JUDGMENT M.M. Punchhi, J. - This appeal by special leave is against the judgment and order of the High Court at Patna dated August 26, 1980, passed in Criminal Appeal No. 15 of 1976. 2. The facts giving rise to this appeal are that a dacoity took place at about midnight on the night intervening 5th - 6th, April, 1970 in the house of Dhaniram Singh, P.W. 11, in village Awadhiya. According to the prosecution 25 to 30 persons armed with guns, lathis, bhalas and gharasa etc. committed the dacoity and apart from looting away belongings of Dhaniram Singh, his uncle Khobari Singh was shot dead and as many as 8 persons including Dhaniram Singh, P.W. 11, received injuries. The First Information Report was lodged by Dhaniram Singh, P.W. 11, at 6.30 a.m. on April 6, 1970 at police station, Bhabhua at a distance of about 7 miles from the place of the occurrence. In it he could name 7 persons specifically as being members of the gang of dacoits. The remaining dacoits were left unnamed. The investigating agency when set into motion took steps as necessary. But at this stage, it would be sufficient to mention that neither could the investigation recover the looted property valued by the concerned P.Ws. at about Rs. 8,000/- nor could it get the particulars of a large number of other participants in the dacoity. When the matter went to trial before the First Additional Sessions Judge, Arrah, against the 6 named persons and one other, the old Criminal Procedure of 1898 governed the trial and before-hand there were commitment proceedings before a Magistrate in which evidence was recorded. At the commitment stage, 10 persons were put to face the enquiry. One accused named Kanhiya Singh in the meantime died. Two other accused Sukhari Singh and Gulab Gosain also died. There remained 6 of the original accused named in the F.I.R. and one more, Ram Naresh Singh, not so named to face trial and bear the conviction. The Learned Additional Sessions Judge convicted all the 7 accused under Section 396 IPC and imposed on them a sentence of life imprisonment. Two other accused Sukhari Singh and Gulab Gosain also died. There remained 6 of the original accused named in the F.I.R. and one more, Ram Naresh Singh, not so named to face trial and bear the conviction. The Learned Additional Sessions Judge convicted all the 7 accused under Section 396 IPC and imposed on them a sentence of life imprisonment. On appeal to the High Court two of them namely Ram Naresh Singh, the one unnamed in the F.I.R. and Charittar Ahir, one of the so named, were acquitted but the convictions of Munni Singh, Fekoo Singh, Behari Singh, Dadan Singh and Guput Singh, the appellants herein, were maintained. 3. The appellants are residents of village Awadhiya where the occurrence took place. The victims of the crime and other prosecution witnesses are also from A wadhiya. The village appears to be a small one consisting only of 26-27 houses comprising of various castes like Brahmins, Rajputs, Kahars, Ahirs and KurM/s. This is what Hira Singh, P.W. 2 has deposed at the trial. The first informant suggested that there was a simmering discontent between his family and the family of Sukhari Singh accused. Munni Singh, appellant is the son of Sukhari Singh, Fekoo Singh and Behari singh, appellants are the nephews of Sukhari Singh and Guput Singh, appellant, is the brother of Sukhari Singh. Thus they are closely related. There was a pond measuring about 3 acres in the village, which Sukhari Singh claimed, had been bestowed on him by the east while Zamindar before the coming into force of the Zamindari Abolition Act. He had taken control of the Tank but some time before the occurrence had sown "singhara" in it and had prevented people to let their cattle come there to drink water from it. The Panchayat of the village when approached had taken note of it and had 3/4 days prior to the- occurrence suggested to Sukhari Singh that the should rather surrender the Tank in the name of the Shiva Temple. But, he had correspondingly suggested to the Panchayat that the place constituted and occupied by the complainant party Khobari Singh and others for tying their cattle at the bank of the pond, which was part of unsettled lands, should also be likewise given to the Shiva Temple. But, he had correspondingly suggested to the Panchayat that the place constituted and occupied by the complainant party Khobari Singh and others for tying their cattle at the bank of the pond, which was part of unsettled lands, should also be likewise given to the Shiva Temple. The Panchayat was not agreeable to the counter suggestion because the possession and usage of that land by Khobari Singh was very old. With such grudge in mind, it is the case of the prosecution, that the assault was masterminded and made at the house of the complainant with the sole purpose to avenge and to commit dacoity. 4. The details of the occurrence are provided by Dhaniram Singh, P.W. 11, the, first informant. He stated that on the day of the occurrence he was in his village having come on a months leave from his posting as a Weapon Senior Engineer in District Kanpur. On the night of the incident, three cots lay spread in the outer court yard of their house. He was sleeping on one of them, and on the remaining two individually were his cousin Baliram Singh, P.W. 3, and his uncle Khobari Singh (deceased). He was awaken by some noise as if some persons were coming. He stood up and switched on his five-cell torch and saw 20-25 dacoits armed with lathis ball as, Garasas, and guns coming towards his house. On his co-cussing the torch they sopped. Then the dacoits also switched or their torches. Dhaniram Singh then clfiimstpat he recognised in the torch light the accused inclusive of 5 appellants. Munni Singh and Fekoo, appellants had guns and the remaining 5 had some other arms. Sukhari Singh shouted kill-kill. Munni Singh then fired with his gun towards Dhaniram Singh but he rolled down and by the fall hurt himself on the thigh and the gunfire did not hit him. Then he got up and started running. One of the dacoits hit him with a stick with an iron ring. There was some oozing of blood but it was not profuse. He ran for about 30 steps to get to his wheat field, which was about 2 to 3 feet below the level of his courtyard. From there he claims to have seen the remaining part of the occurrence. There was some oozing of blood but it was not profuse. He ran for about 30 steps to get to his wheat field, which was about 2 to 3 feet below the level of his courtyard. From there he claims to have seen the remaining part of the occurrence. He saw that when his uncle Khobari Singh had been awakened Munni Singh appellant fired at him and he fell down. Other dacoits who were near him started hitting him with spears. One of the dacoits held a ladder in his hand, through which he climbed up to the roof of the inner house, from where he jumped into the female apartment and opened the outer door. Then the dacoits entered the house and started looting and plundering. Two dacoits scolded his brother Balirar on, polio keep lying down on his cot. In the occurrence, however, Baliram Singh, P.W. 3, received no injury. The daeoits were active for about 15 to 20, minutes. On hearing the noise and commotion, other villagers then started collecting. The dacoits then decamped with the looted goods. Some of the villagers fol1owed them to some distance but the dacoits kept firing on them. With the result that some of them were injured. Khobari Singh and other injured persons were removed to be taken to the hospital hut Khobari Singh died on the way and then Dhaniram Singh proceeded to the Police Station, Bhabua, taking the dead body of his uncle with him where the Office-in-charge, P.W.l2 Ram Nagad Tiwari, recorded his statementat6.30 a.m. on 6.4.1970. Shri Tiwari went to the spot and saw the evidence of dacoity in the form of things lying scattered and some of the articles left behind by the dacoits. He had the injured persons examined medically. He arrested the accused persons. Finally investigation was completed by another officer and the accused persons were put up for trial as mentioned earlier. 