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PETITIONER: SHAHEEN WELFARE ASSOCIATION

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       27/02/1996

BENCH: MANOHAR SUJATA V. (J) BENCH: MANOHAR SUJATA V. (J) AHMADI A.M. (CJ)

CITATION:  1996 SCC  (2) 616        JT 1996 (2)   719  1996 SCALE  (2)481

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Mrs.Sujata V.Manohar,J.      This is  a public  interest  litigation  in  which  the petitioner has  prayed for  certain  reliefs  to  undertrial prisoners  charged   under  the   Terrorist  and  Disruptive Activities (Prevention)  Act, 1987  (hereinafter referred to as ’TADA’).  The petitioner  has asked,  inter alia,  for  a direction  that  the  respondents  should  file  a  list  of detentes lodged  in jails in different States under TADA and has asked  for a  direction for the release of TADA detentes against whom proper evidence is not with the prosecution and where proper procedure prescribed under law is not followed.      Under orders  passed from time to time in this petition the States  of Gujarat, Rajasthan and Maharashtra as well as the  Central   Government  have   filed  affidavits   giving information relating  to the  number  of  cases  under  TADA pending in  different Designated Courts in various States of the country.  We have also been furnished with the Statewise numbers of  Designated Courts constituted under TADA. In the affidavit filed  on behalf  of the  Union of  India by  Shri A.K.Shrivastava,  Deputy  Secretary  to  the  Government  of India, Ministry  of Home  Affairs, New Delhi, a statement is annexed showing  live cases  under TADA  and the  number  of Designated Courts in different States and Union Territories. The statement is as follows: Sr.Name of the State/UT  No. of live cases  No. of Desig- No.                      under TADA         nated Courts --------------------------------------------------------- (1)       (2)                 (3)                 (4) ---------------------------------------------------------- 1.    Andhra Pradesh          1937                61 2.    Arunachal Pradesh         15                11 3.    Assam                   2908                 1 4.    Bihar                      4                35 5.    Gujarat                   72                18

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6.    Haryana                  348                 8 7.    Himachal Pradesh           5                 3 8.    Jammu & Kashmir         5041                 4 9.    Karnataka                 25                19 10.   Kerala                    --                 1 11.   Manipur                  603                 4 12.   Madhya Pradesh            76                10 13.   Maharashtra              244                 8 14.   Meghalaya                  8                 1 15.   Punjab                  2248                18 16.   Rajasthan                 77                 1 17    Tamil Nadu                26                 5 18.   Uttar Pradesh             39                15 19.   West Bengal                1                18 20.   Chandigarh Admn.           9                 2 21.   Delhi                    759                 4 22.   Goa                        1                 1 ------------------------------------------------------------                      Total:- 14446               248 ------------------------------------------------------------ Thus, for  example, in the State of Assam the number of live cases are  2908. There  is only  one Designated Court to try all these  cases. In  Jammu &  Kashmir, there  are only four Designated Courts  for trial  of 5041  cases.  In  Rajasthan there is only one Designated Court for the trial of 77 cases while in  Delhi there  are four  Designated Courts  for  the trial of  759 pending cases. The number of Designated Courts is also  somewhat deceptive in the sense that in some States the existing  Sessions Courts  are also designated as courts under TADA,  with the  result that  these courts do not deal exclusively with  the trial  of TADA  cases. They  also deal with other  criminal cases.  Therefore, the  entire time  of such courts is not available for the trial of TADA cases. It is quite clear that in many States there is no prospect of a speedy trial  of pending  TADA cases.  A statement  which is annexed to  an earlier affidavit filed on filed on behalf of the Union  of the  Union of  India by Shri R.S.Tanwar, Under Secretary to  the Government  of  India,  Ministry  of  Home Affairs, New  Delhi, shows  that in  respect of  14446 cases under investigation  and pending trial in the various States of the country, the detentions involved are 42488, out which the number  of persons actually arrested and under detention is 59983.  Those released  on  bail  are  30357,  and  those absconding and  yet to  be arrested  are 6044. This is after taking into  account the  cases which  were revided  by  the State Review  Committees, and were either withdrawn or where charges under the provisions of TADA were dropped. The total number of  cases so reviewed comes to 9203 and the number of persons discharged from TADA provisions are 7968.      The National Human Rights Commission has also furnished a statement showing the position of TADA detentes in jail as on 30.6.1995.  While the Statewise figures given by it do no tally with  the figures  given by  the Union  of India,  the total  number  of  undertrials  in  jail  according  to  the National Human Rights Commission is 6000, (after taking into account its  corrections for  Assam, Punjab  and  Rajasthan) which is  close to  the figure of 5998 given by the Union of India.      It is  in this  context that  we have  to consider what relief can be granted to detentes under TADA. In the case of Kartar Singh  v. State  of Punjab  (1994 (3)  SCC 569)  this Court while  considering the  validity of  Section 20(8)  of TADA, has  observed that  while liberty of a citizen must be zealously safeguarded  by the courts, nonetheless the courts while dispensing  justice in  cases like  the one under TADA

