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Allahabad High Court · body

1992 DIGILAW 1468 (ALL)

ANIL KUMAR SINGH v. DISTRICT AND SESSIONS JUDGE

1992-11-06

VINEET SARAN

body1992
V. SARAN, J. ( 1 ) I have heard the learned counsel for the petitioner and learned Chief standing Counsel. The learned Chief Standing Counsel prayed that he may be allowed one weeks time to find out whether any Judge has been appointed to the Special Court, Varanasi, (Constituted under the U. P. Gangsters and Anti-Social (Activities) Prevention Act ). The request of the learned Chief Standing Counsel cannot be accepted for the reason that I had called for a report from the Registrar day before yesterday whether any such appointment has been made or not. The Registrar has reported that under the orders of the Honble Chief Justice dated 15-9-1992 the name Sri M. P. Pandey, Additional District and Sessions Judge, Varanasi was recommended to the Government of U. P. for appointment as Special Judge for the disposal of the cases under the Act. No notification has been issued by the Government and a reminder was also sent but till date no notification has been received. ( 2 ) THE petitioner was arrested in the month of July, 1992. It is stated in the writ petition that the bail application of the petitioner was moved but the same has not been entertained by the Sessions Judge, Varanasi and that the learned Sessions Judge is not disposing of the bail applications of the Special Court, which is lying vacant. It is painful to note that the State Government has not appointed a Judge to the Special Court constituted under the Act and the same is lying vacant since July 1992 and innumerable accused are languishing in jail awaiting the decision of their bail applications. It appears that our civilised society is slipping back to the times when there was no Rule of law and there was no guarantee of decent human life. The right to personal liberty the right to equality etc. were won after a long and arduous struggle in 19th Century by the people of England and other European countries. In our own country the Rule of Law is not a new concept, the Dharmshastras had established a kind of Rule of Law where even the king had to act in accordance with the prescribed rules and not arbitarily. were won after a long and arduous struggle in 19th Century by the people of England and other European countries. In our own country the Rule of Law is not a new concept, the Dharmshastras had established a kind of Rule of Law where even the king had to act in accordance with the prescribed rules and not arbitarily. Unfortunately most of the rulers in the centuries that followed, lost the track of the footprints of their righteous predecessors and chose to follow a path of personal pleasures and advantages to themselves and to their coterie. With the advent of the foreign rulers and codification of laws the non formal sources were imparted definiteness and certainty and their moorings were tied down to an as certained shore. Today we have been again able to give to ourselves the Constitution which enshrines the fundamental rights. These valuable acquisitions were achieved after a long drawn struggle for independence which involved untold sacrifice by innumerable people who though invisible and forgotten paved the foundation of the Constitutional guarantees, to the people. We cannot afford to lose these hard earned rights by allowing them to be thrown to the winds by the State either by its deliberate actions or by omissions. ( 3 ) IF bail applications are not heard and disposed of expeditiously and are allowed to linger on for months, as in this case, it would give opportunity to unscrupulous administrators and police officers to put innocent persons behind the bars and the very concept of personal liberty would become illusory. Dharmshastra emphasised that it is the duty of the king (now the State) to protect his people even from his own officers. This protection extended to punish persons who invade mans rights, which was characterised as internal aggression. The guarantee of personal liberty as enshrined in Art. 21 of the Constitution includes the right to a speedy trial. Needless to emphasise that the right to speedy trial has within its sweep the right to speedy disposal of bail applications. ( 4 ) IN Peter H. Klopfer v. State of North Carolina, (1967) 18 Law Ed 2nd 1 : 386 US 213, Chief Justice Warren delivering the judgment of U. S. Supreme Court observed :"we hold here that the right to a speedy trial is as fundamental as any of the right secured by the Sixth Amendment. ( 4 ) IN Peter H. Klopfer v. State of North Carolina, (1967) 18 Law Ed 2nd 1 : 386 US 213, Chief Justice Warren delivering the judgment of U. S. Supreme Court observed :"we hold here that the right to a speedy trial is as fundamental as any of the right secured by the Sixth Amendment. That right has its roots at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta (1215), wherein it was written, we will sell to no man, we will not deny or defer to any man either justice or right, but evidence of recognition of the right to speedy justice in even earlier times is found in the Assize of Clarendon (1166 ). By the late thirteenth century, justices, armed with commissions of gaol delivery and/or oyer and terminer were visiting the country side three times a year. These Justices, Sir Edward Coke wrote in part II of his Institutes, have not suffered the prisoner to be long detained, but at their next coming have given the prisoner full and speedy justice. . . . . . . . . . without detaining him long