Dr.

Absarul Hasan Kidwai

Department of Law
Aligarh Muslim University

DEPARTMENT OF LAW
ALIGARH MUSLIM UNIVERSITY, ALIGARH
CRIMINAL PROCEDURE CODE (BLLB-901)
B.A.LL.B. (HONS) IXth SEMESTER

UNIT – V
1. Provisions relating to Bail & Bonds, Bail during Appeal & Revision SS. 436 to 450 & 389
Bail is a kind of Security which is given by the accused to the court that he will attend the
proceedings against the accusations made upon him and include personal bond and bail bond.
The term bail is not defined under CRPC, although the terms “bailable offense” and “non-
bailable offense” have been defined (Sec. 2a). “Bail” has been defined in the Law Lexicon as
Security for the appearance of the accused person on giving which he is released pending trial
or investigation. Govind Prasad v. State of West Bengal, 1975 CriLJ 1249.

The distinction between bailable and non-bailable offenses is based on the gravity of the
offence, danger of accused absconding, tampering of evidence, previous conduct, health, age
and sex of the accused person. Though the schedule for classification of offenses as bailable or
non-bailable is provided in Crpc; however, it is mostly the offenses which are punishable with
imprisonment for not less than three years that are classified as non-bailable.

The concept of bail emerges from the conflict between the police power to restrict the liberty
of a man who is alleged to have committed a crime, and presumption of innocence in favour
of the person accused of an offense. Bail is regarded as a mechanism whereby the State imposes
upon the community the function of Securing the presence of the prisoners, and at the same
time involves the participation of the community in the administration of justice.
The provisions relating to the grant of bail are enshrined in Chapter XXXIII, under
Sections 436-450 of Cr.P.C Offences have been classified into bailable and non-bailable and
“cognizable” and “non-cognizable”. Officer-in-charge of the police station, Magistrate,
Sessions Court, and High Court are empowered under Cr.P.C. to deal with bail, imposing
conditions on bail, cancellation of bail or anticipatory bail.

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

Bail in case of bailable offence

The Code of Criminal Procedure, 1973 contains elaborate provisions relating to bails. Section
436 provides for the release on bail of a person accused of a bailable offense.

436. In what cases bail to be taken.

1. When any person other than a person accused of a non-bailable offence is arrested or
detained without warrant by an officer in charge of a police station, or appears or is
brought before a Court, and is prepared at any time while in the custody of such officer
or at any stage of the proceeding before such Court to give bail, such person shall be
released on bail:

Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person
is indigent and is unable to furnish surety, instead of taking bail from such person,
discharge him on his executing a bond without sureties for his appearance as hereinafter
provided:

Provided further that nothing in this section shall be deemed to affect the provisions
of Sub-Section (3) of section 116 or section 446A.

Explanation – Where a person is unable to give bail within a week of the date of his
arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an
indigent person for the purposes of this proviso.

2. Notwithstanding anything contained in Sub-Section (1), where a person has failed to

comply with the conditions of the bail-bond as regards the time and place of attendance,
the Court may refuse to release him on bail, when on a subsequent occasion in the same
case he appears before the Court or is brought in custody and any such refusal shall be
without prejudice to the powers of the Court to call upon any person bound by such
bond to pay the penalty thereof under section 446.

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

Bail in case of Non-bailable offence

Provisions, as to bail in case of non-bailable offence, is laid down in Section 437 of the
code. This section gives the Court or a police officer power to release an accused on bail in a
non-bailable case, unless there appear reasonable grounds that the accused has been guilty of
an offence punishable with death or with imprisonment for life. But (1) a person under the age
of sixteen years (2) a woman; or (3) a sick or infirm person may be released on bail even if the
offence charged is punishable with death or imprisonment for life. Where a person is charged
with a non-bailable offence, but it appears in the course of the trial that he is not guilty of such
offence, he can be immediately released on bail pending further inquiry.

The same may be done after the conclusion of a trial and before judgment is pronounced, if the
person is believed not to be guilty of a nonbailable offence. As a safeguard, the section provides
for review of the order by the Court which has released the person on bail. The power of the
Magistrate under this section cannot be treated at par with the powers of the Sessions Court
and the High Court under Section 439.

Grant of bail is the rule and its refusal is an exception. But while granting it the Court has to be
satisfied that the order to be passed is in the interest of justice. (Mazahar Ali v. State, 1982
CrLJ 1223, 1225 (J&K).

Anticipatory Bail: Section 438

Anticipatory bail means bail in anticipation of an arrest. Any person who apprehends arrest
under a non-bailable offence in India can apply for Anticipatory Bail under the provisions of
section 438 of The Code of Criminal Procedure, 1973.

It is basically bail before arrest, a person arrested cannot seek Anticipatory Bail, he would have
to move for a regular bail. The words anticipatory bail is neither found in section 438 nor in its
marginal note. In fact, anticipatory bail is a misnomer. When a court grants anticipatory bail,
what it does is to make an order that in the event of arrest, the person shall be released on bail.

The legislature in its wisdom incorporated this provision for grant of bail to a person
apprehending arrest is to prevent disgrace of being jailed or remaining in custody before he can
be released on bail. The old code of criminal procedure did not have any provision for the same
and the lawmakers realized that false and frivolous cases are filed against some people and

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

such persons have to necessarily be arrested before they could seek bail. Thus a mechanism for
preventing undue harassment and disgrace from arrest and detention was devised.