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Act, should keep in mind not only the liberty of the accused but also the interest of the victims and their near and dear ones and  above all the collective interest of the community and the safety of the nation so that the public may not lose faith in  the system  of judicial administration and indulge in private retribution. It also observed that the invocation of the  provisions of  TADA in  cases, the facts of which do not war  f ant  its invocation,  is nothing but sheer misuse and abuse of the Act by the police.      Looking to  the nature  of the  crime and the paramount interests of the society this Court held that the conditions imposed  under   Section  20(8)  for  the  release  of  TADA undertrials on  bail did  not violate  Articles 14 and 21 of the Constitution.  It,  however,  gave  directions  for  the constitution of  Review/Screening committees  in each  State and at the Center to ensure that the provisions of TADA were correctly invoked in the cases pending before the Designated Courts. The  purpose of  constituting such committees was to ensure a higher level of scrutiny regarding applicability of the provisions  of TADA  to the  case in point. The need for such committees is amply borne out by the results which have been  annexed in  the affidavits filed on behalf of the Union of  India before us relating to the number of cases so reviewed by  the Review  Committees where  it has been found that the  provisions of TADA ought not to have been applied. We are,  however, sorry to note that not a single case filed by  C.B.I.   has  been   so  reviewed  although  the  Review Committee, it  is said,  has examined  all the cases. A more independent and  objective scrutiny  of  these  cases  by  a Committee headed by a retired judge is obviously necessary.      Inspite of  such review, from the figures which we have cited above,  it is clear that there is very little prospect of a  speedy trial of cases under TADA in some of the States because of  the absence  of an adequate number of Designated Courts even  in cases where a chargesheet has been filed and the cases  are ready for trial. We are conscious of the fact that even  the trial  of ordinary  criminal cases  does take some time  because of  the courts being overloaded with work and the  concept of a speedy trial in the case of TADA cases must be  viewed in  the context  of pendency  in relation to criminal trials also. But when the release of undertrials on bail is severely restricted as in the case of TADA by virtue of the  provisions of  Section 20(8)  of  TADA,  it  becomes necessary that  the trial does proceed and conclude within a reasonable time.  Where this  is not  practical, release  on bail which  can be  taken to  be embedded  in the right of a speedy trial  may, in  some cases,  be necessary to meet the requirements of Article 21.      It was  on this basis that in the case of Supreme Court Legal Aid  Committee Representing  Undertrial  Prisoners  v. Union of  India &  Ors.  (1994  (6)  SCC  731),  this  Court considered similar  provisions restricting the grant of bail under Narcotic  Drugs and  Psychotropic Substances Act, 1985 and directed  release of  undertrials  on  bail  in  certain situations and  subject to  the terms and conditions set out there. The Court while doing so observed, (p.748): "........ we have  felt  that  deprivation  of  the  personal  liberty without  ensuring   speedy  trial   would  also  not  be  in consonance with  the right  guaranteed  by  Article  21.  Of course, some  amount  of  deprivation  of  personal  liberty cannot be  avoided in  such cases;  but  if  the  period  of deprivation pending  trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum

