Constitution Bench in A.R. Antulay’s case (supra). It was held as follows.
“The Constitution makers were aware of the Sixth Amendment provisions in the Constitution of the USA providing in express terms the right of an `accused’ to be tried speedily. Yet this was not incorporated in the Indian Constitution. So long as A.K. Gopalan vs. State of Madras (1950) SCR 88) held the flled in India, only such speedy trial was available as the provisions of the Code of Criminal Procedure made possible. No proceeding could ever be quashed on the ground of delay. On a proper grievance being made, or suo motu, court could always ensure speedy trial by suitable directions to the trial court including orders of transfer to a court where expeditious disposal could be ensured.
With the decision of this Court in Maneka Gandhi vs. Union of India (1978) 1 SCC 248) Article 21 received a new content. Procedure relating to punishment of crime must be fair, just and reasonable. Hussainara Khaoon (I) vs. Home Secretary, State of Bihar (1980) 1 SCC 81) and later decisions have spelt out a so-called ‘Right to Speedy Trial’ from Article 21. It is both a convenient and self-explanatory description. But it does not follow that every incident attaching to the Sixth Amendment right ipso facto is to be read into Indian Law. In the USA, the right is express and unqualified. In India it is only a component of justice and fairness. Indian courts have to reconcile justice and fairness to the accused with many other interests which are compelling and paramount.
Article 21 cannot be so construed as to make mockery of the directive principles and another even more fundamental right i.e., the right of equality in Article 14.
The concept of delay must be totally different depending on the class and character of the accused and the nature of his offence, the difficulties of a private prosecutor and the leanings of the government.
The court must respect legislative policy unless the policy is unconstitutional.
Statutes of limitation, limited though they are on the criminal side, do not apply to:
(a) serious offences punishable with more than 3 years imprisonment;
(b) all economic offences.
Corruption by high public servants is not protected for both these reasons.
Right to speedy trial is not a right not to be tried. Secondly it only creates an obligation on the prosecutor to be ready to proceed to trial within a reasonable time;
That is to say without any delay attributable to his deviousness or culpable negligence.
The actual length of time taken by a trial is wholly irrelevant. In each individual case the court has to perform a balancing act. It has to weigh a variety of factors, some telling in favour of the accused, some in favour of the prosecutor and others wholly neutral. Every decision has to be ad-hoc. It is neither permissible nor possible nor desirable to lay down an outer limit of time. The U.S. Supreme Court has refused to do so. Similar view is taken by our court. There is no precedent warranting such judicial legislation.
The following kinds of delay are to be totally ignored in giving effect to the plea of denial of speedy trial :
(A) Delay wholly due to congestion of the Court calendar, unavailability of judges, or other circumstances beyond the control of the prosecutor.
(B) Delay caused by the accused himself not merely by seeking adjournments but also by legal devices which the prosecutor has to counter.
(C) Delay caused by orders, whether induced by the accused or not of the court, necessitating appeals or revision or other appropriate actions or proceedings.
(D) Delay caused by legitimate actions of the prosecutor e.g., getting a key witness who is kept out of the way or otherwise avoids process or appearance or tracing a key document or securing evidence from abroad.
Delay is usually welcomed by the accused. He postpones the delay of reckoning thereby. It may impair the prosecution’s ability to prove the case against him. In the meantime, he remains free to indulge in crimes. An accused cannot raise this plea if he has never taken steps to demand a speedy trial. A plea that proceedings against him be quashed because delay has taken place is not sustainable if the record shows that he acquiesced in the delay and never asked for an expeditious disposal. In India the demand rule must be rigorously enforced. No one can be permitted to complain that speedy trial was denied when he never demanded it.
The core of ‘Speedy Trial’ is protection against incarceration. An accused who has never been incarcerated can hardly complain. At any rate, he must show some other very strong prejudice. The right does not protect an accused from all prejudicial effects caused by delay. Its core concern is impairment of liberty.
Possibility of prejudice is not enough. Actual prejudice has to be proved.
The plea is inexorably and inextricably mixed up with the merits of the case. No finding of prejudice is possible without full knowledge of facts. The plea must first be evaluated by the trial Court.”
AIR 2004 SCW 5196 : JT 2004 (8) SC 369 : (2004) 7 SCALE 627 : (2004) 12 SCC 499
