The right to speedy trial

IN A judgment with profound implication, the apex court has positively reiterated that just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily (TheHindu, March 24).

The right to speedy trial is not expressly guaranteed constitutional right in India. Speedy trial is the essence of criminal justice and delay in trial by itself constitutes denial of justice. ``Pendency for long periods operates as an engine of oppression,'' said the Supreme Court in a 1996 decision and issued directions to criminal courts to protect and effectuate the right to life and liberty of the citizen (1996) MLJ (Cri) P549. It is interesting to note that in the United States speedy trial is one of the constitutionally guaranteed rights.

A crying shame

The Supreme Court in Kadra Pehadiya vs. State of Bihar - 1981 Cr.L.J. 481 - held ``It is a crying shame upon our adjudicatory system which keeps men in jail for years on end without a trial.'' The court in a compassionate expression observed ``... no one shall be allowed to be confined in jail for more than a reasonable period of time, which we think cannot and should not exceed one year for a session trial ... we fail to understand why our justice system has become so dehumanised that lawyers and judges do not feel a sense of revolt at caging people in jail for years without trial.''

Another question that arises for consideration is whether it is legally permissible to dispose of the appeal on merits on perusal of the available part of records. The procedure contemplated under sections 385(2) and 386, Cr.P.C. makes it obligatory for the court to peruse the records and hear the parties before deciding the appeal. But the appellate court has inherent power to reconstruct the record of the court from which an appeal lies to it. The felt necessities in the branch of criminal law are (a) avoidance of delay, (b) simplicity of procedure, (c) fair deal to the poorer sections of society and of course a fair trial in every case according to the principles of natural justice.

It is not always easy to keep strictly to the line of procedure prescribed and irregularities occur now and then in the trial of cases. But the Code provides that no error, omission or irregularity in a trial shall vitiate a finding unless it has occasioned failure of justice (sections 464, 465). The lower court system in India is locked in a spiral of ineffectiveness, infested with extreme delay and inefficiency. But the Supreme Court and the High Courts bypass the adversarial system and unilaterally investigate abuses that are brought to their attention.

Despite infirmities in the system, the Judiciary as a whole enjoy a higher degree of trust than other branches of the government. Higher courts move fairly fast and are seen as helping the poor and disadvantaged against abuse of power. The apex court called upon the lower courts to show greater sensitivity in rape cases and wanted evidence to be appreciated, not being carried away by insignificant contradictions. The court laid down the conditions to be observed in cases of arrest or detention and called upon the States to submit periodic reports.

Separate cadre

Separate cadre of investigation agency enjoined with the responsibility of production of witness, production of accused and assisting the prosecuting agency will facilitate speedy trial. The lack of coordination between the investigating and the prosecuting agencies should be rectified. In cases of offences compoundable by the agreement of the parties, the proceedings may be terminated by recording the compromise and the accused be released. The Cr.P.C. should empower the investigating officer to compound offences which are compoundable. The concept of plea bargaining should be applied in offences which impose punishment of imprisonment of less than seven years and/or fine including the offences covered by section 320 of Cr.P.C. It has been said that a law court is not a cathedral but a casino where much depends on the throw of dice, but slowly the higher courts in the country are brushing aside the view that law is the end-product of technicalities.

The need to fill up vacancies of judges is essential and the judgment is significant in another aspect namely the reiteration that appeal is a statutory right and that the trial court's verdict is not final during the pendency of appeal. Appeal is rehearing and therfore the accused trial is deemed to be continuing. This will set at rest many controversies being raised by rival political leaders.

H. SYED MATHANI

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