5. Before the High Court, as also here, it is admitted that there was commission of dacoity in the house of the first informant on the day as alleged, in which Khobari Singh was killed and others were injured. It is also not disputed that the dacoity being a conjoint act all persons participating in the crime would be equally liable for the killing of Khobari Singh. It is also not disputed that the dacoity being a conjoint act all persons participating in the crime would be equally liable for the killing of Khobari Singh. Thus the only exercise before the High Court as also here, is to determine who were the persons who took part in the commission of the dacoity. 6. It is note worthy that the prosecution had four sets of witnesses which could establish identity of the dacoity. Three sets became redundant and only on the basis of one set was identity of the appellants established. The first set consisted of three injured persons Ramadar Singh, Dinanath Singh and Dhiria Singh who were not examined at the trial by the prosecution. This set did not help the prosecution at all. The second set consisted of the evidence of Baliram Singh, P.W. 3, Rambali Singh, P.W. 4, and Jhuri Singh, P.W. 9. The names of P.W. 4 and 9 were not mentioned in the F.I.R. and their evidence was left out of consideration by the Trial Judge as well as the High Court. Even the statement of P.W. 3 was left aside by the High court. So this set too did not further the prosecution case. In the third set was the evidence of P.W. 1 Bishwanath Chaubey, P.W. 5 Jokhan Bind and P.W. 8 Chirkut Singh who did not identify any of the dacoits. None of these witnesses was declared hostile. Thus their evidence rather goes adverse to the prosecution. The fourth set consisted of evidence of P.W. 2 Hira Singh and P.W. 11 Dhaniram Singh whose evidence has been relied upon by the High Court to identify the 5 appellants and on the basis of the very same evidence two co-accused, that is, Ram Naresh Singh and Charittar Ahir were acquitted because P.W. 2 named one and excluded the other and P.W.l1 named the other one and excluded the former, giving rise to a doubt about the complicity of those two. Thus we are left to see whether the conviction of the appellants can be based on the evidence of these eye-witnesses P.Ws 2 and 11. 7. We have already given a condensed version of Dhaniram Singh, P.W. 11. Thus we are left to see whether the conviction of the appellants can be based on the evidence of these eye-witnesses P.Ws 2 and 11. 7. We have already given a condensed version of Dhaniram Singh, P.W. 11. Now according to the Hira Singh P.W. 2, his house is 45 houses away from the house of the complainant and when he became awake on hearing the noise he went to see the occurrence hiking a torch which he kept lighting. According to him he hid himself behind a Bahaya tree and from where he could keep watching the activities of the dacoits whose faces he saw. As he says he could identify 8 dacoits. These were Munni Singh, Fekoo Singh, Dadan Singh, Guput Singh and Behari Singh appellants as respectively armed. In addition there were Sukhari Singh (since deceased), Ram Naresh Singh and Kanhiya Singh who the no longer in the picture. After the departure of the dacoits he went close to the scene and found Khobari Singh to have been hit by gun shots and that his condition at that time was serious. Then he went in the company of P.W. 11 firstly towards the hospital and then to the Police Station. According to this witness though he co-cussed the torch for 3 or 4 minutes before he went in hiding, the focus did not fall on the faces of the dacoits and after having gone in hiding he had not lit his torch. Yet he claims that he had identified the dacoits in the torch light. He is also certain that no dacoit had moaned his face. The appellants, according to him, had painted their faces but were not in a position to conceal their identity. He admitted that 3 or 4 days prior to the incident, a Panchayat had been convened in which Sukhari Singh was asked to surrender the Tank but he said he would if Khobari Singh demolishes and surrenders the house built on the bank of the Tank first. And further that when the Panchayat told Sukhari Singh that the house having been there for a long time, could not be demolished and even Khobari Singh was not agreeable to do so, all were angry with the accused persons on account of the Tank. 8. And further that when the Panchayat told Sukhari Singh that the house having been there for a long time, could not be demolished and even Khobari Singh was not agreeable to do so, all were angry with the accused persons on account of the Tank. 8. So far as Dhaniram Singh, P.W. 11, is concerned, he too admits about the convening of the Panchayat 3 or 4 days earlier on which account Sukhari Singh had nursed an angry feeling due to the happening in the Panchayat. With regard to the actual occurrence, P. W. 11 says that when the first shot aimed at him had not hit him, and the second shot had been fired at his uncle, he then ran 25-30 steps and hid himself in the field of the wheat crop and while running he heard the firing of the third shot. At that juncture he claimed to have kept lighting his Lorch now and then from the place of his hiding to see what was happening. The point which rises for consideration is whether P.Ws 2 and 11 could individually, with the aid of their respective torches, identify the dacoits; which were 25-30 in number and would the dacoits let them be identified by letting them switch on their torches off and on as claimed? Would these two witnesses not have attracted attention of the dacoits to be taken care of in priority in their place of hiding? It seems to us that seeing the formidable force of the dacoits; and their number these two P.Ws would have been so non-plussed that they would not have dared to betray their presence by switching on and off their torches especially when they were unarmed and were no match to the might of the dacoits. These two witnesses do not claim that they could identify the dacoits by means other than their torches. This part of the story of the prosecution obviously does not inspire confidence. It is also worthy of notice that P.W. 11 was injured on the head before he ran for safety. That was enough to shake and frighten him. But before the receipt of such injury he claims to have switched on his torch first and to have seen in the first glimpse the appellants and others. It is also worthy of notice that P.W. 11 was injured on the head before he ran for safety. That was enough to shake and frighten him. But before the receipt of such injury he claims to have switched on his torch first and to have seen in the first glimpse the appellants and others. But his flash of the torch was met instantaneously with numerous torch flashes by the dacoits and it was like day