in prison. To Coke, prolonged detention without trial would have been contrary to the law and custom of England but he also believed that the delay in trial by itself would be an improper denial of justice. " ( 5 ) IN the case of Hussain Ara Khatoon v. State of Bihar, AIR 1979 SC 1360 : (1979 Cri LJ 1036), the apex court observed : at page 1041, of Cri LJ :"we think that even under our Constitution though speedy trial is not specifically enumerated as fundamental right, it is implicit in the broad sweep and contents of Art. 21 as incorporated by this court in Maneka Gandhi v. Union of India, AIR 1978 SC 597 . " ( 6 ) THUS if the State chooses not to appoint a judge to the Special Court, the State would be failing in its legal obligations and the courts cannot remain a silent spectator to the violation of the valuable fundamental rights of the people. If the courts do not intervene the Rule of Law will become a mere claptrap and the people will lose confidence in the administration of justice. If the courts do not intervene the Rule of Law will become a mere claptrap and the people will lose confidence in the administration of justice. ( 7 ) THE provisions of the U. P. Gangster and Anti-Social (Activities) Prevention Act 1986, however, provide a safetyvalve, viz. , Section 5 (5) of the Act which states :-"5 (5) Where the office of the Judge of the Special Court is vacant, or such Judge is absent from the ordinary place of sitting of Special Court, or he is incapacitated by illness or otherwise for the performance of his duties, any urgent business is the Special Court shall be disposed of - (a) by the additional Judge, if any, exercising jurisdiction in that Special Court. (b) Where there is no such additional Judge available, in accordance with the directions of the Sessions Judge having jurisiction over the ordinary place of sitting of the Special Court as notified. " ( 8 ) THE salutary provisions were enacted so that matters which require urgent attention may not remain pending. The disposal of a bail application is, no doubt, a matter requiring urgent. attention. Unfortunately the Sessions Judge, Varanasi has failed to exercise the jurisdiction vested in him by Section 5 (5) of the Act by not entertaining and deciding bail applications pending in the special Court at Varanasi either himself or by making suitable directions in this regard. ( 9 ) IN view of the discussion made above, I am of the opinion that the present is a fit case where this court should exercise its Superintendence and judicial control conferred on this court by Art. 227 of the Constitution. Such power can be exercised by this Court suo motu. The question of the exercise of such a power came up for consideration before Division Bench of his court in the case of M/s. Badruddin and Party, Agra v. State of U. P. , 1992 (Vol. I) U. P. Local Bodies and Educational Cases, page 639. In the said case the petitioners had filed a writ petition under Art. 226 of the Constitution on the ground that they were being denied justice due to forced closure of the courts at Agra on account of strike. The Division Bench observed. I) U. P. Local Bodies and Educational Cases, page 639. In the said case the petitioners had filed a writ petition under Art. 226 of the Constitution on the ground that they were being denied justice due to forced closure of the courts at Agra on account of strike. The Division Bench observed. "although the petitioners have not prayed for but in view of the facts and circumstances of the case we consider it fit and proper in exercise of our suo motu power under Art. 227 of the Constitution of India, to transfer the petitioners suit to the neighbouring district of Mathura. Power of Superintendence and judicial control conferred on this court by Art. 227 of the Constitution is wide enough to include the power to transfer the case from one court to another. Such a power can be exercised by this court suo motu also. ( 10 ) IN the result, this petition is allowed. The Sessions Judge, Varanasi is directed to entertain and dispose of all the bail applications of the Court of Special Judge constituted under the above mentioned Act. The learned Sessions Judge shall summon the records of all the bail applications already filed and pending in the said Special Court and decide them expeditiously. The learned Sessions Judge shall also entertain and decide the bail application of the petitioner as expeditiously as possible. The learned Sessions Judge shall be free to decide these bail applications according to his own judicial discretion and according to the merits of each case. As soon as a Judge is appointed to the Special Court the bail applications of the said court, which remained undisposed of, shall be retransferred to the special court but the learned Sessions Judge shall follow the directions made in this order in its letter and spirit and not delay the disposal of the bail applications unnecessarily. ( 11 ) SINCE the petitioner has not only been incarcerated in jail for a very long time on account of the inaction of the State Government and he must have spent a handsome amount in prosecuting this writ petition, the costs of this writ petition, which I assess to Rs. 3000. 00, shall be borne by the State. ( 12 ) A certified copy of this order shall be issued to the learned counsel for the petitioner, on payment of usual charges, as early as possible. 3000. 00, shall be borne by the State. ( 12 ) A certified copy of this order shall be issued to the learned counsel for the petitioner, on payment of usual charges, as early as possible. Petition allowed.