In the landmark Gurubaksh Singh Sibbia case, the apex court opined that “It is conceptualized
on the idea of protecting personal liberty guaranteed under the Constitution of India”. This said,
it is a discretionary power and is not a matter of right. The court would use the discretion
according to the facts and circumstances of the case and under stipulated guidelines.

Cancellation of Bail

Rejection of Bail is different from the cancellation of bail. (Aslam Desai v. State of
Maharashtra, 1992 AIR SCW 2621)

The Code of Criminal Procedure, 1973 contains two provisions for cancellation of Bail. The
first one is laid down in Section 437(5) and the other in section 439(2). According to Section
437(5) “any court which has released a person on bail under sub-section (1) or sub-section (2)
of Section 437, may if it considers it necessary so to direct such person to be arrested, and
committed to custody”. Thus under this section a Magistrate does not have an authority to
cancel bail granted by a police officer.

For cancellation of bail in such situation, power of the High Court or the Court of Session under
Section 439(2) will have to be invoked. Section 439(2) lays down that a High Court or a Court
of Session may direct that any person who has been released on bail under this chapter be
arrested and commit him to custody. Thus the power given to the High Court and court of
Session is very wide.

441. Bond of accused and sureties.

(1) Before any person is released on bail or released on his own bond, a bond for such sum
of money as the police officer or Court, as the case may be, thinks sufficient shall be
executed by such person, and, when he is released on bail, by one or more sufficient sureties
conditioned that such person shall attend at the time and place mentioned in the bond, and
shall continue so to attend until otherwise directed by the police officer or Court, as the case
may be.

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

(2) Where any condition is imposed for the release of any person on bail, the bond shall also
contain that condition.

(3) If the case so requires, the bond shall also bind the person released on bail to appear when
called upon at the High Court, Court of Session or other Court to answer the charge.

(4) For the purpose of determining whether the sureties are fit or sufficient, the Court may
accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of
the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry
to be made by a Magistrate subordinate to the Court, as to such sufficiency of fitness.

Section 389
Section 389 (1) and (2) of Cr.P.C. deals with a situation where convicted person can get a
Bail from appellate court after filing the criminal appeal. Section 389 (3) deals with a
situation where the trial court itself can grant a bail to convicted accused enabling him to
prefer an appeal. Section 389(3) is applicable only in the following conditions - 1. The Court
must be the convicting Court
2. The accused must be convicted by the Court
3. The convict must be sentenced to imprisonment for a term not exceeding three years
4. The convict must express his intent to present appeal before the appellate Court
5. The convict must be on bail on the day of the judgment.
Court's Powers u/s 389(3) of Cr.P.C:-
1. Court has power to release such convict on bail,
2. Court has power to refuse the bail if there are “special reasons”
3. Court has power to release such convict for such period as will afford sufficient time to
present the appeal and obtain the orders of the Appellate Court.
Features of section 389(3)- 1. The convict shall not be released on bail “as of right” but he
will have to satisfy that he is “eligible” to be released on bail;
2. If the Court is satisfied that there are “special reasons” for not releasing the convict on bail,
then the Court can very well do;
3. The sole purpose of this provision is to enable the convict to present appeal to the appellate
Court ;
4. No maximum period is prescribed for releasing the convict on bail;

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

5. Under this section 389(3) suspension of sentence is “deemed” suspension;

6. Suspension of sentence is by product of the accused being released on bail;
7. The Court has no power to suspend the sentence and then order the release of the convict
on bail.

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

2. Transfer of Cases SS. 406 – 412 Cr.P.C.

Code of Criminal Procedure lays down the procedure to be mandatorily followed while
pursuing a case. Transfer of criminal cases is dealt in the Chapter XXXI of Code of Criminal
Procedure,1973 from Section 406 to 412. The intention of delivering the justice to people
addresses the various ways provisions regarding appeal. The judiciary is burdened by more
pendency and delayed justice and it creates unrest judicial processes. So to address this
problem, certain provisions has been brought to transfer the criminal cases from one court to
another. The right prefer for an appeal in Supreme Court lies in only exceptional cases even
though it is the highest court of criminal appeal. As per the Code of Criminal Procedure, the
original court of criminal appeal is the High Court.

Section 406 to Section 412 of Code of Criminal Procedure, 1973

Section 406 : Transfer of cases by Supreme Court
1. If it appears to Supreme Court that an order made under this section is expedient to meet the
ends of justice then it may direct such case to be transferred from one High Court to another
High Court or from one Criminal Court to another which is subordinate or of equal jurisdiction.

2. The Supreme Court can act under this section only on an application provided by the
Attorney-General of India or Advocate General of State and it should be supported by an
affidavit or affirmation.

3. When any application under this section has been dismissed then the Supreme Court is in
the opinion that the application was vexatious then it may order the applicant to pay
compensation to the person who has opposed and the sum may not exceed thousand rupees.

Section 407 : Transfer of cases by High Court

When it appears that :
1. Fairness of the trail would be prejudiced if it conducted in the court

2. It may involve decisions of some questions which may cause unusual difficulty.

3. It may take into consideration of the convenience of the parties or witnesses.

4. High Court may act either on report of a subordinate court or on an application by the parties

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

Provided that no application can be made for transferring a case from one court to another of
same level unless such an application has been rejected by Session Judge.

5. The application made under sub section (1) has to be supported by a motion and if the
applicant is Advocate-General then it has to be supported by affidavit .

6. If the applicant is an accused then the High Court may direct him to execute bond with or
without the sureties for the payment of compensation under sub-section (7).