light as said by P.W. 1 Bishwanath Chaubey. It is difficult in this situation to believe P. W .11 that he could in a split second have such a perception so as to identify all the five appellants and some others. It is obvious and natural that behind a lit torch darkness prevails hiding the identity of the torch bearer and persons situated close. So identity of the dacoits was not possible by P.W. 11. Moreover it is un-understandable that when the dacoits had chosen dark hours for committing the dacoity, obviously to take advantage of the darkness, and when they were 25-30 in number, most of them unknown persons, where was the need for the appellants to be in the forefront to risk themselves for identification. This view we are entertaining apart from what the High Court has opined that muffling of faces and concealment of identity by dacoits is not universally practised. Thus in the facts and circumstances of the case, we retrain a grave doubt about the participation of the appellal1\s in the crime because of the failure of the prosecution to lead convincing evidence about the identity of the appellants as dacoits. There is even no corroboration worth the name in the form of recovery of fire arms and other weapons, or of the looted articles from the appellants, so as to lend some assurance to the participation of the appellants in the crime. It may well be that the motive asserted by the prosecution relating to the dispute about the pond may have given cause to Dhaniram Singh, P.W. 11 to assume that the appellants were responsible for the dacoity committed in his house and for Hira Singh, P.W. 2, to entertain that belief in a sweep. 9. For the foregoing, we find it difficult to sustain the conviction of the appellants. Accordingly, they are acquitted of the charge. The appeal is accepted. Appeal allowed. 9. For the foregoing, we find it difficult to sustain the conviction of the appellants. Accordingly, they are acquitted of the charge. The appeal is accepted. Appeal allowed. ARTICLE A STUDY ON THE CONSTITUTIONAL VALIDITY OF THE PROCEDURE OF REMAND OF AN ACCUSED DURING TRIAL By Shri Hrudaya Ballav Das, M.A. LL.M., Additional Chief Judicial Magistrate (Special Court), Cuttack (Orissa) 1. The cardinal principle of criminal jurisprudence is that an accused charged of a criminal offence is presumed to be innocent until the contrary is proved or he is found guilty. We have imbibed this British legal philosophy and our legal system is mostly based on West Minister model. The rule of law still reign supreme in India like British Parliamentary democracy, where the omnipotence of law pervades the whole British constitutional system. In India, sovereignty lies with the Constitution which is the ultimate repository of power and authority, as the three organs of the Government, viz; Legislative, Executive and Judiciary owe their origin and powers from the Constitution. So, on the face of this all pervasive legal spirit in the Constitution which champions the cause of individual freedom and liberty, curiously enough, there is provision in the Code of Criminal Procedure under Section 309(2) of the Cr. P.C., which has clothed Courts with wide arrays of powers and unfettered jurisdiction to remand the accused during the pendency of the trial, for an indefinite period without limitation. We experience from the working of the Criminal Courts that in quite large number of cases, the accused is remanded to jail custody from time to time, if not released on bail, for a long period, stretching over years, which ultimately ends in acquittal. This order of long detention of the accused in jail pending trial is repugnant to the letter and spirit of the Constitution and it violates -natural justice. To my mind, such a provision in the Code of Criminal Procedure to remand an accused for an indefinite period is contrary to the provision of Article 21 of the Constitution of India. 2. Under the Code of Criminal Procedure, order of remand to jail custody can be made under two circumstances. Such an order is passed during investigation of a case and after taking cognizance of the offence or commencement of the trial. Section 167(2) envisages the remand of an accused during the pendency of the investigation. 2. Under the Code of Criminal Procedure, order of remand to jail custody can be made under two circumstances. Such an order is passed during investigation of a case and after taking cognizance of the offence or commencement of the trial. Section 167(2) envisages the remand of an accused during the pendency of the investigation. Similarly, Section 309(2) comes into play only after taking cognizance of an offence or commencement of the trial. Section 167(2) of the Cr. P.C. prescribes "that the Magistrate to whom an accused person is forwarded, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as the Magistrate thinks fit, for a term not exceeding 15 days in the whole". In 1978, there was an amendment by which further period one days, to the investigating agency was allowed to close up the police investigation in heinous offences of a complicated nature. The proviso to Section 167(2) is a directive to the investigating agency to complete the investigation within 90 days, where it relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years and a period of 60 days has been fixed, where the investigation relates to other offences. The mandate of law laid down u/s. 167 of the Cr. P.C. is that on the expiry of the said period of 90 days or 60 days, as the case may be, the accused person shall be released on bail, if he is prepared to and does furnish bail. Thus, a statutory right accrues in favour of the accused for his release on bail, where the investigation of the case is not complete within the period of limitation as prescribed under law. This position of law is well settled. The Supreme Court has laid down the law on the subject, reported in A.I.R. 1975, page - 1455 which has been followed by Patna High Court in a decision reported in 1988(1) Criminal Law cases at page 436 (Md. Sharafuddin Khan v. State of Bihar). On the similar analogy, law has not prescribed any maximum period of remand of an accused and has not fixed any time limit, so far as the trial of an offender is concerned. Sharafuddin Khan v. State of Bihar). On the similar analogy, law has not prescribed any maximum period of remand of an accused and has not fixed any time limit, so far as the trial of an offender is concerned. Section 309(2) which is relevant for our purpose runs as follows: "If the Court after taking cognizance of an offence or commencement of trial, finds it necessary or advisable to postpone the commencement of or adjourn, any enquiry or trial, it may from time to time for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable and. may by a warrant remand the accused if in custody". So, on a critical analysis of Section 167(2) and Section 309(2) of the Cr. P.C., it is made abundantly clear that the powers of the Investigating Officer is circumscribed by law. However, such directive has not been given to the Court under the statute which has arbitrary powers to remand an accused during trial for an indefinite period, as no time limit has been fixed for conclusion of the trial, save and except the language that "trial shall be held as expeditiously as possible". Now, therefore, it is to be seen if this power and authority of the Court is sanctioned by the Constitution. To my mind such unbridled power of the Court to remand an accused for an indefinite period without any statutory period of limitation, offends Article 21 of the Constitution and the universal rules of natural justice. 