Monday, 24 January 2022



In a series of decisions, the Supreme Court and High Courts have stated that a speedy trial is a fundamental right of an accused under Article 21 of the Indian Constitution, and that withholding such a right result in bail.

Despite the fact that the right to bail under the provision is not absolute, the courts may deny inmates relief by delving into the merits of the case. This needs to be analyzed through judicial pronouncements.

In the case of Bhim Singh v. Union of India, a 3 bench of the SC ordered the Jurisdictional Magistrates/Sessions Judges to hold 1 sitting/week for 2 months in each jail/prison to identify the under-trial prisoners who had completed half of the maximum term; or maximum term of imprisonment stipulated for the offence – and to pass an appropriate order to release them on bail. The bench also directed that all High Courts in the country ensure that the judgement be followed and that a report be sent to the Supreme Court's Secretary without delay.

It is not out of place to point out that the Supreme Court had expressed concerns about people languishing in jail for long periods of time before the clause was enacted. In the case of Hussainara Khatoon v. Home Secretary, State of Bihar, Js. Bhagwati while speaking for the SC, recognized 'speedy trial' as a fundamental right of an accused person and urged the State to take proactive steps toward ensuring this right.

In the case of Hasan Ali Khan v. State, After serving one-half of the maximum period stipulated under the special law, the Bombay High Court was gratified to release an undertrial prisoner prosecuted under the provisions of the PMLA. "Since the Hon'ble Supreme Court has stated in 'Bhim Singh v. Union of India' judgement that this Court is of the opinion that it would not be necessary to get into the merits of the matter," it said. As a result, this Court believes that the applicant is entitled to be enlarged on bail under Section 436-A CrPC, 1973."

Likewise, in the case of Rashesh Mukesh Shah v. State, Without delving into the merits of the case, the Bombay High Court granted the accused (who had served one-half of the maximum period required) bail under Section 436-A CrPC. Although the first proviso of Section 436-A CrPC authorises the Court to order continuous detention of the inmates, the Courts' approach implies that if the merits of the case are pursued for the purpose of refusing relief under the provision, the Courts will be overstepping their limits.

The right to a speedy investigation is a component of Article 21 of the Indian Constitution, much as the right to a speedy trial is. Both facets of the same coin holds water. And failing to finish an inquiry within the time frame specified in Section 167(2) CrPC results in an indefensible right of bail in the accused's favour. In particular, the Supreme Court stated clearly that the Covid-19 pandemic was not a reason for the investigation to be postponed.

Only if the accused is mischievously and purposefully delaying the trial, and the delay is completely attributable to his/her credit, is a valid approach to deny the benefit under Section 436-A CrPC.  Denial of relief under the clause in any other circumstance, (it is clear) might be a deception, an infringement of a vital fundamental right granted by the Indian Constitution.

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