7. The accused has to apply his application to the Public Prosecutor with the grounds on which
is made and no order shall be made unless 24 hours has been elapsed between the giving and
hearing of the such application.

8. High Court also has power to transfer a case from one subordinate court to another and the
proceedings in the subordinate court shall be stayed as the High Court may think.

Provided that such stay shall not affect the power of Subordinate Court under Section 309.

9. When an application under Sub section (1) is dismissed then the High Court think that the
application was vexatious then it may order for compensation to the person who has opposed
and the sum shall not exceed 1000 rupees.

10. When the case is transferred, the trail should be followed in the same procedure that would
have been followed if the case was not transferred.

11. Nothing in this section shall affect the order under section 197 of the Government.

Section 408 : Transfer of cases by Sessions Judge

1. When an order appears expedient to Session Judge then he may order that case to be
transferred from one criminal court to another in sessions division.

2. Sessions Judge may act upon application of party or report of Subordinate court.

3. The provisions of sub section (3),(4),(5),(6),(7),(9) of Section 407 shall apply to order of a
Sessions judge except the 1000 rupees in sub section (7) is substituted with 250 rupees.

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

Section 409 : Cases withdrawn by Session Judge

1. Sessions Judge has power to withdraw or recall any case or appeal that has been made.

2. Sessions Judge may recall any case that has been commenced before Additional Sessions
Judge.

3. Sessions Judge may either try the case in his own court or transfer it when it withdraws or
recalls the case under sub section (1) or (2).

Section 410 : Cases withdrawn by Judicial Magistrates

1. Any Chief Judicial Magistrate shall withdraw or recall a case which is made to his
subordinate court and he shall inquiry into or refer an inquiry to a Magistrate competent to it.

2. A case can be recalled by Judicial Magistrate under sub section (2) of Section 192 to any
other Magistrate or inquire it himself.

Section 411 : Cases withdrawn by Executive Magistrates

Any Sub-Divisional Magistrate or District Magistrate who are Executive Magistrate can :

1. Make over for disposal of any case commenced before him or any Magistrate subordinate to
him.

2. Withdraw or recall any case made before his subordinate and dispose such proceeding or
refer it to disposal.

Section 412 : Reasons which are to be recorded

An order made under 408,409,410,411 by Sessions Judge or the Magistrate shall be recorded
with the reasons for making it.

Illustrations
Illustration 1 : Gurucharan Das Chadha v. State Of Rajasthan on 24 November, 1965
Reasonable apprehension of the party that the justice will not be done to the case is important
for a transfer of case. A petitioner is not required to demonstrate that the justice will not be met
and the case is inevitably fail. It is one of the principle for administration of justice. A mere
allegation of apprehension that justice cannot be met then the Court should decide whether
such apprehension is reasonable or not.

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

Illustration 2 : Surendra Kumar v. Vijayan on 7 October, 2005

Under Section 408(1), the power conferred on the Session Judge to transfer a case which is
pending in the Court of additional Sessions Judge to another, whether the hearing has
commenced or not, it is concluded to be independent judicial power and it is not subject to any
bar imposed by Section 409 (2) on its administrative powers for recalling a case after the trial
or hearing of the case has commenced.

Illustration 3 : Ali Hussain And Anr. v. Emperor on 25 May, 1932

The court held that the High Court when they exercise the power of revision, they are not bound
by Section 412 of the Criminal Procedure Code. But it may examine the record for the purpose
of seeing whether a fair trial has been held and the decision taken as based on proper facts.

Illustration 4 : Food Inspector v. K.P. Alavikutty on 11 February, 1987

The magistrate posted the case for trial after considering the plea of not guilty. Then on re-
organization of the jurisdiction of courts, the case has been transferred to another Magistrate
under the Section 410. The Magistrate to whom it has been transferred is bound to the order of
the predecessor and cannot go behind pre-cognizance stage.

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

3. Trial in absence of accused SS. 273 and 317 Cr.P.C

(i) Section 273 of Cr.P.C. - Except as otherwise expressly provided, all evidence taken in the
course of the trial or other proceeding shall be taken in the presence of the accused or, when
his personal attendance is dispensed with, in the presence of his pleader.

Provided that where the evidence of a woman below the age of eighteen years who is alleged
to have been subjected to rape or any other sexual offence, is to be recorded, the court may
take appropriate measures to ensure that such woman is not confronted by the accused while
at the same time ensuring the right of cross-examination of the accused.

Explanation – In this section “accused” includes a person in relation to whom any proceeding
under Chapter VIII has been commenced under this Code.

Evidence to be taken in the presence of the accused:- This principle has been read into
Article 21 as being an element of due process and is given clear expression in Section 273 of
Cr.P.C. which says: “Except as otherwise expressly provided, all evidence taken in the course
of trial or other proceeding shall be taken in the presence of the accused or, when his personal
attendance is dispensed with, in the presence of his pleader.”

In State of Maharashtra Vs. Praful B Desai reported in AIR 2003 SC 2053 With the
introduction of video linking the Supreme court has held that evidence recorded via video in
the presence of the accused or his pleader fully meets the requirements of Section 273.

(ii) Exceptions to the said Rule – Section 317 of Cr.P.C.:- 1. At any stage of an inquiry or
trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that
the personal attendance of the accused before the Court is not necessary in the interests of
justice, or that the accused persistently disturbs the proceedings in Court, the Judge or
Magistrate may, if the accused is represented by a pleader, dispense with his attendance and
proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the
proceedings, direct the personal attendance of such accused.