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punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualized by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters."      It is  in this  context that it has become necessary to grant some relief to those persons who have been deprived of their personal  liberty for  a considerable  length of  time without any  Prospect of  the trial  being concluded  in the near future. Undoubtedly, the safety of the community and of the nation  needs to be safeguarded looking to the nature of the offences  these undertrials  have been charged with. But the ultimate  justification for  such deprivation of liberty pending trial  can only  be their  being found guilty of the offences for which they have been charged. If such a finding is not likely to be arrived at within a reasonable time some relief becomes necessary.      The petition  thus poses  the  problem  of  reconciling conflicting claims of individual liberty versus the right of the community  and the  nation to safety and protection from terrorism and  disruptive activities.  While it is essential that innocent people should be protected from terrorists and disruptionists, it  is equally necessary that terrorists and disruptionists are  speedily tried and punished. In fact the protection  to  innocent  civilians  is  dependent  on  such speedily trial  and punishment. The conflict is generated on account of  the gross  delay in  the trial  of such persons. This delay  may contribute  to absence of proper evidence at the  trial  so  that  the  really  guilty  may  have  to  be ultimately acquitted.  It also  causes irreparable damage to innocent persons  who may  have been  wrongly accused of the crime and  are ultimately  acquitted, but who remain in jail for a  long period  pending trial  because of  the stringent provisions regarding  bail under  TADA. They  suffer  severe hardship and their families may be ruined.      Bearing in mind the nature of the crime and the need to protect the  society and  the nation, TADA has prescribed in Section 20(8)  stringent provisions  for granting bail. Such stringent provisions  can be justified looking to the nature of the crime, as was held in Kartar Singh’s case (supra), on the presumption  that the  trial of  the accused  will  take place without undue delay. No one can justify gross delay in disposal of  cases when undertrials perforce remain in jail, giving  rise   to  possible   situations  that  may  justify invocation of Article 21.      These competing  claims can  be reconciled  by taking a pragmatic approach.      The proper course is to identify from the nature of the role  played  by  each  accused  person  the  real  hardcore terrorists or  criminals from  others who  do not  belong to that category;  and apply the bail provisions strictly in so far as  the former  class  is  conceived  and  liberally  in respect of  the latter class. This will release the pressure on the  courts in the matter of priority for trial. Once the total number  of prisoners  in jail shrinks, those belonging to the  former class  and, therefore,  kept in  jail can  be tried on  a priority  basis. That would help ensure that the evidence against  them does  not fade  away  on  account  of delay. Delay may otherwise harm the prosecution case and the harsh  bail   provisions  may  prove  counter-productive.  A pragmatic  approach   alone  can  save  the  situation  for, otherwise, one  may find that many of the undertrials may be found to  have completed  the maximum punishment provided by law by  being in jail without a trial. Even in cases where a