3. In this background, it is necessary to highlight the constitutional validity of Section 309(2) of the Cr. P .C. and to examine whether it is in consonance with the letter and spirit of Article 21 of the Constitution. Article 21 of the Constitution makes provision for protection of life and personal liberty and speaks that "no person shall be deprived of his life or personal liberty, except according to procedure established by law". So far as the language of Article 21 is concerned, it is akin to the provision of American Constitution which lays down that no person shall be deprived of his life and liberty except by due process of law. The words procedure established by law enshrined in our Constitution seems to have been borrowed from Article 31 of the Japanese Constitution. The words procedure established by law enshrined in our Constitution seems to have been borrowed from Article 31 of the Japanese Constitution. Thus, Article 21 presents an example of the fusion of procedural and substantive rights in the same provision. Keeping in mind the mandate of law under Article 21 of our Constitution when it is compared with the American doctrine of due process of law, this American provision stands like a pole-star for protection of the fundamental right of the citizens, as the liberty of no person can be violated or taken away without due process of law. As we know, America is the classic home of judicial review and this doctrine of judicial review has an extra constitutional growth in America. In the famous case of Marbury v. Madison (1803) Chief Justice of United States John Marshall gave a land mark verdict of the power of the judiciary to declare the act of the legislature as ultra vires. Justice Marshall upheld this power of the Judiciary from the famous clause of "due process of law" of the American Constitution. American Jurists claim that the word "Law" added to due process is akin to "natural law". According to Daniel Webster, the meaning of due process of law is that "every citizen shall hold his life, liberty, properly and immunities for the protection of general laws which governs the Society". The word "due" means" what is just and proper". Therefore in exercise of its power of judicial review, the American Supreme Court can challenge an act, if either its procedure is defective or the substance contained in it is against the rules of natural law or natural justice. So, undoubtedly the power of judicial review of the American Supreme Court has a broad connotation, which embraces all aspects, both substantive and procedural rights while examining the vire sofa piece of legislation which infringes or takes away the life and liberty of a citizen. So, undoubtedly the power of judicial review of the American Supreme Court has a broad connotation, which embraces all aspects, both substantive and procedural rights while examining the vire sofa piece of legislation which infringes or takes away the life and liberty of a citizen. In this background, it is heartening to note that to safeguard the liberty of the citizen and to put a check on the trial of offences for any length of time, under warrant procedure, there is specific provision in the Code of Criminal Procedure, in Section 437(6) and (7) in Chapter XXXIII, which runs as follows: "(6) If, in any case triable by a. Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of 60 days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the, whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. (7) If at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused; if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered". Similar beneficial provision has been made u/s. 167(5) of the Cr. P.C. which envisages that "if in any case triable by a Magistrate as a summons case, the investigation is not completed within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping the further investigation into the offence, unless the Officer making investigation satisfies the Magistrate that for special reasons and in the interest of justice, the continuation of the investigation beyond the period on months is necessary". Here I would like to mention that it is a distressing fact that in many cases, accused persons are kept in prison for very long period as Under Trial Prisoner and in some cases, the sentence of imprisonment ultimately awarded is only a fraction of period spent in Jail as Under Trial Prisoner. Here I would like to mention that it is a distressing fact that in many cases, accused persons are kept in prison for very long period as Under Trial Prisoner and in some cases, the sentence of imprisonment ultimately awarded is only a fraction of period spent in Jail as Under Trial Prisoner. Indeed there may even be cases, where the accused is also acquitted. No doubt some times Courts had taken into account the period of detention undergone as Under Trial Prisoner while passing sentence and occasioned the sentence of imprisonment is restricted to the period already undergone. But this is not always the case so that in many cases, the accused person is made to suffer jail life for a period out of all proportion to the gravity of the offence or even to the punishment provided under statute. As a matter of fact, a large number of persons in the over crowded Jails of today are Under Trial Prisoners. Thus, in view of this disquieting state of affairs, the Joint Committee of Parliament felt the necessity of making a provision in the new Cr. P.C. 1973, to set of the period of detention undergone by the accused against the sentence of imprisonment and consequently this new provision added to the Cr. P.C. would certainly go a long way to mitigate the evil. Thus, on an analysis of Section 428 of Cr. P.C., it protect and safeguards the freedom of a con vice of long term incarceration. 4. Here it is interesting to observe that on the face of such beneficial provisions designed in the Cr. P.C., so far as the trial of cases exclusively by the Court of Sessions is concerned, there is no stipulated period or time limit fixed for conclusion of trial of Sessions cases, as a result of which the Under Trial Prisoners accused of such offence languish in jail custody for years together. Similarly if the accused is not able Lo secure bail on merits, there is no alternative provision or remedy for him to have bail within a fixed period of limitation, if the trial of the Sessions case is not complete. Similarly if the accused is not able Lo secure bail on merits, there is no alternative provision or remedy for him to have bail within a fixed period of limitation, if the trial of the Sessions case is not complete. The Supreme Court in a land-mark decision in Hossinara Khatun v. State of Bihar reported in A.I.R. 1979 at page 1360 has laid down the law that speedy trial is a part of fundamental right to life and liberty, as the detention of Under Trial Prisoners in jail for period longer than what they would have been sentenced, if convicted, is illegal in violation of Article 21 of the Constitution. Justice P.N. Bhagawati observed that a procedure prescribed by law for depriving a person of his liberty can not be reasonable, fair or just, unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensures reasonably quick trial can be regarded as reasonable, fair or just and it would fall foul of Article 21. There can, therefore be no doubt