S.S. Sandhawalia, C.J.

1. Is the constitutional right of the accused to a speedy and public trial in all criminal prosecutions now flowing from Article 21 of our Constitution, by virtue of precedential mandate, identical in content with the express constitutional guarantee inserted by the Sixth Amendment in the American Constitution What is the inevitable legal consequence if the accused person is denied this constitutional right Would American precedents on the Sixth Amendment be attracted and applicable in this context in India as well Would inordinately long and callous delays in concluding a criminal trial on a capital charge by the prosecution be per se prejudicial to the accused These are the significant questions which have come to the fore in this reference to the Full Bench. Primarily in issue is a frontal challenge to the reasoning and ratio of the Division Bench judgment in State of Bihar v. Ramdaras Ahir

2. For the determination of the pristinely legal issues aforesaid, it is unnecessary to delve deeply into the facts at this stage. Suffice it to mention that the State of Bihar has brought the Government Appeal against twenty respondents who were all brought to trial on the capital charge of murder, conspiracy, unlawful assembly and other allied and minor offences. The alleged occurrence admittedly took place more than 14 years ago on the 26th April, 1971. After a protracted investigation and trial extending beyond 5 years, the learned Additional Sessions Judge, Chapra, rendered an exhaustive judgment running into 120 typed pages on the 31st of August, 1976. Thereby eight of the accused persons were given the benefit of doubt and were acquitted of all charges. Further, Rabindra Singh, Respondent, who was held guilty on the substantive charge of murder under S. 302, I.P.C. was sentenced to rigorous imprisonment for life. The remaining eleven accused persons who were charged for vicarious liability for murder were found guilty of causing simple hurts and rioting, etc. only and sentenced to various terms of imprisonment and fine. As noticed above, the State of Bihar brought the Government Appeal under S. 378 of the Cr. P.C., 1973 against the acquittal of the accused respondents, which was dismissed in limine qua Raghubansh Singh, Bishwanand Singh and Mohan Prasad Singh, and admitted as regards others way back on 1st of Dec. 1976. However, this appeal as also the appeals preferred by the accused persons against their conviction did not reach a hearing till eight years thereafter in the month of September, 1984.

3. Before the Division Bench, Mr. Rash Behari Singh, the learned Counsel appearing on behalf of the respondents, took up a preliminary objection that the Government Appeal against acquittal qua some of the accused respondents was not maintainable in view of Division Bench judgment in Ramdaras Ahirs case (supra) because of the grave delay of more than 14 years from the date of occurrence on the 26th of April, 1971. However, learned counsel for the appellant State challenged the correctness of the ratio in Ramdaras Ahirs case, and in view of the importance of the issue the Division Bench issued notice to the Advocate-General as well. On behalf of the appellant reliance was placed on State of Maharashtra v. Champalal Punjaji Shah, : AIR 1981 SC 1675 : (1981 Cri LJ 1273), Sher Singh v. State of Punjab, : AIR 1983 SC 465 : (1983 Cri LJ 803) and A. K. Roy v. Union of India, : AIR 1982 SC 710 : 1982 Cri LJ 340. In view of the significant constitutional and legal issues involved, the Division Bench has referred the case to a larger Bench for an authoritative adjudication.

4. Ere I come to grips with the individual issues requiring adjudication, it is apt to clear the decks for the background against which these have now to be examined. As appears from the above, the basic issue herein is the challenge to the ratio in Ramdaras Ahirs caseand the necessary corollaries thereto. It becomes necessary therefore to examine what precisely has been laid down in the said judgment and within what limitations. This cannot be better done than by noticing the undermentioned words of the Division Bench itself :

"Before parting with this judgment, even at the risk of some repetition, it seems necessary to point out, for clarity of precedent, that the aforesaid discussion must not be viewed as any "general dissertation on the reversal of any and every acquittal. It is patently in the context of a capital charge for which the Legislature provides either the sentence of death or of life imprisonment only in the alternative. It is only against the backdrop of a challenge or reversal of a clean acquittal on a capital charge (i.e., not merely a State appeal against acquittal on a major charge), which involves the onerous setting aside of a double presumption of innocence, which runs like golden thread throughout the web of our criminal jurisprudence. As elaborated earlier, it is in the mosaic of statutory appeals provided against acquittal which renders the proceedings nothing but a continuation or prolongation of a trial on a charge of an offence punishable with death. What has been said in the earlier part of this judgment is confined to the parameters of the aforesaid conditions. Equally, in the context of time limit which may be imposed, the same must operate within the qualifications laid down by the final Court in Sher Singhs case 1983 Cri LJ 803 (supra). The delay must not be occasioned due to the absconding or the default of the accused, nor must it run against the reasonable norm of time generally occupied in the litigative process and also must take note of the nature and the gravity of the crime."