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large number of persons are tied up with the aid of Sections 120B or  147, I.P.C.,  the role of each person can certainly be evaluated for the purpose of bail and those whose role is not so serious or menacing can be more liberally considered. With inadequate  number of courts, the only pragmatic way is to reduce  the prison  population of  TADA detentes and then deal with  hardcore undertrials on priority basis before the evidence fades  away or  is lost. Such an approach will take care of  both the  competing interests. This is the approach which we recommend to courts dealing with TADA cases so that the real culprits are promptly tried and punished.      For the  purpose of  grant of bail to TADA detentes, we divide the  undertrials  into  three  classes,  namely,  (a) hardcore  undertrials  whose  release  would  prejudice  the prosecution case  and whose liberty may prove to be a menace to  society   in  general   arid  to   the  complainant  and prosecution witnesses  in particular;  (b) other undertrials whose overt  acts or involvement directly attract Sections 3 and/or 4  of the TADA Act; (c) undertrials who are roped in, not because  of any  activity directly attracting Sections 3 and A,  but by  virtue of Sections 120B or 147, I.P.C., and; (d)   those    undertrials   who   were   found   possessing Incriminating articles  in notified  areas  and  are  booked under Section 5 of TADA.      Ordinarily, it  is true that the provisions of Sections 20(8) and  20(9) of  TADA would  apply to  all the aforesaid classes. But  while adopting  a pragmatic and just approach, no one  can dispute  the fact  that all  of them  cannot  be dealth with  by the  same  yardstick.  Different  approaches would be  justified on  the basis  of  the  gravity  or  the charges. Adopting  this approach  we are of the opinion that undertrials falling  within group (a) cannot receive liberal treatment. Cases  of undertrials  falling in group (b) would have to  be differently  dealt within. in that, if they have been in prison for five years or more and their trial is not likely to  be completed within the next six months, they can be released on bail unless the court comes to the conclusion that their  antecedents are  such that releasing them may be harmful to  the lives  of the complainant the family members of the  complainant,  or  witnesses.  Cases  of  undertrials falling in  groups (c)  and (d)  can be dealt with leniently and they can be released if they have been in sail for three years and two years respectively. Those falling in group (b) when released  on bail  may be  released on bail of not less than Rs.50,000/-  with one  surety for like amount and those falling in  groups (c)  and (d)  may be  released on bail on their executing  a bond  for Rs.30 000/- with one surety for like amount subject to the following terms:      (1) the accused shall report to the      c  police station once a week;      (2) the accused shall remain within      the area  of  jurisdiction  of  the      Designated Court  pending trial and      shall not  leave the  area  without      the permission  of  the  Designated      Court;      (3) the  accused shall  deposit his      passport,  if   any      with   the      Designated Court.  If he  does  not      hold a  passport he  shall file  an      affidavit to  that   effect  before      the    Designated     Court.    The      Designated Court  may ascertain the      correct position  from the passport      authorities  if   it     deems   it

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    necessary;      (4) The Designated Court will be at      liberty to  cancel the  bail if any      of these  conditions is violated or      a case  for cancellation of bail is      otherwise made out.      (5)   Before granting bail a notice      shall  be   given      The   public      prosecutor and an opportunity shall      be  given  to  him  to  oppose  the      application or  such  release.  The      Designated Court  may  refuse  bail      in-very special  circumstances  for      reasons to be recorded in writing.      These conditions may be relaxed in cases of those under groups (c)  and (d) and, for special reasons to be recorded, in the  case of  group (b)  prisoners. Also these directions may not  be applied by the Designated Court in exceptionally grave cases  such as  the Bombay  Bomb Blast  Case  where  a lengthy  trial  is  inevitable  looking  to  the  number  of accused, the  number of  witnesses and the nature of charges unless the  court feels  that  the  trial  is  being  unduly delayed. However,  even in  such cases  it is essential that the Review  Committee examines the case against each accused bearing the  above directions  in mind,  to ensure that TADA provisions are not unnecessarily invoked.      The above  directions are a one-time measure meant only to alleviate the current situation.      When stringent provisions have been prescribed under an Act such  as TADA for grant of bail and a conscious decision has been  taken by  the legislature  to  sacrifice  to  some extent, the  personal liberty  of an  undertrial accused for the sake  of protecting the community and the nation against terrorist and  disruptive  activities  or  other  activities harmful to  society, it  is  all  the  more  necessary  that investigation of  such crimes  is done  efficiently  and  an adequate number  of Designated Courts are set up to bring to ok persons  accused of such serious crimes. This is the only way in  which  society  can  be  protected  against  harmful activities. This  would also  ensure that persons ultimately found innocent  are not  unnecessarily kept in jail for long periods. It  is unfortunate  that none of the States to whom notices have  been issued by us nor the Union of India, have come forward  to state  that they  would set  up an adequate number of  Designated Courts  in each  State so  that  cases pertaining to  TADA can  be speedily  disposed of.  This has necessitated the above order as a one-time measure.      With  the   above  directions,  the  writ  petition  is disposed of.