that speedy trial and by speedy trial we mean reasonably expeditious trial as an integral and essential part of the fungicidal right to Iffy and liberty enshrined in Article 21. It is gratifying to note that the Supreme Court while protesting the rights of a condemned presser awaiting execution of a death sentence passed on him, has observed that delay exceeding 2 years in execution of a sentence of death, should be considered sufficient to entitle the person under sentence of death to involve Article 21 and demand the quashing of the sentence or death (Javed Ahmed v. State of Maharashtra. A.I.R. 1985, at page 231). Speaking regarding delay in execution of death sentence, the Supreme Court observed in the decision cited above that the referred trials and confirmation cases are dealt with speedily by High Court: and are never kept pending longer than 2or3 months. It is only when they reached the Supreme Court that the delay occurs. A.I.R. 1985, at page 231). Speaking regarding delay in execution of death sentence, the Supreme Court observed in the decision cited above that the referred trials and confirmation cases are dealt with speedily by High Court: and are never kept pending longer than 2or3 months. It is only when they reached the Supreme Court that the delay occurs. But surely inability of Supreme Court to devise a procedure to deal expeditiously with such matters of life and death Can be no justification for silencing "the voice of justice and fair play", which demands that "so long as life lasts, so long shall it be the duty and endeavour of the Supreme Court to give to the provisions of Constitution, a meaning, which will prevent human suffering and degradation". Having due regard to the natural justice, the Supreme Court protected the right of the condemned prisoner under Article 21 of the Constitution and accordingly quashed the sentence of death and substituted in its place, the sentence of imprisonment for life. On the face of this, new activist dimension of Article 21 of the Constitution whose area has been enlarged by the Supreme Court by its verdicts from time to time as referred to above, curiously enough, subordinate criminal courts enjoy wide powers under the statute to remand an accused to jail custody for an indefinite period in cases which are sub-judiced before them. In the famous case of assassination of Sml. Indira Gandhi (Keher Singh and another v. Union of India. A.I.R. 1989, page 653), the Supreme Court while examining the power or the President of the Republic to pardon the condemned prisoner Keher Singh, on whom death penalty was imposed, went a step further while examining the scope and ambit of Article 21 of the Constitution concerning life and personal liberty of a prisoner waiting to go to gallows. Their Lordships have observed: "To any civilised society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the Court to Article 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order and consequently, the Legislature, the Executive and Judiciary are more sensitive to them than to the other attributes of daily existence. That is evident from the paramount position given by the Court to Article 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order and consequently, the Legislature, the Executive and Judiciary are more sensitive to them than to the other attributes of daily existence. The deprivation of personal liberty and the threat of the deprivation of life by the action of the State is in most civilised societies regarded seriously and recourse, either under express constitutional provision or through legislative enactment is provided to the judicial organ. But, the fallibility of human judgment being undeniable even in the most trained mind, a mind resourced by a harvest of experience, it has been considered appropriate that in the matter of life and personal liberty, the projection should be extended by entrusting power further to some high authority to scrutinise the validity of the thereafter of denial of life or the threatened or continued denial of personal liberty". 5. It will not be out of place to mention that the trend of judicial pronouncements are not in favour of detention of a person in jail for an indefinite period of un-usual length of time, without trial, under various preventive detention laws. Of course, there are self-contained provisions under the different preventive detention laws viz; Defence of India Rules, Defence of India Security Rules, Maintenance of Internal Security Act, Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. National Security Act for review of the cases of détentes by an Advisory Board 10 examine whether the detention beyond the maximum period prescribed under the Act is necessary in the larger interest of the society and for maintenance of Public order and security. The Supreme Court while examining the vires of Section 31 of the Conservation (If Foreign Exchange and Prevention of Smuggling Activities Act. 1974 in the matter of representation of a detenu, has laid down the law that no rigid period of time can be laid down within which representation has to be disposed of, It depends upon the facts and circumstances of such case. The Superintendent of Central Prison carelessly ignored and kept in cold storage the unattended representation of the detenues for seven days. The delay has not been explained inspite of opportunity given to explain. The Superintendent of Central Prison carelessly ignored and kept in cold storage the unattended representation of the detenues for seven days. The delay has not been explained inspite of opportunity given to explain. It is held that such avoidable and un-explained delay results in rendering continued detention of the petitioner trine gal and constitutionally impermissible (Aslam Ahmed Zahir Ahmed Shaik v. Union of India (1989) 2 SCJ 205). Justice H.R. Khanna in the famous Habeas Corpus Case (A.D.M. v. Shivakanta Sukla (1976) 2 Supreme Court Cases Page-521), in his dissenting Judgment has observed that: "Law of preventive detention, of detention without trial is an anathema to all those who love personal liberty. Such a law makes deep inroads into basic human freedoms, which we all cherish and which occupy prime position among the higher values of the, It is, therefore, not surprising that those who have an abiding faith in the rule of law and sanctity of personal liberty do not easily reconcile themselves with a law under which per~ sons can be detained for long periods without trial. The proper forum for brining to book those alleged to be guilty of the infraction of law and commission of crime, according to them, is the court of law where the correctness of the allegations can be gone into in the light of the evidence adduced at the trial. The vesting of power of detention without trial in the executive, they assert, has the effect of making the same authority both the prosecutor as well as the Judge and is bound to result in arbitrariness". 