At the very outset I may notice that we were invited temptingly to enter the thicket of hypothetical cases and to examine the issue of delay generically in all cases including those of trivial and technical offences. However, I would stoutly refuse to be drawn into any web of fantasy and confine myself strictly to the terra firma of what squarely calls for adjudication. As noticed earlier, Ramdaras Ahirs case was decided within the narrow parameters drawn by the Bench itself and when a challenge is made to its correctness, I would confine myself to the same limitations. As a matter of sound judicial restraint and policy, the focus of the Full Bench herein would remain on the issues directly involved (including constitutional) and not on any academic ones. This seems to be both sound on principle as also mandated by recent precedent in A. K. Roys case (supra) :

"All the same, the position is firmly established in the field of constitutional adjudication that the Court will decide no more than needs to be decided in any particular case. Abstract questions present interesting challenges, but it is for scholars and text-book writers to unravel their mystique. It is not for the Courts to decide questions which are but of academic importance."

In the light of the above, I would constrict myself within the narrow parameters within which the issues arise, namely, -- the reversal of a clean acquittal on a capital charge (punishable with a sentence of death or life imprisonment in the alternative only) and the consequent dislodging of a double presumption of innocence after an unexplained, callous and inordinate delay of more than 10 years.

5. Since the whole debate herein has centred on the foundational base of the ratio of Ramdaras Ahirs case the discussion hereinafter is inevitably rested on what has been held in that case without wastefully repeating the same. In a way the judgment in Ramdaras Ahirs case must be deemed as an integral part of the present one, nevertheless it becomes necessary to notice the salient holdings arrived at therein. It has been held -

(i) That now by precedential mandate the basic human right to speedy trial has been expressly written as if with pen and ink into the constitutional right relating to the right of life and liberty guaranteed by Article 21 of our Constitution.

(ii) That the constitutional right of speedy trial envisages an equally expeditious conclusion of a substantive appeal and not merely a technical completion of the proceeding in the original court alone.

(iii) That a grave, inordinate delay in reversing an acquittal on a capital charge, though not identical, is yet in a way akin to similar delay in the execution of a capital sentence.

(iv) That a horrendous delay, extending beyond a decade in a criminal trial (including a substantive appeal) on a capital charge, involving the reversal of a double presumption of innocence, would violate the constitutional guarantee of a fair, just and reasonable procedure, and, equally infract the fundamental right to a speedy trial vested in an accused under Article 21.

(v) That American decisions on the Sixth Amendment to the American Constitution with regard to accuseds right to speedy and public trial would now have a direct bearing under Article 21 of our Constitution :

(vi) That once a constitutional guarantee to speedy trial and the right to a fair, just and reasonable procedure has been violated, then the accused is entitled to unconditional release and the charges against him would fall to the ground :

(vii) That a callous and inordinately prolonged delay of 10 years or more, which, in no way arises from the accuseds default (or is otherwise not occasioned due to any extraordinary and exceptional reasons), in the context of the reversal of a clean acquittal on a capital charge, would plainly violate the constitutional guarantee of a speedy trial under Article 21.

6. Mr. Pandey, the learned counsel for the appellant, State of Bihar, assailed the foundational premise of Ramdaras Ahirs case, namely, that the accuseds right to speedy and public trial flowing from Article 21 of our Constitution is identical in import with the expressly guaranteed constitutional right in the Sixth Amendment of the American Constitution. The ingenious submission made was that even though the right of speedy and public trial may now be deemed to be implicit in Article 21 by virtue of the precedents of the final Court, yet such a right in India was lesser in content and effect from what it would be in America, where it was a part of the constitution in express terms. It was submitted that the language of the Sixth Amendment to the American Constitution was conspicuous by its absence in Article 21 and has been adopted only by way of analogy by precedent. On this hypothesis it was argued that such a right in India rests on a pedestal much lower than that under the American Constitution.