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

2. If the accused in any such case is not represented by a pleader, or if the Judge or
Magistrate considers his personal attendance necessary, he may, if he thinks fit and for
reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case
of such accused be taken up or tried separately.

There are some provisions under the law where the Court may record the evidence even in the
absence of the accused. Under Section 205 (1) of Cr.P.C. the magistrate may dispense with the
personal attendance of the accused and permit him to appear by his pleader. Section 299 of
Cr.P.C is another instance when the court can proceed in the absence of the accused, when he
is declared as absconder. This provision is in derogation of the normal procedure that 88
evidence in a trial of an accused shall be recorded in his presence. But its justification lies in
the accused’s default to take part in the trial. As per Section 317 (1) of Cr.P.C., the right to be
in court throughout a trial belongs to the Accused, if there is no risk of prejudice to either side
and where the interests of justice remain fully served even in the absence of the accused, the
Court may at the request of an accused dispense with his personal appearance and allow the
matter to go forward through his representative.

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

4. Right to speedy trial with special reference to Hussain Ara khatoon, Antulays, Raj
Deo case decided by Hon’ble Supreme Court
The huge backlog of pending cases in India is an issue about which much has been written and
deliberated. Inspite of digitization of case records and huge technological advancement being
witnessed, not much progress has been reflected in this area. If a case lingers for a long time
and justice is not meted out to the rightful party then the whole purpose of law and justice gets
frustrated. Hence, the right to speedy trial has rightly been remarked to flow from the right to
life guaranteed under Article 21 of the Constitution.

Like the Indian Legal Jurisprudence, the Right to Speedy Trial is recognized as a Constitutional
Right in developed nations of the United States and Canada. In India the Supreme Court in it’s
landmark judgment in the case of Hussainara Khatoon v. Home Secretary State of Bihar
[(1980) (1) SCC 98] held speedy trial as part of Article 21 of the Constitution guaranteeing
right to life and liberty. The Apex Court in the case also observed that if a person is deprived
of his liberty under a procedure which is not ‘reasonable fair and 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. The case pertained to state of undertrial
prisoners in Bihar who were languishing in jail for several years.

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Similarly, in another landmark case of Sheela Barse vs. Union of India1, the Supreme Court
observed that where the court comes to a conclusion that the right to speedy trial of an accused
has been infringed, the charge or conviction, as the case may be must be quashed. Accordingly,
the Apex Court directed the State Governments to take steps for completing an investigation
within three months in cases lodged against children.

Another noteworthy judgment which further firmly establishes right to speedy trial as a
Constitutional mandate is the case of Supreme Court Legal Aid Committee Representing
Undertrial Prisoners vs. Union of India. In this verdict, the Supreme Court laid down certain
conditions for release of undertrial prisoners on bail where trial was not completed within a
specified period of time.

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

There is no denial of the fact that speedy trial is recognized by the Legislature as well as
Judiciary as an essential pillar of law and justice in India. The recent legislations and reforms
being witness in the judicial system indicates the same.

Under sec. 482 read with 483, Cr. P.C lays that every possible measure to be taken to dispose
of the case within 6 months from the date mentioned.

The Code of Criminal Procedure, 1973 suggests that onus of proving the guilt of the accused
is on the prosecution and judge acts as a neutral referee from both the sides, but what about the
mental health of the accused, while Malimath committee also suggested that we need to look
upon our penal laws and also suggested to introduce time limit to early disposal. In this paper
we will discuss about mental health, Malimath committee reforms in the light of
aforementioned arguments.

Under Section 309 Cr.P.C, every inquiry or trial should be held “expeditiously” and when the
examination of witnesses has once begun, the same shall be continued from day to day until all
the witnesses have been examined. Interpreting the provisions of the Constitution, the court
stressed that expeditious trial is a rule and adjournment is an exception.

Examination of witnesses and speedy trial-

The examination of witnesses during the trial of cases has been another delaying stage of the
criminal proceedings. Section 309 of the CrPC requires that when the examination of witnesses
has once begun, the same shall be continued from day today until all the witnesses in attendance
have been examined. The examination of witnesses, on which the entire edifice of criminal
castle is built, is a must and without evidence, the accused cannot be held guilty. Though many
provisions are enshrined in the CrPC for the purpose of examination of witnesses, due to lack
of provisions for the protection of their life and respect, many times either they do not turn up
or are not allowed to turn up before the court. Hence, the provisions as to examination of
witnesses cannot be said to be sufficient, in the absence of such provisions; which could ensure
the protection of life and respect of the witnesses and the reimbursement of travel expenses for
those witnesses who come to court from remote areas. Hence, protective provisions may
accelerate the entire proceeding for the speedy disposal of cases.

Plea bargaining and pendency of cases-

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

Further, in order to ensure speedy disposal of criminal cases, the concept of plea bargaining is
considered to be of immense help. Plea bargaining deals with the process whereby the accused
and the prosecutor in criminal case work out a mutually satisfactory disposition of
the case subject to court approval. It usually involves the defendant's pleading guilty to a lesser
offence or only one of some of the court indictment or a multi-court indictment, in return for a
lighter sentence than possible for serious charges.

