- (1.) The applicant, Mohammad Mian, is being prosecuted for committing the offence punishable under Section 302 I.P.C., P.S. Ojhani, District Budaun.
(2.) According to recital in the F.I.R., Budha was shot dead by the applicant, Mohammad Mian, on 20-6-1989 at 7.00 P.M. near the culvert of Bilsi Road, Ojhani. A charge sheet was submitted against the applicant under Section 302 I.P.C. and the case S.T. No. 240 of 1989 - is pending in the court of learned sessions Judge, Budaun.
(3.) The main contention of the learned counsel for the applicant is that there has been inordinate delay in the trial of the case and as the applicant has been in jail for more than two years, he may be enlarged on bail. Reliance has been placed upon the case of Hussainara v. State of Bihar, AIR 1979 SC 1360. In the case of Hussainara the Supreme Court has observed as follows :- "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, AIR 1978 SC 597. We have held in that case that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be reasonable, fair and just. If a person is deprived of his liberty under a procedure which is not reasonable, fair or just, such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. 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 ? That is a question we shall have to consider when we hear the writ petition on merits on the adjourned date. But one thing is certain and we cannot impress it too strongly on the State Government that it is high time that the State Government realised its responsibility to the people in the matter of administration of justice and set up more courts for the trial of cases. We may point out that it would not be enough merely to establish more courts but the State Government would also have to man them by competent judges and whatever is necessary for the purpose of recruiting competent judges such as improving their conditions of service, would have to be done by the State Government, if they want to improve the system of administration of justice and make it an effective instrument for reaching justice to the large masses of people for whom justice is today a meaningless and empty word." While emphasising that a reasonable expeditious trial of a criminal case is an integral part of fundamental right to life and liberty as enshrined in Article 21 of the Constitution of India, the Supreme Court, in Hussainara's case, has intentionally refrained from answering the question as to what shall be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty of imprisonment as a result of abnormal delay in the conclusion of his trial. The Parliament was conscious of the delay in the investigation and trial of criminal cases. When the new Cr. P.C. was enacted in 1973 a new provision under Section 167(2)(a) was added in old Section 167 to cover the state of investigation of criminal cases, which provides, that no magistrate shall authorise the detention of an accused person in custody under Section 167 Cr. P.C. for a total period exceeding 90 days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years and 60 days, where the investigation relates to any other offence, and on the expiry of the said period of 90 days or 60 days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail.;