7. Though one must compliment the learned counsel for the appellant for his ingenuity, it seems plain to me that within this jurisdiction no such submission can be easily countenanced, both because of the doctrine of precedent and equally because of the express mandate of Article 141. In view of the discussion in Paragraphs 9 to 14 of the judgment in Ramdaras Ahirs case it seems somewhat unnecessary to launch afresh on a dissertation upon the enlarged and expanded concept of Article 21 by virtue of the recent precedents of the final court. This in a way epitomises what Lord Tennyson had said a century ago :

"Where freedom slowly broadens down, from precedent to precedent."

8. The question now is whether the enlarged and broadened concept of Article 21 would include within its wide sweep the renowned right to speedy and public trial which, indeed, is a basic human right as well. Undoubtedly, an expeditious trial is the very soul and essence of criminal justice and there can be no manner of doubt that notorious delays in such trials, if occasioned entirely by the default of the prosecution, would by themselves constitute a denial of justice. It is in recognition of this fundamental principle that way back in 1790, the Sixth Amendment to the United States Constitution had provided as follows : --

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence."

Though it is literally true that the aforesaid words have not been specifically enumerated in terms in our Article 21, yet it is now well settled that the identical right is implicit in the broad sweep and content of Article 21 as authoritatively interpreted by the Supreme Court. Therefore, for our purpose, it is necessary to examine this on principle because it seems to me as settled beyond cavil by binding precedents. In Hussainara Khatoon v. State of Bihar, : AIR 1979 SC 1360 : (1979 Cri LJ 1036), which was yet one of the series of cases from our own State arising from the notorious and heart rending delays in the context of under trials Bhagwati, J. has categorically held as follows : --

"Even a delay of one year in the commencement of the trial is bad enough; how much worse could it be when the delay is as long as 3 or 5 or 7 or even 10 years. Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial of justice. It is interesting to note that in the United States, speedy trial is one of the constitutionally guaranteed rights. The Sixth Amendment to the Constitution provides that:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial."

So also Article 3 of the European Convention on Human Rights provides that:

every one arrested or detained shall be entitled to trial within a reasonable time or to release pending trial.

We think that even under our Constitution though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by this court in Maneka Gandhi v. Union of India (: AIR 1978 SC 597 ). We have held in that case that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be reasonable, fair and just. If a person is deprived of his liberty under a procedure which is not reasonable, fair or 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. Now obviously procedure prescribed by law for depriving a person of his liberty cannot 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 ensure a 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 is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21".

In the succeeding case of the series Hussainara Khatoon v. State of Bihar, : AIR 1979 SC 1369 : (1979 Cri LJ 1045), it was again reiterated as under:

"Speedy trial is, as held by us in our earlier judgment dated 26th February, 1979, an essential ingredient of reasonable, fair and just procedure guaranteed by Article 21 and it is the constitutional obligation of the State to devise such a procedure as would ensure speedy trial of the accused."

The aforesaid view was reiterated by Chinnappa Reddy, J. speaking for the Court in State of Maharashtra v. Champalal Punjaji Shah, : AIR 1981 SC 1675 : (1981 Cri LJ 1273). Yet again in T. V. Vatheeswaran v. State of Tamil Nadu, : AIR 1983 SC 361 (2) : (1983 Cri LJ 481), it was observed as follows : --

"The fiat of Article 21, as explained is that any procedure which deprives a person of his life or liberty must be just, fair and reasonable. Just, fair and reasonable procedure implies a right to free legal services where he cannot avail them. It implies a right to a speedy trial. It implies humane conditions of detention, preventive or punitive. Procedure established by law does not end with the pronouncement of sentence; it includes the carrying out of sentence. That is as far as we have gone so far."

In the light of the aforesaid long line of unbroken precedents of the final court itself, it is not possible for one to hold that even though it has been declared now in categorical terms that the right of speedy and public trial is as much a constitutional right in India under Article 21 as it is in America under the Sixth Amendment to the Constitution, yet here its content or effect would be in a way different or lesser. That no qualification or precondition has been laid out by their Lordships of the Supreme Court whilst unreservedly importing the Sixth Amendment within the sweep of Article 21 seems manifest. On the doctrine of binding precedent, therefore, it must be held that the basic human right of speedy trial is virtually written with pen and ink into the constitutional right relating to the right to life and liberty guaranteed by our Article 21.

