Delays in the Grant of Bail: Suggestions Lost in the Sands of Time

A recent decision[1] given by a division bench of the Supreme Court has re-looked at plausible methods to reduce procedural delays in disposing cases related to bail. The decision was given in the light of two cases – the first case related to an offence under the Narcotics Drugs and Psychotropic Substances Act, 1985 wherein the accused were in custody since August, 2013 and their bail application had been dismissed pending trial; the second case related to a person convicted and sentenced to life imprisonment under Section 302 of the Indian Penal Code, 1860 whose bail application was dismissed by the High Court of Rajasthan pending appeal.

The main contention of the appellants was that by virtue of the long period of time that they have been in custody, they are entitled to bail given that the right to speedy trial has been granted as a fundamental right under the umbrella of Article 21 of the Constitution. In this regard, bearing in mind the principle laid down in A.R. Antulay[2] that cases involving a violation of the right to speedy trial may be directed by a higher court to be concluded within a fixed time period, the Supreme Court in the present case directed that the pending trial in the first case and the appeal in the second case may be disposed of within six months.

However, the Court went on to note that given the frequency with which the right to a speedy trial has been contested before the courts, it is imperative that further consideration be given to the enforcement of the right under Article 21. The Court emphasized the need to provide for effective and timely adjudication of disputes in order to instill confidence in the public regarding justice dispensation. In light of this, the Court has laid stress on the need for the High Courts to review and monitor cases in their states and give effect to the directions provided to them by the Supreme Court in the case of Hussainara Khatoon[3]. The Court then reiterated the other measures that have been recommended over time for the speedy disposal of cases:

• Avoid numerous adjournments and examine witnesses on consecutive days[4];
• Constitute special benches to dispose of criminal cases pending for more than 5 years[5];
• The central government in consultation with the state governments must take steps to allow all criminal cases to proceed on a fast track basis[6];
• Jurisdictional Magistrates/Chief Judicial Magistrates/Session Judges must hold one sitting in a week in each jail for 2 months in order to implement Section 436A of the Code of Criminal Procedure, 1973[7];
• Constitute a review committee in every district which under the chairmanship of the District Judge who must ensure implementation of Section 436A of the Code of Criminal Procedure, 1973[8];
• High Courts must dispose of cases where proceedings had been stayed, preferably within six months from the date of the stay orders[9];
• High Courts must establish Arrears Committees and prepare a plan to clear the backlog of cases that have been pending for more than 5 years[10];
• High Courts must prioritize the disposal of cases pending for more than 5 years and thereafter prioritize the disposal of cases pending for more than 4 years. Further, incentives may be offered to judges of the subordinate judiciary while prioritizing the disposal of cases pending in the subordinate courts for more than 5 years[11];
• The court in the present case also referred to Section 339B of the Code of Criminal Procedure, 1898 of Bangladesh in recommending another solution – the court noted that as delay in some cases has been on account of some of the accused absconding during trial, the court recommends that perhaps an amendment to the Code of Criminal Procedure, 1973 may be in order whereby courts may be permitted to try such absconding accused in their absence.[12] However, passing such an amendment may be fraught with more negative effects than positive in the larger scheme of justice dispensation.
• The amicus curiae as well as the Additional Solicitor General in the present case have laid stress on the role of the High Courts in removing obstacles to speedy trials such as setting up adequate laboratories, using video conferencing facilities, appointment of public prosecutors, scanning/digitizing police reports, providing timelines for disposing bail matters, etc.[13]
• The court in the present case then re-emphasized the need for the High Courts to frame an action plan for long pending cases and monitor the implementation of the timelines. The court then specified that other aspects of a case, such as investigation, serving of summons, filing charge-sheets and furnishing copies of charge-sheets need to be done in a timely manner so as to reduce delays. Further, it went on to hold that obstruction of proceedings by uncalled for strikes or frequent suspension of court work due to condolence references needs to be monitored by the High Courts and dealt with strictly.[14]

On having highlighted the various steps that have been recommended in the past to reduce delays, the court concluded by providing a few additional measures that may be implemented:

1. The High Courts may issue directions to the subordinate courts that:

(a) Bail applications be disposed of normally within one week;

(b) Magisterial trials, where accused are in custody, be normally concluded within six months and sessions trials where accused are in custody be normally concluded within two years;

(c) Efforts be made to dispose of all cases which are five years old by the end of the year;

(d) As a supplement to Section 436A, but consistent with the spirit thereof, if an undertrial has completed period of custody in excess of the sentence likely to be awarded if conviction is recorded such undertrial must be released on personal bond. Such an assessment must be made by the concerned trial courts from time to time;

(e) The above timelines may be the touchstone for assessment of judicial performance in annual confidential reports.”[15]

2. For bail applications filed before the High Courts, the High Courts must try to ensure that they are decided within one month and criminal appeals wherein the accused have been in custody for more than 5 years are to be decided at the earliest;

3. The High Courts must prepare and monitor action plans for subordinate courts;

4. The High Courts should monitor steps for speedy investigation and trials; and

5. Lastly, the High Courts must take steps to give effect to all the directions issued by the Supreme Court in the earlier cases to ensure speedy disposal of cases of undertrials.

The court in this case appears to have been exasperated with the problem of delay in criminal trials and has gone on to prepare a ready reference of the numerous methods that have been recommended over time for the speedy disposal of criminal cases and bail in particular. While the court has referred to statistics on the unfortunate state of disposal of cases and has listed a number ways to reduce pendency which may seem like a rather large and arduous to-do list for some, it has provided a glimmer of optimism by referencing the progress made in the speedy disposal of session trial cases and magisterial trial cases within the jurisdiction of the Punjab and Haryana High Court brought about due to effective monitoring by the Administrative Judges and through quarterly meetings of District Judges with Senior High Court Judges[16]. Given that there are 44,52,787 criminal cases in the subordinate courts that have been pending for more than 5 years[17], it is hoped that these measures that have been so succinctly summarized and referenced in this decision will be given effect to at the earliest and not remain as another addition to be lost in the sands of time.

[1] Hussain and Anr. v. Union of India, criminal appeal no. 509 of 2017 with Aasu v. State of Rajasthan, criminal appeal no. 511 of 2017

[2] Abdul Rehman Antulay and Ors. v. R.S. Nayak and Anr., (1992) 1 SCC 225

[3] Hussainara Khatoon and Ors. v. Home Secretary, Bihar and Ors., (1995) 5 SCC 326.

[4] Thana Singh v. Central Bureau of Narcotics, (2013) 2 SCC 590.

[5] Akhtari Bi v. State of M.P, (2001) 4 SCC 355.

[6] Bhim Singh v. Union of India, (2015) 13 SCC 603.

[7] Bhim Singh v. Union of India, (2015) 13 SCC 605.

[8] Re: Inhuman Conditions in 1382 Prisons, (2016) 3 SCC 700.

[9] Imtiyaz Ahmad v. State of Uttar Pradesh and Ors., (2012) 2 SCC 688.

[10] A decision taken during a Joint Conference of Chief Ministers of States and Chief Justices of High Courts held in April, 2015.

[11] Resolution passed at the Chief Justices’ Conference held in April, 2016.

[12] Supra note 1, at para 22.

[13] Supra note 1, at para 23.

[14] Supra note 1, at para 24, 25.

[15] Supra note 1, at para 27.

[16] Supra note 1, at para 20.

[17] Summary report of India as on March 13, 2017 available at http://njdg.ecourts.gov.in/njdg_public/main.php (Last visited on March 13, 2017).

The views expressed in this article are solely those of the author’s and they do not represent the views of DAKSH.