MALIMATH COMMITTEE-

The Law Commission of India and the Malimath Committee recommended that the system of
plea bargaining should be introduced in Indian criminal justice system tofacilitate
the speedy disposal of criminal cases and to reduce the burden on the courts. Accordingly, the
Criminal Law (Amendment) Bill, 2003 was introduced in the Parliament and the Supreme
Court of India referred and supported this Amendment Bill, 2003 and observed that “it is true
that the idea of plea bargaining in India was not permissible, but in view of the changed
circumstances and present state of affairs of the criminal justice system in our country … the
system of plea bargaining should be introduced, as a part of the process of decriminalisation”.
The provisions were thus finally incorporated in CrPC as Chapter XXI-A through the Criminal
Law (Amendment) Act, 2005 which is applicable only in respect of those offences for which
punishment of imprisonment is prescribed up to a period of seven years and it does not apply
where such offences affect the socio-economic conditions of the country or have been
committed against women and children below the age of fourteen years.

6. Judicial Reflections on Causes for the Delay

Indian Courts are held in high esteem not only by developing but by developed countries as
well. There is wide-spread praise for the quality of the judgments delivered, and the hard-work
being done by Indian Judiciary. The problem of delay and huge arrears stares us all in the face
and unless we do something about it, the whole system will get crushed under its weight. We
must guard against the system getting discredited and people losing faith in it and taking
recourse to extra-legal remedies with all the sinister potentialities. While taking notice of
certain distressing and unethical tendencies, the Supreme Court in Swaran Singh observed that
“it is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a
witness is won over or is tired. Not only that a witness is threatened; he is abducted; he is

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

maimed; he is done away with; or even bribed. There is no protection for him. In adjourning
the matter without any valid cause a Court unwittingly becomes party to miscarriage of
justice.”

The Right to Speedy Justice is a Fundamental Right: Is it Not Imaginary in True Sense?

In 1979 P.N. Bhawati, J. in Hussainara Khatoon said that although the right to speedy trial is
not “specifically enumerated as a fundamental right, it is implicit in the broad sweep and
content of Article 21” as interpreted in Maneka. It was reiterated that ‘reasonable
expeditious trial’ is an integral and essential part of the fundamental right to life and liberty
enshrined in Article 21. But in Hussainara itself Pathak, J. felt that the “question of legality
and propriety of the continued detention of undertrials” as infringing Article 21 should await
the final determination of the petition. However, it is pertinent to note
that Hussainara and Hussainara affirmed that it is part of Article 21. This development made
Prof. Upendra Baxi to write an article on the future of speedy trial right in SCC. Prof. Upendra
Baxi hoped that Justice Pathak might also join the other Judges who declared speedy trial right
as part of Article 21. He also wished thus: one also hopes that the Chief Justice of India would
retain the same Judges on the Bench for the final disposal in the interests of civilising the
administration of justice”. But these hopes were not to be.

The causes of delay in criminal trials have been examined by various committees and
academicians while also finding mention various judgments. A few which affect the system
are -(a) trial magistrates list a large number of cases every day when they cannot physically
pay attention to all those cases personally, leading to a waste of time on calling work or roll
calls only to adjourn the cases to next dates

(b) cases being required to be adjourned because prisoners are not produced before the judge

(c) Witnesses not being present, though served, or not being served well in advance

(d) dilatory tactics of prosecution or defence

(e) inept handling of Court administration by inefficient or inexperienced judicial officers.” In

additional to the above mentioned causes identified by Law Commission of India, there are
many other causes which have been highlighted by the judiciary in a plethora of cases.

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

Where Delay Caused

A. Delay in Police Investigation-

The criminal law is set in motion after filing an FIR and is followed by an investigation. As a
part of investigation process, if the police officer seeks the custody of any person for pre-
indictment or pre-trial interrogation, he must file an affidavit sworn by him explaining the
reasons for not only for such custody but also for the delay, if any, in seeking the police
custody. In the absence of a clear-cut policy on scientific investigation and proof, criminal
proceedings continue in old fashioned ways, causing enormous delays and costs and occasional
miscarriage of justice.

B. Delay in Services of Summons/Warrants-

Absence of some or all the accused or non-production of undertrial prisoners at the stage of
framing of charges and during the trial contributes for the delay. Earnest efforts are not being
made by the Police in apprehending and producing the absconding accused. Execution of
warrants has become the least priority for the police who have their own reasons, may be
genuine or artificial.

The Code of Criminal Procedure provides for various modes of service. Section 62 of the Code
provides that summons shall be served by a Police Officer, or subject to such rules being
framed by the State Government, by any officer of the Court or other public servant.
Unfortunately rules have not been framed by many State Governments.

C. Delay in Examination of Witnesses-

Delay in examination of witnesses leads to many unreasonable consequences and several

reasons are attributed to this malady such as inordinate delay in the trial of cases.

D. Delay in Submission of Expert Reports-

Police is quite often handicapped in undertaking effective investigation for want of modern
gadgets such as cameras, video equipment etc. Forensic science laboratories are scarce and
even at the district level, there is no lab which can render timely assistance to the investigating
Police. Further, it is common knowledge that there is dearth of forensic and cyber experts in

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

police departments of various State. The result is that police heavily lean towards oral evidence,
instead of concentrating on scientific and circumstantial evidence.