9. Even if any doubt remains in this context, it would stand dispelled by Article 141 of our Constitution which says that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. In a way so far as the judgments of the Supreme Court are concerned, constitutional sanction is given to their binding nature. To my mind, the judgments referred to above have declared in uncompromisingly categorical terms that the right to speedy and public trial is a constitutional guarantee under Article 21 and, therefore, the weight and content of that right cannot be whittled down or debased. In this context it is well to remind oneself of the succinct observation of Viscount Cave, Lord Chancellor in the House of Lords decision in 1927 AC 827 (Jones v. South West Lancashire Coal Owners Association Limited,) : --

"My Lords, when a question of law has been clearly decided by this House, it is undesirable that the decision should be weakened or frittered away by fine distinctions."

Therefore, the contention that we must in a way read down the right of speedy and public trial in India and consequently put it at a lower pedestal because it is not written in so many words in our Constitution as it is in the Sixth Amendment of the American Constitution, must be rejected.

10. To conclude on this aspect, the answer to the question posed at the very outset is rendered in the affirmative and it is held that the constitutional right of the accused to a speedy and public trial in all criminal prosecutions now flowing from Article 21 of the Constitution by virtue of precedential mandate is identical in content with the express constitutional guarantee inserted by the Sixth Amendment in the American Constitution.

11. The learned Advocate-General, Mr. Ram Balak Mahto, with his usual lucidity had confined himself to lay challenge to only two of the propositions in Ramdaras Ahirs case . With regard to what would be the inevitable legal consequences of the infraction of the constitutional right to speedy and public trial, he took the stand that these consequences pertain to the realm of sentence alone, and not to total dismissal of the charge of the vacation of the sentence imposed. Herein the learned Advocate General highlighted the fact that the right of the accused to a speedy and public trial was counter balanced by the obligation of the State to expeditiously try serious offenders and bring them to book. Herein he emphasised that a balance must be maintained betwixt the right of the accused, on the one hand, and the States duty, on the other. The golden mean, according to Mr. Mahto, was that even the grossest delays involve in effect the question of sentence alone, and not that of conviction. This submission was equally espoused by Mr. Pandey on behalf of the appellant State.

12. The aforesaid submission must necessarily break down on a closer analysis, both for logical reasons as also on the ground of weighty persuasive precedents. It is plain that the right of speedy and public trial does hot arise or depend on the conviction and sentence of the accused. Barring exceptions (where it may be invoked even after conviction), such right indeed arises normally before any conviction or sentence is recorded. An accused person on the ground of inordinate delay should claim the right long before the conclusion of the trial and before the stage of holding him guilty or otherwise arises. The assumption that he must be first convicted before he can invoke such a right, and only, thereafter, he can claim some leniency in the quantum of sentence at the stage of its imposition or later in the appellate forum has, therefore, to be categorically rejected. In the case of gross and inordinate delay in trial Court itself, it is open to the accused to invoke the claim that the trial should be halted in its tracks because his constitutional right stands plainly infracted. It is not open to the prosecution to suggest that despite the violation of the constitutional guarantee, the belated trial must continue and on the outlying chance of a conviction being recorded, some benefit in the imposition of sentence be given for violating the right which has been declared as both a human right and a constitutional one. Plainly enough, therefore, the ingenuous argument of merely compensating the constitutional right of speedy and public trial by some leniency on the point of sentence must logically break down.

13. In India, there appears to be an acute and, indeed total paucity of precedents on the point of legal consequences that must flow in the wake of violation of the constitutional guarantee of speedy and public trial. The question was pointedly raised in Hussainara Khatoons case : AIR 1979 SC 1360 : (1979 Cri LJ 1036), but was not answered in terms. However, the possibility of the accused being entitled to be released unconditionally from the charge levelled against him was distinctly visualised and seems to have been implicitly recognised. However, the issue has been the subject-matter of consideration in the American Courts, and as would be shown later, these precedents on the Sixth Amendment would be applicable and attracted to the situation. The question in a way (though not frontally) came to be considered by the United States Supreme Court in Willie Mae Barker v. John W. Wingo (1972) 33 Law ed 101, itself. However, the later authoritative enunciation of the United States Supreme Court in Clarence Eugene Strunk v. United States (1973) 37 Law ed 56 concluded the matter in the following terms :

