JEEVAN REDDY - (1.) IT is more than 12 years since this court declared in Hussainara Khatoon that right to speedy trial is implicit in the broad sweep and content of Article 21. Many a decision thereafter re-affirmed the principle. There has never been a dissenting note. IT is held that violation of this right entails quashing of charges and/or conviction. IT is, however, contended now before us that no such fundamental right flows from Article 21. At any rate, it is argued, it is only a facet of a fair and reasonable procedure guaranteed by Article 21 and nothing more. IT is also argued that violation of this right does not result in quashing of the charges and/or conviction. IT is submitted that the right, if at all there is one, is an amorphous one, a right which is something less than other fundamental rights guaranteed by our Constitution. On the other hand, proponents of the right want us to go a step forward and prescribe a time-limit beyond which no criminal proceeding should be allowed to go on. Without such a limit, they say, the right remains a mere illusion and a platitude. Proponents of several viewpoints have put forward their respective contentions. We had the benefit of elaborate arguments addressed by counsel on both sides of the spectrum. A large number of cases have been cited. Different viewpoints have been presented. We shall refer to them at the appropriate stage. First, how these matters have come to be posted before the Constitution bench.
(2.) WRIT Petition No. 268 of 1987 and a few other criminal appeals came up before a division bench when it was urged for the accused that a time-limit be fixed for concluding all criminal proceedings. Without such a time-limit, it was argued, the guarantee of right to speedy trial will remain a mere platitude. The division bench was of the opinion that the said contention "raises a very important constitutional question" which "is likely to arise more often in many cases and that, the decision on the question will have far-reaching consequences in tens of thousands of criminal cases pending in courts all over the country". Accordingly, the bench directed the cases to be placed before a Constitution bench. Subsequently, other cases too were added. Though several cases are posted before us, we indicated to the counsel that we will not enter into or investigate the factual aspects in all the cases but shall take the facts of only the first two cases. We indicated that we will dispose of these two cases, namely, W.P. No. 268 of 1987 (Ranjan Dwivedi v. State) and W.P. No. 833 of 1990 (A.R. Antulay v. State) and relegate the other cases to a Division bench, after laying down the appropriate principles. We shall first notice the facts of these two cases before we advert to respective contentions of the parties. The petitioner in W.P. No. 833 of 1990, A.R. Antulay was the Chief Minister of Maharashtra from 1980 to January 1982. The complainant/respondent R.S. Nayak moved the governor of Maharashtra by his application dated 1/09/1981 requesting him to grant sanction 231 to prosecute the accused-petitioner as required by S. 6 of Prevention of Corruption Act, 1947 (hereinafter referred to as 1947 Act') for various offences alleged to have been committed by him. Without waiting for the governor's response on his application he filed a complaint in the court of Chief Metropolitan Magistrate, Bombay on 11/09/1981 [Criminal Case No. 76 (Misc.) of 1981] against the accused and some others. His case was that the petitioner-accused was a public servant within the meaning of S. 21 Indian Penal Code and that he has committed several offences punishable under S. 161, 165, Indian Penal Code and S. 5 of Prevention of Corruption Act, 1947 as also under S. 383 and 420 Indian Penal Code read with S. 109 and 120-B IPC. The learned Magistrate called upon the complainant to satisfy him as to how the complaint is maintainable without a valid sanction required by S. 6 of 1947 Act. After hearing the parties, he held that in absence of such a sanction, the complaint was not maintainable except with reference to offences under S. 384 and 420 read with 109 and 120-B IPC. This order was questioned by the complainant in the High court of Bombay by way of Special Criminal Application No. 1742 of 1981. Meanwhile one Sri P.B. Samant filed a writ petition against the petitioner-accused alleging several acts of abuse of power including many of those alleged in the complaint filed by R.S. Nayak. The writ petition was allowed on 12/01/1982 as a result of which the petitioner resigned from the office of the Chief Minister.
(3.) SPECIAL Criminal Application No. 1742 of 1981 filed by the complainant was dismissed by the High court on 12/04/1982. Against the order. State of Maharashtra applied to this court for special leave, which was declined on 28/07/1982. On the same day, however, the governor of Maharashtra granted sanction under S. 6 of 1947 Act in respect of offences set out therein. On this basis the complainant/respondent filed a fresh complaint in the court of SPECIAL Judge, Bombay (created under the Criminal Law Amendment Act, 1952, hereafter referred to as 1952 Act') which was registered as Criminal Case No. 24 of 1982, against the accused and some other persons. The main allegation in this complaint was that the accused had embarked upon a scheme of aggrandisement involving obtaining of funds from public in the name of certain trusts and that he was misusing his office for collecting funds for such trusts. All his activity was characterised as flagrant abuse of his official position as Chief Minister. Several instances were also cited in support of the allegations. The SPECIAL Judge (Sri P.S. Bhutta) took cognizance of the same and issued process by directing bailable warrant to the accused. In response to the process issued, the accused appeared and raised two objections to the jurisdiction of the SPECIAL Judge, viz.: 232 (i) the SPECIAL Judge has no jurisdiction to take cognizance of offences mentioned in S. 6(l)(a) and (b) of 1952 Act (which include offences punishable under S. 161 and 165 Indian Penal Code and S. 5 of 1947 Act) on the basis of a private complaint; and (ii) where there is more than one SPECIAL Judge for an area, in the absence of a notification by the State government specifying the local area under S. 7(2 of 1952 Act, Sri Bhutta had no jurisdiction to entertain Criminal Case No. 24 of 1982. [Section 7(2 provides that "every offence specified in Ss. (1 of S. 6 shall be tried by the SPECIAL Judge for the area within which it was committed, or where there are more SPECIAL Judges than one for such area, by such one of them as may be specified in this behalf by the State government."] The Special Judge, Sri P.S. Bhutta overruled both the said objections whereupon the accused approached the Bombay High court by way of Criminal Revision Application No. 510 of 1982. Pending the said revision, the government of Maharashtra issued a notification under S. 7(2 of the 1952 Act empowering Sri R.B. Sule, Additional Special Judge, to try the said Special Criminal Case No. 24 of 1982. Criminal Revision Application No. 510 of 1982 came up for disposal before the division bench of Bombay High court which dismissed the same on 7/03/1983. The two learned Judges comprising the division bench delivered two separate but concurring opinions. With respect to first objection of accused (mentioned hereinbefore) they held that an investigation by a police officer under S. 5-A of 1947 Act was not a pre-condition to the Special Judge taking cognizance of an offence under S. 8 of 1952 Act and that, therefore, the Special Judge was competent to take cognizance of an offence mentioned in S. 6(1 upon a private complaint as well. With respect to the second objection, they did not think it necessary to discuss it inasmuch as the required notification was already issued by the government of Maharashtra.;