6. In this back-drop of the observations of Justice H.R. Khanna, I consider it worthwhile to quote from Justice P.B. Gajendragadkars Book Tagore Law Lectures, "The Indian Parliament and Fundamental Rights", in which his Lordship has said that rule of law is a distinct feature of our democratic way of life. He said, "When I speak of law, liberty and social justice, I am referring to the laws as they are known to Parliamentary democracy. Even under totalitarian regimes laws are passed. The existence of valid enforceable laws cannot be said to be a distinguishing feature of democracy. An absolute monarch, or an absolute despot, governs his subjects by means of laws and in that sense despotism or totalitarianism can well claim to be government by laws. Even under totalitarian regimes laws are passed. The existence of valid enforceable laws cannot be said to be a distinguishing feature of democracy. An absolute monarch, or an absolute despot, governs his subjects by means of laws and in that sense despotism or totalitarianism can well claim to be government by laws. But the laws in a democracy are distinguished from the laws under despotism by two broad features. The system of laws in a democracy postulates the significance and paramount importance of individual liberty and freedom. Unlike the totalitarian form of government, democracy does not treat an individual citizen as a means or instrument in the service of the State. Totalitarian form of government, whether of the left or right pattern, is apt to idolize the State and treat the interests of the State as; conceived by the government to be of paramount importance. Parliamentary democracy on the other hand, respects the individuals liberty and freedom and seeks to harmonise the claims of public good. Laws in a democracy, therefore proceed on the basic postulate of the invaluable significance of individual liberty and freedom". In the above premises, it is necessary to refer to A.K. Gopalans case (A.I.R. 1950, S.C. 27). In this ruling, the Supreme court has laid down that the expression procedure established by law must mean procedure prescribed by the law of the State. However, in Menaka Gandhis case (A.I.R. 1978 S.C. page 597), the Supreme court over-ruled Gopalans case and held that the language procedure established by law as enshrined in Article 21 does not mean any procedure laid down by statute, but it means a just, fair and reasonably procedure. The word "Law" in Article 21 does not speak of any law, but the law which is right, just and fair and not arbitrary, fanciful or oppressive. In the instant case, it was held by the Supreme Court that the Central Government not only did not give an opportunity of hearing to the petitioner Mrs. Menaka Gandhi, after making the impugned order, impounding her Passport, but the authority even declined to furnish to the petitioner the reasons for impounding her Passport, despite request made by her. In the instant case, it was held by the Supreme Court that the Central Government not only did not give an opportunity of hearing to the petitioner Mrs. Menaka Gandhi, after making the impugned order, impounding her Passport, but the authority even declined to furnish to the petitioner the reasons for impounding her Passport, despite request made by her. Since the Central Government was held to be wholly unjustified in withholding the rcasol1£ for impounding the Passport from the petitioner, this was not only in breach of the statutory provision, but it is also amounted to denial of opportunity of hearing to the petitioner. The order impounding the Passport of the petitioner is therefore clearly in violation of the rules of natural justice embodied in the maxim "audi-alteram partem" and it was not in conformity with the procedure prescribed by the Passport Act. So, undeniably in Menaka Gandhis case, the scope of Article 21 has been widened, which was previously limited to Executive action, but after this significant decision, Article 21 gives protection not only against executive action or action of the State, it also gives protection against legislation. The decisions of the Supreme Court will show that it has tried to amplify the concept of natural justice and has infused this concept while interpreting statues affecting the liberty of the citizens. Although the Supreme Court of India in exercise of its power of judicial review has not adopted American phrase "due process of law" in its form, but in essence 3J1d spirit, this American doctrine has been imported for interpretation of Article 21 of the Constitution. 7. Coming to the provision of Section 309(2) of the Cr. P.C. which corresponds to Section 344 of the Old Cr. P.C. 1898, I find that there has been no legislative change and both the Sections are similar. The language of the Section speaks that if for any other reasonable cause it becomes necessary or advisable to postpone the commencement of or adjourn the trial, the Court may, if it thinks fit to do so and may by a warrant remand the accused in custody. Thus; on a plant reading of the Section, it does not countenance. a mechanical order of remand; but on reasonable grounds. In a case law reported in A.I.R. 1965 Tripura at page 27 (Sehhad at Khan v. State), it is held that any further remand Ills. 344 Cr. Thus; on a plant reading of the Section, it does not countenance. a mechanical order of remand; but on reasonable grounds. In a case law reported in A.I.R. 1965 Tripura at page 27 (Sehhad at Khan v. State), it is held that any further remand Ills. 344 Cr. P.C. can be made only if sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence and that it appears likely that further evidence may be obtained by a remand. Thus, in order to remand an accused u/s. 344 of Old Cr. P.C., the Magistrate must satisfy himself that sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence. On the same analogy, in another case law reported in A.I.R. 1915 Nagpur at Page 28, (Ahmadali v. Emperor), it is held that a remand to custody should not ordinarily be ordered u/s. 344 Cr. P.C. without recording some evidence, where such evidence is available to show that good ground exists for believing the accused person to have committed a non-bailable offence. While making an in depth study of Section 309(2) of the Cr. P.C. and to see whether it conforms to the broad matrix of Article 21 of the Constitution, it is necessary to analyse the expression "Procedure established by law" as embodied in Article 21. This has found expression in a decision of Kerala High Court reported in (1983) 2 Crimes Page-34 (State of Kerala v. Thankan Chandran). It is held that the word "procedure" means fair and reasonable procedure with civilised norms, which is not merely some semblance of a procedure, it must be procedure free from arbitrariness, unfairness or unreasonableness. The principle of reasonableness is an essential element of equality and non-arbitrariness pervades Article 14 and procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Aniclc14, which must be right, just and fair, otherwise it would be no procedure at all and the requirement of Article 21 will not be satisfied. Next coming to the expression "personal liberty" used in Article21, the Supreme Court has given it a brffied and liberal interpretation in another land-mark decision reported in A.I.R. 1981, Supreme Court, 746 (Francis Caralie Mullin v. Union Territory of Delhi). Next coming to the expression "personal liberty" used in Article21, the Supreme Court has given it a brffied and liberal interpretation in another land-mark decision reported in A.I.R. 1981, Supreme Court, 746 (Francis Caralie Mullin v. Union Territory of Delhi). It is held that the word "personal-liberty" would include a right to socialise with members of the family and friends subject, of course, to any valid prison regulation. If any prison regulation or procedure, regulating the right to have inter views with the members of the family and friends, is arbitrary or un-reasonable, it would be liable to be struck down as being violative