"The Governments reliance on Barker to support the remedy fashioned by the Court of Appeals is further undermined when we examine the Courts opinion in that case as a whole. It is true that Barker described dismissal of an indictment for denial of a speedy trial as an unsatisfactorily severe remedy. Indeed, in practice, it means that a defendant who may be guilty of a serious crime will go agog (free), without having been tried. (1972) 407 US 514 : 33 Law dd 101. But such severe remedies are not unique in the application of constitutional standards. In light of the policies which underlie the right to a speedy trial, dismissal must remain, as Barker noted, the only possible remedy. "Ibid".

14. To summarise on this aspect, the appellant States stand that the violation of the right of speedy and public trial pertain to the realm of sentence alone must be rejected, both on principle and precedents. It must be held that once the constitutional guarantee of speedy trial and the right to a fair, just and reasonable procedure under Article 21 has been violated, then the accused is entitled to an unconditional release and the charges levelled against him would fall to the ground.

15. Inevitably, an allied issue which pointedly arises is whether the American precedents on the Sixth Amendment would now be attracted in the context of this aspect under Article 21. It was sought to be contended somewhat half heartedly on behalf of the appellant State that it would be impermissible to draw any aid from the mass of American precedents on the Sixth Amendment of their Constitution. This submission, in my view, is indeed wholly untenable. Having held as above that the constitutional right of the accused to speedy and public trial under Article 21 in India is identical in content with that under the Sixth Amendment of the American Constitution, it would follow a fortiori that American precedents on the point would become identically applicable on this facet of Article 21. Indeed no meaningful argument could be urged on behalf of the appellant as to why the judgments of the Supreme Court of America would not be attracted as persuasive precedent, once the foundational basis of the Sixth Amendment and Article 21 have been held to be identical in content.

16. This matter may well be examined from another refreshing angle as well. There is a similar identity or in any case similarity betwixt Article 14 of our Constitution and the equal protection clause of the 14th Amendment of the American Constitution. Because of this, American precedent on the 14th Amendment has for long been attracted and relied upon in the interpretation of Article 14. Way back in : AIR 1960 SC 1125 : (1960 Cri LJ 1504), State of Uttar Pradesh v. Deoman Upadhayaya, the Constitution Bench observed as follows at p. 1131 (of AIR) : (1511 of Cri LJ):

"Article 14 of the Constitution of India is adopted from the last clause of Section 1 of the 14th Amendment of the Constitution of the United States of America and it may reasonably be assumed that our Constituent Assembly when it enshrined the guarantee of equal protection of the laws in our Constitution, was aware of its content delimited by judicial interpretation in the United States of America. In considering the authorities of the superior courts in the United States we would not therefore be incorporating principles foreign to our Constitution, or be proceeding upon the slippery ground of apparent similarity of expressions or concepts in an alien jurisprudence developed by a society whose approach to similar problem on account of historical or other reasons differ from ours."

J. C. Shah, J. speaking for the majority, after sanctifying reliance on the American precedents, proceeded to cite and quote with approval three decisions of the United States Supreme Court in that context. Even Subba Rao, J. in his dissenting judgment equally placed reliance on the American precedents on the 14th Amendment for interpreting Article 14. Earlier Chief Justice, Das in Ram Krishna Dalmia v. S. R. Tendolkar, : AIR 1958 SC 538 had culled out the rule of construction of the equality clause in the context of the principles of classification from the various decisions of the Supreme Court of the United States of America. Much water has flown down the bridges since the aforesaid decisions and consistently therewith in innumerable cases American precedent under the equal protection clause has not only been repeatedly referred to approvingly, but have been a sound source for interpretation of Article 14. In the recent Division Bench judgment of this Court in C.W. J.C. No. 337 of 1985 (R) (Kishan Maheshwari v. State of Bihar) decided on 10th May, 1985, it has been held after an exhaustive discussion that American precedents on the right of franchise and equal protection clause of the 14th Amendment would be directly attracted to the identical situation by virtue of Article 14.