E. Non Implementation of Pre-Trial Hearing under the Code of Criminal

Procedure-

In India, the concept of pretrial hearing has not taken deep roots. Sections 291 to 298 of Cr.P.C.
provide for sorting out certain matters at the pre-trial hearing. Section 294 envisages that the
particulars of every document filed by the prosecution or the accused shall be included in a list,
and the other party or its pleader “shall” be called upon to admit or deny the genuineness of
each such document. Where the genuineness of such document is not disputed, the document
may be treated as ‘proved’. This provision, unfortunately, is rarely utilized

Judicial Mechanism Identified For the Enforcement of the Right

The Hon'ble Supreme Court has held that the Criminal Procedure Code, under Sections 167,
258, 309, 311 and 468 provides to expedite the disposal of cases and to enable timely delivery
of justice. Section 167 Cr.P.C provides a statutory time limit to complete an investigation and
further provides that a failure to complete investigation within the statutory time frame shall
lead to release of the accused in custody on bail The Criminal Procedure (Amendment) Act,
2005, introduced Section 436A, which stipulates that the maximum period for which
under trial prisoners can be detained is half of the maximum period of imprisonment specified
for that offence under that law excluding offences for which the punishment of death has been
specified as one of the punishments under that law. Hence, by invoking these
provisions, right to speedy justice can be protected

The seven Judges constitutional bench has answered maximum questions arising out of
enforcement of concept of speedy justice in Abdul Rehman Antulay and has held that ‘it is
neither advisable nor feasible to draw or prescribe an outer time-limit for conclusion of the
criminal proceedings.

10. Judiciary Cannot Make Law For the Enforcement of Speedy Justice

In Raj Deo Sharma (2) the Additional Solicitor General appearing for the petitioner expressly
stated that he was only seeking a clarification of the judgment in the main appeal He argued
that the subordinate Courts were under a wrong impression that the directions contained in the

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

said judgment gave no option to them but to close the evidence of the prosecution whenever
the periods mentioned in the guidelines were completed.

After deep consideration of the ratio in the judgment of Abdul Rehman Antulay, case and
judgment in the main appeal in the present case, the Court said that, it has no fixed any time
limit for the conclusion of trial neither in the Antulay case nor in the main judgment of the case.
As such, the Court has only laid down guidelines for closing the prosecution in certain
circumstances. There is a difference between fixing a time limit for the disposal of a trial and
fixing time limit for the prosecution to complete its evidence. A perusal of the guidelines
contained in the main judgment would themselves show that there is no hard and fast rule
applicable to every case, irrespective of facts and circumstances thereof. If the delay is not
due to any fault of the prosecution, it is open to the prosecution to place the relevant facts
before the Court and seek further time for producing its evidence.

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

5. Inherent power of High Court S.482 Cr.P.C.

Inherent powers under Section 482 of Cr.P.C. include powers to quash FIR, investigation or
any criminal proceedings pending before the High Court or any Courts subordinate to it and
are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice,
prevent abuse of the process of any court and to make such orders as may be necessary to give
effect to any order under this Code, depending upon the facts of a given case. The court can
always take note of any miscarriage of justice and prevent the same by exercising its powers
u/s 482 of Cr.P.C. These powers are neither limited nor curtailed by any other provisions of
the Code. However, such inherent powers are to be exercised sparingly and with caution.

It is well settled that the inherent powers under section 482 can be exercised only when no
other remedy is available to the litigant and NOT where a specific remedy is provided by
the statute. If an effective alternative remedy is available, the High Court will not exercise its
powers under this section, especially when the applicant may not have availed of that remedy.

The High Courts in deciding matters under Section 482 should be guided by following twin
objectives, as laid down in Narinder Singh v. State of Punjab (2014) 6 SCC 466:

1. Prevent abuse of the process of the court.

2. Secure the ends of justice.

3. To give effect to an order under the Code.

Why the need for Section 482 CR.P.C?

The powers of the High Court under Section 482 Cr.P.C are partly administrative and partly
judicial. The section was added by the Code of Criminal Procedure (Amendment) Act of 1923,
as the High Courts were unable to render complete justice even if in a given case the illegality
was palpable and apparent.

The Hon’ble Supreme Court in State of Karnataka v. Muniswamy AIR 1977 SC 1489, held
that the section envisages 3 circumstances in which the inherent jurisdiction may be exercised,
namely, “to give effect to an order under CrPC, to prevent abuse of the process of the court,
and to secure the ends of justice“.

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

The Hon’ble Allahabad High Court went on to state that, “The section is a sort of reminder to
the High Courts that they are not merely courts in law, but also courts of justice and possess
inherent powers to remove injustice“.

The inherent power of the High Court is an inalienable attribute of the position it holds with
respect to the courts subordinate to it. They are necessarily judicial when they are exercisable
with respect to a judicial order and for securing the ends of justice. The jurisdiction under
Section 482 is discretionary; therefore, the high court may refuse to exercise the discretion if a
party has not approached it with clean hands.

Rules governing the petitions which pray for quashing of criminal proceedings

Section 482 of CrPC, which deals with the power of the court to quash criminal proceedings,
hasn’t given the details of that what exactly constitutes the inherent power of the court. In that
sense, the Code is very vague as it doesn’t lay out the grounds on which the foundations of the
inherent power of court lay. Furthermore, there has been consistent inconsistency in the
judgments of the Supreme Court of India with regard to the application of Section 482 of CrPC.