of Article 14 and 21. In this decision, the Supreme Court elevated the human right (right against torture or cruel, inhuman or degrading treatment or punishment) guaranteed under Article-7 of the International Covenant, on civil and political rights, to the status of a fundamental right under Article 21 of the Constitution. The Supreme Court laid down and propounded law that the right to life protected in Article 21 of the Constitution is not confined merely to right to physical existence, but also includes within its broad matrix, the right to the use of every faculty or limb through which life is enjoyed as well as the right to live with basic human dignity. The Court observed that no one can be deprived of his right to live with basic human dignity except by a reasonable, fair and just procedure prescribed by law. Indeed no procedure which deprives a person of his right to live with basic human dignity can possibly be reasonable, fair and just. Therefore, the State Government can not by law or otherwise deprive any person of the right to live with basic human dignity. Such a law and the action of the State which encroaches upon human dignity is not permitted under Article 21 of the Constitution. In another decision, State of West Bengal v. S. Bhowmick (A.I.R. 1981 S.C. 917), Supreme Court held that a procedure which is unreasonable, harsh and prejudicial to the accused can not be in consonance with Article 21 of the Constitution. 8. In another decision, State of West Bengal v. S. Bhowmick (A.I.R. 1981 S.C. 917), Supreme Court held that a procedure which is unreasonable, harsh and prejudicial to the accused can not be in consonance with Article 21 of the Constitution. 8. It is worthwhile to mention that in a Session case, where the accused was detained in Jail without trial for one year from the date of his commitment to the Court of Sessions, the Andhra Pradesh High Court in a decision reported in Thirmuri Bhaskara Reddy v. State of Andhra Pradesh. 1983(1) An WR 110 directed there lease of the accused on bail. It is held that when there are number of Sessions cases pending on the file of the Sessions Judges, which has caused delay in the trial of the cases, this difficulty of the Sessions Judges should not be detrimental to the interest of the accused resulting in violation of the fundamental rights of the speedy trial given to him under Article 21 of the Constitution. When the accused has got the right of speedy trial, he should not be detained in Jail custody without trial, for a period exceeding one year from the date of the receipt of the committal order by the Sessions Court from the Committing Magistrate. It. is held that the Sessions Judge is empowered to grant bail of such Under Trial Prisoners, of course, subject to such terms and conditions as the Sessions Judge imposes. In another decision of the Supreme Court Din Dayal v. Union of India. A.I.R. 1983 S.C. 455, it is held that : "In cases arising under Article 21 of the Constitution if it appears that a person is being deprived of his life or has been deprived of his personal liberty, the burden rests on the Suite to establish the constitutional validity of the impugned law. The burden includes the obligation to prove that the impugned proceeding is not harsh, cruel or degrading. The burden does not lie on the petitioner to prove that the procedure prescribed by, the impugned provision for taking life is unjust, unfair or unreasonable. The burden includes the obligation to prove that the impugned proceeding is not harsh, cruel or degrading. The burden does not lie on the petitioner to prove that the procedure prescribed by, the impugned provision for taking life is unjust, unfair or unreasonable. Therefore, as soon as it is shown that the Act invades a right guaranteed by Article 21 it is necessary to enquire whether the State has proved that the person has been deprived of his life or personal liberty according to procedure established by law, that is to say, by-a procedure which is just, fair and reasonable". 9. While analysing the broad spectrum of the statutory right accrued in favour of an U.T.P. to be entitled to go on bail under the proviso to Sec. 167(2) of their. P.C., his Lordship Justice Sri R.C. Pattnaik of Orissa High Court in his concern and anxiety to safeguard the liberty of the Under Trial Prisoner prefaced his Judgment, in the case Mangal Hemrum v. State of Orissa, 53 (1982) C.L.T. 259 which runs as follows: "Give me liberty or give me death thundered Patrick Henry, more than 200 years ago, in the Virginia Convention". In this context, it is the same concern for liberty and the right to speedy trial which is available to an Under Trial Prisoner by the force of Article 21 which has found its best expression in a full bench decision of Patna High Court reported in A.I.R. 1987 Patna 274 (Anurag v. State). His Lordship Honble C,J. Sandhawalia has observed: If Article-21 and the right to speedy public trial is not merclya twinkling star in the high heavens to be worshipped and rendered vociferous lip service only but indeed is an actually meaningful protective provision then a forliorari expeditious hearing of substantive appeals against convictions, is fairly and squarely within the mandate of the said Article". In the above premises, it is desirable to look into a decision of the Supreme Court and the view taken by it in the matter of release on bail of an appellant convicted u/s. 302 of" I.P.C. who had spent about4-1/2 years in Jail during pendency of his appeal. In the above premises, it is desirable to look into a decision of the Supreme Court and the view taken by it in the matter of release on bail of an appellant convicted u/s. 302 of" I.P.C. who had spent about4-1/2 years in Jail during pendency of his appeal. In this connection, the Supreme Court in Kashmira Singh v. State of Punjab, A.I.R. 1977, 2147 has observed as follows: "It would indeed be a travesty of justice to keep a person in jail for a period of 5 or 6 years for an offence which is ultimately found not to have been committed by him, Can the Court over compensate him for his incarceration which is found to be unjustified? Would it be just at all f or the Court to tell a person: "We have admitted your appeal because we think you have prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and therefore, until we hear your appeal, you must remain in Jail, even though you may be innocent?" What confidence would such administration of justice inspire in the mind of the public?" The deprivation of liberty and the question of “bail or jail” ? was decided by the Supreme Court in the case of G. Narasimhulu v. Public Prosecutor, A.I.R. 1978,429 and Justice Krishna lyer has observed as follows: " Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the crucial power to - negate it, is a great trust exercisable, not casually but judicially with lively concern for the cost to the individual and the community After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law 10. Now, therefore, on a discussion of the case laws referred to in the preceding paragraphs, the view of the Supreme Court is for fixing a time limit within which the trial would conclude, which includes hearing of appeal preferred by the convict. In Hussainara Khatoons case, it was observed by the Supreme Court that even a delay of one year in the commencement of the trial was bad. In Kadra Pahadiyas case (A.I.R. 19X I, 939), the Supreme Court took a view that Sessions Trials should end within one