slew of directions to the Investigating Agency as well as the Courts with respect to the bail system prevalent in the country, on Monday, the Supreme Court held that an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would be a factor for consideration of bail. A Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh noted that it expects the Courts to comply with Section 309 of the Cr.P.C., which, though contemplates proceedings to be held on a day-to-day basis, curves out exceptions and grants power to Courts to postpone or adjourn proceedings. However, the Bench was of the view, that in case of any unreasonable delay, the accused ought to get the benefit of the same, notwithstanding the benefit that might enure to the accused under Section 436A of the Code(Para 41 of the judgment). To demonstrate the adverse impact of delay on the accused persons, the Bench referred to the relevant portions of the judgments of the Apex Court in Hussainara Khatoon And Ors. v. Home Secretary, State of Bihar, Hussain And Anr.v. Union of India And Ors. and Surinder Singh @ Shingara Singh v. State of Punjab. In Hussainara Khatoon's judgment, the Apex Court had acknowledged that the 'highly unsatisfactory' bail system is one of the reasons for the legal and judicial system to continually deny justice to the poor undertrial prisoners. It noted that another factor is the delay in disposal of the cases. Emphasising on the requirement for speedy trial, the Court had observed - "Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice. It is interesting to note that in the United States, speedy trial is one of the constitutionally guaranteed rights…We think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by this Court in Maneka Gandhi v. Union of India [(1978) 2 SCR 621 : (1978) 1 SCC 248]."It had recognised speedy trial as an integral and essential part of the fundamental right to life and liberty guaranteed under Article 21 of the Constitution. In Hussain (supra), the Apex Court had requested the Chief Justices of the High Courts to develop appropriate monitoring mechanisms on administrative as well as judicial side for speeding up disposal of pending cases of undertrials. Again, In Surinder Singh (supra), the Apex Court had observed that when the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt and also discussed the impact of delay at the appeal stage.Directions issuedThe Court issued a slew of directions as follows :a) The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails.b) The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the courtc)The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of baild) All the State Governments and the Union Territories are directed to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code while taking note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of 2018 and the standing order issued by the Delhi Police i.e. Standing Order No. 109 of 2020, to comply with the mandate of Section 41A of the Code.e) There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code. f)There needs to be a strict compliance of the mandate laid down in the judgment of this court in Siddharth(in which it was held that investigating officer need not arrest each and every accused at the time of filing chargesheet).g) The State and Central Governments will have to comply with the directions issued by this Court from time to time with respect to constitution of special courts. The High Court in consultation with the State Governments will have to undertake an exercise on the need for the special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously.h) The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release.i) While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind.j) An...

Unexplained, Avoidable & Prolonged Delay In Concluding Trial, Appeal Or Revision Would Be A Factor For Consideration Of Bail: Supreme Court

Sohini Chowdhury

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