Consequently, the application of Section 482 of CrPC is a very agitated issue in litigation along
with being a strongly debated concept in the legal academic circles. Nevertheless, there are
some cases which have got wide acceptance in the legal fraternity and hence, are used as the
minor guiding principles (landmark cases being the major ones) governing the cases of
quashing of criminal proceedings. Some of these cases are:

1. Prashant Bharti v. State of NCT of Delhi (2013) 9 SCC 293

In order to determine the veracity of a prayer for quashing the criminal proceedings raised by
an accused under Section 482 of the CrPC, the following questions were raised before the High
Court. The court held that if the answer to all the following questions was in affirmative, then
the Court should quash the proceedings by exercising its power under Section 482 of CrPC;

1. Whether the material relied upon by the accused is sound, reasonable, and indubitable,
i.e., the material is of sterling and impeccable quality?

2. Whether the material relied upon by the accused is sufficient to reject and overrule the
factual assertions contained in the complaint, i.e., the material is such, as would

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

persuade a reasonable person to dismiss and condemn the factual basis of the
accusations as false?

3. Whether the material relied upon by the accused, has not been refuted by the
prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted
by the prosecution/complainant?

4. Whether proceeding with the trial would result in an abuse of process of the court and
hence, would not serve the ends of justice?

2. Parbatbhai Ahir v. State of Gujarat (4 October 2017)

In this case, the Supreme Court referred to various precedents and summarised the following
principles to govern the power of High Court under Section 482 of CrPC;

1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the
process of any court or to secure the ends of justice. The provision does not confer new
powers. It only recognises and preserves powers which inhere in the High Court.

2. The invocation of the jurisdiction of the High Court to quash a First Information Report
or a criminal proceeding on the ground that a settlement has been arrived at between
the offender and the victim is not the same as the invocation of jurisdiction for the
purpose of compounding an offence. While compounding an offence, the power of the
court is governed by the provisions of Section 320 of the Code of Criminal Procedure,
1973. The power to quash under Section 482 is attracted even if the offence is non-
compoundable.

3. Informing an opinion whether a criminal proceeding or complaint should be quashed

in exercise of its jurisdiction under Section 482, the High Court must evaluate whether
the ends of justice would justify the exercise of the inherent power.

4. While the inherent power of the High Court has a wide ambit and plenitude it has to be
exercised;

1. To secure the ends of justice.

2. To prevent abuse of the process of any court.

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

5. The decision as to whether a complaint or First Information Report should be quashed

on the ground that the offender and victim have settled the dispute, revolves ultimately
on the facts and circumstances of each case and no exhaustive elaboration of principles
can be formulated.

6. In the exercise of the power under section 482 and while dealing with a plea that the
dispute has been settled, the High Court must have due regard to the nature and gravity
of the offence. Heinous and serious offences involving mental depravity or offences
such as murder, rape and dacoity cannot appropriately be quashed, even though the
victim or the family of the victim, have settled the dispute. Such offences are, truly
speaking, not private in nature but have a serious impact upon society. The decision to
continue with the trial in such cases is founded on the overriding element of public
interest in punishing persons for serious offences.

7. As distinguished from serious offences, there may be criminal cases which have an
overwhelming or predominant element of a civil dispute. They stand on a distinct
footing in so far as the exercise of the inherent power to quash is concerned.

8. Criminal cases involving offences which arise from a commercial, financial,

mercantile, partnership or similar transactions with an essentially civil flavour may in
appropriate situations fall for quashing where parties have settled the dispute.

9. In such a case, the High Court may quash the criminal proceeding if in view of the
compromise between the disputants, the possibility of a conviction is remote and the
continuation of a criminal proceeding would cause oppression and prejudice

10. There is yet an exception to the principle set out in propositions (viii) and above.
Economic offences involving the financial and economic well-being of the state have
implications which lie beyond the domain of a mere dispute between private disputants.
The High Court would be justified in declining to quash where the offender is involved
in an activity akin to financial or economic fraud or misdemeanour. The consequences
of the act complained of upon the financial or economic system will weigh in the
balance.”

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

Test to determine whether the court can Interfere

Ordinarily, a High Court will not interfere at an interlocutory stage of a criminal proceeding in
a subordinate court but the Court is under an obligation to interfere if there is harassment of
any person (Indian citizen) by illegal prosecution. It would also do so when there are any
exceptional or extraordinary reasons for doing so.

The Supreme Court, in Madhu Limaye v. Maharashtra, discussed that,

“Nothing in the Code, not even Section 397 can affect the amplitude of the inherent power
preserved in Section 482. Where the impugned interlocutory order clearly brings about a
situation which is an abuse of the process of the court then for the purpose of securing the ends
of justice, interference by the High Court is absolutely necessary and nothing contained in
Section 397 (2) can limit or affect the exercise of the inherent power of the High Court“

Further, the court in Madhu Limaye v. Maharashtra, also held that the following principles
would govern the exercise of the inherent jurisdiction of the HC:

1. Power is not to be resorted to if there is a specific provision in the code for the
redress of grievances of the aggrieved party.

2. It should be exercised sparingly to prevent abuse of process of any Court or

otherwise to secure ends of justice.

3. It should not be exercised against the express bar of the law engrafted in any
other provision of the code.

4. It can never be laid down more particularly or precisely when the High Court
can and cannot use its powers, but attempts have been made on that behalf in
several of the decisions of Supreme Court.

In the landmark case State of Haryana v. Bhajan Lal, a two-judge bench of the Supreme Court
of India considered in detail, the provisions of section 482 and the power of the High Court to
quash criminal proceedings or FIR. The Supreme Court summarized the legal position by
laying the following guidelines to be followed by High Courts in the exercise of their inherent
powers to quash a criminal complaint:

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

1. Where the allegations made in the FIR do not prima facie constitute any offence or
make out a case against the accused.

