Friday, 4 May 2018

Whether Inordinate Delay To Complete Investigation May Be Taken As Presumptive Proof Of Prejudice if Accused Is In Custody?

 It is not necessary to refer to all the decisions of this Court
articulating the mandate of the Constitution that there is
implicit right under Article 21 for speedy trial which in turn
encompasses speedy investigation, inquiry, appeal, revision
and retrial. To determine whether undue delay has occurred,
one must have regard to nature of offence, number of accused
and witnesses, workload of the court and the investigating
agency, systemic delays. Inordinate delay may be taken as
presumptive proof of prejudice particularly when accused is in
custody so that prosecution does not become persecution.
Court has to balance and weigh several relevant factors.
Though it is neither advisable nor feasible to prescribe any
mandatory outer time limit and the court may only examine
effect of delay in every individual case on the anvil of Article 21
of the Constitution, there is certainly a need for in-house
mechanism to ensure that there is no undue delay in
completing investigation.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
M.A. NO.267 OF 2017 IN SLP (CRL.) NO.657 OF 2017

DILAWAR Vs The State of Haryana & Anr

Dated:May 01, 2018.



1. This application has been filed by CBI in a disposed of
matter for modification of order of this Court dated 31st January,
2017.
2, FIR No.118 dated 27th February, 2016 was registered with
the Police Station, Urban Estate, Rohtak alleging mob violence
in ‘jat agitation’. The petitioner was one of the accused
arrested on 20th April, 2016 and was said to be in custody since
then. The state police, after completing the investigation, filed
chargesheet on 27th May, 2016 before the Court. However, the
investigation was thereafter transferred, on 30th September,
2016, to the CBI along with several other cases. Court
proceedings were also transferred from regular courts to the
CBI Court at Panchkula. The petitioner applied for bail before2
the Additional Sessions Judge, Rohtak which was dismissed on
12th July, 2016. Though some of the co-accused were granted
bail by the High Court, bail application of the petitioner was
dismissed by the High Court on 2nd December, 2016. The High
Court observed that prima facie the petitioner appeared to be
the leader of the mob which indulged in arson, loot and
mischief of burning of the house of a Cabinet Minister. When
the matter came up before this Court against the order
declining bail by the High Court, this Court while not granting
bail directed that the trial be concluded as far as possible
within six months.
3. In the present application it is stated that CBI is
conducting investigation and has taken over only on 6th
October, 2016. There is voluminous task which is time
consuming. Thus, trial cannot commence unless report under
Section 173 Cr.P.C. filed by the CBI which will take long time.
4. From the above narration of facts, it is clear that even if
CBI commenced investigation on 6th October, 2016, one and a
half years have already gone by. There is no indication as to
what proceedings have been taken by the CBI so far and why
more time will be required and how much more time will be
required. No investigating agency can take unduly long time in3
completing investigation. Speedy investigation is recognized
as a part of fundamental right of fair procedure under Article 21
of the Constitution.
5. Accordingly, when the matter came up for hearing on the
last date, learned ASG sought time to assist the Court as to
whether there should be timelines for completing investigation.
In the present case, since accused has been in custody for
more than two years and investigation is pending with the CBI
for more than one and a half years, we are of the view that CBI
must complete investigation at the most within next two
months so that trial can commence latest by July 10, 2018 and
concluded by the end of the year. Since order declining bail
was passed on 30th January, 2017 and more than one year has
gone by, it will be open to the petitioner, if he is still in custody,
to move a bail application before the trial court in accordance
with law. This application will stand disposed of accordingly
except for consideration of the issue indicated hereafter.
6. We have come across number of cases where
investigations remain pending for unduly long time which is not
conducive to administration of criminal justice. There is, thus,
clear need for timelines for completing investigation and for
having in-house oversight mechanism wherein accountability
for adhering to laid down timelines can be fixed at a different
levels in the hierarchy.
7. It is not necessary to refer to all the decisions of this Court
articulating the mandate of the Constitution that there is
implicit right under Article 21 for speedy trial which in turn
encompasses speedy investigation, inquiry, appeal, revision
and retrial. To determine whether undue delay has occurred,
one must have regard to nature of offence, number of accused
and witnesses, workload of the court and the investigating
agency, systemic delays. Inordinate delay may be taken as
presumptive proof of prejudice particularly when accused is in
custody so that prosecution does not become persecution.
Court has to balance and weigh several relevant factors.
Though it is neither advisable nor feasible to prescribe any
mandatory outer time limit and the court may only examine
effect of delay in every individual case on the anvil of Article 21
of the Constitution, there is certainly a need for in-house
mechanism to ensure that there is no undue delay in
completing investigation. This obligation flows from the law
laid down by this Court inter-alia in Maneka Gandhi versus
Union of India1
, Hussainara Khatoon (I) versus Home
1
(1978) 1 SCC 2485
Secy., State of Bihar2
, Abdul Rehman Antulay versus
R.S. Nayak3 and P. Ramachandra Rao versus State of
Karnataka4
.
8. There is undoubted need for a mechanism to take
remedial steps if there is undue delay in investigation. Section
57 Cr.P.C. puts a bar on detention by a police officer beyond 24
hours excepting time necessary for the journey from the place
of arrest to the Magistrate’s court. Section 167(1) Cr.P.C.
provides that where investigation cannot be completed within
24 hours, the accused has to be produced before the
Magistrate and further detention of the accused has to be
authorized by the Magistrate. It is well established that
authorization for such detention has to be given having regard
to the progress in investigation. Even a Magistrate cannot
authorise detention in police custody beyond 15 days. After
judicial custody for more than 90 days in serious cases
stipulated therein and 60 days in other cases, there is a
provision for mandatory default bail requirement if there is
delay in investigation beyond the said period. In summons
case, if investigation is not concluded within six months, the
2
(1980) 1 SCC 81
3
(1992) 1 SCC 225
4
(2002) 4 SCC 5786
same has to be stopped unless continuation is found
necessary5
. However, there is no express outer limit for
investigation in other cases but delay in investigation may
affect reasonableness of procedure specially when a person is
in custody and is unable to furnish bail. Hence the need to lay
down timelines for completing investigation with a view to give
effect to the mandate of Article 21 of the Constitution. This
aspect has also been discussed in the Law Commission’s Report
including the 14th report (1958) and 154th Report (1996) as
noticed by this Court6
.
9. In view of the above, we implead Union of India as a party.
We have asked learned ASG to represent the Union of India.
We direct the Ministry of Home Affairs to have inter action on
the subject with all the Central and State investigating agencies
on or before May 31, 2018 either on video conferencing or in
person. The points emerging from the inter action may be
recorded and examined by an appropriate committee which
may constituted for the purpose. The said committee may give
its report latest by June 30, 2018. We direct the MHA to place
on record among other data, the figures of all pending
investigations beyond one year and action plan to complete
5
167(5) Cr.P.C.
6 Rakesh Kumar Paul vs. State of Assam (2017) 15 SCC 67, paras 30
and 31.7
them in a proposed time frame. With regard to State agencies
also such information may be collected and furnished by the
MHA.
Put up the matter for further consideration on 3rd July,
2018.
……………………………….J.
( Adarsh Kumar Goel )
……………………………….J.
( Indu Malhotra )
New Delhi;
May 01, 2018.

Print Page

No comments:

Post a Comment