year. In Hussainara Khatoons case, it was observed by the Supreme Court that even a delay of one year in the commencement of the trial was bad. In Kadra Pahadiyas case (A.I.R. 19X I, 939), the Supreme Court took a view that Sessions Trials should end within one year. Thus, the significance and sweep of Article.21 make the deprivation of liberty, a matter of great concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and the state necessity spelt out in Article21. In this context it is necessary to high-light a very recent decision of Orissa High Court reported in 1990 C.L.T. Vol. 70 at page 35X (Elianath Sahu v. The State), In this decision, it is had by his Lordship Honble Justice. R.C. Patnaik that failure to provide free legal assistance to a person accused of an offence is violation of fundamental right and it vitiates the trial. It is held that the right to free legal services is clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guaranty of Article-21 of the Constitution and the State is under constellational mandate to provide a lawyer to an accused, 11 the stage when the accused is first produced before a Magistrate. The law enunciated in this case is that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure [1f"- scribed in Article 21 of the Constitution. It is further held that the Courts are the guardians of the human rights and the common man looks upon the Court as his protector. The duty and responsibility in the context under the Constitution, therefore obligate them to be more concerned about the rights and the power of the illiterates who have hardly the capability to defend themselves. In this context, Supreme Court has reminded the trial Judges that the persons without any resources are not non-persons they are also citizens of India. The rich and affluent can find for themselves. In this context, Supreme Court has reminded the trial Judges that the persons without any resources are not non-persons they are also citizens of India. The rich and affluent can find for themselves. The Courts are therefore under additional obligation to see that when a poor and illiterate person is produced before it, the judicial process does not fail functionally as the protector of personal liberty. Now in view of this broad interpretation of Article-21, which has got great constitutional significance, it must be held that Article-21 stands like a sentinel over human misery, degradation and oppression. Its voice is the voice of the justice and fair play, it reverberates through all stages of the trial, the sentence, the incarceration and finally the execution of a sentence. So, in view of this constitutional mandate provided under Article 21 of the Constitution for the protection of life and personal liberty of the poor and illiterate persons, the decision of the Orissa High Court on the subject, as referred to above is a mile-stone. 11. Now on a close analysis of the ratio decidendi of the case laws referred to above, it is seen that in view of this broad interpretation of Article 21 of the Constitution by the Supreme Court from time to time, it has brought about radical reforms in the arena of the administration of criminal justice, particularly relating to cases of Under Trial Prisoners, who are detained in jail custody for an indefinite period. It is significant to mention that the modern trend of interpretation of criminal statutes are more in favour of the accused. In this regard, it is worth while to quote Maxwell from his Book Interpretation of Status 11th Edition, Page 274-75. "It is said that the tendency of modem decisions, upon the whole, is to narrow materially the difference between what is called a strict and a beneficial construction. All statutes are now construed with a more attentive regard to the language, and criminal statues with a more rational regard to the aim and intention of the legislature, than formerly. It is unquestionably right that the distinction should not be altogether erased from the judicial mind for it is required by the spirit of our free institutions that the interpretation of all statutes should be favourable to personal liberty". It is unquestionably right that the distinction should not be altogether erased from the judicial mind for it is required by the spirit of our free institutions that the interpretation of all statutes should be favourable to personal liberty". Now taking into account the decision of the Supreme Court in Francis Carlie Mullins case (A.I.R. 1981. 746), we find that remand of an accused ordered by the Court u/s. 309 (2) of the Cr. P.C. is contrary to the new activist dimension of Article 21 of the Constitution which has expounded the right to human dignity of an V.T.P., which pervades the Article-21. I would like to reiterate that in absence of any provision u/s. 309(2) of Cr. P.C. regarding conclusion of a trial within a fixed period, the remand of the accused to jail custody for an uncertain and indefinite period seems to be not in consonance with the letter and spirit of Article 21 of the Constitution. To my mind, such a provision in the Code of Criminal Procedure is arbitrary, as it does not fulfill the requirement of Article 21 of the Constitution, which provides for a just, fair and reasonable procedure, where right to speedy trial and right to basic human dignity are also guaranteed. So, in ultimate analysis, to curb the arbitrary powers conferred on the Courts, there should be a reasonable period of remand or maximum period of time should be fixed within which the trial will be concluded and this constitutional requirement must form part of Section 309(2) of the Cr. P.C., so that the procedure laid down in the statute will be reasonable, just and human which wi1l safeguard and protect the freedom and basic human dignity of the accused during trial. So, if such an amendment is made in Section 309(2) of the Cr. P.C. the fundamental right to speedy trial and personal-liberty of citizen can be zealously safeguarded as guaranteed under Article 21 of the Constitution. Before parting with my discussion, I fact it necessary to quote the observations made by Morris. R. Cohen in his Autobiography -"A dreamers Journey" wherein the Author has said that "Law deals with human affairs, and it is impossible to legislate or make any judgment with regard to them without involving all sorts of assumptions or theories. Before parting with my discussion, I fact it necessary to quote the observations made by Morris. R. Cohen in his Autobiography -"A dreamers Journey" wherein the Author has said that "Law deals with human affairs, and it is impossible to legislate or make any judgment with regard to them without involving all sorts of assumptions or theories. The issues, therefore, is not between a fixed law on the one hand, and social theories on the other, but between social theories unconsciously assumed and social theories carefully examined and scientifically studied. It is in the light of this dynamic character of the function of law that one has to consider the role of Judges in a democratic State". Thus, I conclude with the observation of the Supreme Court in the case of Kadra Pahadeya v. State of Bihar, which has shown great anxiety and concern for the liberty of the Under Trial Prisoners. In the words of the Supreme Court "We fail to understand why our justice system has become so de-humanised that lawyers and Judges do not feel a sense of revolt at caging people in Jail, for years, without a trial". For Citation : 1992 2 Crimes 194