2. Where the allegations in the FIR and other materials accompanying the FIR do not
disclose a cognizable offence, justifying an investigation by police officers under
Section 156(1) of the Code except under an order of a Magistrate within the purview of
Section 155(2) of the Code.

3. Where the allegations made in the FIR and the evidence collected in support of the same
do not disclose the commission of any offence and make out a case against the accused.

4. Where the allegations in the FIR do not constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation is permitted by a police officer, unless
a Magistrate has issued an order for the same, as contemplated under Section 155(2)of
the Code.

5. Where the allegations made in the FIR are absurd to the extent that no prudent man can
ever reach a just conclusion that there is sufficient ground for proceeding against the
accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or
the concerned Act, under which a criminal proceeding is instituted, with regard to the
institution and continuance of the proceedings and / or where there is a specific
provision in the Code or the concerned Act, providing efficacious redress for the
grievance of the aggrieved party.

 Where a criminal proceeding is manifestly attended with mala fide intention and/or
where the proceeding is maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him due to private and/or personal
grudge.

Landmark cases related to the quashing of criminal proceedings Under Section 482

The following two cases are considered to be authorities on the subject of quashing of Criminal
proceedings under Section 482. Despite all the contradicting judgements of the Supreme court
on this matter, the following cases provide the most accepted views:

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

1. State of Haryana v. Bhajan Lal 1992 AIR 604

The Supreme Court held that the judgment of the High Court whereby it quashed the First
Information Report was not legally and factually sustainable in law and thus such quashing
was set aside.

Further with respect to quashing the proceedings or First Information Reports, the Supreme
Court laid down seven criteria. If the present case falls under any of the seven headings, then
the High court can quash criminal proceedings.

The criteria laid down are a set of principles and acts as a test to determine if the court may
quash the proceeding or not. The principle includes criteria such as; when the allegations in the
FIR do not prima facie constitute any offence, or when the allegations do not disclose a
cognizable offence which would justify an investigation by police officers, or when an
allegations made in the FIR and the evidence collected do not disclose the commission of any
offence, or if the offence constituted is non-cognizable, or if the allegations are absurd or such
that a prudent man would not make or if the criminal proceeding is manifestly attended with
mala fide intention or the person is maliciously prosecuted.

2. In the case of R P Kapur v. State of Punjab 1960 AIR 862

In this case, the Supreme Court discussed the three classes of cases under which the criminal
proceedings against a person can be quashed. The classes are:

1. Where there is a legal bar against institution or continuance of the criminal proceedings.

2. Where the allegations in the FIR do not constitute an offence, even if taken at face value
and in their entirety.

3. Where the allegations made constitute an offence, but there is no evidence which can
prove them.

3. In the case of Narinder Singh v State of Punjab (2014)6 SCC 466

The Supreme Court observed that the timing of a settlement is significant in determining
whether the jurisdiction under Section 482 should be exercised. The Court further stated that-

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

“those cases where the settlement is arrived at immediately after the alleged commission of the
offence and the matter is still under investigation, the High Court may be liberal in accepting
the settlement to quash the criminal proceedings/investigation. On the other hand, where the
prosecution evidence is almost complete or after the conclusion of the evidence the matter is
at the stage of argument, normally the High Court should refrain from exercising its power
under Section 482 of the Code, as in such cases the trial court would be in a position to decide
the case finally on merits…”

Limitations of the use of Section 482 of CR.P.C

The inherent jurisdiction of the High Court under Section 482 is very wide and so as to avoid
abuse, it must be exercised sparingly and with caution. Further is the court invokes this section,
it must be done only when such exercise is justified by the tests specifically laid down in the
section itself.

The Courts through the following cases laid down the limitations on the exercise of Section
482:

1. In the case of Dr.Monica Kumar & Anr. v. State of Uttar Pradesh as well as many of
the judgments of the Supreme Court, it has taken the view that Section 482 is to be
exercised ex debito justitiae (as a matter of right) in a manner to ensure real and
substantial justice, and the administration of justice is why courts exist.

2. In a proceeding under Section 482, the High Court will not enter into any finding of
facts, particularly when the matter has been concluded by the concurrent finding of
facts. This was discussed in the following cases:

1. In State of Bihar and another v. K.J.D. Singh, the Supreme Court

discussed whether the Criminal Proceedings can be quashed even before
the Commencement of the Trial and held that “The inherent power under
Section 482 has to be exercised for the ends of the justice and should not be
arbitrarily exercised to cut short the normal process of a criminal trial.”

2. Pendian, J. in the case of Janta Dal v. H.S. Chowdhary deprecated the practice
of staying criminal trials and police investigations except in exceptional cases
and held that the present case was not one of these exceptional cases.

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

3. In the case of R.P. Kapoor v. the State of Punjab, the Supreme court held that “Inherent
power of the High Court cannot be invoked in regard to matters which are directly
covered by specific provisions in the Cr.P.C.”.

4. The inherent powers under Section 482 can be exercised by the court only if no other
remedy is available to the litigant and if no specific remedy is provided by the statute.
If an alternative remedy is available to the litigant, then the court cannot exercise this
power as long as the litigant has not availed that remedy.

5. Lastly, the court cannot act as an investigating agency. In the case of Dineshbhai
Chandubhai Patel v State of Gujarat, the Supreme court observed that the High court
can neither act like an investigating agency nor exercise powers like an appellate
court in order to examine if the factual contents of the FIR disclose any prima
facie cognizable offences or not.

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